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The Oh Law Firm and its Lawyers are not responsible for reliance by the reader on this information as each individual situation may be unique and different. The readers are advised to seek legal counsel from a qualified immigration attorney. The information stated here is subject to change.

 

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140/485 Concurrent filing and Consequences of 140 denial/appeal on 485: The I-485 "Standard Operating Procedure" manual has provisions that say the I-485 should not be denied in concurrent filing cases where the I-140 was denied but has been appealed. Not the same as your case, but it's still support for arguing the I-485 should not be denied while the I-140 revocation/denial/whatever is on appeal. See AILA Doc. No. 01092834-- a very long PDF document; the relevant page is numbered "5-1" at the bottom, somewhere around pages 70-100 of the document.

Preconceived Intent and USC Case: If immediate relative, tell the INS officer to read his INS Operations Manual at OI 245.3(b)
"In the absence of other adverse factors, an application for adjustment of status as an immediate relative should generally be granted in the exercise of discretion notwithstanding the fact that the applicant entered the United States as a nonimmigrant with a preconceived intention to remain. Matter of Cavazos, Int. Dec. 2750 (BIA 1980) clarified and reaffirmed. Matter of Ibrahim, Int. Dec. 2866 (BIA 1981)."

245(i) Filing Tolls 3/10 yr bar Running: It is not in the INA or regs, but is INS's current position. INS Memo from Johnny Williams, Executive Associate Commisioner, Office of Field Operations dated June 12, 2002 says time while a properly filed affirmative application for adjustment of status is pending is considered lawful presence. It does not matter whether in status before filing.

SSA Earnings Statement for 40 requirement for replacement of I-864

864 Income Requirement at the time of Interview and not at the time of 485 filing: INS memo (amended version) 70/23.1 Mar. 7, 2000, posted on AILA InfoNet at Doc. No 00032704 (Mar. 27, 2000). It's at the time of interview in NYC which will be two years into the future. If the beneficiary lives in the household for 6 months, his income can be included. If the petitioner and beneficiary have been living together for more than six months the beneficiary can file Form I-864A as "Sponsored Immigrant/Household Member" and they can include both petitioner and beneficiary's income if that would help to get them over the limit. Be advised that disability income can be used toward meeting the poverty guidelines. if the only alien immigrating is the spouse of the USC sponsor (no alien kids also getting LPR), then no I-864A needs to be signed by the alien spouse. sometimes the officers aren't well trained so will insist on the FN signing the I-864A. I've had this happen when the USC had USC kids (different relationship), and the FN's income was needed to bring the household income up.

864 - Failue to file tax return by usc: The I-864 instructions and regs at 8 CFR 213A require either that copies of the USC's 3-years of tax returns be attached, or an explanation given why tax returns were not filed. That requirement applies regardless of whether a joint sponsor is used. While having no income is a valid reason for not filing a tax return, if he just didn't want to pay income tax in the US, that probably won't fly. Suggest filing retroactive tax returns and then copies of those with the 864. Best he consult a tax lawyer about the advisability of doing that, though, since there are probably penalties he'll have to pay as well.

864: Liability for Medicaid: The I-864 form itself, p. 5, lists states that the sponsored alien will not be eligible, for period of 5 years for "mean-tested public benefits" but states that this does not include emergency Medicaid. In the NYC-area, to my knowledge, hospitals, at least public ones that serve large immigrant populations, can sometimes classify the medical condition as an 'emergency' in order to charge the services under the provisions for 'emergency Medicaid', and thus provide services to an aline who would not otherwise be eligible for (regular) Medicaid. But even if they do provide such services under 'emergency Medicaid' I think that the agency administering the Medicaid (in most areas somehow connected to the local welfare office) may seek re-imbursement from the I-864 sponsor. Just how actively the local Medicaid office may pursue such an action probably varies among jursidictions. Unfortunately, you're facing a conflict of interest between Mom, who may be able to access some services, and son, who may be sued for re-imbursement. A legal services office in your area could probably best advise Mom as to how to access medical services but I don't know if they would, at the same time, advise son as to how likely he is to be sued.

Deadth of FB Petitioner and Retention of Priority Date if filed by another petitioner on Reinstatement Provision: Infonet Doc. No. 02120941 -- assuming you've crossed the hurdle of getting the deceased petitioner's I-130 reinstated under 8 CFR 205.1 for "humanitarian reasons", which the memo cited above mentions.

140/485 concurrently filed and 140 denial and consequences:There is a HUGE document on InfoNet called INS I-485 Standard Operating Procedure (Doc. No. 01092834). Look at section 5-1. There it is stated that the 485 "should not be denied while an appeal on the I-140 is pending." My understanding is that the CSC is walking away from that SOP, but I don't know if they are or if they can. Also look at 8 CFR sec. 274a.12(c)(9), which states that adjustment applicants with EAD's are entitled to renew their EADs in one-year increments "including any period when an administrative appeal. . . is pending." There was also an INS general counsel opinion from 1991 that states that while the I-140 appeal is pending, the 485 should not be denied.

Nurse Schedule A and Notice Posting Requirement: 20 CFR 656.22(b)(2) says when filing the ETA-750 directly to INS, it must include a posting notice. I've included one when I've filed I-140s for nurses at NSC. Assuming no union, I would say just throw up one real quick for 10 days and send it in to INS

Restaurant ability to pay solution: The financial backing needs to be shown on a balance sheet. A line of credit is an off- balance sheet financial instrument. The owner can borrow from the LC and then make a capital contribution to the restaurant with the proceeds. Then the $ will show up on a balance sheet.

CSPA: CSPA is not retroactive and applies only to children who aged out after 8/6/2002. The only exception is if the petition was pending on or after 8/6/2002; or the petition was approved before 8/6/2002, but no final determination was made on the beneficiary's application for and IV or adjustment. Your client clearly falls within the second exception. NVC is wrong and should have sent you the IV packet. Write or call them again and ask for it!!

CSC Fax Inquiry (03/14/03): fax to =

the below number.

(949)389-3055 I-131, I-140, I-360, I-485, I-526, I-829
(949)389-3197 I-129, I-102, I-539
(949)389-3460 Non-Immigrant Premium Processing
(949)389-3482 I-130, I-129F, I-751
(949)389-3484 I-765, I-821, I-817, I-90SAW, N400
(949)389-3483 Legalization
(949)389-3485 I-90, I-212, I-612, I-824, NACARA I-881

Follow-up Fax Inquiry:After fifteen days, you may contact the
California =

Service Center, Division XII for assistance.

(949)389-3486 I-131, I-140, I-360, I-485, I-526, I-829
(949)389-3402 I-129, I-102, I-539
(949)389-3219 I-130, I-129F, I-751
(949)389-3198 I-765, I-821, I-817, I-90SAW, N400, Legalization
(949)389-8690 I-90, I-212, I-612, I-824, NACARA I-881
(949)389-8691 "Green Card" Issues
Unemployment Compensation and Public Charge Definition: The (former) INS Field Guidance on Deportability and Inadmissibility on Public
Charge Grounds provided that

"``public charge'' means an alien who has become (for deportation purposes) or who is likely to become (for admission/adjustment purposes) ``primarily dependent on the government for subsistence, as demonstrated by either (i) the receipt of public cash assistance for income maintenance or (ii)
institutionalization for long-term care at government expense.''

"Public cash assistance means income or needs-based monetary assistance. ...It does not include ...work-related compensation." 8 C.F.R. § 210.1(n), a term which Immigration Law and Procedure, Section 53.02(c)(2)(c)(iii), considers to include unemployment compensation. Likewise the Field Guidance states that ", cash payments that have been earned, such as Title II Social Security
benefits, government pensions, and veterans' benefits, among other forms of earned benefits, do not support a public charge
determination." Since unemployment compensation payments are derived in part from payroll deduction, they appear to fall within this earned benefits exception.

Thus it appears that accepting unemployment compensation should not be considered evidence that an applicant for adjustment of status is a public charge.

Of course if both spouses are unemployed at the time of adjustment of status, they may not have sufficient assets to indicate that they will not be public charges. Still "A healthy person in the prime of life cannot
ordinarily be considered likely to become a public charge, especially where he has friends or relatives in the United States
who have indicated their ability and willingness to come to his assistance in case of an emergency/" Matter of Martinez-Lopez, 10 I&N 409, 421-422 (AG, Jan. 6,
1964), quoted in the Field Guidance at nt 5.

Finally, the fact that the applicants may not be maintaining status as a result of these layoffs should not be a basis for a denial of adjustment of status, since according to Pearl Chang's letter of March 13, 1997 to H. Ron Klasko, one need not continue to maintain a lawful nonimmigrant status after the filing of an I-485.

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Michael Piston

CPR and AOS with another petition: BIA held, in Matter of Stockwell, that an expired CPR was not barred from a new adjustment by 245(d). That section bars someone who "is" a CPR from adjusting; if CPR expires, according to the Board, the person no longer "is" a CPR. INS tried to reverse Stockwell with a proposed rule in 1997 or so, but it never went anywhere.

Withdrawal Notice to Agency: a pink slip form G-29 which is a notice of withdrawal essentially(w/copy to client)firing the client

TCN Processing as of March 2003: A. U.S.-based TCNs may not apply for NIVs at the border posts if they are from any of the seven “state sponsors of terrorism” (Cuba, Iran, Iraq, Syria, Sudan, North Korea, and Libya) or if there are subject to any of the other Special Processing Requirements imposed after September 11, 2001. U.S.-based TCNs may not apply at the border posts if they are out of status.

Border Posts in Mexico:

Consulate Matamoros, Consulate Nogales, and Consulate Nuevo Laredo accept NIV applications from U.S.-based TCNs in all categories except B, E, K, and V. In some instances, these posts decide to accept E visa cases based on a review of documents submitted in advance. Please note that all NIV services at Consulate Nuevo Laredo have been temporarily suspended since January 29. The Consulate plans to reopen as soon as possible.

Consulate General Ciudad Juarez accepts NIV applications from U.S.-based TCNs only in the F-1 category for continuing students in a full-time degree program who can demonstrate that their initial F-1 or B-2 Prospective Student visa was issued in their home country.

Consulate General Tijuana accepts NIV applications from U.S.-based TCNs in all categories, except E visas.

Posts in Canada:

Consulate General Calgary accepts NIV applications from U.S.-based TCNs in all categories except E, K and V.

Consulate General Halifax accepts NIV applications from U.S.-based TCNs only in the B, F, and G categories.

Consulate General Montreal accepts NIV applications from U.S.-based TCNs only in the B, F, H, J, L, O, P, and R categories.

Embassy Ottawa accepts NIV applications from U.S.-based TCNs in all categories except E and V.

Consulate General Quebec accepts NIV applications from U.S.-based TCNs only in the B, F, J, M, and R categories.

Consulate General Toronto accepts NIV applications from U.S.-based TCNs in all categories except K and V.

Consulate General Vancouver accepts NIV applications from U.S.-based TCNs in all categories except E, K, and V.

Florida SWA: In Florida, the web site is http://myfloridajobs.org. It's sort of informative. Check it out first, then call them on the phone for more detailed information & to confirm that the particular newspaper & number of ads are acceptable. The phone number is 850/921-3367.

Part-time Employment Pending I-485: as to the fact that alien does not have to be working full-time while the I-485 is pending, you are 100% right. See May 9, 2000 Michael Pearson memo, printed in 77 Interpreter Releases 716 (may 26, 2000), not sure if it's in Infonet, but if you need it I'll fax it to you, it's so on point for what you want. To quote: "While the INTENT to work for the petitioning employer is a requirement for approval of the I-485, there is NO legal requirement that the beneficiary of an approved employment-based visa petition work for the sponsoring employer BEFORE receiving permanent resident status." It's a gem.

Newly Acquired Affiliate: A US company just purchased all the stocks of a foreign company. Within a week thereafter, the US company decided to transfer an executive of the foreign company , who had worked there for many years, to the US. I read the regulations to allow that as an L petition even though the Parent-Subsidiary relationship had been for a few weeks only. Had anyone had different experience or had read different interpretation by the INS ?
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N. Peter Antone

 

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Thao Nguyen
Member

posted April 14, 2003 05:49 PM
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You are correct on this. See INS CO letter of 11/17/1992 from Jacquelyn Bernardz. It should be reprinted in Interpreter Releases 3/22/1993 pages 410-411. Also you can read it in the Matthew Bender's treatise written by Gordon/Mailman/Yale-Loehr, Section 24.06[2]
DOL Disclosure Sites: H-1B www.flcdatacenter.com/casesearch.asp; Permanent Labor www.flcdatacenter.com/casesearchperm.asp
TSC Address Change/Attorney Change Report Box: P.O. Box 850891, Mesquite, Texas 75185-0891.
TSC I-551 Card Trace E-Mail Address: card.push.tsc@usdoj.gov

NSC Attorney Address Change Notice Rule: The fastest way for an attorney to get his or her address changed (provided the electronic record shows there's a G-28 in the file) at the NSC is to send a letter which lists all their cases to PO Box--87865, Lincoln, NE. Please note this box is administered by the contractor, so it's IMPERATIVE that attorneys not ask ANY questions pertaining to case status in the change of address correspondence. Doing so will slow the processing of both their change of address and the inquiry.

Attorneys who wish to submit written case inquiries should send completely separate correspondence to the CCS PO Box 82521 Lincoln, NE 68501-2521. If someone insists on combining case inquiries with address changes, they too, should be sent to the CCS PO Box. However, this is a poor way to change address since it will not be handled nearly as expeditiously as sending separate change of address correspondence to the COA PO box.

ImmTalk@yahoogroups.com

DHS 100-Day Progress Report

J-1 Sponsors Responsible Officers List

Special Registration Library
H-1B Travelling in AP and H-1B Status: posted May 01, 2003 06:17 PM
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H-1B with current visa and AP can enter under either.
From INS memo. InfoNet Doc. No. 00051801 (5/18/00):

Q 3. If an H-1 or L-1 nonimmigrant has traveled abroad and was paroled into the United States via advance parole, the alien is accordingly in parole status. Does this interim rule allow him or her to now apply for an extension of nonimmigrant status?

A: Until the final rule is published, an alien who was an H-1 or L-1 nonimmigrant, but who was paroled pursuant to a grant of advance parole, may apply for an extension of H-1 or L-1 status, if there is a valid and approved petition. If the Service determines the alien's application for an extension of nonimmigrant status, the decision granting such an extension will have the effect of terminating the grant of parole and admitting the alien in the relevant nonimmigrant classification.

Q 4. If an H-1 or L-1 nonimmigrant has traveled abroad and reentered the United States via advance parole, the alien is accordingly in parole status. How does the interim rule affect that alien's employment authorization?

A: A Service memorandum dated August 5, 1997, stated that an "adjustment applicant's otherwise valid and unexpired nonimmigrant employment authorization ...is not terminated by his or her temporary departure from the United States, if prior to such departure the applicant obtained advance parole in accordance with 8 CFR 245.2(a)(4)(ii)." The Service intends to clarify this issue in the final rule. Until then, if the alien's H-1 or L-1 employment authorization would not have expired, had the alien not left and returned under advance parole, the Service will not consider a paroled adjustment applicant's failure to obtain a separate employment authorization document to mean that the paroled adjustment applicant engaged in unauthorized employment by working for the H-1 or L-1 employer between the date of his or her parole and the date to be specified in the final rule.

Q 5. Should an alien returning to the United States from travel abroad who has a valid 1-512 and a valid H-1 or L-1 nonimmigrant visa be paroled in or readmitted in H-1 or L-1 status?

A: If an alien has a valid H-1 or L-1 nonimmigrant visa and is eligible for H-1 or L-1 nonimmigrant status and also has a valid Form I-512, he or she may be readmitted into H-1 or L-1 status or be paroled into the United States. It is the alien's prerogative to present either document at inspection. However, if an alien presents both a valid H-1 or L-1 nonimmigrant visa and a valid Form I-512, and the alien is eligible for the H-1 or L-1 nonimmigrant classification, the Service should inform the alien that H-1 and L-1 nonimmigrants no longer need to use advance parole to preserve pending applications for adjustment of status and should admit the alien in H-1 or L-1 nonimmigrant status. The fact that an alien has applied for advance parole and received Form I-512 does not compel him or her to use the advance parole. If the alien is not admissible as an H-1 or L-1 nonimmigrant, then he or she cannot be readmitted as an H-1 or L-1 nonimmigrant. Instead, such an alien may be paroled into the United States.

Q 6. Is an alien who has a multiple entry 1-512 and who has previously been paroled into the United States now eligible for admission as an H-1 or L-1 if he or she is still in possession of a valid H-1 or L-1 visa?

A: Yes, the alien may be admitted as an H-1 or L-1. However, aliens returning from abroad may only be admitted as an H-1 or L-1 when they have a valid H-1 or L-1 visa (unless visa exempt), remain eligible for H-1 or L-1 classification, and, where there has been a recent change of employer or extension of stay, have evidence of an approved I-129 petition in the form of a notation on the nonimmigrant visa indicating the petition number and the employer's name, or a notice of action, Form I-797, indicating approval. If they do not meet these criteria, then they use their 1-512.

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D. Jackson Chaney

AC21 H-1B Portability on Filing Consular Processing I-129H: InfoNet doc 01062031

Semiaanual Regulatory Agenda 2003-2004

Infonet Search Method: Author Topic: SEARCH FUNCTION
Laraine Ryan
Member

posted August 11, 2003 11:53 AM
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I'm not finding it to be very good. Using advanced search or quotes does not stop the search from turning up every word.
For instance, to get information on V visas. Use of "V visa" brings up every V including Roman numerals, and every Visa. Using the statute 1101(a)(15)(V) turns up 0 documents.

Is it me or is the search engine that simple?

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Laraine Ryan

 

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Dinesh Shenoy
Member

posted August 11, 2003 01:30 PM
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I fully agree-- I recall the keyword Search function in InfoNet being better, but these days if I use quotes to hone in on a specific term, it doesn't always work. e.g., a search for "alternative sponsor" pulls up documents that don't have that term in it at all, making it a guessing game which of 80 documents pulled up might have the term I searched for. Not very efficient.
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Dinesh Shenoy

 

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David Link
Member

posted August 11, 2003 07:40 PM
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FWIW, I spoke to Online Services Manager Holly Moskerintz about this in New Orleans.
She agreed that the search function is not as good as it otter be and said they are continuing to work on it. But, she did give me one very helpful hint: when searching on a multi-word phrase using quote marks, be sure to click on the 'advanced' radio button just below keyword fill-in box.

Dinesh, that technique pulled up just one document for "alternative sponsor." Laraine, try it using the INA cite: "101(a)(15)(V)"

I've had a lot better luck since using that trick, but still look forward to the day that the search engine is improved.

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David Link

 

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Dinesh Shenoy
Member

posted August 11, 2003 07:43 PM
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David, thanks, that does work better now after marking the advanced search button
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Dinesh Shenoy

 

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Laraine Ryan
Member

posted August 12, 2003 11:17 AM
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Thanks David and Dinesh for the advice and commiseration!
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Laraine Ryan

 

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Andrea Wisner
Member

posted August 15, 2003 12:14 PM
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Has anyone else experienced a problem whereby you must re-run the search from the beginning after clicking on an individual search result, as the "back" function will not bring you back to the list of results? Or is this maybe caused by the settings on my computer?
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Andrea Wisner

 

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Laraine Ryan
Member

posted August 15, 2003 01:59 PM
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I went into one of the search results and the back button got me to the list of results again. Try again, maybe it was just that day. (Computers do odd things).
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Laraine Ryan

Lying and AOS: It's up to your client to prove true identity and nationality during process of AOS. He will be required to submit an I-601 waiver of inadmissibility under 212(a)(6)(C)(i) for committing fraud to obtain an immigration benefit -- see 212(i) for waiver standards. He will have to show extreme hardship to the USC spouse in order to obtain the waiver. You should review the old case law on suspension of deportation to get an idea what is meant by "extreme hardship."
Also note that unless he last entered US lawfully and can prove so, he will not be eligible to AOS, unless he is already grandfathered under 245(i) by a prior petition.

You should submit a FOIA request under his existing A number to get a complete copy of A file, and also submit a request to FBI along with FD-258 fingerprint card and money order for $18 for his IDENT record to see whether he has any prior deportations or criminal convictions that can impact on admissibility. FBI address is: FBI, CJIS Division, Attn:SCU, 1000 Custer Hollow Rd, Clarksburg, WV 26306. FBI now requires request to send IDENT report to third parties (including attorneys) to be notarized -- client must sign request in front of notary).

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Jacquelyn Newman

Lying, TPS, EWI, AOS: Miryam Antunez de Ma
Member

posted September 05, 2002 01:31 PM
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EWI from Honduras obtained TPS shortly after arriving to the U.S. He later married a USC, I-130 was approved and he now has to go back to Tegucigalpa for consular process. He only accrued two months of unlawful presence. Am I right in thinking that he does not need a waiver for unlawful presence, since he did not accrue unlawful presence because of his TPS?
I am confused, since 212(a)(9)(B)(ii), Construction of Unlawful Presence seems to include his stay as unlawful presence, because he was "not admitted or paroled".
Thanks for your input!
Miryam Antunez de Mayolo
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Miryam Antunez de Ma

 

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Dinesh Shenoy
Member

posted September 05, 2002 05:13 PM
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Time spent in TPS does not count towards ULP. See INS memo dated 6/12/02 by Johnny Williams, and 6/17/1997 memo by Paul Virtue, both are in the InfoNet News Library. Your guy should be in good shape.
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Dinesh Shenoy

 

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Miryam Antunez de Ma
Member

posted September 07, 2002 05:54 PM
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Thank you Dinesh!
Miryam
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Miryam Antunez de Ma

 

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Suzanne Brown
Member

posted September 12, 2002 01:42 PM
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INS recently released a memo that says that even the time after applying & before the grant of TPS is considered lawful for 212(a)(9)(B). This is a new interpretation of the appliation period. Memo is dated June 12, 2002.
Sarah Molina

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Suzanne Brown

 

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Matthew Hoyt
Member

posted December 03, 2002 02:43 PM
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I'm jumping in to this debate late, but am I correct in concluding that ULP b/f the grant of TPS status still counts against the bar i.e. EWI in 1/97 + get TPS in 5/99 = 28 months of ULP that will still bar entry/adjustment for 10 years?
If so, what is the recommended course of action for someone in TPS who marries a USC in this scenario? File I-130 and return to Honduras to apply for visa with a I-601 waiver in hand? Chance of success?

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Matthew Hoyt

 

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VO Update 10/15/03

H-1B Returning on AP: Amended INS Memo on H/Ls Traveling on Advance Parole" "Cite as 'Posted on AILA InfoNet at Doc. No. 00052603 (May 26, 2000).'" The relevant memo is below the "previous postings" listed.

 

INS Reverses Position on H/Ls Traveling on Advance Paroles

Cite as "Posted on AILA InfoNet at Doc. No. 00051801 (May 18, 2000) ."

U.S. Department of Justice
Immigration and Naturalization Service
HQADJ 70/ 2.8.6, 2.8.12, 10.18
AD 00-03

May 16, 2000

MEMORANDUM FOR:

REGIONAL DIRECTORS
SERVICE CENTER DIRECTORS
DISTRICT DIRECTORS
OFFICERS IN CHARGE
ASYLUM DIRECTORS
PORT DIRECTORS

FROM:

MICHAEL D. CRONIN
ACTING ASSOCIATE COMMISSIONER
OFFICE OF PROGRAMS

SUBJECT: AFM Update: Revision of March 14, 2000 Dual Intent Memorandum.

This memorandum supersedes and amends the March 14, 2000 memorandum on dual intent for H-1 and L-1 nonimmigrants with pending applications for adjustment of status, which changes the Adjudicator's Field Manual, Chapter 23.

Please note that the Service intends to address these issues definitively when the Service finalizes the interim rule published on June 1, 1999, at 64 Fed. Reg. 29,208 (1999). When the final rule enters into force, the final rule, not this memorandum, will be controlling.

In Chapter 23 of the Adjudicator's Field Manual, the questions and answers added at APPENDIX 23-4, entitled FREQUENTLYASKED QUESTIONS ABOUT TRAVEL OUTSIDE THE UNITED STATES BY AN H-1 OR L-1 NONIMMIGRANT WHO HAS APPLIED FOR ADJUSTMENT OF STATUS: by the March 14, 2000 memorandum, are removed and replaced with the questions and answers below:

1. If an H-1 or L-1 nonimmigrant has filed for adjustment of status under an employment-based preference category that requires an offer of employment in the United States, does the interim rule affect the applicant's responsibility to establish his/her intent to work for the petitioning entity?

No. If an H-1 or L-1 has filed for adjustment of status under an employment-based preference category that requires an offer of employment in the United States, the applicant still has the responsibility of establishing his/her intent to work for the petitioning entity after becoming a permanent resident. Neither the rule nor the guidance has modified this requirement or the corresponding requirement that the employer establish his/her intent to employ the applicant.

In the interim rule and initial guidance, the term "open-market employment" was used to mean unrestricted access to employment. Applicants with pending applications for adjustment of status are eligible to apply for an employment authorization document (EAD). With an EAD, an alien has access to unrestricted employment, the "open-­market". However, if the applicant is adjusting status under an employment-based preference category that requires an offer of employment in the United States, the fact that an applicant is able to work in the open-market does not alter the applicant's responsibility to demonstrate an intent to work for the petitioning employer.

2. If an H-1 or L-1 nonimmigrant or H-4 or L-2 dependent family member obtains an EAD based on their application for adjustment of status but does not use it to obtain employment, is the alien still maintaining his/her nonimmigrant status?

Yes. The fact that an H or L nonimmigrant is grantedan EAD does not cause the alien to violate his/her nonimmigrant status. There may be legitimate reasons for an H or L nonimmigrant to apply for an EAD on the basis of a pending application for adjustment of status. However, an H-1 or L-1 nonimmigrant will violate his/her nonimmigrant status if s/he uses the EAD to leave the employer listed on the approved I-129 petition and engage in employment for a separate employer.

3. If an H-1 or L-1 nonimmigrant has traveled abroad and was paroled into the United States via advance parole, the alien is accordingly in parole status. Does this interim rule allow him or her to now apply for an extension of nonimmigrant status?

Until the final rule is published, an alien who was an H-1 or L-1 nonimmigrant, but who was paroled pursuant to a grant of advance parole, may apply for an extension of H-1 or L-1 status, if there is a valid and approved petition. If the Service determines the alien's application for an extension of nonimmigrant status, the decision granting such an extension will have the effect of terminating the grant of parole and admitting the alien in the relevant nonimmigrant classification.

4. If an H-1 or L-1 nonimmigrant has traveled abroad and reentered the United States via advance parole, the alien is accordingly in parole status. How does the interim rule affect that alien's employment authorization?

A Service memorandum dated August 5, 1997, stated that an "adjustment applicant's otherwise valid and unexpired nonimmigrant employment authorization ...is not terminated by his or her temporary departure from the United States, if prior to such departure the applicant obtained advance parole in accordance with 8 CFR 245.2(a)(4)(ii)." The Service intends to clarify this issue in the final rule. Until then, if the alien's H-1 or L-1 employment authorization would not have expired, had the alien not left and returned under advance parole, the Service will not consider a paroled adjustment applicant's failure to obtain a separate employment authorization document to mean that the paroled adjustment applicant engaged in unauthorized employment by working for the H-1 or L-1 employer between the date of his or her parole and the date to be specified in the final rule.

5. Should an alien returning to the United States from travel abroad who has a valid 1-512 and a valid H-1 or L-1 nonimmigrant visa be paroled in or readmitted in H-1 or L-1 status?

If an alien has a valid H-1 or L-1 nonimmigrant visa and is eligible for H-1 or L-1 nonimmigrant status and also has a valid Form I-512, he or she may be readmitted into H-1 or L-1 status or be paroled into the United States. It is the alien's prerogative to present either document at inspection. However, if an alien presents both a valid H-1 or L-1 nonimmigrant visa and a valid Form I-512, and the alien is eligible for the H-1 or L-1 nonimmigrant classification, the Service should inform the alien that H-1 and L-1 nonimmigrants no longer need to use advance parole to preserve pending applications for adjustment of status and should admit the alien in H-1 or L-1 nonimmigrant status. The fact that an alien has applied for advance parole and received Form I-512 does not compel him or her to use the advance parole.

If the alien is not admissible as an H-1 or L-1 nonimmigrant, then he or she cannot be readmitted as an H-1 or L-1 nonimmigrant. Instead, such an alien may be paroled into the United States.

6. Is an alien who has a multiple entry 1-512 and who has previously been paroled into the United States now eligible for admission as an H-1 or L-1 if he or she is still in possession of a valid H-1 or L-1 visa?

Yes, the alien may be admitted as an H-1 or L-1. However, aliens returning from abroad may only be admitted as an H-1 or L-1 when they have a valid H-1 or L-1 visa (unless visa exempt), remain eligible for H-1 or L-1 classification, and, where there has been a recent change of employer or extension of stay, have evidence of an approved I-129 petition in the form of a notation on the nonimmigrant visa indicating the petition number and the employer's name, or a notice of action, Form I-797, indicating approval. If they do not meet these criteria, then they use their 1-512.

In Chapter 15.4 of the Inspector’s Field Manual, the Special Note A for nonimmigrant classification H-1B should be revised to read as follows:

(A) Foreign residence requirement. H-1B does not have to establish he or she has a foreign residence. For information pertaining to dual intent, see AFM Appendix 23-4.

In Chapter 15.4 of the Inspector's Field Manual, add Special Note E for nonimmigrant classification L-1 to read as follows:

(B) Dual intent. For discussion of applicability of dual intent, see AFM Appendix 23-4.

Field Inquiries

All operational regional program units should familiarize themselves with this memorandum and related procedures in order to be responsive to any inquiry from the field. Questions regarding this memorandum may be directed, through appropriate supervisory channels to HQADN. For issues concerning H or L status, contact John Brown or Irene Hoffman, respectively, at 202-353-8177. For issues concerning advance parole, contact Michael Valverde at 202-514-4754.

INS on Advance Parole

Subject: Advance Parole for Adjustment of Status Applicants Under Section 245; Issuance of Form I-512
Date: August 15, 1997

To: All Regional Directors
Attn: ROADN, ROCOU
All District Directors (Including Foreign)
Attn: EXM, INV, DDP, COU
All Officers in Charge (Including Foreign)
All Service Center Directors
Forensics Document Laboratory
All Chief Patrol Agents
Training Academies (Glynco and Artesia)

1. This memo reconfirms the general availability of advance parole for adjustment applicants as established in the Office of Programs memo dated April 20, 1995. See attachment.

2. Field offices shall approve an application for advance parole for any alien who has properly filed a valid application for adjustment of status and who is seeking to depart temporarily for any legitimate business or personal reason. Therefore, once Form I-485 has been reviewed for filing eligibility, the adjudicating officer should make no further inquiry into the reasons for travel except as might relate to possible illegality. This examination satisfies the statutory requirement of granting parole "only on a case-by-case basis." This policy applies only to those with adjustment applications pending before the Service and does not apply to applicants who are in removal proceedings.

3. Form I-512 parole authorization for adjustment applicants will generally be issued for a period which corresponds with the time normally required for completion of an adjustment application but not to exceed one year. These advance parole authorizations will be prepared with multiple entry validity.

4. As a guide on jurisdiction for accepting and adjudicating adjustment-applicant advance parole applications, see attached Form I-131 supplemental filing instructions which were published in the Federal Register on October 30, 1996.

5. The April 1995 memo’s instructions continue with respect to the quality and consistency of Form I-512 documents. 6. The Office of Field Operations has concurred with this memo. Questions regarding advance parole for adjustment applicants may be directed may be directed through appropriate supervisory channels to HQBEN, Attn: Ron Chirlin, Adjudications Officer.

Paul W. Virtue
Executive Associate
Commissioner

 

Attachment:

ADVANCE Parole: Form I-512 Issuance to Applicants for Adjustment of Status under Section 245

Operations Instruction 212.5(c) provides guidelines on issuance of advance parole, Form I-512, to applicants for adjustment of status under section 245 of the Immigration and Nationality Act. With the implementation of section 245(i) and the resultant increase in the number of applications for adjustment, the Service has deemed it to be in the public interest to revise its guidelines regarding issuance of Form I-512 to adjustment applicants. Pending a revision to the Operations Instruction, the following policy will be in effect. The policy applies only to those adjustment applications pending before the Service and does not apply to applicants who are in deportation proceedings.

An Application for advance parole may be approved for any alien who has properly filed an application for adjustment of status and who is seeking to depart temporarily for any bona fide business or personal reason.

Form I-512 for adjustment applicants will be issued valid for a period which coincides with the time normally required for completion of an adjustment application not to exceed one year. Advance parole authorizations will be valid for multiple entries.

Complaints from U.S. consular posts concerning the quality and consistency of Form I-512 documents have been increasing. To reduce instances where posts find it necessary to verify the authenticity of Form I-512 documents, issuing offices will take the following immediate actions:

Pending revision of the Form I-512, each office shall establish a consistent standard for issuing the form. All forms must include a facsimile of the district director's signature in security ink and the use of the Service seal or Burroughs machine overlay on the photograph. Each issuing office shall forward a copy of the form as standardized to the Forensics Document Laboratory (FDL), Attention: Pete Riley, within 30 days from the issuance of this memorandum. Offices shall indicate the date they begin using the sample provided to the FDL.

Offices which change their standardized advance parole documents (e.g., due to a personnel change or equipment repair problem) must immediately prepare and forward new exemplars to the FDL.

This memorandum has the concurrence of the Office of Field Operations.

James A. Puleo
Executive Associate Commissioner

April 20, 1995

 

Matthew:
I have one from VSC also, but using the wording "Please submit evidence in order to establish granting of advanced parole. A complete description of the emergent personal or bona fide business reasons of why parole should be authorized must be stated." I am going to use 75 Int. Rel 1303, which is the latest memo I can find, dated August 15, 1997. (Virtue memo, which includes attached earlier Puleo memo.) Also, I'm sending a copy of the I-485 now that I have the receipt notice.
--------------------

Craig Clark

Here below is report posted today on the website for the Texas Chapter of AILA via liaison Adan Vega. Bill January, Houston, Texas.
-----------------------------------------------------------------
October Processing Report from DOL

Posted on October 29, 2003

DOL (Dallas, Texas) October, 2003

Processing Times

Basic……………………………………March, 2000
RIR (clean cases)……………………….November, 2002
RIR (problem cases)……………………June, 2002
Limited Review…………………………Current
H-2B……………………………………October, 2003

1. 5600-5800 cases are pending

2. Staff size………………………………………… 1 Certifying Officer
1 Support Staff
6 Analysts

3. 2 Analysts are assigned to H-2A matters
3 Analysts are assigned to H-2B matters

4. October to December is a "busy time" because of the H-2A and H-2B cases.

5. Phone / Direct Line …………… (214) 767-4989 (use very sparingly)
Status ……………………………. (214) 767-4975
Tracking System …………………. (214) 767-9384

6. January, 2004 is the latest scheduled date for PERM.

--------------------

William January

 

--------------------------------------------------------------------------------

CSC Q&A of 10/29/03 on 180 days 485 Portability

 

20. Section 106(c) of AC21 states that, "A petition under subsection (a)(1)(D) for an individual whose application for adjustment of status pursuant to section 245 has been filed and remained unadjudicated for 180 days or more shall remain valid with respect to a new job if the individual changes jobs or employers if the new job is in the same or a similar occupational classification as the job for which the petition was filed". Efren Hernandez III, Director, Business and Trade Services, issued a statement in an advisory opinion dated 4/24/02 that ,

"We agree that the language of AC21 appears to provide that an employment-based petition and the supporting labor certification shall remain valid with respect to a new job offer if the individual changes jobs or employers as long as the adjustment application has been filed and remained unadjudicated for 180 days or more. This interpretation would appear to apply even if approval of the initial Form I-140 has been revoked, provided the I-140 was revoked after the 180 days passed."

The regulations (8 C.F.R. § 205.1(a)(3)(iii)) require “a written notice of withdrawal” to revoke an I-140. In view of the foregoing, would it be appropriate to deny a pending adjustment of status application or deem it to be withdrawn if the I-140 employer/petitioner did not revoke the I-140 but merely notified the CSC that the beneficiary was no longer employed with the employer/petitioner? If so, how should members most efficiently bring these cases to the attention of the CSC?

If an alien is the beneficiary of an approved Form I-140 and is also the beneficiary of a Form I-485 that has pending 180 days or longer, then the approved Form I-140 remains valid with respect to a new offer of employment under the flexibility provisions of section 106(c) of AC21. Accordingly, if the employer withdraws the Form I-140 on or after the date that the Form I-485 has been pending 180 days or more, the I-140 shall remain valid under the provisions of section 106(c) of AC21. A Notice of Intent to Deny will be issued on the I-485 to determine if the alien has a new offer of employment in the same or similar occupation. This information would need to be sent to the CSC for inclusion into the record to determine if section 106(c) of AC21 is applicable. We are currently operating under the policy memorandum issued by William Yates as regulations are still pending.

21. Does the CSC want the individual to notify it when there is (I-485) portability under AC21 or should s/he wait for an RFE. Notifications sent prior to the issuance of an RFE may not make it to the file, and the RFE is issued any way.

Please feel free to submit evidence of portability. This does not preclude the issuance of an RFE for additional clarification.

22. Division I relocates certain I-485s to the district office (e.g., where the employee has changed jobs under AC21, certain 245(i) cases, etc.). Is there any way that the CSC can identify these cases early and transfer them?

Yes, we are attempting to identify these case types up front when they are first received through our MailRoom Review process.

23. When filing for I-485 portability under AC 21 106(c), members have submitted the documentation necessary to support the port to the new employer and an original blue G-28 form signed by the new employer. Members report that later status inquiries are rejected under these circumstances with the explanation that there is no G-28 in the applicant’s file identifying the attorney as the attorney or representative of record. This situation does not present a “straight” change of address or change of attorney situation. What is the best way for members to advise the CSC of a change of employer under AC 21? We have been told to use the contractor, but the documents are not becoming part of the file. In some cases, attorneys have had to submit a G-28 multiple times.

Submit the information as previously advised. When making an inquiry, it is suggested that you include a copy of the G-28 and clearly, but briefly, state the situation. If necessary, after unsuccessful attempts, you may wish to go through the Division AILA Liaison.

24. Given the delays in I-485 adjudication, will the CSC send out new fingerprint notices? Will the CSC request updated employer letters? What other information and/or documentation does the CSC anticipate it will routinely request in connection with I-485 cases pending over a year?

CSC has begun issuing fingerprint appointment notices for those who have expired fingerprints, have never been fingerprinted, as well as those who have now turned 14. In most cases an RFE will be sent at the time of adjudication to update employment information and any additional information that may be needed. For those having turned 14, the RFE will include a request for the $50.00 fingerprint fee.

 

Rebuttal Evidence for H-1B Degree Requirement RFE:

In looking at H-1B denials, is there information, which could be helpful to the AILA attorneys? For example, are you seeing the same kinds of cases improperly documented? Do the denials tend to be in certain industries or job descriptions? What are the top reasons why H-1B cases are denied?

We do not have statistics on H-1B denial reasons, however, the petitioner not demonstrating the offered position is a specialty occupation is probably the most common. Depending on the criterion used to establish eligibility, here are some examples of documents submitted as a result of an RFE that could overcome a denial:

1. If the petitioner has a history of hiring only individuals with a baccalaureate degree for the proffered position, evidence could include payroll records, DE-6s, and evidence that these individuals all have at least a BS degree.

2. If the degree requirement is common to the industry in parallel positions among similar organizations, job announcements taken from the Internet could be sufficient. However, in many cases, job announcements submitted are either not among similar organizations or not for parallel positions.

3. If a baccalaureate or higher degree is normally the minimum requirement for entry into the particular position, evidence could include a copy of the Occupational Outlook Handbook (OOH) and a detailed job description of the proffered position to show that it is similar to the specialty occupation described by the OOH.

4. If the nature of the specific duties are so specialized and complex, provide a detailed job description of the proffered position and how that job offer could not be performed by an experienced individual whose educational training falls short of a baccalaureate degree.

 

Starting Date of H-1B COS/EOS Approval and Discontinuity Issue:

When the Form I-94 does include 10-day grace period after the petition validity, petitioners are submitting H-1B extension petitions requesting that the petition extension be valid starting with a date that corresponds with the end date of the petition rather than an end date that corresponds with the Form I-94.

If the petition was submitted timely, is for an extension of a same employer, or is an EOS for a new employer that is adjudicated prior to the expiration of the current validity of stay, the EOS “from” date would generally start at the end of the previous validity date, or at the time the change of employer was granted.

If the EOS was for a change of employer that is adjudicated after the previous dates expired, the “from” date would start at the time of adjudication, as changes of employer cases are not backdated.

The Service has frequently been issuing approval notices with validity periods that correspond with the Form I-94 end date rather than the petition end date. This provides the beneficiary and employer with approval notices that contain a 10-day period in which there is no employment authorization.

Please provide specific examples of this. We are not familiar with approval notices that contain a 10-day grace period. The approval information on the I-797 Notice of Action is based on the validity dates on the petition. As a reminder, the dates that the officers grant on the petition do not always correlate with the dates requested by petitioners. Previous validity of the beneficiary, Labor Condition Applications and total stay of the beneficiary will impact a validity date.

How can we best identify for the adjudication’s officers at the CSC that a grace period has been granted on a particular case and we need the new H-1B petition to start not at the end of the grace period, but at the end of the actual employment authorized H-1B status?

You may explain this in a cover memorandum, however, cases are adjudicated in a case-by-case manner based on several factors.

False SSN and Admissibility:

Jackson Chaney
Member

posted November 12, 2003 02:23 PM
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Agree that the SS issue can probably be handled as set forth below. However, I would be concerned about the fake green card whether it was used for I-9 purposes or not. Agree with Jim that there are INA § 212(a)(6)(C)issues separate from presenting a fake SS card to an employer. That is, there probably was a misrepresentation to INS/CIS to get the fake green card.
See the Practice Advisory below. I copied it from a prior posting. I do not have the original. Sorry for any spacing errors.
__________

By Charles Wheeler
February 19, 2003

Let's be honest – many of our clients have used a false social security number (SSN) for employment or other purposes. A false SSN includes a fictitious number, a real number that does not belong to the person, or a SSN card obtained fraudulently from the Social Security Administration. A common fear is that such action will make it it difficult for clients to immigrate or later naturalize. Fortunately, most of those fears are unfounded. This article explores the potential bases for denial of adjustment of status or an immigrant visa, as well as the bases for denial of naturalization. It also
discusses the effects of using a false SSN when seeking other immigration benefits.

Inadmissibility for fraud or misrepresentation.

An alien is inadmissible under INA § 212(a)(6)(C) if he or she commits willful misrepresentation or fraud in attempting to obtain, or in obtaining, a visa, other documentation, admission into the U.S., or other benefit under the INA. All such misrepresentations that are material create a permanent bar to admission, although there is a limited waiver available to some.

The term "other documentation" refers to documents required at the time of the alien's admission to the United States, such as reentry permits, border crossing cards, U.S. Coast Guard identity cards, or U.S. passports. An SSN is therefore not "other documentation" referred to in INA § 212(a)(6)(C).

"Other benefit" is understood to include, among other things, adjustment of status applications, all visa petitions, requests for extension of stay, change of nonimmigrant classification, requests for employment authorization, and voluntary departure requests. Pursuant to a 1991 INS General Counsel's opinion, seeking employment is not an immigration benefit, and thus statements on an I-9 employment verification form would not be considered
fraud or misrepresentation for immigration purposes. An employer's decision to hire an employee involves a private employment contract, and "false statements on the Form I-9 are not for the purpose of obtaining a benefit under the INA." Therefore, putting a false SSN on an I-9 form would not violate INA § 212(a)(6)(C), nor would admitting to having used an SSN for employment or other non-immigration purposes (such as obtaining a driver's license, opening a bank account, or paying taxes).

There is a final reason why use of a false SSN is not fraud or misrepresentation: only misrepresentations to U.S. officials (generally a consular officer or an INS officer) are the basis of inadmissibility under INA § 212(a)(6)(C). Therefore, even obtaining an SSN from the Social Security Administration through fraud does not make an alien inadmissible under this provision.

What if the adjustment applicant lied to the INS adjudicator when asked if he or she had ever used a false SSN, and it is later revealed to be untrue? Only misrepresentations of material facts may make a person inadmissible. In this context, a misrepresentation can be fairly characterized as material: (1) if the alien was inadmissible on the true facts, or (2) if the misrepresentation tended to shut off a line of inquiry that was relevant to
the alien's eligibility and that line of inquiry might have resulted in a proper determination that the alien not be admitted. If use of a false SSN would not make persons inadmissible for fraud or misrepresentation, then lying about such use should similarly not make them inadmissible under this ground.

Inadmissibility for document fraud

Aliens are inadmissible under INA § 212(a)(6)(F) if they are subject to a final order under the civil document fraud provisions of INA § 274C, which penalizes making or using false documents, or using documents issued to
other persons, for purposes of satisfying any requirement imposed by the INA.

The INS has defined the term "document" broadly to mean "an instrument on which is recorded, by means of letters, figures, or marks, matters which may be used to fulfill any requirement of the Act." It includes "an application required to be filed under the Act and any other accompanying document or
material." This means that all State Department, INS, and Executive Office for immigration Review applications may be considered a document for 274C purposes.

Putting false information on an I-9 form is considered "falsely making" the document. While prior case law had held that providing false information on a genuine document was not a violation of INA § 274C, in 1996 Congress overturned that holding and specified that it does meet the definition. The statute now defines the term "falsely make" to "prepare or provide an application or document with knowledge or in reckless disregard of the fact that the application or document contains a false, fictitious, or fraudulent statement or material misrepresentation, or has no basis in law or fact, or otherwise fails to state a fact which is material to the purpose for which
it was submitted." Therefore, putting a false SSN on an I-9 form would constitute a violation of INA § 274C.

But remember that this ground of inadmissibility does not apply to those who
have simply committed civil document fraud. Rather, the person must have been formally charged with a 274C violation, been found to have committed the acts by a special administrative law judge, and received an order finding a violation of the law. The INS was enjoined by a federal judge from
enforcing the provisions of 274C on March 13, 1996, as a result of a class action
challenging the INS's implementation. On February 22, 2001, the judge approved a settlement agreement ending the litigation. As part of that agreement, all of the 274C final orders that had been issued without a
separate administrative hearing – approximately 5,000 orders – were rescinded and the fines collected subject to refund. To date, the INS has not re-commenced enforcement of 274C nor indicted its intent to do so. Therefore, at the moment, this ground of inadmissibility is essentially not
applicable.

Admission of crime of moral turpitude

Aliens are inadmissible if they are convicted of a crime of moral turpitude
or if they admit having committed a crime of moral turpitude. No clearly delineated definition exists within the law for "crime of moral turpitude," though the term "moral turpitude" has been held to involve acts
demonstrating "baseness, vileness, and depravity" on the part of the perpetrator.

In evaluating whether a particular crime involves moral turpitude, the INS does not look at the underlying conduct of the applicant, but at the language in the criminal statute. Crimes that have fraud as an element are considered to involve moral turpitude. Falsely representing a number to be a valid SSN when it is a fictitious number or belongs to another person is a felony under 42 USC § 408(a)(7), punishable by a maximum five years in prison and a
$5,000 fine. If such representations are made to a federal agency, that is a separate violation of 18 USC § 1001.

The federal government rarely prosecutes individuals for use of a false SSN. When it does, it is usually when the person has provided the false information as part of a scheme to defraud the government or, as is more common lately, when the government wants to prosecute and detain suspected
terrorists. It recently indicted several undocumented aliens employed as airport security screeners or with access to secure areas of the airport under Operation Tarmac. While the typical alien who uses a false SSNs for work purposes faces little risk of criminal prosecution, admitting to such use could make them inadmissible under INA § 212(a)(2)(A).

Fortunately, one federal appellate court has held that using a false SSN to further otherwise lawful conduct was not a crime of moral turpitude. Beltran-Tirado v. INS, 213 F.3d 1179 (9th Cir. 2000). Therefore, at least in the Ninth Circuit, if an undocumented alien uses a false SSN to obtain
employment or a drivers license, admitting such conduct would not comprise a crime of moral turpitude.

Denial as exercise of discretion

Adjustment of status, either by the INS or an immigration judge, is a discretionary act. INA § 245(a). Therefore, even if the applicant meets all the statutory requirements, the INS examiner can deny the application if there are serious adverse factors. Such factors could include criminal
convictions that do not make the person inadmissible, prior fraudulent conduct, and immigration violations. The application should not be denied as a matter of discretion when substantial equities exist, particularly the strong relationship to a U.S. citizen or lawful permanent resident who is a dependent spouse or child. Other equities that may be considered in the
discretionary decision include medical problems, economic loss, support of U.S. family members, contributions to and ntegration into the U.S. community, and special conditions in the home country.

Negative factors justifying denial in the officer's discretion include lack of close family ties in the United States; the fact of a wife and children living abroad; recent indicia of poor moral character, including failure to support children; arrest, even absent conviction; prejudice to foreign
relations; and failure to file income tax returns.

Adjustment of status should not ordinarily be denied in the exercise of discretion. Pursuant to a 1994 directive, any adjustment denial based solely on discretion must be certified to the INS Administrative Appeals Unit. This directive was issued as part of implementation of INA § 245(i), which some
practitioners have interpreted as all but eliminating INS discretionary denials for those adjusting under that provision. But assuming the agency still retains this discretionary authority, admitting to use of a false SSN should not be such a negative discretionary factor to merit denial of
adjustment. For example, the BIA has specifically held that unauthorized
employment alone "should not ordinarily result in the discretionary denial of adjustment of status to those individuals who are statutorily eligible for that relief and who present no other negative considerations." Since unauthorized employment usually entails the completion of an I-9 form and the use of a false SSN, the reasoning of the BIA would seem to incorporate this action.

Congress has never included use of a false SSN as a ground of inadmissibility, though it has certainly done that with other specific illegal or improper actions. Nor has Congress ever required adjustment
applicants to establish good moral character, and such a requirement should
not be included within the INS's discretionary power to deny an application.
If you receive an adjustment denial from the INS based on use of a false SSN, be sure to challenge this decision before the immigration judge thorugh a renewal of the application.

Lack of good moral character

Use of a false SSN does preclude establishing good moral character. Indeed,
as mentioned earlier, the Ninth Circuit ruled that criminal convictions for false use of an SSN and using a false attestation on a Form I-9 during a period for which good moral character is required do not preclude a showing of good moral character. The appellate court concluded that use of a false
SSN was not a crime of moral turpitude in part because it encompasses conduct that is not inherently wrong. However, while use of a false SSN may not per se bar a showing of good moral character, the circumstances of the use may be weighed as a factor in assessing the totality of the circumstances that bear on whether an individual possesses good moral character.

Certain benefits that require a showing of good moral character include cancellation of removal for non-permanent resident aliens; registry; voluntary departure; and naturalization. Naturalization applicants must establish that during the required statutory period – five years for most
applicants, three years for persons married to a U.S. citizen – they have been and still are persons of good moral character. The INS does not often look beyond that statutory five-year period in determining whether this
requirement has been met. Since LPRs qualify for a valid SSN, it would be unlikely that they would have used a false SSN during that statutory period. If the INS examiner does consider actions beyond the statutory period, point out that use of a false SSN is not evidence per se of bad moral character
and, even if it is taken as a negative factor, your client has evidenced "reform" by current use of a valid number.

 

Two LC Filing Consequences:

Elizabeth McGrail
Member

posted November 13, 2003 12:42 PM
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I found the answer to this question...well, sort of.
The issue is discussed in the 3/27/03 AILA-DOL/ETA teleconference minutes (Doc. #03043043, see question #9) and the 6/10/03 teleconference minutes (doc. #03082442). Basically, AILA has informed DOL that some employers need to submit new Labor Certs for same employee, because old LC was pending so long, the employee is now in new position. Employer can't afford to withdraw first LC, because will run into H-1B extension problem. [exactly the issue with my client].
So AILA & DOL are in a continuing dialogue...duplicate filings are not allowed, but if employer can demonstrate that new filing is new job/not a duplicate filing, DOL should allow. DOL seems amenable, is looking for guidance by AILA on what would constitute unacceptable "duplicate" filing.

Religious Worker Federal Litigation Successful Cases: A successful case in Seattle, following Perez is: Kent First Korean Church & Myung Hee Lee v. U.S. I.N.S., Case No. C02-867P (U.S. Dist. Ct., Western District of Washington at Seattle, 12/11/2002).
I filed one in San Jose, CA earlier this year. Rather than fight, the US Atty & BCIS reversed their decision & approved our case. Good luck.

 

H-1B Denial and Effect of H-1B Pending Appeal: My understanding is that the denial serves to terminate legal status, even though you can appeal. Prior to the combined I-129 petition, there was the employer's petition to reserve the visa and the employee's application to extend, and ONLY the employer's petition was appealable. So I think the officer at Premium Processing gave you incorrect advice. I will not opine on the i-539, as I have not researched it, but I am pessimistic that a MTR extends valid status.

 

Intern Architect Wage Survey: How about Junior Designer/Intern Architect ? I have used this title many times without any problems. And see if you can use the salary survey from Management Design available online.

Change from L-1B to L-1A: 8 CFR 214.2(l)(15)(ii) says that alien initially admitted in spec. knowledge capacity and later promoted to managerial/exec position must have been employed in the managerial/exec position at least 6 months to be eligible for the 7 year period of stay. The change to managerial/exec capacity must have been approved by Service in amended, new, or extended petition at the time the change occurred.
The 6 month period is only material to the determination of whether alien is eligible for the 7 years in L-1 status. It is not material to whether he qualifies for EB-1 petition. So I don't see any problem with you filing the I-140 petition immediately after filing the amended L-1 petition. I don't think it even matters if you want to file the I-140 before you file the amended petition, as long as alien is eligible for EB-1 classification at the time of filing.

Remember that I-140 petitions require alien to be eligible at time of filing, but do not require alien to be performing managerial duties in the US at time of filing. The job simply has to be available to alien upon his obtaining PR status. (Incidentally, I read the reg. above to say that the L-1 alien cannot move into managerial position until amended petition has been approved. In your case, the alien could not fill the managerial position until the L-1 amendment is approved, or until he gets EAD based on 485, I-485 is approved, or he gets IV at consular post).

Departure Prior to Approval of AP: Gene Schaeffer
Member

posted January 22, 2004 06:26 PM
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Client has current advance parole good until March 10. Client wants to travel abroad on March 5. Can he leave March 5th, or sooner, with AP that expires on March 10 and return on a new AP after March 10th, even if the new AP does not begin on March 11th (we will file for AP extension, but there is no guarantee it will be approved by the time the other one expires)?
Is there any danger if there is a gap in coverage between expiring AP and new AP? The regs seem to indicate that he needs a valild AP when he leaves and valid one when he returns. I'm just concerned about the impact of any gap in coverage while he is out of the U.S.

Any thoughts?

--------------------

Gene Schaeffer

 

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Dinesh Shenoy
Member

posted January 22, 2004 07:00 PM
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This is a debate we were just having in my office yesterday, and while I think the regs can be read the way you want (and I want, too), the safe answer is that he should not leave before the next AP is granted, even if that means delaying his travel plans. My feeling is that if a 485 adjudicator wanted to deny this client's 485 based on abandonment, they could do so based on the way the relevant reg reads. If it's not too rude, I'll just cut and paste from my intraoffice discussion yesterday:
"Reading the reg this way (must have an AP document pre-approved to cover all the time you are outside the USA; which as a practical matter means that you cannot leave the USA with one AP, have it expire, and come back with a different AP that was filed for while you were present but only approved and sent to you by us after you left) is a permissible reading of 8 CFR 245.2(a)(4)(ii)(B). That reg says "The travel outside of the United States by an applicant for adjustment who is not under exclusion, deportation, or removal proceedings shall not be deemed an abandonment of the application if he or she was previously granted advance parole by the Service for such absences, and was inspected and paroled upon returning to the United States."

You can read it a few ways; I think you can read it to say what you want (it is okay to apply for AP, and while it is pending leave the USA with your still-valid old AP, let the old AP expire, and then when the new AP is approved, have it sent to you and come back on the new AP)

But I think the CIS can just as plausibly read it the other way-- "previously granted" for "such absences" means that before you leave, the AP application had to specify the "absence" you anticipated being gone for, and the CIS had to "grant" permission to be gone for that long. When on the I-131 we specify "various" and "varied" as the dates of departure and anticipated absence, CIS defaults to approving the AP for an absence of no more than 1 year from the date of approval. So CIS can read the cited reg to say "such absence" for which we have granted you parole is an absence no longer than the expiration date of this AP document (Form I-512)-- any absence beyond that we've not "previously granted" permission for before you depart.

It's one thing to have to argue the meaning of this reg expansively for a client who is already stuck with the facts being that they applied for a new AP but departed before it was approved, left with an old AP that expired while they are gone and only come back when the new AP is approved and shipped to them-- for that client we have to argue the expansive reading.

But for advising clients prospectively, the safest, lowest risk advice should be that they ALWAYS must come back to the USA while their current AP is valid, and do extensions on the side separate from their travel plans during the current AP's validity period."

Having said all that, I've not seen an I-485 denial in the situation you described-- leave with one valid AP, come back on a different valid AP (with a gap in the dates of approval between the two). I don't know if CIS would even become aware of the gap, and if so, if they'd think it meant the 485 had been abandoned because the alien was outside the USA for a period of time without valid AP.

I'm going with the "safe" advice above mostly because of the slow 485 processing time-- if it's possible for CIS to deny a 485 on grounds the alien was outside the USA for a period of time without AP, I don't want to find that out 3 years from now when they finally get around to working on his 485. I don't think there's been a conclusive answer or guidance memo from CIS on this issue, so it's just my opinion that the safe answer is the client should always return during the validity period of the same AP they left with.

--------------------

Dinesh Shenoy

 

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Fernando Mendonca
Member

posted January 23, 2004 10:49 AM
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Look at Infonet Doc. 03082840. It is the minute of a Service Center Operations Teleconference (August 7, 03)
The relevant part says:
“According to the [legacy] INS Operations Instructions regarding advance parole (Section 212.5), an alien with a pending adjustment of status application who wishes to travel for brief periods must have advance parole before leaving the United States. However, does this same requirement apply where an I-485 adjustment of status application is pending and the applicant has a valid advance parole that will expire but wants to file an application for a new advance parole document while abroad? Can the new I-131 application be filed when the applicant is not in the U.S.? Can the applicant leave the U.S. while the I 131 is pending? If the applicant travels abroad while in possession of a previously issued valid advance parole document, it would seem that presence at the time of filing and departure while pending should not be an issue.

Aliens with pending applications of Adjustment of Status, unless otherwise permitted by law and/or regulation, must obtain Form I-512 or I-512L, advance parole document prior to leaving the United States. The advance parole document should be obtained pursuant to a planned trip abroad and is generally issued for that planned trip. That advance parole document must be valid when the alien presents it for re-entry. If the alien is going to be abroad for a period of time longer than permitted on the parole document, he should return to the United States and obtain another advance parole document that will cover the planned period of stay. 8 CFR requires that the alien obtain advance parole in the US prior to departure. Failure to do may result in abandonment of the pending Form I-485.

--------------------

Fernando Mendonca

 

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Dinesh Shenoy
Member

posted January 23, 2004 01:54 PM
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Fernando, much thanks for this cite, I was not aware of it until now. This definitely makes me feel the "safe" advice is to always return on the same AP document you left it, versus a new AP document you applied for before you left but was only approved after you left and shipped to you overseas to use to reenter later.
--------------------

Dinesh Shenoy

 

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Andrea Wisner
Member

posted January 23, 2004 02:47 PM
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I believe AP application itself is considered abandoned if you travel out before it is approved? NEW instructions to the NEW I-131 form states "If you travel before the advance parole document is issued, your application will be deemed abandoned if: 1. You depart from the United States; or 2. The person seeking advance parole attempts to enter the United States before a decision is made on the application." I take it the former applies to a regular advance parole applied for on basis of AOS while in US, and that the latter applies for Humanitarian Parole, which they describe under the advance parole instructions. I don't have the regs on this, offhand.
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Andrea Wisner

 

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Dinesh Shenoy
Member

posted January 23, 2004 04:28 PM
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Yeah, it was that language in the new intructions about: "If you travel before the advance parole document is issued, your application will be deemed abandoned if: 1. You depart from the United States" that has pushed me to thinking that the safe advice is to always return with the same valid AP you left with, not a new one applied for before you left but only approved after you left and sent to you overseas to use.
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Dinesh Shenoy

 

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Andrea Wisner
Member

posted January 23, 2004 04:32 PM
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I think the previous instructions said the same thing, only they didn't discuss Humanitarian Parole in that context. When they say "application," they obviously mean the Advance Parole application, and so by leaving without your applied-for AP approved, you abandon the AP and also risk abandoning the AOS by not having AP.
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Andrea Wisner

 

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Jackson Chaney
Member

posted January 24, 2004 03:02 PM
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I agree with the CIS interpretation of the regs as written, but can't see that any important policy is advanced by so strict a reading. That is, as long as you leave with a valid AP and enter under another AP, I think the intent has been to comply and that no policy is served by determining that the aos has been abandoned.
When AP was not so freely given in the past and INS took the position that AP was granted for specific trips for "good reasons," a stricter reading made some sense, I guess. However, the recent changes in AP (not need specific reasons for travel; AP freely given; H&Ls don't need AP; etc.) don’t seem to be in line with such strict enforcement. CIS could take the position that they have no leeway because of the wording of the regs. However, if you note the last sentence in their answer in InfoNet doc 03082840, they do say failure to do so "may" (not "shall") result in abandonment. Not much to hang your hat on, but it is something.

Finally, given the absolutely abysmal processing times for AP and aos, strict enforcement of the regs seems inequitable.

FWIW: In the past INS was not too strict on aliens (at least in my experience) who left w/o any AP, had the AP mailed to them while out of U.S. and then reentered even though it was in violation of the regs. Not sure what position CIS will take going forward.

That said, obviously the only safe advice to clients is to leave and enter on the same AP and don’t leave until AP is issued.

I was also unaware of the Info Net doc and the CIS interpretation. It makes me paranoid when I miss something like that. Thanks, Fernando.

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Jackson Chaney

Marketing Manager H-1B: posted January 28, 2004 05:37 PM
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Hi Deirdre:
I just got a Marketing Manager H-1B1 position approved last Friday. The RFE was horrific but our Response was comprehensive enough to get it approved.

For starters, add a lot of job positions from the American Marketing Association ("AMA") to show an industry standard for Marketing Managers to satisfy the "specialty occupation" issue, insert a lot of language from the BLS OOH 2003, enclose a lot of job ads from monster.com for Marketing Managers (for the geographical area of the job), and make sure you answer each and every question carefully.

Let me know if you need any more information.

--------------------

The Canadian government posts a list on-line of countries and territories whose citizens require visas to visit or transit Canada (and exemptions). South Africa is listed. See: www.cic.gc.ca/english/visit/visas.html.

LC: "Preferred" means: 20 CFR sec. 656.21(b)(2)(iv) states "[i]f the job opportunity has been or is described with an employer preference, the employer preference shall be deemed to be a job requirement". I often cite this after citing the OOH to CSC for evidence that when DOL uses "prefers" a bachelor's degree, they really mean "requires".

Missouri LC Filing Proof: I have received proof of filing from the MO SWA Office on several occassions. You can call Gail Grace at 573-751-3773 or send your request to 573-751-9896(F). They respond very quickly.

---

K-1 Marriage After 90 Days:

"Genco Op. No. 91-56

U.S. Department of Justice
Immigration and Naturalization Service

 

General Counsel's Office

 

Legal Opinion Fiances or fiancees who marry later than 90 days after entry

James A. Puleo, Associate Commissioner, Examinations

 

CO 245-C
July 24, 1991

ATTN: Yolanda Sanchez-K., Senior Immigration Examiner

I. QUESTION

This Legal Opinion addresses the following question: If the marriage between an alien fiance or fiancee and a citizen petitioner does not occur until more than 90 days have elapsed since the alien's admission, is there any basis upon which the alien may obtain permanent residence through adjustment of status?

II. SUMMARY CONCLUSION

The alien may not adjust, on the basis of his or her admission under Section 101(a)(15)(K), if the alien marries the citizen petitioner more than 90 days after entry. The citizen may, however, file an alien relative visa petition (Form I-130) after the untimely marriage. Once the petition is approved, the alien may then apply for adjustment of status.

III. ANALYSIS

The Immigration and Nationality Act of 1952, as amended, creates a nonimmigrant classification for the alien fiance or fiancee of a United States citizen. INA 101(a)(15)(K), 8 U.S.C. 1101(a)(15)(K). In order to qualify for entry, the alien fiance or fiancee must be seeking to enter the United States "solely to conclude a valid marriage with the petitioner within ninety days after entry." Id. The alien's minor children may also be admitted, if they accompany or follow to join the alien. Id. The aliens are precluded from changing to a different nonimmigrant classification. Id. 248(1), 8 U.S.C. 1258(1). The alien fiance or fiancee's failure to marry the petitioner within three months of entry renders the alien fiance or fiancee, and any alien minor children, amenable to deportation from the United States. Id. 214(d), 8 U.S.C. 1184(d).
The Service may not adjust the status of an alien fiance or fiancee to permanent residence, except on the basis of the alien's subsequent marriage to the citizen petitioner. Id. 245(d), 8 U.S.C. 1255(d). The regulation implementing this provision is codified at 8 C.F.R. 245.1(b)(13). As currently written, Section 245.1(b)(13) appears to bar adjustment entirely, unless the alien fiance or fiancee and the citizen petitioner marry within 90 days of the alien's entry. Section 245(d) of the INA, on which Section 245.1(b)(13) is based, does not include this 90-day time limit. The alien may not be admitted as a fiance or fiancee, however, unless the alien and the citizen petitioner intend to marry within 90 days of the alien's entry. INA 101(a)(15)(K), 8 U.S.C. 1101(a)(15)(K). The alien becomes deportable if the couple does not marry within three months of entry. Id. 214(d), 8 U.S.C. 1184(d). Section 245.1(b)(13), therefore, is a reasonable interpretation of the fiance/fiancee provisions read as a whole.
The Service has recently become aware of cases in which the alien and citizen married, but the marriage took place more than 90 days after the alien's entry. In one case, for example, the couple delayed their marriage after the death of one of their parents. Another potential problem involves alien fiances and fiancees of members of the Armed Forces deployed abroad for Operations Desert Shield and Desert Storm. The situations raise the question of whether an alien fiance's untimely marriage constitutes an insurmountable bar to the alien's adjustment.
Moss v. INS, 651 F.2d 1091 (5th Cir. 1981), presents a possible solution to this dilemma. In Moss, the alien and citizen had married 92 days after the alien's admission. In deportation proceedings, the alien attempted to present before the immigration judge evidence that illness intervened to delay the scheduled marriage. The immigration judge refused to admit the evidence, and the Board affirmed the resulting deportation order. The court held that the alien was entitled to present the evidence, and that Section 214(d) would not apply if the alien was successful in establishing a reasonable explanation for the failure to marry within the prescribed period. The court of appeals based its decision on the imprecise language of Section 214(d). 651 F.2d at 1093, n. 4. Under the statute, the couple must marry within "90 days," but the alien is deportable only if the marriage does not occur within "three months." The court noted that almost any "three month" period will exceed "90 days." Id.
The court, however, cited no authority that supports its creation of an "unforeseen circumstances" exception to the requirement that an alien fiance and citizen petitioner marry within 90 days of the alien's entry. 651 F.2d at 1093. The court did refer to Menezes v. INS, 601 F.2d 1028 (9th Cir. 1979), but this case did not involve the legal consequence of an alien fiance's failure to marry within the time allowed by law. Since courts lack authority to alter deadlines set by Congress, INS v. Pangilinan, 485 U.S. 875 (1988), we conclude that an alien fiance or fiancee may not adjust, based on his or her admission under sections 101(a)(15)(K) and 214(d), if the alien marries the citizen petitioner more than 90 days after the alien's admission.
An untimely marriage, however, need not be an insurmountable bar to the alien's adjustment. The Service may not adjust the alien's status "except to that of an alien lawfully admitted to the United States on a conditional basis . . . as a result of the marriage of the nonimmigrant . . . to the citizen who filed the petition to accord that alien's nonimmigrant status under Section 101(a)(15)(K)." INA 245(d), 8 U.S.C. 1255(d). The alien clearly may not seek adjustment under the preference system, nor on the basis of a marriage to a different citizen. Id. Section 245(d) of the Act, however, does not clearly preclude the citizen petitioner from filing a new visa petition on the alien's behalf after the untimely marriage. Approval of the citizen spouse's alien relative visa petition would qualify the alien spouse as an "immediate relative." Id. 204, 8 U.S.C. 1184. [FN1] The alien could then apply for adjustment, notwithstanding the fact that the failure to marry within the time allowed by Section 214(d) renders the alien's status unlawful. Id. 245(c)(2), 8 U.S.C. 1255(c)(2). Since the alien's adjustment would still be based upon his or her marriage to the citizen petitioner, Section 245(d) would not clearly bar the alien's adjustment.
Section 245.1(b)(13) of the regulations would not prohibit the adjustment either. As noted, this regulation appears to prohibit the alien's adjustment absolutely if the marriage is untimely. This aspect of Section 245.1(b)(13), however, is not strictly required by the text of Section 245(d) of the Act. We recommend, therefore, that the Service interpret Section 245.1(b)(13) narrowly, so that it applies to the alien's adjustment as a now-married fiance or fiancee, but does not preclude the alien's adjustment based on a new visa petition (Form I-130) filed by the citizen spouse after the untimely marriage. Since the alien may only be adjusted as a conditional permanent residence under Section 216 of the Act, INA 245(d), 8 U.S.C. 1255(d), the alien would have to apply for adjustment within two years of his or her marriage, see id. 216(a)(1) and (g)(1), 8 U.S.C. 1186a(a)(1) and (g)(1).
Our conclusion involves an interpretation of an existing regulation. It is not, strictly speaking, necessary to amend Section 245.1(b)(13) in order to implement this interpretation. If the Service decides to adopt our recommendation, however, it would be prudent to amend Section 245.1(b)(13) accordingly. Doing so will help ensure uniformity of practice. We have, therefore, enclosed a draft amendment to this regulation that conforms to our recommendation.

/s/ Grover Joseph Rees, III
General Counsel

FN1. Unless the Service approves a visa petition according the alien the status of an "immediate relative," the alien's unlawful status would create an additional bar to adjustment. See INA 245(c)(2), 8 U.S.C. 1255(c)(2)."

--------------------

Dinesh Shenoy

K-2 Children 485: http://travel.state.gov/visa/immigrants/types/types_1315.html#3d
Children Have Derivative Status

The child of a fiancé(e) may receive a derivative K-2 visa from his/her parent’s fiancé(e) petition. You, the American citizen petitioner, must make sure that you name the child in the I-129F petition. After the marriage of the child’s parent and the American citizen, the child will need a separate form I-485 Application to Register Permanent Residence or to Adjust Status. The child may travel with (accompany) the K-1 parent/fiancé(e) or travel later (follow-to-join) within one year from the date of issuance of the K-1 visa to his/her parent. A separate petition is not required if the children accompany or follow the alien fiancé(e) within one year from the date of issuance of the K-1 visa. If it is long than one year from the date of visa issuance, a separate immigrant visa petition is required.

 

Extreme hardship can be demonstrated in many aspects of your spouse or
parent's life such as:

a. HEALTH - Ongoing or specialized treatment requirements for a
physical or mental condition; availability and quality of such treatment in
your country, anticipated duration of the treatment; whether a condition is
chronic or acute, or long-or short-term.

b. FINANCIAL CONSIDERATIONS - Future employability; loss due to sale of
home or business or termination of a professional practice; decline in
standard of living; ability to recoup short-term losses; cost of
extraordinary needs such as special education or training for children; cost
of care for family members (i.e., elderly and infirm parents).

c. EDUCATION - Loss of opportunity for higher education; lower quality
or limited scope of education options; disruption of current program;
requirement to be educated in a foreign language or culture with ensuing
loss of time for grade; availability of special requirements, such as
training programs or internships in specific fields.

d. PERSONAL CONSIDERATIONS - Close relatives in the United States
and/or your country; separation from spouse/children; ages of involved
parties; length of residence and community ties in the United States.

e. SPECIAL FACTORS - Cultural, language, religious, and ethnic
obstacles; valid fears of persecution, physical harm, or injury; social
ostracism or stigma; access to social institutions or structures.

f. Any other situation that you feel may help you meet the burden of
extreme hardship.

Please be very detailed as to how you meet the "extreme hardship" burden.
Keep in mind that the hardship must be your qualifying family member - not
to you.

Brent-DHS ORG-H-1B Overreaching: Here's the link to the Office of Inspector General's report on why the CIS
issued too many H-1Bs. I found it interesting reading into the internal
processes involved.
http://homeland.cq.com/hs/flatfiles/temporaryItems/20051018_ig.pdf

One interesting recommendation OIG made is that all H-1Bs be processed at a
single Service Center, because one problem with accurately fixing when the
cap is reached is due to coordinating information among the 4 centers. CIS
responded that it already intends to reduce the number of Service Centers
adjudicating H-1Bs to two, effective Fiscal 2007.

Another interesting view is that the OIG was not impressed by the problem
CIS sees when an H-1B subject to the cap has been fee-d in and therefore
believes that a number has been reserved for it; the OIG says the Service
does not fully appreciate that if the cap is reached before that case is
adjudicated, the H-1B should not be granted, regardless of whether the
Service has reserved a number for it, because "a law is broken when
beneficiary number 65,001 obtains H-1B status."

Another interesting point is the significance to the CIS of lawsuits filed
due to claims of unfairness in the counting procedures and other aspects of
the H-1B process. So the business litigators are having a real impact, and
again, the OIG doesn't weigh these as significantly as does CIS, and
Divine's response provides some insight here; OIG's overarching concern is
that the Congressional limit of H-1Bs must not be exceeded.

I-130 Petitioner Death & Humanitarian Reinstatement:

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From: Bob Beer <bobbeergeorgia@...>
Date: Wed Dec 28, 2005 1:43 am
Subject: Humanitarian Reinstatement of I-130 bobbeergeorgia
Offline
Send Email

Dear Moona:

Three (3) quick things I found as follows: The first
is from www.murthy.com:

4. INS on Substitute Sponsors for FB Cases

We are pleased to share a recently released INS Memo,
which provides some helpful guidance on the
interpretation of the Family Sponsor Immigration Act
of 2002. This Act was signed into law on March 13,
2002. Johnny N. Williams,Executive Associate
Commissioner in the Office of Field Operations at INS
had issued a Memo on INS' interpretation of certain
provisions under this law on June 15, 2002. However,
this Memo was only released recently. This law
basically provides that another petitioner in a
family-based (FB) case may file a substitute Affidavit
of Support as the sponsor, if the original
I-130 sponsoring relative has died.

Background

Under current law, a foreign national who seeks
permanent residence via family sponsorship is
inadmissible to the U.S. unless the petitioning
sponsor submits a Form I-864 (Affidavit of Support),
demonstrating that the petitioner will be able to
financially support the foreign national.
Inadmissibility is a term used to describe those
categories of persons not
allowed to enter the U.S. Even if a person is
physically within the U.S., s/he may not adjust status
to permanent residence if s/he is inadmissible.

The particular inadmissibility category involved with
the Affidavit of Support is referred to as the "public
charge provisions." Individuals who are likely to
become a burden to the U.S. are inadmissible. It is
required that Form I-864 be filed in each family-based
immigration case and in some
employment-based cases to overcome this ground of
inadmissibility.

Under prior law, the Form I-864 had to be signed by
the petitioning relative, without exception. This is
still the case, except for the change put into place
for instances when the petitioner is deceased. If the
relative is living, even if that relative does not
have sufficient income or assets to meet the public
charge requirements, s/he still has to submit the
form. In such cases, there were still some alternative
ways to obtain an approval. However, even a penniless
petitioner is required by law to submit the form on
behalf of the foreign relative.

This requirement rendered meaningless the concept of
the "humanitarian exception" or "humanitarian
reinstatement." The humanitarian concept provides an
exception to the general rule that an approved I-130
is automatically revoked upon the death of the
petitioner. Generally, the case is considered
terminated if the petitioning relative dies. There is
an
exception to this rule if the INS is satisfied that
there are humanitarian considerations to reinstate the
underlying I-130 Petition (Petition for Alien
Relative). However, since an Affidavit of Support
signed by the petitioner was previously needed in each
and every case by law, this presented an impossible
obstacle in those instances of a deceased
petitioner. The Family Sponsor Immigration Act of 2002
addressed this "glitch" in the law, by allowing
certain other relatives to substitute for the
petitioning sponsor on the Form I-864.

Qualifying Relatives for Filing the I-864

In the June 15, 2002 Memo, Mr. Williams provides an
interpretation of how the law has changed for
family-based immigrants as of March 13, 2002. Mr.
Williams verifies that the new law permits the foreign
national's spouse, parent, mother-in-law,
father-in-law, sibling, child who is at least 18
years of age, son-in-law, daughter-in-law,
sister-in-law, brother-in-law, grandparent,
grandchild, or legal guardian to become a substitute
sponsor if a family-based visa petitioner dies
following the approval of the I-130 petition but
before the foreign national obtains permanent
residence.

Humanitarian Reinstatement Possible under Certain
Conditions