Articles Posted in Green Card

What’s Changed

On August 29, 2016, a final rule, expanding the existing provisional waiver process to allow spouses and children of U.S. citizens and lawful permanent residents to more easily navigate the immigration process, went into effect.

U.S. Citizenship and Immigration Services (USCIS) extended eligibility for the provisional waiver process to all individuals who are statutorily qualified for immigrant visas.  First established in 2013, the provisional unlawful presence waiver process, put into place with the purpose of supporting family unity, allows immediate relatives, family-sponsored or employment-based immigrants, as well as Diversity Visa selectees to apply for a waiver of inadmissibility in the United States before they depart for their immigrant visa interview.

Typically, a foreign national who has accrued more than one hundred eighty (180) days but less than one year of unlawful presence is subject to a three (3) year bar from returning the US after a departure. A foreign national who has accrued more than one year of unlawful presence is typically subject to a ten (10) year bar from returning to the U.S. after a departure (commonly referred to as the “3/10 year bar”).  While a waiver of these bars remains available, applicants may only apply for this waiver from outside the US.  This process carried a very significant risk of being trapped outside of the US for months or even years pending the adjudication of the waiver.  Even worse, if the waiver application were to be denied, the applicant would be unable to return to the US for 3/10 years, depending upon the previous duration of unlawful presence.

As of March 4, 2013, immediate relatives[1] of US citizens were eligible to apply for the provisional unlawful presence waiver (“601A waiver”) to request that USCIS grant a provisional waiver of these grounds of inadmissibility before departing the United States for consular processing of their immigrant visas— rather than applying for a waiver abroad after their immigrant visa interviews.  This provided applicants with a significant degree of certainty that they would be eligible to return to the US after their interview because the Applicant would already know if their waiver had been granted prior to departing the US.  If the 601A waiver were denied, most Applicants would simply remain in the US.  In practice, while many Applicants were able to make use of the 601A Waiver to reenter, there remained a modicum of danger, as US Customs and Border Protection (CBP) ultimately determines admissibility at the time of entry.  In addition, this iteration of the 601A left out many otherwise qualified individuals, such as immediate relatives of legal permanent residents (LPR).

On July 29, 2016, U.S. Citizenship and Immigration Services (USCIS) announced a final rule, to expand the class of individuals who may be eligible for a provisional waiver of certain grounds of inadmissibility based on the accrual of unlawful presence in the United States.  The final rule is to take effect on August 29, 2016.

On November 2, 1966, Congress passed the Cuban Adjustment Act, which permitted Cuban nationals who have been physically present in the United States of America for at least one year, who have been admitted or paroled, and who are admissible as immigrants to the United States to apply to for adjustment of status to that of a legal permanent resident (“LPR”). As a legal permanent resident, they would be eligible for certain benefits, such as being eligible to stay and work in the country legally, being able to start a business, and eventually naturalizing and becoming a citizen of the United States. As a legal permanent resident from Cuba, they also enjoy certain benefits that are typically not available to LPR’s from other countries, such as food stamps and access to Medicaid.

This policy was later modified in 1995, in what has been commonly known as the “Wet Foot, Dry Foot” policy, which was the result of a negotiated settlement with between the Clinton Administration and the Cuban government. The policy provides that anyone who is caught in the waters between Cuba and the United States would be sent back to Cuba, whereas anyone who makes it to shore would be eligible to become a permanent resident, and would eventually have a path to becoming a citizen of the United States.

Recently, another modification has been considered for this special program. According to CNN’s article, “The last flight and first steps: ‘Historic’ surge of Cubans crossing into the U.S.”, thousands of Cubans have been continuing to flee north with many eventually reaching North America. “More than 35,600 Cubans have arrived at U.S. ports of entry since October 1 [2015], nearly three-quarters of them at the Texas border, according to U.S. figures.” As Cubans fled from the repression and financial hardships of their home country, they faced many challenges along the way in potential host countries, including low wages as undocumented workers in Ecuador, hiking for days through the Colombian jungle, facing rough terrain, armed groups and extortion by authorities, with some South American countries closing off their borders to the refugees or others threatening to deport them. When faced with these options, many chose to continue the journey into the United States where greater opportunities lay.

(This begins our three-part series on the development of Deferred Action for Childhood Arrivals, its proposed expansion, DAPA, and the recent developments in the US Supreme Court)

On June 15, 2012, President Barack Obama unveiled the Deferred Action for Childhood Arrivals program (DACA) to protect certain classes of undocumented immigrants. Under this program, the US Department of Homeland Security would not remove undocumented youth who had come to the United States as children if they had met certain criteria. Instead, these youth would be “DACAmented” and given a number of benefits that were previously unavailable to them, including the temporary permission to stay in the US under “deferred action.”

To be eligible for the initial DACA guidelines, an applicant must:

One issue that America faces is the dwindling number of advanced degree workers in the fields of Science, Technology, Engineering, and Math (STEM). Half or more of students who graduate with a Master’s degree or Ph.D. in these areas that are educated in American universities are foreign nationals with student visas.

But due to restrictive immigration laws, these US educated foreign students are made to leave the U.S. after graduation. “American universities are educating the world’s leading STEM graduate students – only to export this talent to our competitors overseas,” declares Senator John Cornyn of Texas.

Senator Cornyn has introduced a bill that will solve the “brain drain” problem through an immigration reform act. Known as the STAR Act of 2012 (Securing The Talent America Requires for the 21st Centrury Act of 2012), the bill proposes that graduates from academic institutions that receive at least $5 million in federal research grants may apply for US permanent residency.

When a US company wishes to hire foreign, workers with non-immigrant status temporarily, they may elect to use an H-1B visa, an L-1 visa or other options that are available to them. However, if a business wants to hire a foreign worker permanently, they must first go through a process called labor certification. Basically, this process requires the employer to prove they are unable to find US residents who are capable of doing the job. This is the first step in the process of getting US permanent residency or “green card.”

It is important to understand that the Department of Labor defines “qualified” as someone who can fulfill the minimum requirements for the position. If a US resident has the minimum requirements to fill the position, a company cannot offer the position to a foreign worker.

The controversy of labor certification

The stated goal of labor certification is “to protect US workers and the US labor market by ensuring foreign workers seeking immigrant visa classification are not displacing equally qualified US workers.” It is however a controversial system, since the procedures force US employers to represent minimum requirements which are then reviewed by the Department of Labor. These requirements are then matched up with the Code of Federal Regulations and the employer must also prove they have not hired workers who have less experience than what they are requesting for the open position. Others argue that labor certification forces ;employers to offer long-term employment to workers who are on a temporary visa and then adjust the job description to allow this person to remain in the position.

The best thing about the application for an adjustment of status is that it signifies the last step on the road to obtaining a Green Card. Permanent resident status is granted once the application has been approved.

There are some additional benefits that can be realized while you are in the pending period of your application for adjustment of status:

  • You will be eligible to apply for a Work Permit which will enable you to work for any employer during the pending period.
  • You will also be able to apply for Advance Parole which will give you the ability to travel abroad during the pending period.
  • While you will be able to legally stay in the US without a valid non-immigrant status during the pending period, you might want to consider keeping your non-immigrant status. Specifics of your circumstances should be taken into consideration.

Another thing to think about was recently published on the New York Daily News website. It reminded us that:

Applying for a green card is necessary for securing permanent residence in the US. If you've gone through the process and already obtained a green card, congratulations; you've surmounted a major obstacle to remaining and working in the country. However, as a green card holder, you still remain vulnerable in multiple ways and need to safeguard against losing your status in the future.

Proving your intention to remain in the US

If immigration officials have doubts about your intention to reside permanently in the US, you might lose your green card. One example of such a situation is if you begin to live for lengthy periods of time in another country. It's not enough to make sure you do not stay outside the US for more than 6 months straight and the return to the US for a few weeks or days each time.

One general piece of advice for showing intent to reside in the US is to apply for a reentry permit if you're planning to leave the US for more than one year, but less than two years. However, even if you're leaving the US for less than one year, you might still come under suspicion for having abandoned your permanent resident status. To strengthen the case that you wish to remain a permanent resident, you should have a valid US address, open and maintain a bank account in the US, and correctly file income tax returns, even when you're abroad. If need to go overseas for some length of time, document the reason why; for instance, if you're abroad for business reasons, keep a handy copy of your employment contract.

Labor certification is the first step on the road to a green card through employment sponsorship. For those unsure of what labor certification specifically means, it is the process created by the U.S. Department of Labor to "protect U.S. workers and the U.S. labor market by ensuring that foreign workers seeking immigrant visa classifications are not displacing equally qualified U.S. workers."

At one time, this process took years, as the Department of Labor would provide instructions to the employer on how to recruit for the position and searching for U.S. applicants. In 1998, a streamlined approach was implemented wherein the employer would recruit first and then file evidence about a lack of minimally qualified U.S. workers afterwards. Then in 2005, PERM was introduced.

PERM, which stands for Program Electronic Review Management, is the completely electronic version of labor certification, designed to further speed up the process, which can now be measured in months rather than years. But despite this speedier process, PERM still requires a lot of effort.

The constitutionality of the Defense of Marriage Act (DOMA) is set to be reviewed by the U.S. Supreme Court. The Court’s ruling would have an effect not only on same-sex couples but also on immigration and deportation.

Currently, one possible route to adjusting status to a permanent resident (green card) is through sponsorship of a US citizen spouse. Foreign-born men and women who marry someone of the opposite sex who is an American citizen are eligible to apply for permanent residency and, once residency is granted, can ultimately apply for citizenship. This is not the case for same-sex couples. In forty states, same-sex couples are unable to marry. Furthermore, the federal government does not recognize same-sex marriages conducted in the ten states that allow it. This means that foreign-born men and women involved in same-sex relationships are unable to apply for permanent residency due to marriage.

The Defense of Marriage Act (DOMA) prohibits the marriage between persons of the same sex. This law is being challenged for being unconstitutional. The US government has issued an official statement that it cannot support the constitutionality of the law. This leaves the issue solely with the US Supreme Court.