Philadelphia Immigration Lawyer Blog

On November 30, 2007, the USCIS announced a change to the filing instructions for the I-130 Petition for Alien Relative. Effective Dec. 3, 2007, all I-130 applicants who are filing stand-alone Form I-130s are encouraged to file their petitions with the Chicago Lockbox (I have the address below) instead of a USCIS Service Center.

The I-130 application is the form that either a U.S. citizen or a U.S. permanent resident files for certain qualifying relatives in order to enable those qualifying relatives to then immigrate to the United States.

By stand-alone, the USCIS means I-130 applications that are being filed by themselves as opposed to, for example, an I-130 that is being filed together with an I-485 Adjustment of Status application. Form I-130 applications that are being filed along with other applications are still to be filed as in the past.

The USCIS has established two separate post office box addresses where the stand-alone I-130 should be sent, depending on where the applicant lives.

Stand-alone I-130 applications should be sent by applicants who live in our area (Pennsylvania, New Jersey and Delaware) to: USCIS, P.O. Box 804616, Chicago, IL 60680-1029.

Here is the complete listing of states along with the appropriate new Lockbox address:

Petitioners who reside in Alabama, Arkansas, Connecticut, Delaware, Florida, Georgia, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Mississippi, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Oklahoma, Pennsylvania, Puerto Rico, Rhode Island, South Carolina, Tennessee, Texas, Vermont, Virginia, U.S. Virgin Islands, West Virginia or District of Columbia are encouraged to file their stand-alone Form I-130 with the Lockbox using the following address:
USCIS
P.O. Box 804616
Chicago, IL 60680-1029

Petitioners who reside in Alaska, Arizona, California, Colorado, Guam, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Michigan, Minnesota, Missouri, Montana, Nebraska, Nevada, North Dakota, Ohio, Oregon, South Dakota, Utah, Washington, Wisconsin or Wyoming are encouraged to file their stand-alone Form I-130s with the Lockbox using the following address:
USCIS
P.O. Box 804625
Chicago, IL 60680-1029

For now, it appears that if an I-130 is sent to a Service Center directly, it will still be processed; the USCIS is only “encouraging” this new procedure rather than requiring it. Presumably however, at some point in the future, the filing procedure will be required.

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Posted In: Family Based Immigration

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I just received an unsolicited email from a Pennsylvania-based company offering to sell me a packet of 50 of the new version I-9 forms for $27.95!

That's not exactly a bargain considering that I and anyone else can download the forms for free from the USCIS website.

So just as a reminder--don't pay for I-9 forms or any other immigration forms all of which can be printed for free right from the USCIS website! In case you want to print one out right now, here is the new version of the English language I-9 form and the Spanish language I-9 form.

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Posted In: Employment Based Immigration

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The USCIS will announce in a Federal Register notice today, November 26, 2007, that employers must begin using the new I-9 form no later than December 26, 2007. As I discussed in an earlier posting, the USCIS previously announced that a revised version of Form I-9, one which now includes the revision date of 06/05/07 printed on the lower right corner of the form, would be required to be used soon.

Now that the notice has been published in the Federal Register as of November 26, 2007, all employers must begin using the revised form on December 26, 2007.

Here’s the new I-9 form.

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Posted In: Employment Based Immigration

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On November 23, 2007, the Bush administration announced that it will suspend its legal defense of the Social Security no-match letter regulation it sought to impose earlier this fall.

The Administration is going to redraft the regulation to try to meet the legal problems that led United States District Court Judge Charles Breyer to enjoin it from enforcing the reg back in September. I discussed Judge Breyer's ruling in a prior posting here.

It is clear that the Adminstration is not giving up and will simply try again to impose immigration law enforcement duties on private employers.

The Administration will probably wait until the Spring of 2008 to announce changes in the proposed reg which is hopes will then pass judicial muster.

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No sooner had the California Service Center announced that it would begin denying Form I-129 applications for H1-b concurrent employment where the applicant currently works in H1-b status for a cap-exempt employer and is seeking concurrent H1-b employment with a cap-subject employer, that it then announced a change of mind--but only pending clarification from the USCIS.

Typically, an H1-b visa holder working for a cap-exempt employer can apply for concurrent H1-b employment with a cap-subject employer without worrying about the H1-b cap. The California Service Center, however, had recently announced that it was going to begin denying such applications.

Fortunately,in a change of heart, the California Service Center has decided to wait for guidance from the USCIS before implementing this change of policy.

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Posted In: Employment Based Immigration

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The USCIS announced on November 21, 2007 that naturalization applicants who filed their N-400s after June 1st of this year will have to wait more than a year to have their applications approved (something that will delay them from voting in the next presidential election).

Of course, I have to wonder why the USCIS thinks that a greater than one year delay on naturalization applications is news. Such delays are already routine and I have begun advising clients of mine who have naturalization applications pending for more than one year to consider filing mandamus actions to compel the government to act on their applications.

The USCIS blames the current delays on the "deluge" of naturalization applications (and the many other immigration applications) that were filed this past summer before USCIS filing fees were so dramatically increased effective July 30th.

According to the USCIS, naturalization applications filed after June 1st will take 15 months to 18 months to process. Again, is that news?

In the next few days, I will post an article outlining the basics of mandamus actions by which an applicant can file suit in federal court to try to force the government to act on his or her application.

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Posted In: Citizenship and Naturalization

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In follow up to my November 9, 2007 posting about work authorization for spouses and children of those in various nonimmigrant status, here’s the law on those who are here in L-2 status (i.e., the spouse and children of an L-1 nonimmigrant).

Keep in mind first that L-1A nonimmigrant status is given to those who have worked abroad for one continuous year within the preceding three years and how are being transferred temporarily to the United States to work in an executive, managerial (L-1A) or specialized knowledge (L-1B) capacity for he same or a qualifying, related business. The spouse and minor children of such visa holders enter the U.S. On L-2 visas.

An L-2 spouse is entitled to request work authorization. The law is found at INA Section 214(c)(2)(E) which states:

In the case of an alien spouse admitted under section 101(a)(15)(L) , who is accompanying or following to join a principal alien admitted under such section, the Attorney General shall authorize the alien spouse to engage in employment in the United States and provide the spouse with an `employment authorized' endorsement or other appropriate work permit.

Note that the statute specifically refers to “spouse” without any mention of “children” and therefore, the L-2 children of the L-1 visa holder is not permitted to obtain work authorization.

In order to obtain work authorization, the L-2 spouse, after entering the United States files Form I-765. Along with the application, the spouse must provide proof of the marriage, evidence of the current status of their L-1 husband or wife, and evidence of his or her own entry in L-2 status and two passport style photographs. The instructions to Form I-765 (since the initial posting of this entry, the most recent edition of the I-765 is the 4/8/2008 edition) should be carefully followed in completing the application, in providing all the necessary supporting documentation and on knowing exactly where to send the application for filing.

As of the posting of this article the filing fee for the I-765 is $340.00.

Typically, work authorization is granted for up to two years and it can then be extended but it won’t be granted for any period longer than the validity period for the underlying L-1 petition.

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In what may be a suprise to many, on November 16, 2007, the Department of State announced that in Fiscal Year 2007 it issued a record number of visas to students to study in the United States, even exceeding pre-9/11 levels.

During Fiscal Year 2007, the Department issued more than 651,000 student and exchange visitor visas - 10 percent more than last year and 90,000 more than were issued in Fiscal Year 2001.

That's good news for the U.S. and its economy!

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Here is another posting in my series of work authorization eligibility for the spouse and minor children of principal visa holders: this posting concerns those who are here on E-3D visas—the spouse and minor children of E-3 Specialty Occupation Workers from Australia.

First, the E-3 visa is available to a national of the Commonwealth of Australia who is coming to the U.S. to perform services in a specialty occupation with “specialty occupation” being defined in the same manner as in the H-1B context. That is, an occupation that requires the theoretical and practical application of a body of highly specialized knowledge, and attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation. The Australian national must be able to show he or she will be employed in a specialty occupation in the United States and that he or she possesses the required U.S. bachelor’s or higher degree (or its equivalent) in the specific specialty to meet the minimum requirement for entry into the occupation in the U.S.

The dependent spouse and children (under the age of 21) of an E-3 principal are admitted in E-3D classification.

Under Section 101(a)(15)(E) of the Immigration and Nationality Act, the dependent spouse, but not the child, of an E-3 nonimmigrant may apply for work authorization. As with the spouse of an L visa holder, the law specifically mentions “spouse” and notably does not mention “child” in describing the E-3 holder’s dependents who are eligible.

The E-3D spouse files Form I-765, Application for Employment Authorization along with evidence of the marriage relationship and with evidence of his or her spouse’s E-3 principal status.

Please note that since the posting of this entry, the USCIS has issued a revised edition of the I-765. The new edition date is 4/4/2008. The new I-765 can be found at the same link as above.

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The United States Department of State has posted the December 2007 Visa Bulletin on its website. In Section D, the DOS describes the retrogression of both the China-mainland and the India Employment Second preference cut-off dates. In Section E, the DOS provides projections for immigrant visa availability for both family preferences and employment preferences.

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Posted In: Employment Based Immigration , Family Based Immigration

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In a written memorandum dated November 8, 2007, the USCIS has reaffirmed its regrettable view that when an I-130 visa petitioner dies while the I-130 petition is still pending, the USCIS no longer has authority to approve the petition. This position is very different than the one held by the 9th Circuit Court of Appeals in the case of Freeman v. Gonzales, 444 F.3d 1031 (9th Cir. 2006), and, in fact, the position of the USCIS is not the law in the 9th Circuit . However, in all other jurisdictions, it's the USCIS position and not Freeman v. Gonzales, that's controlling on USCIS adjudicators, something that will result in great hardship to many individuals and families.

An I-130 application is filed by either a U.S. citizen or a U.S. permanent resident on behalf of a “immediate” relative; in the case of a U.S. citizen the relative can be, for example (and with some qualifications) a spouse or an unmarried child under 21 years of age or a parent or a brother and sister and for a permanent resident, for example, the relative can be a spouse or an unmarried child.

The I-130 often takes a long time to be decided and, of course, sometimes the U.S. citizen or the permanent resident dies while the I-130 is still pending. The USCIS has taken the position that when this happens, it must deny the I-130 because the qualifying relationship no longer exists.

In its memorandum, the USCIS has instructed its adjudicators 1) to deny a Form I-130 if the visa petitioner dies after the visa petitioner filed the Form I-130 and before USCIS has adjudicated the Form I-130 and 2) to not follow the decision in Freeman v. Gonzales, in any case arising outside the Ninth Circuit because, in its view Freeman was “wrongly decided”.

One of its criticisms of Freeman is that the Freeman court didn’t give the term “spouse” its common, ordinary meaning. According to the USCIS, the term “spouse” is clearly understood by everyone to refer to a relationship that ends at death. In its memo, the USCIS writes that at the death of a spouse, “the other person, then, is no longer a married person and, by definition no longer a spouse.”

In my view, it’s the USCIS that is failing to give the term “spouse” its common meaning. In any number of federal and state laws, the widow or widower of a deceased person is routinely referred to as the “surviving spouse” with all sorts of rights and benefits that obviously continue after the death of their husband or wife. While it may be true that the death of a spouse ends the marriage (e.g., the surviving spouse is legally free to enter into a new marriage), it doesn’t follow that the death ends all the rights and benefits that the surviving spouse enjoyed, indeed earned, as a result of being in the marriage relationship.

The memorandum did at least remind USCIS adjudicators that if the visa petitioner dies after approval of a Form I-130 – in both immediate relative and family-preference cases – then USCIS has discretion to reinstate the pre-death approval. Such discretion is to be exercised favorably only if there is a substitute sponsor who has submitted a Form I-864 in place of any Form I-864 that was filed, or would have been filed, by the deceased petitioner.

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In my ongoing series of postings regarding the rights of spouses and children of principal visa holders to obtain work authorization, quite simply, an H-4 visa holder (i.e., the spouse or minor child of an H-1b visa holder) - may not accept employment. The H-4 visa holder must obtain their own work visa.

However, H-4 visa holders may engage in full or part time study.

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I was recently asked by a client who is here in the United States on a J-1 visa and his wife who has a derivative J-2 visa to help them in obtaining work authorization for her. When we were successful in doing that I decided to write up a summary of the various rules and regulations regarding work authorization for the spouses of those who are here in the United States on some other principal working visa—that is, the spouse who is here on an L-2 visa because their husband or wife is working here as an L-1A executive or managerial transferee or as a specialized knowledge transferee on an L-1B visa or, as above, the spouse who is here on a J-2 visa because their husband or wife is here on a J-1 visa.

I’ll discuss the situations when a derivative spouse can’t obtain work authorization; for example, the spouse who is here on an H-4 visa because their husband or wife is in the U.S. working on a specialized worker H-1B visa or the spouse who is here on an F-2 visa because their spouse is here as an F-1 student.

Before getting to those summaries, let me state the obvious: never, ever work in the U.S. without first obtaining proper work authorization. Doing so violates the law, violates the terms and conditions of your status, subjects you to all sorts of dire penalties such as criminal penalties, civil penalties, being placed in removal proceedings, having your visa revoked, being prevented from returning to the U.S. under certain circumstances and for certain long periods of time, etc. Just don’t do it!

With that proviso being stated, let’s start with the J-2 spouse whose husband or wife is in the United States on a J-1 visa. First, the J-2 spouse has status to seek work authorization but he or she will get it only under certain circumstances. Title 8, Code of Federal Regulations, part 214.2(j)(1)(v) states: “Income from the spouse's or dependent's employment may be used to support the family's customary recreational and cultural activities and related travel, among other things. Employment will not be authorized if this income is needed to support the J-1 principal alien.”

Clearly, the J-2 spouse can obtain work authorization but he or she will do so only after satisfying the USCIS that employment is only being sought and the income will only be used only to support the family’s recreational and cultural activities. If the J-2 spouse needs to work in order to pay for the family’s basic living expenses, then work authorization is not going to be given.

The J-2 spouse applies for the Employment Authorization Document (the “EAD”), by filing Form I-765 with the USCIS Service Center that has jurisdiction over his or her place of residence. For example, if the J-2 visa holder resides in Philadelphia, he or she would apply at the Vermont Service Center. The I-765 should be submitted with all required evidence including evidence of not only the applicant’s J-2 status but also their spouse’s J-1 status, the DS- 2019 forms, copies of the identification page of J-2's passport, including the photo page, a copy (both front and back) of his or her I-94 and the I-94 of the J-1 spouse, 2 passport style photographs, a copy of any prior work-authorization card, a letter stating why the income is necessary and finally, of course, the filing fee. As of the writing of this post, the filing fee for the I-765 is $340.00.

If approved, the J-2 visa holder will be authorized to work in any kind of full or part-time employment for the period stated on the card but only as long as the J-1 spouse is maintaining their own status.

On the next posting, I’ll talk about L-2 spouses of those on L-1 executive or managerial intracompany transferee visas.

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Posted In: Employment Based Immigration , Family Based Immigration

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On November 7, 2007, the U.S. Citizenship and Immigration Services (USCIS) announced that a revised Employment Eligibility Verification Form (I-9) is now available for use.

Every employer in the United States is required to complete a Form I-9 for every single employee hired in order to satisfying the employer’s legal obligation to verify the employee's identity and authorization to work. In order to complete the form, the employee must provide the employer with certain documents from a List of Acceptable Documents that establish both identity and work authorization.

Back in 1996, The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) mandated a reduction in the number of documents that employers may accept from newly hired employees during the employment eligibility verification process and in 1997 regulations were issued that eliminated some of the documents that IIRIRA removed as being acceptable . However, Form I-9 was never updated to reflect the revised List of Acceptable Documents.

Now it has been.

The revised form removes five documents for List A—that is, the list of documents that simultaneously prove both identity and employment eligibility. They include: Certificate of U.S. Citizenship (Form N-560 or N-570); Certificate of Naturalization (Form N-550 or N-570); Alien Registration Receipt Card (Form I-151); the unexpired Reentry Permit (Form I-327); and the unexpired Refugee Travel Document (Form I-571). According to the USCIS, there forms lacked features to help deter counterfeiting and fraud.

Also, one document has been added to List A of the List of Acceptable Documents: the most recent version of the Employment Authorization Document (Form I-766).

The new M-274 Handbook for employers, the USCIS instructions for how to complete the new I-9 form, is also now available.

Continue reading " New I-9 Form for Employment Verification Announced by USCIS " »

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On November 6, 2007, the Department of Homeland Security issued a Notice of Proposed Rulemaking by which it proposes to amend regulations to allow for short-term, nonimmigrant visas and temporary admission for foreign nationals who are presently inadmissible to the United States because they are HIV positive.

The changes would provide for a more streamlined process by which such nonimmigrants could enter the U.S. as a visitor for either business or pleasure for up to 30 days and subject to certain conditions as stated in the proposed rule.

Comments by the public to the proposed new rules are due by December 6, 2007.

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Fortunately, House and Senate conferees struck a proposed H1-B visa fee increase from a conference report that is scheduled to be made public on November 5. House and Senate appropriators took this welcome action when they met to combine the Defense, Military Construction-VA, and Labor-HHS-Education appropriations into one single bill.

The fee increase had been proposed by Senator Charles Grassley and would have increased H1-B application fees by an additional $3,500.00 on top of the already too-high fees charged to U.S. employers who file the I-129 H1-B application.

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In a welcome change, on November 1, 2007, the USCIS published a Final Rule that makes it easier for certain H-1 and L-1 nonimmigrants who are returning from travel abroad to re-enter the United States without having to worry about having abandoned an I-485 Adjustment of Status application that they might have pending. The Final Rule is effective immediately.

Prior to this new rule being made effective, an individual on a an H-1 or an L-1 visa who traveled outside the United States while they had an adjustment of status application pending with the USCIS was required to show, when they re-entered the United States, the USCIS receipt notice for that I-485. Previously, if the H or L visa holder failed to show the Receipt Notice, they ran the risk of having their I-485 to be “deemed” to have been abandoned.

The USCIS has now quite correctly recognized that producing the Receipt Notice is “an unnecessary documentation requirement from the regulations that the Department of Homeland Security has determined causes an undue burden” on the H-1 and L-1 nonimmigrants.

Here’s the background.

Continue reading " H-1 Visa and L-1 Visa Holders and Their Travel Abroad: No More Need to Present I-485 Receipt Notices at a Port of Entry " »