Philadelphia Immigration Lawyer Blog

The Board of Immigration Appeals has issued an important decision on the issue of when a continuance should be granted by an Immigration Judge when an alien is in removal proceedings but who has a pending family-based visa petition ( an I-130 ) that makes him or her prima facie eligible to adjust his or her status to permanent residency. The case is Matter of Ajmal Hussain Shah Hashmi and the case was decided on April 22, 2009.

The BIA held that when an alien has an unopposed motion to continue removal proceedings because he or she is waiting for the USCIS to decide a pending family-based visa petition, the continuance should generally be granted if approval of the visa petition would render him prima facie eligible for adjustment of status.

The BIA outlined the factors for an Immigration Judge to consider when determining whether good cause exists to continue the removal proceedings, including: the USCIS position on the continuance request; whether the underlying visa petition is prima facie approvable; whether the alien is statutory eligibility for adjustment of status; whether the alien’s application for adjustment merits a favorable exercise of discretion; and the reason for the continuance request.

In this case, the alien was placed in removal proceedings but he claimed relief based on his marriage to a U.S. citizen and his pending I-130. He was granted four continuance requests by the IJ while waiting for the USCIS to decide his I-130. However, the IJ denied his fifth continuance request because, he said, was expected to complete cases in a
reasonable period of time by meeting certain “case completion goals” set by
the Department of Justice.

The alien appealed and the Third Circuit Court of Appeals held that the IJ’s denial of the alien’s fifth continuance request was arbitrary and an abuse of discretion because it was based solely on case-completion goals. The Court remanded the case back to the BIA.

Keep in mind that a family-based adjustment of status application involves two basic steps . First, the U.S. citizen or lawful permanent resident petitioner files an I-130 on behalf of his or her qualifying family member, who is the beneficiary of the visa petition. Once the I-130 is approved and an immigrant visa is immediately available, the alien may apply for adjustment of status. The problem is that if an alien is in removal proceedings while waiting for the I-130 to be approved, it may take a very long time for the approval to come through—too long for the IJ’s patience and it is the IJ who has the discretion to either grant or deny a request to continue removal proceedings.

The BIA ruled that discretion should be favorably exercised (and the continuance request granted) where a prima facie approvable visa petition and adjustment application have been submitted during removal proceedings. The ruling makes a lot of sense given the significant interest at stake—the chance to acquire lawful permanent resident status and not to be removed from the U.S. and separated from family while waiting for the USCIS to make a decision on an I-130.

The BIA then laid out the factors for an IJ to consider. Again, those factors are
(1) the DHS response to the motion; (2) whether the underlying visa petition
is prima facie approvable; (3) the respondent’s statutory eligibility for
adjustment of status; (4) whether the respondent’s application for adjustment
merits a favorable exercise of discretion; and (5) the reason for the continuance
and other procedural factors.

These factors are illustrative, not exhaustive and the BIA was even more specific about what an alien should actually submit to an Immigration Judge to assist the Judge in, hopefully, granting a continuance grant.

One thing is for sure—an Immigration Judge may not consider compliance with his or her case completion goals as a proper factor in deciding a continuance request.

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In a well reasoned opinion, the Sixth Circuit Court of Appeals has ruled that a “surviving alien-spouse” is a “spouse” within the meaning of the “immediate relative” for purposes of adjusting status to that of permanent resident under 8 U.S.C. § 1151(b)(2)(A)(i). The case is Lockhart v. Napolitano.

The USCIS had earlier denied the adjustment of status application that was filed by Nelly Lockhart because, it said, she was no longer an “immediate relative” since her U.S. citizen husband died within two years of their qualifying marriage.

For the 6th Circuit, it was an issue of first impression although, as I noted in an earlier post, the opposite decision was reached by the Third Circuit, based in Philadelphia, in Robinson v. Napolitano, 554 F.3d 358 (3d Cir. 2009).

The Sixth Circuit’s ruling is the better reasoned.

Mrs. Lockhart is a citizen of the Philippines, who was admitted to the United States in December, 2003 and she married a U.S. citizen in January, 2004. Mr. Lockhart filed Form
I-130 (Petition for Alien Relative) on his wife’s behalf. As is routine, Mrs. Lockhart simultaneously filed an I-485 (Application to Adjust Status) and the USCIS began processing the applications. The USCIS did not make a decision before December, 2005, when Mr. Lockhart died suddenly of a heart attack. At the time of Mr. Lockhart’s death, he and Mrs. Lockhart had been married for one year and eleven months.

After it learned of Mr. Lockhart’s death, the USCIS denied the I-130 and the I-485 on the ground that, upon Mr. Lockhart’s death, Mrs. Lockhart was no longer the “spouse” of a United States citizen and therefore she wasn’t entitled to treatment as an “immediate relative”. It then placed Mrs. Lockhart in removal proceedings. Mrs. Lockhart filed a petition for a writ of mandamus asking that the USCIS be compelled to rule that she was an “immediate relative” and approve the I-130 and I-485.

The case made its way to the 6th Circuit Court of Appeals which ruled in her favor.

The Sixth Circuit held that the language in the law referring to the two-year duration granted a separate right to an alien widow to self-petition, within two years of the citizen spouse’s death and that it didn’t limit the definition of “spouse”.

The Court also considered the ordinary, contemporary, common meaning of the term “spouse” because the Immigration Act itself does not define “spouse”. The Court said the legal, as well as the ordinary, meaning of ‘spouse’ is ‘one’s wife or husband’ and a ‘surviving spouse’.

The Court’s ruling makes common and legal sense and offers precedential support for others who may find themselves in Mrs. Lockhart’s unfortunate circumstances

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A recent decision by the AAO shows how difficult, but not impossible, it is to satisfy the “exceptional hardship” requirement for obtaining a waiver of the requirement that a J-1 nonimmigrant exchange visitor return to her home country for 2 years before being eligible for an immigrant visa. Exceptional hardship in waiver cases is often very difficult to establish because “exceptional” means just that: exceptional. It’s something far beyond just the usual anxiety, loneliness and financial hardship that would be suffered by any loving family members who might be forced to separated from each other.

In this AAO case, the J-1 visa holder was required by regulation to return to her home county, the Philippines, because under the law, all J-1 exchange visitors who come to U.S. to receive graduate medical education must return home for two years before they can apply for permanent residency, unless certain waivers apply. In this case, the only waiver that was available was the “exceptional hardship” waiver. This required her to show that her departure “would impose exceptional hardship upon the alien’s [U.S. citizen or permanent resident] spouse or child”.

The AAO started its analysis by asking whether exceptional hardship would be suffered by the applicant’s spouse or child if the circumstances forced them to travel abroad with the applicant to the applicant’s home country. Just because they chose to stay in the U.S. while the applicant was required to return home, would not show “exceptional hardship”.

Even then, even if exceptional hardship abroad were shown, the AAO said that it still must be shown that the U.S. citizen or permanent resident spouse or child would suffer “exceptional hardship” here in the U.S. if the applicant simply went home alone.

In this case, the applicant offered evidence of exceptional hardship to the California Service Center of the USCIS but her application was denied. Fortunately, the AAO ruled in her favor in her appeal.

It first held that her U.S. citizen children would suffer exceptional hardship if they went to the Philippines with their mother. One child has bronchial asthma which would have worsened in the Philippine environment, the children lived in the U.S their whole lives, did not speak Tagalog and would be subject to kidnappings as U.S. citizens. The applicant wisely submitted affidavits and much documentary evidence about conditions in the Philippines.

The AAO was also satisfied . . . . .

Continue reading "J-1 Visa and the Exceptional Hardship Waiver - a Favorable AAO decision" »

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Posted In: Employment Based Immigration , Family Based Immigration , Green Card

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On June 5, 2008 the USCIS announced a clarification on I-751 transfer notices that may have led certain conditional residents to think that their I-751 (the Petition that’s filed in order to remove conditions on residence) has been approved when, in fact, the petition has only been transferred and not yet approved.

The problem started last month when the USCIS announced that it would soon require all Forms I-751 to be filed at only the California or Vermont Service Centers (depending on the residency of the petitioner). At the same time, it was also announced that until that filing change was final, the USCIS itself would transfer any I-751 petition that was still filed with either the Nebraska and Texas Service Centers to either California and Vermont for a decision.

When such a transfer happened, the USCIS has been sending out a notice of the transfer with the following language: “CRI89 approved removal of conditions (I89)”.

That language has understandably confused people who think their I-751 has been approved. But all the transfer notice really means is that the biometric portion of the case has been successfully transferred. It does not mean that the petition itself was approved.

Very confusing.

So the USCIS is going to remove the confusing language from the transfer notices. Any I-751 applicant should not consider that his or her I-751 application has been approved until he or she receives a specific I-751 approval notice from the Vermont Service Center or California Service Center (again, depending on the residency of the applicant).

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In yet another example of the possible later effects and great dangers of falsely claiming U.S. citizenship, the Fifth Circuit Court of Appeals has remanded a case involving an adjustment of status applicant who is married to a U.S. citizen but who falsely claimed to be a U.S. citizen back in 1998 in order to gain admission to Drexel University as a part-time, evening program. The applicant is in removal proceedings and the government is claiming that he is inadmissible (and therefore cannot adjust his status to permanent residency) because of his prior false claim to U.S. citizenship. The case is Ismail v. Gonzales.

Under the law (INA §212(a)(6)(C)(ii)(I)) person who "falsely represents, or has falsely represented, himself or herself to be a citizen of the United States for any purpose or benefit under this chapter or any other Federal or State law is inadmissible."

The immigration judge ruled that the applicant received a "benefit" under state law when he enrolled as a Drexel student and therefore he is inadmissible and ineligible for adjustment of status. On appeal, the BIA upheld the decision of the IJ but on different grounds -- that the applicant’s false claim had been made to accomplish the "purpose" of gaining admission to college. The Federal Court has remanded the case to the BIA so that it can decide whether the false claim to U.S. citizenship was made to gain a benefit under state or federal law.

The Federal Court did this because under the same court’s opinion in Theodros v. Gonzales, it held that an applicant for adjustment who had made a prior false claim to U.S. citizenship in order to gain employment in the private sector was, in fact, inadmissible and not eligible for adjustment because private employment is a “benefit” under state law. The court’s remand was so that the BIA could consider its decision in light of Theodros.

While the BIA will now reconsider the case, the bottom line is that it is a big mistake for any alien to falsely claim U.S. citizenship. It is a violation of the law and, as we can see in this case, in Theodros and in other cases, it is a mistake that can come back and haunt an applicant years later in circumstances (such as trying to adjust status based on a bona fide marriage to a U.S. citizen) that otherwise would be a straightforward application for permanent residence.

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On May 23, 2008, the USCIS announced that it will soon require that Form I-751 (the Petition that is filed by individuals who were granted conditional residential status through marriage to a U.S. citizen in order to remove the conditions on that permanent residence status) be directly filed with either the California or Vermont Service Centers, depending on the residence of the applicant.

All Forms I-751 are currently acted on at either of these two Service Centers anyway. However, depending on the applicant’s residence, applicants can still send them to the Nebraska and Texas Service Centers—but not for long.

For now, the USCIS is “requesting” that all Form I-751 petitioners file their petition with the California or Vermont Service Centers as follows:

If you live in Alaska, American Samoa, 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, and Wyoming, you should file your I-751 with the California Service Center at P.O. Box10751, Laguna Niguel, California 92607-0751.

If you live in Alabama, Arkansas, Connecticut, Delaware, Washington, D.C., 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, and West Virginia, you should file your I-751 at the Vermont Service Center at 75 Lower Welden St., St. Albans, Vermont 05479-0001.

Once the formal change in the I-751 instructions has been made, the USCIS will no longer “request” that I-751 applicants file only with either the CSC or the VSC, but will require it. Any applicant who for now can still file with the Nebraska or Texas Service Centers, is advised to just go ahead and comply with the soon-to-be-required change of filing locations.

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Here is a posting on the basics of a foreign national who is placed in removal proceedings but who then marries a U.S. citizen.

Basically, the law says that when a foreign national marries a U.S. citizen after having been placed in removal proceedings, he or she cannot adjust their status to permanent residency until the foreign national resides outside the U.S. for a two year period beginning after the date of the marriage—something that clearly creates a great hardship for any such married couple. Fortunately, the law also allows for a “waiver” of this requirement if the couple can show by clear and convincing evidence that the marriage was entered into in good faith and that it was not entered into simply for the purpose of obtaining permanent residency for the foreign national. That is, is it a bona fide marriage?

The process for filing the I-130 Petition for Alien Relative and the I-485 Application to Register Permanent Residence is different in this situation than it is for a couple who marry outside the removal proceeding context. When the foreign national is in removal proceedings in Immigration Court . . .

Continue reading "The I-130 and I-485 Process for a Foreign National Who Marries a U.S. Citizen While in Removal Proceedings" »

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Here is the June, 2008 Visa Bulletin. I would only point out that Section D notes expected retrogression in the Family 2A category for Mexico and that Section E notes that the Employment Third preference (EB3) category is close to the annual numerical limit.

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On March 25, 2008, the 9th Circuit Court of Appeals held that a non-citizen who enters the U.S. by fraudulent means is statutorily ineligible for adjustment of status because that non-citizen has not been “admitted.” The case is Orozco v. Mukasey, 521 F.3d 1068(9th Cir. 2008). In this case, the non-citizen entered the U.S. through a checkpoint where he was inspected but he did so with someone else’s green card. He then married a U.S. citizen who filed an I-130 on his behalf and the I-130 was approved. Sometime thereafter he was put in removal proceedings where he tried to adjust his status to permanent residency because of his marriage and the approved I-130 and he asked for a 212(i) fraud waiver.

The Immigration Judge denied Orozco’s application for adjustment on the grounds that to adjust status, one must have been lawfully “admitted” to the U.S. and because of his fraudulent entry, Orozco was not “lawfully admitted”. The IJ held that the law defines "admission" as the "lawful entry of the alien into the U.S. after inspection and authorization".

The IJ ruled that the 212(i) fraud waiver, even if granted, wouldn’t change the lack of “admission”. The BIA affirmed and the federal court then upheld the IJ and the BIA.

The court’s ruling is binding law in the 9th Circuit only and, in fact, a federal court in the 2nd Circuit ruled completely differently (Emokah v. Mukasey).

On May 12, 2008, the 9th Circuit stayed its ruling for 60 days to allow the parties to file for rehearing so this ruling may not be the last word in the Circuit. Certainly if the case does hold up, one issue for future cases will be whether Orozco controls only where the non-citizen affirmatively enters the U.S. in a fraudulent manner--that is, knowing full well that his documents are counterfeit, as opposed to someone who presents himself at a point of entry with a fraudulent document but is waived through without actually showing it.

I’ll up the post when there is a decision on any re-hearing.

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The May 2008 Visa Bulletin is out. The only real progress to report since the April 2008 Visa Bulletin is in the EB-3 Worldwide and Philippines Priority Dates which jumped over one year from July 1, 2005 to March 1, 2006.

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On March 21, 2008, the USCIS issued a reminder that all stand-alone I-130 petitioners must file their stand-alone I-130 petitions with the Chicago Lockbox and NOT at a USCIS Service Center. Here’s my earlier post about the new requirement back on February 21, 2008 and the USCIS has now issued its own reminder.

The I-130 is the petition that is filed by either a U.S. citizen or a permanent residents who are eligible to file for certain immediate relatives. Often, the I-130 is filed together with the I-485 application to adjust status (and this USCIS reminder is not applicable to the I-130 when it is being filed together with other petitions like the I-485). The new rule is only relevant to stand-alone I-130 petitions.

The USCIS is reminding petitioners that if they are filing a stand-alone petition, they must file with the Chicago Lockbox and if they don’t, as of April 30, 2008, an improperly filed I-130 is going to be rejected.

After the I-130 is filed with the Chicago Lockbox, the USCIS will then route the I-130 to either the Vermont Service Center or the California Service Center for receipting and adjudication (based on the petitioner's place of residence in the U.S).

Two separate post office box addresses have been established that correspond to the appropriate USCIS service center (either Vermont or California):

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 must file their stand-alone Form I-130s with the Lockbox using the following address:

USCIS
P.O. Box 804625
Chicago, IL 60680-1029

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 must file their stand-alone Form I-130s with the Lockbox using the following address:

USCIS
P.O. Box 804616
Chicago, IL 60680-1029

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Here’s a follow up to my posting of November 30, 2007 regarding the filing of a stand-alone Form I-130 Petition for Alien Relative. The new filing instructions for filing a stand-along I-130 are now mandatory. When the change was first announced, applicants were only “encouraged” to follow them.

All stand-alone I-130 applications must be filed with the Chicago Lockbox instead of a USCIS Service Center. The USCIS will then rout the I-130 to the appropriate Service Center (depending on the applicant’s residence) and that Service Center will then issue a Receipt Notice.

Here are the two different Chicago Lockbox addresses where a stand-alone I-130 must be filed, again depending on the residence of the applicant.

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On February 11, 2008, a Consent Order was entered into in the United States District Court for the Middle District of Pennsylvania requiring the Luzerne County Register of Wills to issue marriage licenses to applicants who otherwise comply with Pennsylvania law without consideration of the applicant’s immigration status.

The case arose when the Luzerne County Register of Wills improperly required an applicant for a marriage license to prove that he or she was lawfully present in the United States, regardless of the fact that Pennsylvania law has no such requirement. Pennsylvania law only requires that an applicant for a marriage license fill out an application stating his or her name, birthplace, age, etc., and that the applicant be competent, that they not be under the influence of drugs, alcohol, etc. It is entirely silent about a person’s immigration status.

The Luzerne County Register of Wills was sued when she required, contrary to Pennsylvania law, that an applicant also prove that he or she was lawfully present in the United States. (Similar requirements were cited in the lawsuit for Lackawanna, Wyoming, Monroe, Carbon, Allegheny, Delaware and Philadelphia counties)

The Consent Order prohibits the Luzerne County Register of Wills from requiring that any applicant for a marriage license prove their lawful presence in the United States as a condition for a marriage license.

This is clearly a correct, proper result and it hopefully will result in others – regardless of their immigration status - coming forward to apply for marriage licenses where they intend to enter into bona fide marriages.

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Here is the February 2008 Visa Bulletin as published by the United States State Department.

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On December 12, 2007, the U.S. District Court for the District of Massachusetts, in Taing v. Chertoff, joined the 9th Circuit Court of Appeals in its decision, Freeman v. Gonzales, 444 F.3d 1031 (9th Cir. 2006) and the United States District Court for the District of New Jersey in its unpublished decision, Robinson v. Chertoff, 2007 WL 1412284 (D.N.J., May 14, 2007) in ruling that a properly filed I-130 Immediate Relative Petition does not automatically lapse if the petitioning U.S. citizen spouse dies while the application is pending. Recall that the I-130 is the application that is filed by either a U.S. citizen or U.S. permanent resident for certain “immediate relatives” including, of course, a spouse.

It has been the USCIS position that where a U.S. citizen files an I-130 for a spouse and then dies while that I-130 is pending, the I-130 must then be denied—basically because if the deceased U.S. citizen spouse dies before the I-130 is decided, then he or she is no longer the immediate relative of the non-citizen spouse.

As I posted back in November 12, 2007, the USCIS has instructed its adjudicators to continue to deny any I-130 application--outside the 9th Circuit--where the U.S. citizen spouse dies during the pendency of the I-130 application. Basically, the USCIS is instructing its adjudicators to ignore Freeman everywhere outside the 9th Circuit. Now, in light of the Massachusetts and New Jersey decisions, the USCIS may need to re-think its memorandum.

The Massachusetts and the New Jersey court decisions have both agreed with the 9th Circuit's reasoning in Freeman.

In both cases, the courts ruled that the death of the U.S. citizen spouse did not end the legal relationship between that U.S. citizen spouse and alien spouse—they are still immediate relatives, even after the death of the U.S. citizen, and the surviving spouse still has standing to pursue an adjustment of status application at the approval of the I-130.

The Courts' rulings in Massachusetts and New Jersey make complete legal and common sense, as did the 9th Circuit Court of Appeals decision in Freeman.

We’ll see how the USCIS responds now that two U.S. District Courts have agreed with reasoning of the U.S. 9th Circuit Court of Appeals—reasoning that the USCIS has instructed its adjudicators to ignore.

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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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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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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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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 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.

Posted by James M. Tyler | Permalink | Email This Post

Posted In: Family Based Immigration

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On October 25, 2007, the U.S. Citizenship and Immigration Services (USCIS) announced procedural changes in the filings of Form I-600, Petition to Classify Orphan as an Immediate Relative when the I-600 is being filed on behalf of a Vietnamese child on or after October 29, 2007. Starting on October 29, 2007, the USCIS office in Ho Chi Minh City, Vietnam will have sole jurisdiction over all such I-600s.

The change is being made in response to concerns about irregularities that the USCIS says have been occurring in identifying children for adoption in Vietnam and in identifying them as orphans. Accordingly, the processing will be centralized in Ho Chi Minh City.

The USCIS is encouraging prospective adoptive parents to file the I-600 (and the required supporting documents directly with the USCIS in Ho Chi Minh City before traveling to Vietnam. The application and supporting documents if sent by courier should be sent to the United States Consulate General, 4 Le Duan Street, District 1,
Ho Chi Minh City, Vietnam, Attn: DHS/USCIS.

The prospective adoptive parent petitioners will receive a notice of receipt from the USCIS Ho Chi Minh City office which will review the petition and supporting evidence to determine whether the child qualifies as an orphan. As necessary, an administrative field inquiry or a request for evidence will be necessary to make that determination, something that the USCIS anticipates should be completed in 60 days. Then, if the child qualifies as an orphan, the USCIS will notify the prospective parents that they may then travel to Vietnam to proceed with the adoption.

Posted by James M. Tyler | Permalink | Email This Post

Posted In: Family Based Immigration

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Unfortunately, and despite bipartisan support for the bill, the DREAM (Development, Relief and Education for Alien Minor Act) Act failed to survive a procedural vote in the U.S. Senate yesterday by a vote of 52-44. I described the DREAM Act in a posting yesterday; its defeat is terribly disappointing.

When the Senate failed to pass comprehensive immigration reform this summer, it was hoped that perhaps narrow bills targeted at very specific immigration issues could be passed. This defeat suggests otherwise. Most observers now believe that any immigration reform, comprehensive or otherwise, is off the table at least until after the Presidential election in 2008.

Posted by James M. Tyler | Permalink | Email This Post

Posted In: Family Based Immigration

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On October 24, 2007 a bill that would grant Green Card status (permanent residency) to thousands of young students in the U.S. who are currently here illegally will face a crucial vote in Congress. The DREAM Act, which is sponsored chiefly by Illinois Senator Dick Durbin and which has bipartisan support, would permit a select group of undocumented students to obtain green cards if they came here as children, are long-term U.S. residents, have good moral character, and attend college or enlist in the military for at least two years. DREAM stands for Development, Relief, and Education for Alien Minors. It's a bill that should be passed.

The Senate plans to vote on October 24th on whether to allow debate on the bill to proceed but it needs 60 votes to do that. The vote is considered a litmus test on whether Congress can pass other single-issue, limited immigration reforms one bill at a time after it failed to pass a comprehensive immigration reform bill earlier this year.

Despite some anti-immigrant rhetoric from those opposed to any immigration reform, here are certain facts about the DREAM Act: in order to qualify, the student must 1) have arrived here under the age of 16, 2) be under the age of 30 on the date of enactment, 3) have lived in the U.S. for at least 5 years, 4) graduate from a U.S. high school or has obtained a GED in the U.S., 5) and either serve in the military or attend college for at least two years and 6) have good moral character. Once the student who otherwise qualifies for the DREAM Act graduates from a U.S. high school or gets a GED in the U.S., they can obtain conditional permanent residence. After that, the student then has 6 years during which they must enlist in the military or go to college for 2 years. Only after completing the 2 years of higher education or military service, the student can then receive his or her Green Card.

The proposed bill is hardly "amnesty" and would not lead to "chain migration". A student who qualifies would not be able to sponsor extended family members and they could not begin sponsoring siblings or parents for at least six years. Even then, under current law, those siblings or parents who themselves are here illegally would have to leave the U.S. for up to ten years before they could gain legal status.

Posted by James M. Tyler | Permalink | Email This Post

Posted In: Family Based Immigration

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