Question and Answers

Month: July 2010 (Page 1 of 5)

B-1 : Immigration Law Answers Blog

Attorney Eugenia Ponce recently had a telephonic consultation with a client who wanted to enter the United States on a B-1/B-2 tourist visa to visit various universities throughout the United States and to attend admissions interviews. He wanted to know what the student visa requirements were and whether he would face any challenges if he tried to obtain his student visa while in the United States on a tourist visa.
 

Ms. Ponce explained that foreign nationals seeking to enter the United States for the purpose of studying in the United States will need to apply for an F-1 study visa in their home country. The fact that he wanted to enter the United States to visit schools (for tourism) rather than to study, should be disclosed to the consular officer so that the officer could note “prospective student” on his I-94 card when admitted into the United States.
 

Ms. Ponce continued by explaining that the sole purpose of the tourist visa is to visit for a short period of time, and that is all. The tourist visa cannot be used if the person has the intention to work or to study. There is a specific visa for individuals seeking to enter the United States to pursue a full-time course of study. That is an F-1 student visa. Since B-1/B-2 visitors are not allowed to pursue a course of study, any change of status applications could be denied if it is found that the foreign national intended to enter the United States to study, and this preconceived intent was not previously disclosed.
 

Once accepted to a study program, it is recommended that the foreign national return to his or her home country to obtain an F-1 visa stamp. The F-1 visa is issued no earlier than four months prior to the study program’s start date.
 

Once the F-1 visa is issued, the international student will enter the United States and will be admitted for as long as the F-1 student continues the study program requirements. Essentially, an F-1 student will be admitted for “duration of status” or “D/S” and this will be reflected on the I-94 card.
 

For more information on the F-1 student visa process please call Kraft & Associates at 214-999-9999.

: Form I-485 : Immigration Law Answers Blog

Attorney Eugenia Ponce of our firm attended an adjustment of status interview last week with our client, based on the client’s approved I-360 VAWA petition. A VAWA petition (Violence Against Women’s Act) allows the spouse, parent, or child of a U.S. citizen, or a Lawful Permanent Resident (LPR) who was battered or subject to extreme cruelty to self-petition independently of the abusive U.S. citizen or LPR. The VAWA self-petitioner must meet the statutory requirements which include:
 

  • she or he has resided with the U.S. citizen or LPR spouse/parent;
  • was subject to extreme cruelty or battery (or in the case of a child, the child was battered or subjected to extreme cruelty) during the marriage with U.S. Citizen or LPR;
  • the marriage was entered into in good faith;
  • she or he is otherwise eligible for immediate relative or preference status; and
  • is a person of good moral character.

 
We submitted many different kinds of evidence proving the VAWA case. We submitted reports and affidavits from the police, photos showing visible injuries, medical reports, affidavits from school officials, an order of protection against the abuser, and other supporting evidence to establish our client was subject to battery.

Because our client was married to a U.S. citizen, there was an immediate visa available, and Form I-360 VAWA and Form I-485 Adjustment of Status were filed concurrently. Although our client had entered the United States without inspection in 1996, an approved self-petitioner of Form I-360 VAWA is eligible to adjust even if he or she entered without inspection or parole.

Our client’s 16-year-old daughter was also eligible to adjust her status to permanent residence since the daughter was accorded derivative status based on her mother’s approved I-360 VAWA petition.

Both undocumented individuals are now permanent residents of the United States.

: visa : Immigration Law Answers Blog

The Diversity Visa lottery (DV) for the fiscal year 2011 must be submitted electronically between noon, October 2, 2009, and noon November 30, 2009. The entry form (E-DV) must be submitted online during the registration period available at www.dvlottery.state.gov.  

The DV program is a random lottery selection with 55,000 diversity visas issued each fiscal year to applicants of countries with low rates of immigration. Natives of the following countries are not allowed to participate in the DV-2011 because the countries sent a total of more than 50,000 immigrants to the U.S. in the previous five years: Brazil, Canada, China (mainland-born), Colombia, Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, India, Jamaica, Mexico, Pakistan, Peru, Philippines, Poland, South Korea, United Kingdom (except Northern Ireland) and its dependant territories, and Vietnam. Individuals born in Hong Kong SAR, Macau SAR, and Taiwan are eligible. Detailed information regarding DV lottery requirements is available at www.dvlottery.state.gov.

Surviving Spouses and Children of Deceased U.S. Citizens: Apply For Relief! : Immigration Law Answers Blog

Surviving spouses and their qualifying children, whose U.S. citizen spouses died before the second anniversary of marriage, are eligible to request deferred action. Deferred action is filed with U.S. Citizenship and Immigration Services (USCIS) and once granted it allows surviving spouses and children to remain in the United States for a temporary authorized period of time (two years for this program) without being removed from the United States during that authorized time. Once granted deferred action, the applicant is also eligible to apply for employment authorization (filed on Form I-765) and travel authorization (filed on Form I-131).   Deferred action does not eliminate any period of unlawful presence that accrued before it was granted; it does not convey or imply any waivers of inadmissibility that may exist; and it does not confer or alter any immigration status. However, deferred action does allow the applicant to remain in the United States for two years under this program. During the two years that deferred action is in effect, no additional unlawful presence accrues.  

In order to qualify for this program, the surviving spouse must:

  • have been married less than two years to the U.S. citizen at the time of the U.S. spouses’ death;
  • did not remarry; and
  • be currently residing in the United States.

 
The qualifying children of the surviving spouses that qualify under the program must be:

  • younger than 21 years old (at the time the request for deferred action was submitted or Form I-130 was filed on their behalf as an immediate relative);
  • unmarried; and
  • residing in the United States.

  Deferred action is filed on Form I-360 at the Vermont Service Center. It is important to file Form I-360 with the appropriate filing fee of $375 and the supporting documentation.   If the U.S. citizen spouse died after being married for two years at the time of the U.S. citizen’s death, then the widow(er) of a U.S. citizen is not covered by the deferred action program. However, the widow(er) is eligible to self-petition as an immediate relative as long as Form I-360 is filed within two years after the date of death.  

For more information on Deferred Action for surviving spouses and qualifying children of deceased U.S. citizens, please call us at 214-999-9999

I-600 : Immigration Law Answers Blog

Adopting children from all over the world has steadily increased in the past decade. Over 20,000 inter-country adoptions are taking place per year in addition to the more than 200,000 foreign-adopted children already living in the U.S. The Department of Homeland Security – U.S. Citizenship and Immigration Services (USCIS) is proud to play a key role in the inter-country adoption process.

Prospective adoptive parents are encouraged to familiarize themselves with inter-country adoption processes before they begin filing applications for a particular child. A good place to start is with the booklet, The Immigration of Adopted and Prospective Adopted Children.

Prospective adoptive parents may find the services of an adoption agency helpful for guidance and assistance with the immigration of orphans and adopted children. While USCIS cannot recommend specific agencies, we strongly advise prospective adoptive parents to seek out a reputable agency with established foreign adoption experience and/or competent legal representation in their efforts to bring foreign-born orphans into the United States. One place to start looking for an agency is through the adoption advocacy community.

There are two legal ways to bring an adopted child into the country. Please review the differences, as they are important to your successful adoption.

  • Immigration/Adoption of child based on 2-years residence through submitting Form I-130: If you adopt a child before the child turns 16 (or 18, as described below), and you live with the child for two years as the child’s primary caregiver, then you may file an I-130 petition for an alien relative. The petition may be filed after the 16th (or 18th if a sibling) birthday, and the two years may culminate after the 16th (or 18th) birthday. (Please note that, generally, all qualifying criteria must be established BEFORE the child may enter the U.S.)
  • Immigration/Adoption of an orphan through submitting Form I-600: If you adopt or intend to adopt a child who meets the legal definition of an orphan, you may petition for that child at any time prior to the child’s 16th (or 18th, as described below) birthday, even if the adoption takes place subsequently (and in certain cases, the adoption does not occur until the child comes to the U.S.).

If you are interested in adopting a child from a particular country, we suggest that you consult the Department of State Website web pages addressing Country-Specific Adoption and Important Notices.

These materials alert prospective adoptive parents to conditions that may develop or already exist in foreign adoption cases. International adoption is essentially a private legal matter between a private individual (or couple) who wishes to adopt, and a foreign court, which operates under that country’s laws and regulations. U.S. authorities cannot intervene on behalf of prospective parents with the courts in the country where the adoption takes place. The adoption of a foreign-born orphan does not automatically guarantee the child’s eligibility to immigrate to the United States. Also, the adoptive parent needs to be aware of U.S. immigration law and legal regulatory procedures. An orphan cannot legally immigrate to the United States without USCIS processing.

Adopting Older Children – “Aging Out” of Eligibility to Immigrate Through Adoption.

If you are considering adopting an older child, you should be aware of the age limits on eligibility for adoptions and immigration, regardless of whether or not your state laws permit the adoption of older children (or even adults).

U.S. law allows the adoption and immigration of children who are under 16 years of age, with two exceptions:

  • Biological siblings of a child adopted by the same parents may be adopted if under 18 years of age; and
  • Orphans over the age of 16 may be adopted, as long as the I-600 petition was filed on their behalf before their 16th birthday (or in the case of an orphan who is the sibling of a child adopted by the same parents, before their 18th birthday).

: E-DV : Immigration Law Answers Blog

The Diversity Visa lottery (DV) for the fiscal year 2011 must be submitted electronically between noon, October 2, 2009, and noon November 30, 2009. The entry form (E-DV) must be submitted online during the registration period available at www.dvlottery.state.gov.  

The DV program is a random lottery selection with 55,000 diversity visas issued each fiscal year to applicants of countries with low rates of immigration. Natives of the following countries are not allowed to participate in the DV-2011 because the countries sent a total of more than 50,000 immigrants to the U.S. in the previous five years: Brazil, Canada, China (mainland-born), Colombia, Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, India, Jamaica, Mexico, Pakistan, Peru, Philippines, Poland, South Korea, United Kingdom (except Northern Ireland) and its dependant territories, and Vietnam. Individuals born in Hong Kong SAR, Macau SAR, and Taiwan are eligible. Detailed information regarding DV lottery requirements is available at www.dvlottery.state.gov.

Inter-Country Adoptions : Immigration Law Answers Blog

Adopting children from all over the world has steadily increased in the past decade. Over 20,000 inter-country adoptions are taking place per year in addition to the more than 200,000 foreign-adopted children already living in the U.S. The Department of Homeland Security – U.S. Citizenship and Immigration Services (USCIS) is proud to play a key role in the inter-country adoption process.

Prospective adoptive parents are encouraged to familiarize themselves with inter-country adoption processes before they begin filing applications for a particular child. A good place to start is with the booklet, The Immigration of Adopted and Prospective Adopted Children.

Prospective adoptive parents may find the services of an adoption agency helpful for guidance and assistance with the immigration of orphans and adopted children. While USCIS cannot recommend specific agencies, we strongly advise prospective adoptive parents to seek out a reputable agency with established foreign adoption experience and/or competent legal representation in their efforts to bring foreign-born orphans into the United States. One place to start looking for an agency is through the adoption advocacy community.

There are two legal ways to bring an adopted child into the country. Please review the differences, as they are important to your successful adoption.

  • Immigration/Adoption of child based on 2-years residence through submitting Form I-130: If you adopt a child before the child turns 16 (or 18, as described below), and you live with the child for two years as the child’s primary caregiver, then you may file an I-130 petition for an alien relative. The petition may be filed after the 16th (or 18th if a sibling) birthday, and the two years may culminate after the 16th (or 18th) birthday. (Please note that, generally, all qualifying criteria must be established BEFORE the child may enter the U.S.)
  • Immigration/Adoption of an orphan through submitting Form I-600: If you adopt or intend to adopt a child who meets the legal definition of an orphan, you may petition for that child at any time prior to the child’s 16th (or 18th, as described below) birthday, even if the adoption takes place subsequently (and in certain cases, the adoption does not occur until the child comes to the U.S.).

If you are interested in adopting a child from a particular country, we suggest that you consult the Department of State Website web pages addressing Country-Specific Adoption and Important Notices.

These materials alert prospective adoptive parents to conditions that may develop or already exist in foreign adoption cases. International adoption is essentially a private legal matter between a private individual (or couple) who wishes to adopt, and a foreign court, which operates under that country’s laws and regulations. U.S. authorities cannot intervene on behalf of prospective parents with the courts in the country where the adoption takes place. The adoption of a foreign-born orphan does not automatically guarantee the child’s eligibility to immigrate to the United States. Also, the adoptive parent needs to be aware of U.S. immigration law and legal regulatory procedures. An orphan cannot legally immigrate to the United States without USCIS processing.

Adopting Older Children – “Aging Out” of Eligibility to Immigrate Through Adoption.

If you are considering adopting an older child, you should be aware of the age limits on eligibility for adoptions and immigration, regardless of whether or not your state laws permit the adoption of older children (or even adults).

U.S. law allows the adoption and immigration of children who are under 16 years of age, with two exceptions:

  • Biological siblings of a child adopted by the same parents may be adopted if under 18 years of age; and
  • Orphans over the age of 16 may be adopted, as long as the I-600 petition was filed on their behalf before their 16th birthday (or in the case of an orphan who is the sibling of a child adopted by the same parents, before their 18th birthday).

R-1 : Immigration Law Answers Blog

A religious organization in the United States may sponsor an individual from another country who has been a member of a religious denomination for two years immediately preceding the filing of the application. If the appropriate Petition and supporting documentation are submitted, the individual may qualify for a nonimmigrant R visa. If the individual is the United States, the religious organization must file Form I-129 Petition for a Nonimmigrant Worker, along with the R Classification Supplement in the United States. If the individual’s spouse and children are accompanying or following to join him or her, then Form I-539 should be filed with the I-129 Petition.

The petition must be supported with documentation establishing that the individual seeks to enter the United States solely for the purpose to:   1) carry on the vocation of a minister of that religious organization; or    2) work in a professional capacity for that religious organization at the request of the organization; or

   3) work at the request of the organization in a religious vocation or occupation for the organization (or its § 501(c)(3) affiliate).

The petitioner (religious organization) must show that it is a bona fide, non-profit, tax exempt religious organization under § 501(c)(3) of the Internal Revenue Code. This can be shown by submitting copies of the organization’s articles of incorporation, bylaws, financial statements, and letters from the Internal Revenue Service showing that the religious organization is nonprofit and exempt from taxation.

Furthermore, a letter from an authorized official should indicate that the individual has been a member of the religious organization and that the foreign and U.S religious organizations belong to the same religious denomination. The religious organization should provide a sworn statement by an authorized official outlining the hours the individual will work, the duties and responsibilities the individual will perform and the remuneration the individual will receive. Once the R-1 visa is approved, the religious worker, spouse, and children (under 21 years) are granted admission for three years which may be extended for an additional two years.

The R visa allows the individual to apply for permanent residency. If an individual has been in R status for at least two years, a Special Immigrant Petition I-360 may be filed by either the Religious worker or the employer. The Special Immigrant Petition is a step towards obtaining permanent residency. Please contact us if you have any questions regarding Religious Worker visas.

Visa Bulletin : Immigration Law Answers Blog

We have some great news for all those who has been waiting for their priority date to become current in an employment-based immigration category. The July 2007 visa availability bulletin, which was released yesterday shows that all employment preference categories (except for Third “Other Workers” ) have been made “Current” for July. This means that as of July 1, 2007, everyone who has been waiting to file their I-485 Application for Permanent Residency can do so.

There has been a lot of speculation regarding this unexpected change in the visa availability bulletin. Many feel that this has been done in an effort to generate increased demand by Immigration Services for adjustment of status cases, and to maximize number use under the annual numerical limit.

Even though the employment categories are now current, that does not mean that they will remain this way. There is the possibility that not all Employment preferences will remain ‘Current” for the remainder of the fiscal year. Should the rate of demand for numbers be very heavy in the coming months, it could become necessary to retrogress some cut-off dates for September, most likely for China-mainland born and India, but also possibly for Mexico and Philippines. Several governmental organizations and officials believe the numbers will retrogress severely by 2008.

If you have a priority date that is now current, please contact us immediately to begin your adjustment of status application. You cannot afford to waste any time as there is no guarantee as to how long your priority date will remain current.

Here is the June 2007 Visa Bulletin:

VISA BULLETIN FOR JUNE 2007

A. STATUTORY NUMBERS:

1. This bulletin summarizes the availability of immigrant numbers during June. Consular officers are required to report to the Department of State documentarily qualified applicants for numerically limited visas; the Bureau of Citizenship and Immigration Services in the Department of Homeland Security reports applicants for adjustment of status. Allocations were made, to the extent possible under the numerical limitations, for the demand received by May 11th in the chronological order of the reported priority dates. If the demand could not be satisfied within the statutory or regulatory limits, the category or foreign state in which demand was excessive was deemed oversubscribed. The cut-off date for an oversubscribed category is the priority date of the first applicant who could not be reached within the numerical limits. Only applicants who have a priority date earlier than the cut-off date may be allotted a number. Immediately that it becomes necessary during the monthly allocation process to retrogress a cut-off date, supplemental requests for numbers will be honored only if the priority date falls within the new cut-off date. 2. Section 201 of the Immigration and Nationality Act (INA) sets an annual minimum family-sponsored preference limit of 226,000. The worldwide level for annual employment-based preference immigrants is at least 140,000. Section 202 prescribes that the per-country limit for preference immigrants is set at 7% of the total annual family-sponsored and employment-based preference limits, i.e., 25,620. The dependent area limit is set at 2%, or 7,320.

3. Section 203 of the INA prescribes preference classes for allotment of immigrant visas as follows:

FAMILY-SPONSORED PREFERENCES

First : Unmarried Sons and Daughters of Citizens: 23,400 plus any numbers not required for fourth preference.

Second : Spouses and Children, and Unmarried Sons and Daughters of Permanent Residents: 114,200, plus the number (if any) by which the worldwide family preference level exceeds 226,000, and any unused first preference numbers:

A. Spouses and Children: 77% of the overall second preference limitation, of which 75% are exempt from the per-country limit;

B. Unmarried Sons and Daughters (21 years of age or older): 23% of the overall second preference limitation.

Third : Married Sons and Daughters of Citizens: 23,400, plus any numbers not required by first and second preferences.

Fourth : Brothers and Sisters of Adult Citizens: 65,000, plus any numbers not required by first three preferences.

EMPLOYMENT-BASED PREFERENCES

First : Priority Workers: 28.6% of the worldwide employment-based preference level, plus any numbers not required for fourth and fifth preferences.

Second : Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability: 28.6% of the worldwide employment-based preference level, plus any numbers not required by first preference.

Third : Skilled Workers, Professionals, and Other Workers: 28.6% of the worldwide level, plus any numbers not required by first and second preferences, not more than 10,000 of which to “Other Workers”.

Fourth : Certain Special Immigrants: 7.1% of the worldwide level.

Fifth : Employment Creation: 7.1% of the worldwide level, not less than 3,000 of which reserved for investors in a targeted rural or high-unemployment area, and 3,000 set aside for investors in regional centers by Sec. 610 of P.L. 102-395.

4. INA Section 203(e) provides that family-sponsored and employment-based preference visas be issued to eligible immigrants in the order in which a petition in behalf of each has been filed. Section 203(d) provides that spouses and children of preference immigrants are entitled to the same status, and the same order of consideration, if accompanying or following to join the principal. The visa prorating provisions of Section 202(e) apply to allocations for a foreign state or dependent area when visa demand exceeds the per-country limit. These provisions apply at present to the following oversubscribed chargeability areas: CHINA-mainland born, INDIA, MEXICO, and PHILIPPINES.

5. On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see paragraph 1); “C” means current, i.e., numbers are available for all qualified applicants; and “U” means unavailable, i.e., no numbers are available. (NOTE: Numbers are available only for applicants whose priority date is earlier than the cut-off date listed below.)

Fam-ily All Charge- ability Areas Except Those Listed CHINA-mainland born INDIA MEXICO PHILIPP-INES
1st 01JUN01 01JUN01 01JUN01 01JAN91 22APR92
2A 22APR02 22APR02 22APR02 01MAY01 22APR02
2B 01DEC97 01DEC97 01DEC97 08MAR92 01OCT96
3rd 15MAY99 15MAY99 15MAY99 08FEB88 01JAN85
4th 08JUN96 08JAN96 22JAN96 15JUL94 01MAR85

*NOTE: For June, 2A numbers EXEMPT from per-country limit are available to applicants from all countries with priority dates earlier than 01MAY01. 2A numbers SUBJECT to per-country limit are available to applicants chargeable to all countries EXCEPT  MEXICO with priority dates beginning 01MAY01 and earlier than 22APR02. (All 2A numbers provided for MEXICO are exempt from the per-country limit; there are no 2A numbers for MEXICO subject to per-country limit.)

AllCharge-abilityAreasExceptThose

Listed

CHINA-
mainland born
INDIA MEXICO PHILIP-PINES
Employ-ment
-Based
1st C C C C C
2nd C 01JAN06 01APR04 C C
3rd 01JUN05 01JUN03 01JUN03 01JUN03 01JUN05
Other
Workers
01OCT01 01OCT01 01OCT01 01OCT01 01OCT01
4th C C C C C
Certain Religious Workers C C C C C
Iraqi & Afghani Translators 18SEP06 18SEP06 18SEP06 18SEP06 18SEP06
5th C C C C C
Targeted Employ-ment Areas/
Regional Centers
C C C C C

The Department of State has available a recorded message with visa availability information which can be heard at: (area code 202) 663-1541. This recording will be updated in the middle of each month with information on cut-off dates for the following month.

Employment Third Preference Other Workers Category: Section 203(e) of the NACARA, as amended by Section 1(e) of Pub. L. 105 – 139, provides that once the Employment Third Preference Other Worker (EW) cut-off date has reached the priority date of the latest EW petition approved prior to November 19, 1997, the 10,000 EW numbers available for a fiscal year are to be reduced by up to 5,000 annually beginning in the following fiscal year. This reduction is to be made for as long as necessary to offset adjustments under the NACARA program. Since the EW cut-off date reached November 19, 1997 during Fiscal Year 2001, the reduction in the EW annual limit to 5,000 began in Fiscal Year 2002.

B. DIVERSITY IMMIGRANT (DV) CATEGORY

Section 203(c) of the Immigration and Nationality Act provides a maximum of up to 55,000 immigrant visas each fiscal year to permit immigration opportunities for persons from countries other than the principal sources of current immigration to the United States. The Nicaraguan and Central American Relief Act (NACARA) passed by Congress in November 1997 stipulates that beginning with DV-99, and for as long as necessary, up to 5,000 of the 55,000 annually-allocated diversity visas will be made available for use under the NACARA program. This reduction has resulted in the DV-2007 annual limit being reduced to 50,000. DV visas are divided among six geographic regions. No one country can receive more than seven percent of the available diversity visas in any one year.

For June, immigrant numbers in the DV category are available to qualified DV-2007 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number:

Region All DV Chargeability Areas Except Those Listed Separately
AFRICA 27,000

Except:Egypt:21,800Ethiopia:18,900Nigeria:

14,600

ASIA 6,800
EUROPE 19,000 Except:Ukraine

11,850

NORTH AMERICA (BAHAMAS) 7
OCEANIA 1,100
SOUTH AMERICA, and the CARIBBEAN 1,750

Entitlement to immigrant status in the DV category lasts only through the end of the fiscal (visa) year for which the applicant is selected in the lottery. The year of entitlement for all applicants registered for the DV-2007 program ends as of September 30, 2007. DV visas may not be issued to DV-2007 applicants after that date. Similarly, spouses and children accompanying or following to join DV-2007 principals are only entitled to derivative DV status until September 30, 2007. DV visa availability through the very end of FY-2007 cannot be taken for granted. Numbers could be exhausted prior to September 30.

C. ADVANCE NOTIFICATION OF THE DIVERSITY (DV) IMMIGRANT CATEGORY RANK CUT-OFFS WHICH WILL APPLY IN JULY

For July, immigrant numbers in the DV category are available to qualified DV-2007 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number:

Region All DV Chargeability Areas Except Those Listed Separately
AFRICA 35,500

Except:Egypt:22,600Ethiopia 22,900

Nigeria 16,150

ASIA 7,750
EUROPE 23,000 Except:
Ukraine 13,000
NORTH AMERICA (BAHAMAS) 12
OCEANIA 1,800
SOUTH AMERICA, and the CARIBBEAN 2,500

D. EMPLOYMENT THIRD PREFERENCE “OTHER WORKER” CATEGORY FOR JUNE

A few “Other Worker” numbers which had been allocated for April were returned unused at the end of the month. As a result, a very small June allocation has been possible, for applicants with priority dates before October 1, 2001. The category will become “Unavailable” once again beginning in July and will remain so for the remainder of FY-2007.

E. EMPLOYMENT-BASED VISA AVAILABILITY DURING THE COMING MONTHS

The current level of demand in many of the Employment-based categories has been much lower than anticipated. As a result, the June cut-off dates have been advanced significantly in an effort to maximize number use under the annual numerical limits. At this time it appears likely that there will be additional advances during the coming months.

All readers should be aware that such cut-off date movements should allow for action to be finalized on a significant number of Citizenship and Immigration Services adjustment of status cases. Once that level of demand begins to exceed the supply of available numbers it will be necessary to make “adjustments” to the cut-off dates. At this time is in not possible to estimate when this is likely to occur, but it is expected.

L-1 : Immigration Law Answers Blog

The Immigration and Nationality Act of 1952, as amended (INA), stipulates that physicians who have entered the United States to undertake a J-1 graduate medical training or education program are uniformly subject to the obligation to return to their home country or country of last residence for a period of two years. INA §212(e). J-1 visa holders are eligible for waiver of the two-year home residence requirement based upon exceptional hardship to a U.S. citizen or permanent resident spouse or child. INA §212(e). There are three other bases for filing a waiver to the two-year foreign residency requirement, but this discussion will be on the exceptional hardship waiver.

In determining a hardship waiver, exceptional hardship must be shown with respect to the U.S. citizen spouse or child in the event they remain in the United States and the foreign spouse returns to the home country. The applicant must also show hardship if the spouse or child accompany the foreign national abroad for two years.

Factors considered to form the basis of exceptional hardship include where the U.S. citizen spouse would be required to interrupt a professional career, suffer unemployment and separation of family.The country conditions to which the exchange visitor and the U.S. citizen or resident spouse would return must also be considered, particularly where they are shown to impact psychological and physical health. Other factors are considered to form the basis of a finding of exceptional hardship as well.

For example, where it is shown that the citizen spouse would suffer adverse consequences to their medical studies by the departure of their J-1 spouse, and that their career would be set back if he or she were either to interrupt their education or attempt to continue their studies in the spouse’s country. Similarly, the threat of disruption of the education of an exchange visitor’s spouse would constitute sufficient hardship to justify granting the waiver. In evaluating a claim of exceptional hardship, evidence of the disruption of the career or of the education of the U.S. citizen or resident spouse will be considered, along with other relevant factors mentioned above.

To learn more about waivers to the two-year foreign residency requirement, please call us at 214-999-9999.

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