Friday, June 5, 2009

Immigration rights for gay couples?

Sen. Patrick Leahy ( D-Vermont ) introduced the Uniting American Families Act ( S. 424 ) earlier this year; it has 18 co-sponsors. The bill would allow same sex couples the same immigration rights as married heterosexual couples. Passage of the bill is likely to be tied to overall immigration reform.

At the moment, same-sex partners of legal immigrants do not have the same rights to dependent status that heterosexual spouses get. This is true even if the couple is legally married in their home country. Often, the "dependent" partner must apply for a B-2 visitor visa at the consulate, to accompany his/her partner. This visa is discretionary, and consulates could refuse to issue it. In addition, B-2 status does not allow the dependent partner to work in the US. Many heterosexual dependent spouses have a status that doesn't allow them to work either, however.

As the New York Times reports:

Senator Leahy’s bill would add the term “permanent partner” to sections of current immigration law that refer to married couples, and would provide a legal definition of those terms.

“I just think it’s a matter of fairness,” he said Tuesday in an interview, noting that a number of American allies, including Canada, France and Germany, recognize same-sex couples in immigration law.
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Tuesday, June 2, 2009

Can I change from H-1B to F-1?

I have written a couple of blog postings about the effect of layoffs on H-1B workers (see links below). Another common question in this regard is whether the H-1B worker can change to F-1 status and, perhaps, change back to H-1B again if they find another job. Some actual examples of the questions are:
"If I am on H1B visa but I have been laid off by my current employer and they will announce my leaving in one month. I am planning to change to F1 status. If I get another employer later on that sponsor again my visa. Do I get subject to a cap?"

"I have been on an H1B visa for 2.5 years; I am considering attending grad school in Minnesota for my MSME in the Fall, so I would be switching to an F-1 student visa.
My question is: if after I graduate with my Master's Degree, I apply for & get another H1B job - so I switch from F-1 back to H1B visa - do I get a fresh 6 year timeclock started on my new H1B? Or, do I only have 3.5 years left that I can be in H1B status - because of my H1B work time before the F-1/grad school?"

"I have been on the H-1B visa for 1 and a half years.I was laid off recently and am planning to attend school which starts in July 09.
i) Do I need a F-1 visa apart from an I-20?
ii) Do I need to go out of US for stamping?"

H-1B to F-1:

A H-1B holder can change fro H-1B to F-1 if she meets all the requirements for F-1 status, including having nonimmigrant intent. "Nonimmigrant intent" means that she needs to show that she intends intend to return to her home country at the end of her studies. Having been here in H-1B status, especially if she has been here a long time, makes it more difficult to show the required nonimmigrant intent. If the applicant or her employer has filed for permanent residence, this completely contradicts nonimmigrant intent.

Despite these warnings, it is not impossible to prove nonimmigrant intent. In addition to this evidence, the F-1 applicant needs to show (a) that she has enrolled in a school and has an endorsed I-20; (b) that she has sufficient funds to pay the expenses for and dependents while studying; and (c) that she will be maintaining status up to the start of classes.

Do I need to leave the US to get an F-1 visa?

The F-1 application could be decided in a number of ways, assuming it is not denied completely. At best, the foreign national could get approval for an automatic change of status to F-1. This would operate to automatically change the foreign national's status to F-1 without the need to leave the US.

However, if the applicant cannot prove maintenance of status,
CIS might just approve the F-1 part of the petition, but not the automatic change of status part. This means that the foreign national would need to leave the US and get an F-1 visa at a consulate before returning in F-1 status. The consulate will need eveidence of nonimmigrant intent, as explained above.

Please see here for the difference between "visa" and "status".

Changing back to H-1B later

If the foreign national finds a new employer who files a new H-1B petition, this new petition is not subject to the H-1B cap. The foreign national has already been included in the cap within the past 6 years, so he is not counted again. The only way that the employee would be subject to the cap again is if (a) he used a full 6 years in H-1B status, and then spent one full year outside the US; OR (b) was moving from a cap-exempt H-1B employer to a cap-subject employer.


Prior postings on layoffs here.

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Monday, June 1, 2009

USCIS reminds some people to get Advance Parole before traveling

USCIS has issued a reminder to certain foreign nationals that they need Advance Parole to travel outside the US. These applicants include people who have:
  • been granted Temporary Protected Status (TPS);
  • a pending application for adjustment of status to lawful permanent resident;
  • a pending application for relief under section 203 of the Nicaraguan Adjustment and Central American Relief Act (NACARA 203);
  • a pending asylum application; or
  • a pending application for legalization.
People who have been admitted as refugees or granted asylum, including those who are applying for adjustment of status, do not need to obtain Advance Parole. Instead, they apply for a Refugee Travel Document using Form I-131 and comply with applicable application requirements, such as biometric processing, before leaving the US.

IMPORTANT: some people who entered legally and overstayed their authorized period of admission are subject to bars on re-entering the US if they leave. People who overstayed by 180 days are barred for 3 years, and an overstay of one year leads to a 10-year bar. Traveling on Advance Parole does not prevent the bars applying, so you should NOT travel, even with Advance Parole, if you think you might be subject to the bars.