New Form I-485 and new filing location

CIS has published a new Form I-485, Application to Adjust Status, and has changed where the I-485 should be filed. Instructions are here. The new Form I-485 must be used after March 29, CIS will accept the older versions until that date.

AC21 - Changing Employers/Positions while Permanent Residence is Pending

One of the biggest areas of concern for foreign nationals now if what happens if they are laid off or find another job before their permanent residence is approved. Under immigration laws, specifically the American Competitiveness in the 21st Century Act (AC21), the US government introduced some job flexibility to foreign nationals with long-pending permanent residence applications.

AC21 provides that a person's labor certification or I-140 approval remains valid when an alien changes jobs if:
(a) A Form I-485, Application to Adjust Status, on the basis of the immigrant petition has been filed and remained unadjudicated for 180 days or more; and
(b) The new job is in the same or similar occupational classification as the job for which the certification or approval was initially made.

This means that a foreign national can change positions within the same employer, or even change employers and locations, provided that the new position is in the "same or similar occupational classification."

What does "same or similar occupational classification" mean?

The AC21 decision is based on the duties of the position, not the title. Many people think that if they are moving from Engineer 1 to Engineer 2, they are safe, or that if they move from Engineer 1 to Software Analyst, they will have problems. This is not necessarily the case. USCIS refers to the Dictionary of Occupational Titles (DOT) for guidance. CIS advises comparing the DOT code assigned to the original position, and that attached to the new position, to see if they are "same or similar." A Programmer does not have to stay a programmer forever, however she could not move to a Manager role and use AC21.

Can I use AC21 to "port" to self employment?

Yes. USCIS guidance from December 2005 allows this, if the "same or similar" requirements are met.

What if I leave the original employer before the 485 is pending for 180 days?

The December 2005 memo explains that just you leave the employer before 180 days, does not make you ineligible to port to similar employment. There must have been a bona fide job offer by the first employer, and the you must have intended to take that job.

What if my original employer withdraws my I-140?

If the employer withdraws the I-140 before the 485 has been pending for 180 days, you are not portable. This is why we recommend not porting until after 180 days.

What if my I-140 is denied?

AC21 portability only applies if the I-140 was approvable when filed and CIS has said that it must actually be approved before a favorable decision on portability can be made.

How does portability affect my priority date?

Your priority date stays the same and continues to be the date that the labor cert or I-140 (if no labor cert.) was first filed.

What happens if I am laid off and can't find a new job?

This is tricky situation. In theory, the permanent residence process is for a future opening, so that you don't have to currently have a position until the 485 is approved. However, CIS has recently been "pre-adjudicating" cases even though the priority date might be very backlogged. In many of these cases, CIS has issued Requests for Evidence, looking for updated letters confirming an offer of employment. A person who is unemployed clearly cannot provide such a letter, and it is possible that these 485s might be denied.

For more AC21 information, see the USCIS guidance memos:
August 2003
May 2005
December 2005
May 2008
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My spouse is "illegal" - what can we do?

Many US citizens get married to foreign nationals who are undocumented, i.e. not legally in the United States. The US citizens wonder if they can "sponsor" their spouse to get lawful status. The answer depends on various facts, so it is important to review the specific details of your case with an experienced immigration attorney.

In general, if you entered the US legally and overstayed your authorized stay, your US citizen spouse can petition for you to become a permanent resident. All the usual requirements to become a permanent resident must be met, including showing good moral character, completing a medical exam, providing an Affidavit of Support, etc. (see blog posts and website links below). However, if you entered using the Visa Waiver Program (VWP), you should file for permanent residence before the 90-day period of authorized stay ends.

If you entered the US without inspection, you will have a harder time getting permanent residence. You cannot complete the process in the US because you are ineligible for Adjustment of Status. You need to apply at a consulate in your home country. Your spouse will need to request a waiver of inadmissibility on Form I-601. Your spouse needs to show that it would cause "extreme hardship" if you were not allowed back to the US. "Extreme hardship" is a very high standard - it needs to be greater than the normal hardship that a person would endure if they were separated from their spouse involuntarily. This includes showing why your spouse could not move to your country to live with you there.

If you entered without inspection over one year ago, OR were ordered removed from the US AND attempted to enter again without inspection, there is no waiver until you have been outside the US for 10 years.

If you are an undocumented immigrant married to a US citizen, please contact an immigration lawyer about your case. Do not attempt to file the paperwork yourself, especially if you entered without inspection (EWI), because there are many facts to analyze. The date that you entered, any prior immigration paperwork that was filed for you, your criminal history, and many other factors are important. Also note that the waiver process can take months or even years before you get a decision.

Blog on marriage-based filing
Website

CIS reverses policy on overdue name checks

USCIS has reversed its policy of allowing I-485 (Adjustment of Status) applications, and some other applications, to be approved if the FBI name check was taking longer than 180 days. In February 2008, CIS announced a policy whereby adjudicators could automatically approve adjustment applications where an FBI name check had been pending for more than 180 days and if there were no other reasons to deny the case.

At the time this policy was introduced, security clearance was very slow, sometimes taking months or years. Now, CIS says that the FBI is processing name checks in less than 90 days in many cases. Because so few name checks take over 180 days, according to CIS, they are rescinding last year's policy. If a name check is still pending after 150 days now, adjudicators must contact CIS headquarters, who will ask the FBI for the reason for the processing delay. Depending on the FBI's response, the adjudicator might be allowed to approved the case.

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FAQs on Affidavit of Support

I have been actively answering immigration questions on Avvo.com, and many of these questions relate to the Affidavit of Support requirement in many permanent residence applications. The Affidavit of Support and related regulations are complex and are therefore difficult for a lay person to understand. I understand the confusion that many people feel about the I-864, so I hope these FAQs help.

1. What is an Affidavit of Support and when do I need one?

The US government requires petitioners in family-based permanent residence cases to complete and file an Affidavit of Support on connection with the sponsored immigrant. If you are bringing a relative to live permanently in the United States, you must accept legal responsibility for financially supporting this family member. You accept this responsibility and become your relative's sponsor by completing and signing a document called an Affidavit of Support (Form I-864). This legally enforceable responsibility lasts until your relative becomes a U.S. citizen or can be credited with 40 quarters of work (usually 10 years), even if the relationship (e.g. marriage) ends before that time.

2. Do all immigrants need an Affidavit of Support?

No, the following immigrants do not need an I-864:

• Self-petitioning widows or widowers or battered spouses and children (petitioning on a Form I-360).
• Relatives who enter as refugees or asylees.
• People who have worked for 40 qualifying quarters (as defined in Title II of the Social Security Act), or who can be credited with 40 qualifying quarters (e.g. through a family member).
• Children who can automatically acquire citizenship through a parent.

3. What are the income requirements for an Affidavit of Support?

The sponsor must meet certain income requirements: you must show that your household income is equal to or higher than 125% of the US poverty level for your household size. The poverty guidelines change annually and are on this website. If the sponsor is on active duty in the Armed Forces of the United States, and the immigrant she is sponsoring is her spouse or child, the income only needs to equal 100 percent of the U.S. poverty level for the family size.

4. What is “household size?”

The household size includes the sponsor, your dependents, any relatives living with you, and the immigrants you are sponsoring. For example, if you have a spouse and two children and you want want to sponsor your brother and his wife, you must prove that your household income is equal to or higher than 125% of the US poverty level for a family of six. You must also include in your household size any immigrants you have previously sponsored under this part of the law (who are not yet naturalized citizens).

5. Who can be a sponsor?

If you filed an immigrant visa petition for your relative, you must be the sponsor. You must also be at least 18 years old and a U.S. citizen or a lawful permanent resident. You must be domiciled in the US. Usually, this means that you must actually live in the US, or a territory or possession, in order to be a sponsor. If you live abroad, you may still be eligible to be a sponsor if you can show that your residence abroad is temporary, so that you still have your domicile in the United States.

6. What if a sponsor can’t meet the in come requirements?

If you cannot show income of 125% of the poverty guidelines, you can opt for one of the following alternatives:

(a) Show that you have assets worth at least 5 times the difference between your income and the 125% of the poverty guidelines. For example, if 125% is $30,000, and your income is $20,000, you need to show assets worth $50,000, i.e. 5 x $10,000.

(b) Count the income and assets of members of your household who are at least 18 years old and are related to you by birth, marriage, or adoption. To use their income you must have listed them as dependents on your most recent Federal tax return or they must have lived with you for the last 6 months. They must also complete a Form I-864A, Contract between Sponsor and Household Member.

(c) Use the income and/or assets of the immigrants you are sponsoring, if you have listed them as dependents on your most recent Federal tax return or they have lived with you for the last 6 months. If the immigrant(s) meets these criteria, you may include the value of their income and assets, but the immigrant does not need to complete Form I-864A unless he or she has accompanying family members.

7. Where can I find more information?

For further details about the Affidavit of Support obligations, please see the following links:
USCIS Affidavit of Support FAQs
DOS FAQs
My prior blog on 2009 poverty guidelines.

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I welcome all the comments to this posting. However, please do not ask questions about your particular case via the blog. I can only provide general information on this forum. If you want information specific to your situation, please contact an experienced immigration lawyer directly.
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CIS expands Premium Processing for I-140s

USCIS announced yesterday that, starting on 3/2/09, it will allow Premium Processing (PP) for I-140s where the beneficiary (foreign national employee) has already reached the end of her H-1B 6-year maximum stay. Premium Processing for I-140s is now allowed where the beneficiary is currently in H-1B status and about to reach the end of their 6 years. The new provision will expand PP to beneficiaries who have already passed the end of their 6 years.

Background

Immigration law permits applicants to extend their stay in H-1B nonimmigrant status past 6 years in two situations:

1) they can extend in increments of up to three years, provided they are the beneficiary of an approved Form I-140 and an immigrant visa is not immediately available; or

2) they can extend in increments of up to one year, provided the Form I-140 petition or underlying labor certification has been pending for at least 365 days.

Premium Processing for I-140s helps foreign nationals who cannot extend their H-1B under 2) above because the I-140 or labor certification is not pending for the required 365 days. These foreign nationals may be able to extend H-1B status if they have an approved I-140 AND their priority date is backlogged.

For a copy of yesterday's Press Release about this new provision, see here: http://www.uscis.gov/files/article/I-140_premium_24feb09.pdf

Visa Bulletin for March 2009 released

The US Department of State has released the Visa Bulletin for March 2009. In most categories there is very slight movement forward, just by a few weeks or months, if at all. Priority dates for Mexican nationals in the employment-based 3rd and "other workers" categories show the greatest movement. The 3rd preference category moves forward by 4 1/2 months, while the "other worker" category advances by 18 months.

2009 Poverty Guidelines published

The US Department of Health and Human Services has published its poverty guidelines for 2009. The guidelines for the 48 contiguous states and DC are:

1 person in family: $10,830
2 people: $14,570
3 people: $18,310
4 people: $22,050
5 people: $25,790
6 people: $29,530
7 people:$33,270
8 people: $37,010

Alaska has different levels.

These guidelines are relevant in immigration law because family-based permanent resident applications require an Affidavit of Support from the "sponsoring" relative. The relative must show that s/he has income or assets worth at least 125% of the relevant poverty guideline figure. So, for example, a woman in New York who is petitioning for her husband and his child needs to show income/assets of at least $22,887.50 to meet the I-824, Affidavit of Support requirements.

What are the steps to a green card through employment?

Yesterday I wrote about the different preference categories in permanent residence (green card) processing. Employers and foreign nationals frequently ask what the steps are to getting a green card, so these are outlined below. Tomorrow I'll explain the steps in a family-based case.

PERMANENT RESIDENCE APPLICATION PROCEDURE

1. Labor Certification

1. If the preference category requires a test of the US job market, the first step involves getting a labor certification (called PERM) approved by the Department of Labor (DOL). The employer needs to conduct a prescribed number of recruitment methods, to see whether there is an available, qualified, US worker interested in the position. Because of the uncertainties of the job market, this is the most unpredictable step in the immigration process. Martin Immigration Law works closely with employers to analyze the position, requirements, and advertising, and to answer questions regarding the process. However, no immigration law firm can review resumes or screen applicants.

2. I-140 Immigrant Petition

(i) With labor certification
Once the labor certification is approved, the employer files an immigrant visa preference petition with the US Citizenship and Immigration Service (CIS, formerly INS). This petition needs to prove the following to USCIS:
(a) that the DOL has approved a PERM on behalf of this foreign national;
(b) that the foreign national has the education and experience required as listed on the labor cert. The employee will need to provide educational documents and copies of experience letters. Martin Immigration Law will discuss these with the employee at Step 1.
(c) that the employer can afford to pay the salary listed on the PERM.

(ii) Without labor certification
If the employee is in a category that does not require labor certification, the process starts with the employer filing an I-140. In that situation, the I-140 needs to include extensive detail about the employee’s qualifications for the classification requested. For example, if the employer is asking that the employee be classified as an outstanding researcher, we must include evidence of the foreign national’s publications, presentations, research experience, education, recommendation letters, etc.

3. Adjustment of Status or Consular Processing

The final step is filed by the foreign national with the USCIS or with the consulate overseas (via the National Visa Center (NVC)). Whichever route the foreign national takes, her dependent family members also file for permanent residence at this stage. This final step involves the employee and her family showing to USCIS or the consulate that there is no reason why they are not permitted to get permanent residence, i.e. there are no criminal, medical, fraud, etc bars to a green card. To show this, each applicant needs to provide certain medical reports, birth and marriage documents, police records, and other documents that will be explained in detail by your immigration lawyer.

(i) Adjustment of Status
If the foreign national’s priority date is current*, s/he can file the Adjustment of Status (AOS) with the I-140, or while the I-140 is pending. If the priority date is not current, the foreign national must wait until it is current before she can file the AOS.

(ii) Consular Processing
If the foreign national prefers, she can complete the permanent residence at her home consulate. If she chooses this option, she cannot do the 3rd step until and I-140 is approved AND the priority date is current. Consular processing used to be faster than AOS sometimes, but with concurrent filing of AOS now available, consular processing is less popular. It is also more cumbersome because of the travel requirements and the need for more documents than with AOS.

* Please see the FAQs on my website for an explanation of these terms.