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USCIS clarifies some issues, but not all

Posted on September 26, 2011
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This past week has seen a flurry of public outreach efforts by USCIS. USCIS high level personnel have conducted multiple public informational sessions and well as meetings with smaller groups. We have participated in several of these sessions and meetings, and would like to share some things that we have learned that we think may be useful to our readers. Some issues remain unclear and we list them as well in the hope that attention may be focused on these problems.

1. YOU NEED TO EXTEND YOUR PAROLE IF YOU LEFT THE CNMI AND RE-ENTERED USING ADVANCE PAROLE

It appears that there has been some failure in coordination between USCIS and CBP. Since Nov. 28, 2009, if you are an alien residing in the CNMI and you left the CNMI for a foreign country, you needed an advance parole in order to return. When you re-entered, you were “paroled” into the United States and you became a parolee. The expiration date that is stamped into your Form I-94, which is stapled into your passport, is the date that your parole expires.

When you were paroled back into the CNMI, your umbrella permit became your work authorization. The USCIS plan was that all aliens with umbrella permits who returned to the CNMI after foreign travel would have a parole expiration stamp of Nov. 27, 2011. That apparently did not always happen. If you re-entered the CNMI on an advance parole at any time during the past two years, please check your passport. If your I-94 has an expiration stamp earlier than Nov. 27, 2011, you will need to have your parole extended. If you do not act to have it extended, your presence in the CNMI will be deemed unlawful and you will not be able to get CW or other employment based status without first leaving the CNMI.

What to do: You will need to contact the ASC in Saipan and get your parole extended. We are told that there will be some form of expedited processing available so that this can be accomplished in time. There will be a public outreach effort by USCIS to make sure everyone knows what to do to extend parole. If your I-94 has a Nov. 27, 2011 expiration, you have nothing to worry about. If you haven’t left the CNMI in the last two years, you also have nothing to worry about, assuming that you already have an umbrella permit or parole-in-place.

2. SOME RELIEF FOR IMMEDIATE RELATIVES OF US CITIZENS WHO ARE UNABLE TO FILE FOR ADJUSTMENT OF STATUS BEFORE NOV. 28, 2011

We have had an ongoing concern about spouses, parents, and children of U.S. citizens who are eligible for green cards but for one reason or another have been unable to apply. The most common reason is lack of financial resources to pay for the required filing fees. There appears to be limited relief for these people.

The application for a green card, formally known as adjustment of status to U.S. permanent resident, has three parts: proof of the qualifying relationship to a U.S. citizen or U.S. permanent resident; proof of good moral character; and evidence that the green card applicant will not become a “public charge.” These three components of a green card application are addressed by filing the following forms (with, of course, other supporting forms and documentation):

– Form I-130, Petition for Alien Relative or Form I-360, Petition for Amerasian, Widow(er) or Special Immigrant. The Form I-130 is the form filed by the US citizen for the foreign relative and establishes the relationship by which the alien qualifies: e.g., proof of marriage relationship if the applicant is a spouse; proof of parent child relationship if the applicant is a child under 21, or a parent of a child over 21. The Form I-360 is used by widows and widowers, by victims of domestic abuse, and by immigrant religious workers. The filing fee for the Form I-130 is $420. There is no filing fee for the Form I-360 when it is filed by victims of abuse. The Forms I-130 and I-360 are used by both USCIS and the U.S. Department of State’s consulates.

– Form I-485, Application to Register Permanent Residence or Adjust Status. This is the form filed by the alien relative to show that he or she has good moral character and is otherwise admissible to the United States. The filing fee is $985 plus a biometrics fee of $85 for a total of $1,070. (The Form I-485 is used only by USCIS; the Department of State instead uses its own DS-230, with a different fee schedule.)

– Form I-864, Affidavit of Support. This form is used to establish that the Petitioner has the minimal financial capability to support the Applicant so that the applicant does not become a public charge. If the Petitioner’s income is not sufficient, the income of the Applicant, family members living in the household or a sponsor may be used to fulfill the requirement. There is no USCIS fee to file this form; if you must go through consular processing abroad, there is a fee under some circumstances. Not all applicants need to file this form; for example, victims of domestic abuse by a U.S. citizen spouse or parent are exempted from filing this form. So are surviving spouses, although they may need to show some form of financial support. You need to read the instructions carefully to determine whether the I-864 is required.

We usually file these forms together as a package for our clients who are immediate relatives of US citizens. However, there is no requirement that all three be filed together; the I-130 or I-360 can be filed separately and ahead of the others.

It now appears that USCIS, in response to the plight of many CNMI families who cannot afford all of the filing fees, has come up with a limited solution. If you are a U.S. citizen over the age of 21, and you have an alien spouse, or an alien child under 21, or alien parents, you can file an I-130, and then your alien relative can apply for parole-in-place, which is a form of humanitarian parole. This will ensure that your alien relative continues to be lawfully present in the CNMI while you complete the application for his or her green card and while it is being processed and adjudicated. Because the filing fee for an I-130 ($420) is significantly less than the filing fee for the entire package including the I-485 (an additional $1,070 including biometrics fee), we hope that families who have refrained from filing because of financial issues, will do so now. Please note that this form of parole in place does not appear to be available for immediate relatives of green card holders.

Similarly, a self-petitioning surviving spouse, or a battered or abused spouse or child (but not parent) of an abusive U.S. citizen, can file an I-360 on a standalone basis, and wait until the I-360 is approved to file the remainder of the necessary green card documentation. These applicants should be eligible for parole in place on the same basis as other family-based green card applicants. (For abuse victims, because it is likely that all fees will be waived, and because the Form I-864 is not required for these applicants, we recommend filing the entire package, and not just the I-360.)

3. GREEN CARD APPLICANTS MAY HOLD CW VISAS WHILE THE GREEN CARD APPLICATION IS PENDING

One piece of good news is that USCIS considers the CW classification to be a “dual intent” status. That means that an applicant for the CW nonimmigrant visa may also intend to immigrate to the U.S., and therefore may apply to become a U.S. permanent resident while marking time with a CW visa, without penalty. Thus the CW joins the limited company of dual intent visas: H-1B, L-1A and L-1B (and, to a limited extent, E-1 and E-2).

4. LIMITATION ON TRAVEL FOR CW CLASSIFICATION

On the other hand, one of the more disturbing things that we learned this week is that persons with CW status or visa will not be able to travel to Guam or the rest of the United States. Although many aliens residing in the CNMI have been able to use B1/B2 visas to enter the United States from a foreign port, they will no longer be able to do so after they obtain CW status visa. In fact, if they attempt to use their B1/B2, that visa will be cancelled. It appears that because B1/B2 and CW are both non-immigrant visas, they are inconsistent; a person can hold only one non-immigrant visa at a time. Parole is likewise not available because the grant of a CW permit is an admission into the United States and parole is only available to those who have not been admitted. Therefore, businesspeople who are accustomed to travel back and forth between CNMI and Guam, or CNMI and the mainland U.S., will need to seriously consider whether they might qualify for a visa classification other than CW that allows them to travel to the rest of the USA.

4. ISSUES THAT REMAIN IN NEED OF CLARIFICATION/RESOLUTION

We have not been able to get clear or satisfactory answers to the following:

– What happens to aliens who have employment based visa applications pending on Nov. 28, 2011? This applies to H-1B, H-2, L-1, E-1, E-2, R-1 and E-2C (non-immigrant visas) and EB-1, EB-2, EB-3, EB-4, EB-5 and religious (immigrant visas). We have been told that they must stop working and also that there will be no parole in place available to them. Will they have to exit and await their visa in their home country? Will they accumulate “bad time” if they stay and be subject to various bars if they overstay? Will they become removable? At this time the answer to these questions is “yes.” We hope that an accommodation can be fashioned that is less harsh.

– What happens to alien parents of U.S. citizen children under the age of 21? Short of Congressman Kilili’s pending bill in U.S. Congress, HR 1466, there appears to be no relief for this group. If the parents are employed, their employer can petition for CW-1; if one parent is working and the other one is not, the non-working parent is eligible for CW-2 status. If the parents are unemployed, no CW is available. If the parents are not legally married, CW-2 is not available for the non-working spouse; common law marriages are not recognized under U.S. immigration law. Again, we continue to urge USCIS that these parents be granted parole in place so that families will not be disrupted.

Maya Kara & Bruce Mailman

26 Sept 2011

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