Have you ever wondered whether you can obtain a green card once you have overstayed your visa? In this video, attorney Jacob Sapochnick, answers precisely this question, along with related topics that might interest you. For instance, what should a person do once they have overstayed? What are the options to cure an overstay to obtain lawful status in the United States?
To understand more about this complicated topic, please keep on watching.
In most cases, a foreign national will come to the United States lawfully, meaning that they arrived on a valid visa type such as a student, visitor, or work visa and were inspected and admitted to the United States. Unfortunately, in some situations individuals fall out of status and overstay their period of authorized stay. Whether it is because they lost their job, failed to attend school, or could not leave the United States in time before the expiration of their I-94 arrival/departure record, there are many situations that can cause an overstay to happen.
By contrast, some individuals enter the United States unlawfully, meaning that they entered the United States without being inspected and without a valid visa. The issue of whether the foreign national entered lawfully or unlawfully is crucial when it comes to the options that may be available once an overstay has occurred.
How do I know if I overstayed my U.S. visa?
First, let’s discuss the threshold question of how one can know whether they have overstayed their visa.
This may seem like a complicated question, but in fact is very easy to resolve. A person overstays their visa if they have remained in the United States past the authorized period of stay stamped in their passport. When a person is admitted to the United States, they receive a stamp issued by a Customs and Border Protection official which provides the exact date when the individual’s period of stay expires, and consequently when they must leave the United States.
In addition to the passport stamp, foreign nationals can retrieve their I-94 arrival/departure record on the Customs and Border Protection (CBP) website which includes their most recent date of entry, and the date their period of authorized stay expires. The date of expiration is the date at which the foreign national must depart the United States. Failure to depart by the date indicated means that the applicant has overstayed their period of authorized stay.
In some cases, the I-94 stamp, or I-94 record will include the notation “D/S” most commonly for individuals on student visas. This notation means that the applicant is expected to leave the United States, when their program of study has ended. The end date of the program of study can be found on the Form I-20 Certificate of Eligibility for Nonimmigrant Student Status. Students should contact their Designated School Official for this information.
Welcome back to Immigration Lawyer Blog! In this video, attorney Jacob Sapochnick discusses an important new update to the USCIS Policy Manual clarifying the circumstances under which a USCIS officer may waive the in-person interview requirement for family-based conditional permanent residents filing to remove their conditions on permanent residence on Form I-751 Removal of Conditions. Conditional permanent residents are those who have received a 2-year conditional green card from USCIS and are seeking to remove those conditions to obtain the 10-year permanent resident card.
Want to know more? Just keep on watching!
As you may be aware, foreign nationals who apply for a green card based on a marriage to a U.S. Citizen that was less than 2 years old at the time of approval, receive a conditional green card valid for a 2-year period. This is done as a fraud prevention mechanism to ensure that the foreign national married the U.S. Citizen for the right reasons, and not solely to obtain an immigrant benefit. Foreign nationals who receive a 2-year conditional green card must file Form I-751 to remove their conditions, within the 90-day window before their conditional green card expires.
To ensure that the foreign national has a bona fide marriage, USCIS requires the conditional green card holder to appear for an in-person interview so that the officer has the opportunity to evaluate whether the marriage was entered on a genuine basis, and not to circumvent U.S. immigration laws.
The policy manual now clarifies that USCIS officers have the discretionary power to waive the in-person interview requirement for I-751 Removal of Conditions applicants, under certain circumstances.
According to the new guidance, USCIS officers may consider waiving an interview, if, generally, the applicant meets all eligibility requirements for removal of conditions, and the record contains sufficient evidence for approval, and there is no indication of fraud, misrepresentation, criminal bars, or such factors that would require the in-person interview to take place.
In practice this means that the conditional permanent resident must have provided sufficient documentary evidence to establish their eligibility for removal of conditions, including proof of cohabitation, joint ownership and responsibility for assets and liabilities such as joint federal income tax returns and joint checking and savings accounts, photographs of the couple throughout their relationship, children born to the marriage, and any other relevant documentation. The information stated on the I-751 Removal of Conditions application must also be free of any inconsistencies when compared to information provided in the applicant’s initial green card filing. For instance, inconsistencies in residential history or inconsistencies in facts stated can lead to an interview being required. Recent criminal offenses since the filing of the initial green card can also be a reason for an in-person interview to be required.
Welcome back to the Immigration Lawyer Blog, where we discuss all things immigration. In this video, attorney Jacob Sapochnick discusses the USCIS backlogs and current USCIS processing times in the year 2022. You can expect information about the specific increase in processing times for I-130 family petitions, N-400 applications for citizenship, I-485 adjustment of status applications, and I-140 applications for employment based green cards.
Want to know more? Keep on watching for all the details.
The USCIS Backlogs
In this video we talk about the latest statistics with respect to USCIS backlogs and case delays impacting many of the people watching our videos. As you know, the Coronavirus pandemic has severely impacted the processing times of USCIS petitions with many service centers facing unprecedented delays. As time goes on, we expect the USCIS backlogs to continue to grow. It is estimated that the agency will take at least a year to catch up to current demand.
According to an August 2021 government accountability report, it is estimated that the number of cases pending adjudication at USCIS grew by over 81% since fiscal year 2015.
Looking at the second quarter of fiscal year 2020, USCIS had a backlog of approximately 3 million cases which swelled to 5.8 million cases by fiscal year 2021.
Essentially, the report indicates that USCIS processing delays have continued to grow since fiscal year 2017, increasing by approximately 50% in fiscal year 2021. This has happened despite only a slight 3.6% increase in cases received annually by USCIS. Over the last fiscal year alone (FY 2020 to 2021), there was about an 11% increase in USCIS processing times.
This information is crucial to understand the reasons behind the current USCIS backlogs caused partially by the COVID-19 pandemic, the inefficiencies on the part of USCIS, budgeting issues, and other contributing factors. The fact is, USCIS is facing a crisis.
So, what are the main types of applications being impacted by the backlogs?
According to the report, certain “high volume” forms filed with USCIS have been disproportionately impacted.
These include Form I-730 Refugee/Asylee petitions, that are now facing processing time increases of 20 months when compared to 12.4 months in fiscal year 2019.
Form I-485 green card applications also increased to 12.9 months when compared to 10.9 months in fiscal year 2019.
Similarly, N-400 application processing times increased to 11.5 months when compared to 10 months in fiscal year 2019.
Form I-130 petitions for alien relative increased to 10.2 months when compared to 8.6 months in fiscal year 2019.
Finally, processing times for Form I-140 immigrant petitions for alien workers increased to 8.2 months when compared to 5.8 months in fiscal year 2019.
Welcome back to Immigration Lawyer Blog! In this video, attorney Jacob Sapochnick goes over a brand new and unexpected change in policy being followed by the United States Citizenship and Immigration Services (USCIS) with respect to Employment Authorization Documents (EADs) for green card applicants.
Want to know more about this important change? Just keep on watching!
This month has brought unexpected news for green card applicants. The U.S. Citizenship and Immigration Services (USCIS) recently announced that it will be discontinuing its policy of issuing employment authorization documents (EADs) and advance parole travel authorization as a joint “combo” card. Up until recently, green card applicants could send Form I-765 Application for Employment Authorization, and Form I-131 Application for Travel Document, along with their I-485 green card applications to apply for a “combo” work/travel authorization card. This “combo” card enabled green card applicants to work and travel while their applications were in process with USCIS.
The agency has now confirmed that it will be separating the issuance of the employment authorization document (EAD card) and advance parole (AP) document and will no longer be issuing these “combo cards.” USCIS has said that this new policy change has been implemented to reduce EAD processing times. Effective immediately, the agency will now be issuing EAD and AP documents separately.
Applicants with EAD cards that do not have the notation “Serves as I-512 Advance Parole” will only be able to use their EAD card for employment purposes, and not for travel. A separate Advance Parole document must be issued by USCIS in order for the applicant to engage in international travel. Traveling without a valid Advance Parole document will result in the abandonment of the applicant’s green card.
Why the change?
USCIS has been experiencing abnormally high processing times for I-765 Applications for Employment Authorization, causing serious delays during the COVID-19 pandemic. For instance, the Nebraska Service Center is currently reporting processing times of between 11.5 to 13.5 months for an EAD to be issued based on a pending adjustment of status application. While the California Service Center is currently reporting a wait period of between 20 months to 21.5 months.
While USCIS has been doing its best to reduce the EAD backlogs, many applicants have faced employment interruptions during what is already a difficult economic climate.
USCIS has said that it is working through the EAD backlog and is prioritizing EAD adjudication as it seeks to avoid applicants experiencing a lapse or prolonged lapse in employment authorization. At present, there is no additional information available on the scope or duration of this procedural change
Can I Expedite an EAD Card?
The answer is it depends. USCIS has established clear guidelines explaining when an EAD card may be expedited. In general, USCIS considers an expedite request if it meets one or more of the following criteria or circumstances:
Severe financial loss to a company or person, provided that the need for urgent action is not the result of the petitioner’s or applicant’s failure to:
Timely file the benefit request, or
Timely respond to any requests for additional evidence;
Job loss may be sufficient to establish severe financial loss for a person, depending on the individual circumstances. For example, the inability to travel for work that would result in job loss might warrant expedited treatment. The need to obtain employment authorization by itself, without evidence of other compelling factors, does not warrant expedited treatment. In addition, severe financial loss may also be established where failure to expedite would result in a loss of critical public benefits or services.
Emergencies and urgent humanitarian reasons;
In the context of an expedite request, humanitarian reasons are those related to human welfare. Examples may include, but are not limited to, illness, disability, extreme living conditions, death in the family, or a critical need to travel to obtain medical treatment in a limited amount of time. An emergency may include an urgent need to expedite employment authorization for healthcare workers during a national emergency such as the COVID-19 pandemic. Additionally, an expedite request may be considered under this criterion in instances where a vulnerable person’s safety may be compromised due to a breach of confidentiality if there is a delay in processing the benefit application. A benefit requestor’s desire to travel for vacation does not, in general, meet the definition of an emergency.
Nonprofit organization (as designated by the Internal Revenue Service) whose request is in furtherance of the cultural or social interests of the United States;
A nonprofit organization seeking to expedite a beneficiary’s benefit request must demonstrate an urgent need to expedite the case based on the beneficiary’s specific role within the nonprofit in furthering cultural or social interests (as opposed to the organization’s role in furthering social or cultural interests). Examples may include a medical professional urgently needed for medical research related to a specific social U.S. interest (such as the COVID-19 pandemic or other socially impactful research or project) or a university professor urgently needed to participate in a specific and imminent cultural program. Another example is a religious organization that urgently needs a beneficiary’s specific services and skill set to continue a vital social outreach program. In such instances, the religious organization must articulate why the respective beneficiary is specifically needed, as opposed to pointing to a general shortage alone.
U.S. government interests (such cases identified as urgent by federal agencies such as the U.S. Department of Defense, U.S. Department of Labor, National Labor Relations Board, Equal Opportunity Commission, U.S. Department of Justice, U.S. Department of State, U.S. Department of Homeland Security, or other public safety or national security interests); or
U.S. government interests may include, but are not limited to, cases identified as urgent by other government agencies, including labor and employment agencies, and public safety or national security interests.
For expedite requests made by a federal agency, involving other public safety or national security interests, the national interest need must be immediate and substantive. If the need for the action is not immediate, expedited processing is not warranted. A substantive need does not mean that a delay would pose existential or irreversible consequences to the national interests but rather that the case at hand is of a scale or a uniqueness that requires immediate action to prevent real and serious harm to U.S. interests.
Expedite requests from government agencies (federal, state, or local) must be made by a senior-level official of that agency. If the request relates to employment authorization, the request must demonstrate that the need for a person to be employment-authorized is mission-critical and goes beyond a general need to retain a particular worker or person. Examples include, but are not limited to, a noncitizen victim or witness cooperating with a federal, state, or local agency who is in need of employment authorization because the respective agency is seeking back pay or reinstatement in court proceedings.
Clear USCIS error.
Not every circumstance that fits in one of these categories will result in expedited processing.
What You Can Expect Going Forward
It is too early to say how effective this new policy will be at reducing the backlogs. Therefore, it is important for applicants to file their applications well in advance of their anticipated employment and planned travel to avoid facing any dilemmas.
Applicants should continue to monitor their pending EAD applications closely and avoid making any travel plans while the applications are pending. We are hopeful that this new policy change will be a welcome improvement, however no estimates can be made with respect to how long it might take USCIS to issue these stand-alone employment authorization and advance parole documents going forward.
The Law Offices of Jacob Sapochnick will continue to monitor these new developments and will report on any new updates right here on our blog.
Questions? If you would like to schedule a consultation, please text 619-483-4549 or call 619-819-9204.
Welcome back to the Immigration Lawyer Blog, where we discuss all things immigration. In this video, attorney Jacob Sapochnick provides a brand-new update regarding employment and family-based interview waivers during the Coronavirus pandemic. In addition, he discusses a recent trend being followed by the United States Citizenship and Immigration Services (USCIS).
Want to know more? Keep on watching for more information.
While no official policy or memorandum has been issued by USCIS regarding interview waivers, since at least May of this year, we have seen the agency use their broad discretionary power to waive the interview requirement for at least certain employment and family-based petitions, approving these cases without first scheduling an interview.
What does it mean for USCIS to “waive” the interview requirement?
In general, all adjustment of status applicants must attend an in-person interview at a USCIS field office where an immigration officer will verify whether the applicant understood the questions being asked on the green card application and evaluate whether the applicant qualifies for the immigration benefit requested. The interview is a good opportunity to correct any mistakes on the application form and resolve any issues in the underlying case.
In some instances, USCIS officers may “waive” this interview requirement if they find that it is unnecessary to interview the applicant. In situations where the officer “waives” the in-person interview, he or she relies only on the written evidence provided on the application to approve the applicant for U.S. residence (the green card).
Normally, USCIS uses its discretion to waive interviews for parents of U.S. citizens, unmarried children under 21 years of age of U.S. Citizens, unmarried children under 14 years of age of lawful permanent residents, asylees and refugees who were previously interviewed by a USCIS officer, and applicants who are clearly ineligible for the benefit they seek.
Welcome back to the Immigration Lawyer Blog, where we discuss all things immigration. In this video, attorney Jacob Sapochnick updates you regarding a recent practice followed by the United States Citizenship and Immigration Services (USCIS) – the waiver of marriage based green card interviews during the Coronavirus pandemic. Additionally, our office has observed that the agency is processing certain types of applications much more quickly than others.
Want to know more? Stay tuned for more information about this important topic.
Green Card Interview Waivers for Employment Based Applicants
Beginning in April of this year, our office began to receive approval notices for employment-based adjustment of status applications, without the need for the applicant to attend the in-person face-to-face interview as is typically required by USCIS.
As you may recall on March 18th USCIS announced the suspension of in-person services at field offices nationwide, which meant the cancellation of face-to-face interviews. It was not until June 4th that USCIS announced that it would begin resumption of services at field offices nationwide.
Presumably to avoid a growing backlog of cases needing to be scheduled for an interview, USCIS began to grant employment-based green card petitions without requiring the applicant to attend the in-person interview due to the suspension of in-person services.
USCIS never officially announced a policy change allowing for these interview waivers, and instead these changes were occurring as a matter of practice based upon the agency’s discretion.
Welcome back to the Immigration Lawyer Blog, where we discuss all things immigration. In this video, we discuss an important topic relating to family-based immigration: how can I immigrate my parent to the United States?
How do you immigrate a parent to the United States?
You must be a United States citizen (over 21 years of age) to immigrate your parent to the United States. The process of immigrating your parent to the United States depends on where your parent is residing at the time of filing.
Adjustment of Status
The most common scenario is where your parent has entered the United States on a non-immigrant visa for a non-immigrant purpose (such as visiting the United States) and several months later a decision is made to adjust the parent’s status to permanent residence. In this scenario, the appropriate process to immigrate the parent to the United States is through a process known as adjustment of status to permanent residence.
During this process, the United States citizen child will file a petition with USCIS called Form I-130 to immigrate their parent to the United States as well as Form I-864 Affidavit of Support. The United States citizen child must sign Form I-864 Affidavit of Support to prove they have the financial ability to provide for their parent until the parent becomes a US citizen. If the United States citizen child cannot prove financial ability, a joint sponsor will be needed who can prove their financial ability. At the same time, the parent will file Form I-485 with USCIS to change their status to that of permanent residence. In addition, the parent may choose to apply for employment authorization and a travel permit by filing Forms I-765 and I-131, in order to work and travel internationally while the green card application is in process.
Once these petitions are filed with USCIS, the parent can wait in the United States until the green card process is completed. The process is considered complete once the parent is approved following the green card interview.