Articles Posted in Permanent Residents

 

The month of September has come and is nearly gone. That means that it is time to discuss next month’s Visa Bulletin for October 2022. In this video, attorney Jacob Sapochnick shares with you the trends and movement you can expect to see during the month of October for both employment based, and family sponsored preference visa categories, and our predictions for interview appointment availability. October’s Visa Bulletin is also important because it marks the end of the fiscal year.

Did you know? Every month the Department of State releases the Visa Bulletin, which summarizes the availability of immigrant visa numbers for that particular month. The “Final Action Dates” and “Dates for Filing Applications,” charts indicate when immigrant visa applicants can assemble and submit the required documentation to the National Visa Center (for those residing overseas), or USCIS (for those residing in the United States).

The primary purpose of the Visa bulletin is to provide an updated waiting list for immigrants that are subject to the numerical visa quota system.

Want to know more? Just keep on watching.


Overview


USCIS Adjustment of Status Filing Charts for the October Visa Bulletin (for those residing in the USA)


For Family-Sponsored Filings:

Pursuant to guidance released by USCIS, for all family-sponsored preference categories, applicants must use the Dates for Filing chart in the Department of State Visa Bulletin for October 2022 to determine when you can apply for adjustment of status.

For Employment-Based Preference Filings:

All applicants, falling under employment-based preference categories, must use the Dates for Filing chart in the Department of State Visa Bulletin for October 2022 to determine when you can apply for adjustment of status.

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Welcome to the start of a brand-new week. In this video, attorney Jacob Sapochnick shares with you some brand-new updates including the status of immigrant visa processing, NVC insider tips, information regarding the transfer of cases from USCIS to the NVC, NVC timeframes, expedite requests, and much more.

If you have an immigrant visa application waiting for interview scheduling at a U.S. Embassy or Consulate worldwide or if your case is stuck at the National Visa Center, then this video is right for you.

Did you know? The Consular Electronic Application Center (CEAC) is your one-stop shop to pay your immigrant visa fees and upload any necessary documentation to complete the processing of your application before it is deemed “documentarily complete.”

Want to know more? Just keep on watching.


Overview


The Role of the National Visa Center

As you may know, the National Visa Center (NVC) is operated by the Department of State. Its main role is to administer the processing of immigrant visas after their approval by the U.S. Citizenship and Immigration Services (USCIS), but before the case is actually sent to the U.S. Embassy or Consulate for a final interview. Essentially, the National Visa Center functions as a middleman between USCIS and Consulates overseas.

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In this video, attorney Jacob Sapochnick shares recent legislation that would provide a pathway to permanent residency for certain undocumented immigrants that have resided in the United States for at least 7 years. We explain everything you need to know about this new proposal and how it might impact you.

Did you know? On July 20, 2022, several members of Congress introduced a proposed law, known as “Renewing Immigration Provisions of the Immigration Act of 1929,” that if passed would allow people who have been living in the US for at least seven years to be able to obtain their green card through “registry.”

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Overview


What is this bill about?


The proposed bill known as “Renewing Immigration Provisions of the Immigration Act of 1929,” introduced by Democrats Zoe Lofgren, Lou Correa, and Norma Torres, would change just one line of the Immigration and Nationality Act (INA) known as the “registry,” which was previously frozen since 1986.

“Registry,” is a section of immigration law that enables certain individuals who have been present in the United States for a specified period of time, the ability to apply for a Green Card (permanent residence), even if they are currently in the United States unlawfully.

To be eligible for a green card under the registry provisions, applicants must have entered the United States by a certain period of time, have continuously resided in the United States since entering, be a person of good moral character, and otherwise not be deportable or inadmissible to the United States.

The registry date under the Immigration and Nationality Act (INA) essentially functions as a sort of statute of limitations for illegal entry, allowing Congress to set arbitrary dates that determine which undocumented immigrants would be allowed to adjust their status to permanent residency inside the United States.

Congress first statutorily legalized the status of undocumented immigrants who arrived by 1921, then 1924, then 1928, then 1940 and finally 1972. No change in the law has been made since then. But now, Congressional democrats are seeking to adjust the registry date to open a pathway to permanent residency for millions of undocumented immigrants.

While this is only a proposal, that has not yet become law, the bill has the opportunity to create dialogue among both political parties in Congress. The first attempt at renewing the registry provisions came under the Biden administration’s Build Back Better Act, which unfortunately failed to gain enough support to become law.

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Have you ever wondered how you can work in the United States as the founder of your very own startup? If so, you may be interested in learning more about the O-1A visa. In this video attorney Jacob Sapochnick discusses the criteria for individuals who possess extraordinary ability in business and are seeking to open a venture-backed startup in the United States.

Did you know? An approved O-1A visa applicant can remain in the United States for an initial period of 3 years working for the petitioning entity and bring their family members to live with them in the United States. The O-1A visa also opens a pathway for applicants to apply for permanent residency by filing for the EB-1A employment-based immigrant visa category.

Want to know more? Just keep on watching.


What is the O-1A visa?


First let’s discuss the O-1A nonimmigrant visa. The O-1A visa is designed for individuals who possess extraordinary abilities in the field of business, science, education, or athletics, and who can meet a specified set of criteria that must be demonstrated in the application package to ensure the applicant’s success.

Those who successfully attain the O-1A visa can live and work in the United States for an initial 3-year period, and pitch ideas to venture capitalists interested in supporting their company.


How can you demonstrate extraordinary ability in business?


To demonstrate extraordinary ability, applicants must be prepared to show evidence of a major internationally recognized award (such as a Nobel Peace Prize), or if the applicant does not have such an award, they must meet at least three of the following criteria which we discuss in turn below:

  1. AWARDS—Documentation of the beneficiary’s receipt of nationally or internationally recognized prizes or awards for excellence in the field of endeavor

The first criterion is providing documentation showing that you have received nationally or internationally recognized prizes or awards for excellence.

How does this translate to the startup world? There are several ways that one can qualify for this criteria as a startup founder. For instance, if you have received a grant from the government recognizing your proposed endeavor as one that is exceptional, you may be able to use the grant as evidence to meet this criteria. Alternatively, if you were a participant in a prestigious or distinguished event or competition, and you were one of the winners or finalists in the competition, you may also use documentary evidence of your participation to meet this criteria.

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Do you have a case currently pending review at the National Visa Center? In this video, we discuss the growing backlogs at the National Visa Center and explain the reason it is taking so long for the NVC to process immigrant visa cases and prepare them for a visa interview at a U.S. Embassy or Consulate overseas.

Did you know? Every month the National Visa Center releases their Immigrant Visa Backlog Report, which provides important information including the number of immigrant visa applicants being scheduled for interview appointments, the number of applicants whose cases are documentarily complete and ready for interviews, and the number of eligible applicants still pending the scheduling of an interview.

Want to know more? Just keep on watching.


Overview


First, let’s discuss: What is the National Visa Center?

Once U.S. Citizenship and Immigration Services (USCIS) has approved your immigrant visa petition, USCIS will forward your petition to the National Visa Center (NVC) in Portsmouth, New Hampshire, where your application will undergo immigrant visa pre-processing once your priority date has become current according to the Visa Bulletin.

Essentially, the National Visa Center serves as an intermediary between USCIS, where the immigrant visa petition was first approved, and the U.S. Consulate, where the foreign national will eventually undergo their immigrant visa interview.

Once your case is received by the National Visa Center (if your priority date is current and a visa number is available) you will be instructed to submit the DS-260 Immigrant Visa Application, submit civil documents in support of your immigrant visa application, and pay the necessary visa fees. Once you have completed this process, your case will be considered “documentarily complete,” and your application will be placed in line for interview scheduling, at the U.S. Embassy or Consulate nearest your place of residence.


What are the current visa backlogs at the NVC?


As our readers will know, the COVID-19 pandemic has had a disastrous impact on the processing of cases at the NVC and Consular level. The majority of U.S. Embassies and Consulates continue to operate on a limited basis, due to local country conditions and restrictions, local and national lockdowns, travel restrictions, local regulations, and measures taken by Consular posts to reduce the spread of COVID-19. This has caused challenges to interview scheduling, given that the volume of interviews that can be scheduled has been drastically decreased, to prevent the spread of the virus, and ensure public health and safety for applicants and Consular officers.

While Embassies and Consular posts have tried to return processing to pre-pandemic levels, they simply have been confronted with an overwhelming demand of cases waiting to be scheduled for in-person visa interviews.

Due to the operational crisis at Embassies and Consulates worldwide, the National Visa Center has been unable to forward immigrant visa cases to posts overseas, because posts have not had the capacity to accommodate all those waiting for an interview.

The data shows that things have not gotten better. In fact, they have gotten worse.

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In this video attorney Jacob Sapochnick addresses a somber but important topic: What happens when a U.S. Citizen dies, can a LPR spouse still apply for naturalization after 3 years?

To know more about this topic, just keep on watching.


Overview


Applying for Naturalization After the Death of an Immediate Relative

In this post we answer one of your frequently asked questions:

Q: I became a green card holder through my husband, who was born in the U.S. and was a U.S. citizen. Sadly, my husband died last year. I would like to apply to become a U.S. citizen as soon as possible. Can I still apply for naturalization after 3 years of having my green card?

A: This question comes up more often than we would like to admit.

As you may know as a general rule, a legal permanent resident (LPR) is eligible to apply for naturalization after being a green card holder for at least 5 years.

However, there is an exception to the rule. Spouses of U.S. Citizens are eligible to apply for naturalization after 3 years of being a permanent resident, so long as they are still married and living in the same household as their U.S. Citizen spouse. Couples that are no longer living together (such as where a separation occurs) do not qualify for the 3-year exception.

But what happens when the spouse dies?

This situation recently happened to one of our clients. She was able to prove that she was living with her U.S. Citizen spouse up until the time of his death and wanted to know if she could still take advantage of the 3-year rule to apply for naturalization.

Sadly, under section 319(a) of the INA, “A person is ineligible for naturalization as the spouse of a United States citizen, if, before or after the filing of the application, the marital union ceases to exist due to death or divorce….”

That means that where a marital union ended due to the U.S. Citizen spouse’s death, the legal permanent resident cannot take advantage of the 3-year rule and must wait to reach their five-year anniversary as a legal permanent resident (LPR) before they can apply for naturalization. It is permissible to file your application 90 days before reaching your fifth anniversary as a permanent resident.

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Are you a green card applicant filing Form I-485 Adjustment of Status? Have you ever wondered when you should complete your medical examination? If so, this is the right video for you. This has been a point of contention for many years. Many applicants have been left wondering, is it better to file the medical exam with the adjustment of status application, or should the medical exam be brought to the interview? In this video, attorney Jacob Sapochnick tells you all you need to know about this important topic.

Did you know? Due to COVID-19 related processing delays, the U.S. Citizenship and Immigration Services extended the validity period of Form I-693 Report of Medical Examination, from 2 years to now 4 years for those who meet certain requirements. As of August 12, 2021, USCIS will consider a Form I-693 valid if: (1) the civil surgeon’s signature is dated no more than 60 days before the applicant files Form I-693 (2) no more than four years have passed since the date of the civil surgeon’s signature; and (3) a decision on the applicant’s Form I-485 is issued on or before September 30, 2021. Otherwise, the medical exam is valid for 2 years.

Want to know more? Just keep on watching.


Overview


The green card medical examination is a fundamental step in the immigration process for all applicants seeking permanent residency in the United States. The medical exam, must be completed by a U.S. civil surgeon, meaning a doctor who is authorized by U.S. Citizenship and Immigration Services (USCIS) to perform medical examinations for green card applicants. Not all physicians will be eligible to complete the medical exam. You can find an authorized doctor by visiting the USCIS webpage here.


During your exam


The medical examination consists of a review of your medical history and a physical examination. As part of the exam, the doctor will test for communicable diseases such as tuberculosis, syphilis, and gonorrhea, test for drugs and alcohol, and other diseases and illnesses.

Once the exam is complete, the doctor will sign and complete the Form I-693 and seal the form in an envelope for you to submit to USCIS. You must ensure that the doctor provides you a sealed envelope containing their report. The envelope cannot be opened or altered.


What is the purpose of the medical exam?


The medical examination is required for any applicant filing for adjustment of status to establish that the applicant is not inadmissible to the United States on public health-related grounds. This means that applicants must be screened to ensure that they do not have any health conditions that could make them ineligible for the green card. Failure to provide an adequate medical examination could result in processing delays, and in some cases a denial of the green card application.

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What’s happening with the status of green card processing with USCIS? In this video, attorney Jacob Sapochnick, discusses an exciting new update for green card applicants recently handed down by the Presidential Advisory Commission.

Want to know more? Just keep on watching.


Overview


Things are looking up in the world of immigration. We have recently learned that a U.S. Presidential Advisory Commission has voted to reduce the processing time of green card applications to a period of 6 months. The Advisory Commission has recommended these recommendations be enacted by President Biden, to provide relief to applicants waiting in the enormous backlogs to attain permanent resident status.


What is this all about?


The President’s Advisory Commission on Asian Americans, Native Hawaiians, and Pacific Islanders (PACAANHPI) has recommended that the U.S. Citizenship and Immigration Services (USCIS) establish a new internal cycle time goal by eliminating inefficiencies such as redundancies, facilitating automation of approvals, and improving internal systems. The Advisory Commission hopes that the new cycle time for processing forms will drastically reduce green card processing times to just 6 months for all forms related to all green card applications, family-based green card applications and DACA renewals. The Commission has also recommended for the National Visa Center (NVC) to hire additional officers to support additional capabilities to schedule immigrant visa (IV) interviews.

The objective is to increase processing capacity by 100% by August 2022 and reach 150% capacity by April of 2023.

Once the National Visa Center is able to catch up with pent up demand, U.S. Embassies and Consulates worldwide should also increase capacity by hiring more officers and become more efficient to meet the 6-month time cycle proposed by the Presidential Advisory Commission.

If this recommendation is adopted, it will speed up the processing of thousands of green card applications currently stuck in the backlogs and result in faster approvals.

The Advisory Commission reviewed I-485 green card applications pending in the United States and requested USCIS to try to process associated I-765 work permits and I-131 travel permits also within 90 days.

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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.


Overview


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.

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Welcome back to Immigration Lawyer Blog! In this video, attorney Jacob Sapochnick discusses what you can expect after filing Form I-130 Petition for Alien Relative, used by U.S. Citizens or Legal Permanent Residents (LPRs) to lawfully immigrate a qualifying relative to the United States, and how long it is taking for the U.S. Citizenship and Immigration Services (USCIS) to process these applications.

Want to know more? Just keep on watching.


Overview


The first step of the process to immigrate a foreign national involves the filing of Form I-130 Petition for Alien Relative. This application forms the basis of the foreign national’s eligibility to apply for a green card, based upon what is known as a qualifying family relationship. Not all family members may qualify.

If you are a U.S. citizen, you may file Form I-130 only for your eligible relatives. This includes your spouse, your children, your siblings, and your parents. If you are a permanent resident, you can petition for your spouse and any child under the age of 21.


What happens after filing Form I-130?


Once you have filed Form I-130 Petition for Alien Relative either by mail or online, you will receive a receipt notice in the mail known as Form I-797C Notice of Action. This notice will serve as proof that your application was received and properly filed with USCIS. The Notice will also include your Form I-130 receipt number where you can track the progress of your case online, and the date the case was received by USCIS also known as the priority date.

If you have filed Form I-130 by mail, you will receive the Notice of Action approximately 1-2 weeks after mailing the application. If you filed Form I-130 online, the Notice of Action will appear in your USCIS online account portal approximately 1 week after submission.

If you fail to include the correct filing fees with your application or your application is deficient in any other way, your case may be rejected and sent back to you. In such case, you would not receive a Notice of Action, and instead would receive a rejection notice along with your package being returned to you. Therefore, it is very important for applicants to review the Form I-130 instructions very carefully and provide all necessary fees and documentation with the filing. Failure to do so can result in the rejection of your case. If your case has been rejected, you are allowed to re-file your application with USCIS having corrected the mistake.

Thereafter, if any additional documentation is missing from your application, or if USCIS needs further information to process your Form I-130, they will issue a Request for Evidence (RFE) outlining the documentation and/or information they need from you to continue processing your case. Requests for Evidence (RFE) are sent by mail and include the deadline for responding to the Request for Evidence in the Notice. When an RFE is issued, the case is halted until you respond to the request. For this reason, it is important to respond in a timely manner and no later than the deadline indicated in the notice. Remember, the longer you delay in responding to an RFE, the more time it will take for your case to be adjudicated.

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