A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration attorney and counsel. Contact Info: 732-632-9888, http://www.1visa1.com/ (All information is not legal advice and is subject to change without prior notice.)

Saturday, December 2, 2017

Jet Lag, Green Card, Surrender?


You are a U.S. permanent resident returning to the U.S. from an overseas trip.  You are tired. You are trying to rush home to take a nap.  Instead, you were stuck at immigration. You were asked to follow the immigration officers to a separate room.  You are questioned about your background and travel history, why you traveled, for how long, etc.  Your dreams of relaxation are shattered.  Worse, after being interrogated for what seems to be an eternity, you are asked to give up your green card by signing a document!  Stop!

Many U.S. green card holders travel internationally for business or personal reasons.  Some of them may not realize that their lengthy departures have resulted in the "abandonment" of their lawful permanent resident status.  The U.S. green card confers permanent residency to a foreign national to live and work in America.  The green card holder is expected to resident permanently in the U.S.  The law creates a legal presumption that one has given up her green card by not returning to the country for more than 6 months.  A one-year departure can be viewed as conclusive evidence of one's abandonment of her permanent resident status.  There are other circumstances that may create such a presumption.  

However, legal permanent residents should not automatically surrender their green cards when asked to do so.  An individual does not automatically lose her green card as a result of time spent abroad. Under the law, the government must prove abandonment by clear, unequivocal, and convincing evidence.  It means that although a legal resident's actions may suggest that she has given up her residency status, she still have the right to present evidence to defend herself in court. 

The Form I-407 is used when a green card holder wants to give up her permanent resident status.  When returning from overseas travel, they are sometimes asked to sign the Form I-407 at the airport.  It is important to note that this form must be signed knowingly and voluntarily.  Legal residents should not feel obligated or pressured to sign this form if they are not certain about their rights.  If a legal resident refuses to sign Form I-407, the immigration officer should issue a Notice to Appear (NTA) to request an immigration judge to hear the case.  The legal resident may then present testimony and evidence to prove that she has not given up her lawful permanent resident status.  

To prove that one has not given up her lawful permanent resident status, a person may present evidence of their ties to the U.S. (family, assets, employment, etc.), the tax returns filed, the purposes of their visit outside of the U.S., and any other reasons for their lengthy departure such as unexpected events and accidents, etc.  

If a legal resident's green card is taken away by Department of Homeland Security, she should request for alternative evidence of their legal resident status, such as an I-94 and/or passport stamp that says "Evidence of Temporary Residence."  A lawful permanent resident does not lose her status unless and until a final order of removal is entered. 

To avoid being accused of abandoning one's legal status, a legal resident should understand the law well, plan their international travel carefully, and take measures to avoid abandonment.  If lengthy foreign travel is necessary, one should consult with an experience immigration attorney in advance. 

Wednesday, November 29, 2017

Applicants Must Use New I-765 Form Starting December 4, 2017

Foreign nationals are reminded to use the new I-765 form, “Application for Employment Authorization," starting December 4, 2017.  The revised form, released in October by USCIS, allows applicants to apply for a Social Security number (SSN) or a replacement SSN card without visiting a Social Security Administration (SSA) office.  Only the new form will be accepted starting December 4, 2017. 

The Form I-765 is to apply for permission to work in the United States.  Unauthorized employment is illegal and violates the U.S. immigration laws.  The I-765 form can normally be filed with the I-485 application for adjustment of status to obtain work authorization.  Other applicants such as international students in F-1 visa status may also use the I-765 to apply for authorization to work off campus or to work under the optional practical training (OPT) or the science, technology, engineering and mathematics OPT extension (STEM OPT).  It can also be used by M-1 international students to apply for practical training.


Friday, November 24, 2017

PERM Labor Certification Processing Time

DOL posted the following PERM labor certification processing times as of 10/31/2017-



Analyst Reviews: 
July 2017
(About 4 months)
Audit Review: 
March 2017
(About 8 months)
Reconsideration Requests: 
October 2017
(2 month)




(Note: the dates represent initial filing dates)

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December 2017 Visa Bulletin: Philippines Family 1st Moves Back by 2 Years



December's Visa Bulletin brings only small advancements in general.  Philippines' Family 1st Preference retrogresses by 2 years to January 1, 2005.  EB-3 India advances 3 weeks.  EB-3 China advances 5 weeks. Final Action Dates for EB-3 China remain ahead of EB-2 China.  Hence, Chinese EB-2 employment-based applicants may still take advantage of the "downgrading" mechanism to apply for I-485 adjustment applications earlier.   


AD: Dates for Final Action (Approval)FD : Dates for Filing Applications
      Family
Other Coountries
      China
India
Mexico
Philippines
F1
AD
02/01/2011
02/01/2011
02/01/2011
04/01/1996
01/01/2005
FD
01/01/2012
01/01/2012
01/01/2012
11/01/1996
10/01/2007
F2A
AD
12/22/2015
12/22/2015
12/22/2015
11/15/2015
12/22/2015
FD
11/01/2016
11/01/2016
11/01/2016
11/01/2016
11/01/2016
F2B
AD
11/22/2010
11/22/2010
11/22/2010
07/22/1996
07/01/2006
FD
09/01/2011
09/01/2011
09/01/2011
01/01/1997
09/01/2007
F3
AD
09/08/2005
09/08/2005
09/08/2005
05/22/1995
03/08/1995
FD
12/01/2005
12/01/2005
12/01/2005
10/01/1995
06/15/1995
F4
AD
06/08/2004
06/08/2004
11/22/2003
10/08/1997
08/01/1994
FD
11/15/2004
11/15/2004
06/22/2004
02/08/1998
03/01/1995
1st: Unmarried Sons and Daughters of Citizens (about 23,000 per year).2A: The 2 "A" preference is for Spouses and Children (under 21 & unmarried) of LPR's.2B: The 2 "B" Preference is for Unmarried Sons and Daughters (21 or older) of LPR's.3rd: Married Sons and Daughters of Citizens.(about 23,000 per year)4th: Brothers and Sisters of Adult Citizens.(about 65,000 per year)



Employment
Other Counties
China

El Salvador
Guatemala
Honduras
India
Mexico
Philippines
EB1
AD
C
         C
C
          C
C
C
FD
C
C
C
C
C
C
EB2
AD
 C
07/01/2013
C
  11/01/2008
C
C
FD
C
11/15/2013
C
02/08/2009
C
C
EB3
AD
C
03/08/2014
C
10/15/2006
C
01/15/2016
FD
C
09/01/2015
C
01/01/2008
C
08/01/2016
Other Workers
AD
C
07/01/2006
C
10/15/2006
C
01/15/2016
FD
C
06/01/2008
C
01/01/2008
C
08/01/2016
EB4
AD
C
C
11/08/2015
C
04/22/2016
C
FD
C
C
04/15/2016
C
C
C
EB5
AD
C
07/15/2014
C
C
C
C
FD
C
10/01/2014
C
C
C
C

1st: Priority Workers (Extraordinary ability aliens, multinational companies executives/managers, outstanding prof./researchers)2nd: Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability.3rd: Skilled Workers, Professionals, and Other Workers (Unskilled.)4th: "Special Immigrants" (Religious & others) 5th: Employment Creation (Investors)


USCIS announced that regarding the filing of I-485 adjustment of status:

For Family-Sponsored Filings:
Applicants must use the Dates for Filing chart in the Department of State Visa Bulletin for December 2017.

For Employment-Based Preference Filings:
Applicants must use the Final Action Dates chart in the Department of State Visa Bulletin for December 2017.

Monday, November 20, 2017

Delay in the Processing of I-751 Petition to Remove Conditional Status

Are you a conditional permanent resident waiting for your permanent green card?  If you are wondering when your I-751 petition will be processed, you are not alone.  The processing time of the I-751 Petition to Remove Conditions on Residence has become a lot longer during the past year.  Acknowledging the delays in processing the I-751 petitions, USCIS provides measures to conditional residents to extend their expiring green cards.  

The I-751 Petition to Remove Conditions on Residence is used to remove one's Conditional Permanent Resident (CPR) status.  CPR status is granted to a person when he applies for his green card based on marriage to a U.S. citizen and the marriage took place less than two years ago.  Conditional Permanent Resident status is only valid for two years and one must file a petition to remove the conditions within 90 days before the expiration of the conditional status. 

Currently, the California Service Center is taking approximately 15 months to process the I-751 petition while the Vermont Service Center is taking approximately 13 months.  Individual applicants may experience longer processing times.

When one files the Form I-751 petition, USCIS issues a Form I-797, Notice of Action, as filing receipt.  This document also extends the conditional green card for one year from the expiration date on the card.  However, the current lengthy processing times mean that many conditional residents have been waiting for more than one year for their permanent green cards.  With their one year extension expiring, these conditional residents need evidence to prove their legal status to stay in the U.S.  Without proof of legal immigration status, they will not be able to continue working, to renew their driver's licenses, and to travel internationally.  

Under current USCIS policy, conditional residents with a pending Form I-751 may request for further extension of their conditional status.   They can do that by requesting for a temporary "green card stamp" on their passport.  To do that they usually must make an InfoPass appointment with a local USCIS office.  They should bring their valid and unexpired passport,  InfoPass appointment notice, Form I-751 receipt notice, expired green card, and proof of residence (address).

The temporary green card stamp will typically be issued with a validity period of up to 12 months.  Individual USCIS offices may issue them for 3 or 6 months only each time but applicants may request for additional extensions.

If the USCIS website shows that there are no current InfoPass appointments available in a particular office, conditional residents may also walk-in and request for an emergency temporary green card stamp. USCIS states that conditional residents should not request a temporary stamp more than 30 days before the expiration of their conditional status.


(AILA Doc. No. 17111739)

Wednesday, November 15, 2017

Important Changes in Direct Filing Addresses for Form I-129

USCIS made the following announcement recently regarding filing of Form I-129 (for nonimmigrant visa/status such as H-1B, O, R, L-1A, etc.):


On October 12, 2017, USCIS will change the direct filing addresses for certain petitioners of Form I-129, Petition for a Nonimmigrant Worker. The changes are as follows: 

Petitioners will now file Form I-129 according to the state where the company or organization’s primary office is located. Previously, petitioners filed Form I-129 based on the beneficiary’s temporary employment or training location.

Petitioners located in Florida, Georgia, North Carolina and Texas will now file Form I-129 at the California Service Center. 

Starting November 11, 2017, USCIS may reject Form I-129s that are filed at the wrong service center. 

Sunday, November 12, 2017

USCIS Clarifies the Meaning of L-1A "Function Manager"


Multinational companies may transfer executives and managers to work in the United States through the L-1A Visa Program.  To qualify for the L-1A visa, a manager generally must manage professionals or other managers.  The law also provides that a manager who manages "an essential function" of an organization may also qualify for the L-1A visa.  A recent decision, Matter of G- Inc., by the Administrative Appeals Office (AAO) of USCIS clarifies the meaning of function manager.  

Under Matter of G-Inc., to establish that an L-1A transferree will be employed in a managerial capacity as a “function manager,” the petitioner must demonstrate that:
(1) the function is a clearly defined activity;
(2) the function is “essential,” i.e., core to the organization;
(3) the beneficiary will primarily manage, as opposed to perform, the function;
(4) the beneficiary will act at a senior level within the organizational hierarchy or with respect to the function managed; and
(5) the beneficiary will exercise discretion over the function’s day-to-day operations. 

Using this new legal definition, the AAO found the manager in the case to be eligible to for an L-1A visa.  The petitioner, a multinational technology-based product development corporation, filed an L-1A petition to classify the beneficiary as a function manager in the capacity of its “Director, Financial Planning and Analysis (FP&A)”.  

First, the petitioner has established that financial planing and analysis is a clearly defined activity that provides the company with financial strategies to optimize business opportunities and growth. The Director of FP&A is responsible for generating accurate and complete data to properly assess global revenue.  Secondly, the function of financial planing and analysis is also “essential” to the petitioning organization. The FP&A unit’s revenue planning and forecasting process affects all business units within the worldwide organization. Further, the petitioner’s management team depends on these FP&A reports and strategies to maintain its financial health and make critical mergers and acquisitions decisions. 

Thirdly, the beneficiary primarily plays a managerial role within the functional area; he develops and directs revenue forecasts and analysis for the worldwide organization, leads mergers and acquisitions, and oversees strategic pricing analysis. To manage these functional tasks, the beneficiary will continue to direct the work of various teams across five business units and six geographic areas.  Most importantly, the beneficiary will continue to be supported by six direct and three indirect reports. These direct and indirect reports are all professionals and managers themselves who will perform the day-to-day administrative and reporting tasks, allowing the beneficiary to focus on managing the FP&A function.

Finally, AAO is satisfied that the beneficiary will act at a senior level in the organizational structure with significant discretionary authority over the day-to-day operations related to the FP&A function. Consequently, AAO approved this L-1A function manager petition. 

Thursday, October 26, 2017

New U.S. Air Travel Security Requirements Take Effect

Catching an international flight to the LAX?   Make sure you give yourself enough time for some new security measures imposed by the U.S. government at check-in. Starting Thursday, October 26, 2017, international U.S.-bound travelers are subject to additional security screening during the check-in process.

What to Expect at Check-In?

Under the new security measures, passengers are subject to short interviews or questioning by airline staff.  They will be asked to provide details of their trip, such as the purpose of the trip, where they will be staying at, who they will be staying with, etc.  Also questions will be asked about their luggage and hand-carried items. Did they pack their luggage themselves?  Did they take any items from others?  If so, do they know what is inside?   Electronic devices may also likely be examined carefully.  Because different airlines may train their employees differently, passenger experiences may vary when boarding different flights.

Why are These Measures Imposed?

The U.S government has been beefing up its security measures to counter terrorist attacks during the last decade.  For example, a ban on laptops inside the flight cabins was imposed on 10 targeted Middle Eastern countries and their airlines previously.   In June, the U.S. Department of Homeland Security announced a hose of new measures for aviation travel including: Enhancing overall passenger screening; Conducting heightened screening of personal electronic devices; and Increasing security protocols around aircraft and in passenger areas; and Deploying advanced technology, expanding canine screening, and establishing additional preclearance locations.  The airlines had 120 days to comply.

Impact of the New Security Measures

The new measures affect approximately 2,100 flights coming from 280 international airports carrying approximately 325,000 air passengers daily to the U.S. from 105 countries.  Hence, they are bound to create some confusion at the beginning.  Many airlines remind their passengers to arrive the airport at least 3 hours before the scheduled flight.  The reaction is mixed.  Some passengers find the new measures annoying while others think that they are necessary to improve security.

Important Reminders

Nowadays, many people travel internationally for business or personal reasons.  To make sure that you have a safe and event-free trip, you should take certain measures.  Bringing a valid passport with  6 to 12 months of validity period is required. Make sure you pack your own luggage and do not accept anything from others.  Have your trip itinerary and related documents handy so that you can answer questions quickly.  Remember, in addition to the airline employees, the immigration officers at the destination airports will also be asking you questions. If you carry a mobile device or a laptop computer, make sure that you don't have any personal or private information inside, as these devices can be subject to search and examination by the authorities.