Student F-1, J-1, M-1 Visa Holders Not Subject to New Unlawful presence memo
The program of labor certification or sponsoring a future worker for permanent residency, whether they are in the USA or overseas can provide companies with a cutting edge approach to filling their employment needs while helping workers and their entire family move to the USA relatively quickly. For more information - see our practice areas tab.
A Federal Court has recdently ordered immigration to suspend applying its policy memo of August 2018 which stated that persons on the above visas automatically accrue unlawful presence on the date they violate their status. The Court issued a temporary injunction after lawsuits were filed by several schools and students saying the regulation was enacted without proper comments or considerations of a long standing USCIS policy. This means that in the short term, the memorandum is not valid, so the old memorandum and policy governs stating that F/J/M status is not ended until declared by an Immigration Officer or Judge. This gives many students the chance to leave the country to complete their immigrant visas since they have not accrued unlawufl presence. Please contact our office for more details.
Labor Certification - a Popular Way to Attract New Needed Employees
There has been some controversy about whether Polish Citizens - including their children - must have a Polish Passport to travel to Poland. Recent pronouncements by the Polish Border Guard seem to indicate - YES. That Poland is part of the Schengen Travel Area -and that the Schengen Agreement and Polish Law require its citizens to have a valid Polish Passport when crossing the Polish Border.
Polish Government Requires Its Citizens to Obtain Polish Passports
For information in Polish, click here for an official link to the Polish Border Patrols' Communication on this subject.
TSA & Drivers LicensesTSA will continue to accept valid driver’s licenses and identification cards issued by all States. If your ID is not REAL ID-compliant by the time the full program is enforced, you may present your non-compliant driver’s license or ID card along with a second form of ID to TSA when you travel. For more information, you can check the TSA Web site at www.dhs.gov\real-id-enforcement-brief for updates as your travel date nears. A list of frequently asked questions on REAL ID may also be found at www.dhs.gov\real-id-public-faqs
Waivers of Overstayed Persons & Entries Without VisasProgram Expanding Waivers Takes Effect
Immigration finalized its regulations expanding who can file for waivers excusing immigration violations of overstaying your visa or entered without a visa. The new rules, under an expanded Provisional Waiver process, allow persons to apply for a waiver if they meet 2 basic criteria:
The applicant has a:
- Parent or spouse who is a permanent resident (green card holder) or US Citizen. AND
- Currently available visa petition (through employment, family, Lottery Visa or any other sponsor).
The New Provisional Waiver program expands what relatives can be used as the basis for a waiver. The new process allows parents and spouses to act as sponsors, even if they are only permanent residents/ green card holders. Waivers are still not available for parents of US Citizen children.
Currently Available Visa Petition
A waiver applicant can be sponsored through various means – family, employment, lottery visa, or any other form of visa petition. The applicant for a wavier must have a currently available visa petition.
Often, applicants have filed visa petitions and cannot file for permanent residency because they are out of status (having overstayed their visa) or entered the USA without a visa. These applicants can now file using the waiver process as long as they have a qualifying relative under the new program.
Although waiting times vary depending upon who the sponsor is, there is good news that the process of waiting for a visa petition through a job offer or employment has been greatly reduced to only 1 ½ to 2 years.
In addition, an individual can have several petition applications pending at the same time. This means that an applicant can be sponsored through multiple relatives and through an employer and can use whichever application is available first. For example, an applicant can be sponsored by their sibling (a process taking 10-12 years) and can also be sponsored by an employer (taking 1 ½ - 2 years). Thus, the Applicant would be able to decide which application will be the basis for their obtaining permanent residency – preferably the shorter process through an employer.
If an applicant does not have a qualifying relative (spouse or parent) they can always try and have that relative file for permanent residency. For example, an applicant being sponsored by their sibling, can ask that sibling to also sponsor their parents for permanent residency. Once their parents obtain permanent residency, the parents can act as a qualifying relative for the applicant’s waiver request under the new process.
In order to qualify for a waiver, an applicant must prove that their qualifying relative would suffer extreme hardship if the applicant was not able to obtain permanent residency. This process requires a detailed, thoughtful and well documented request to the immigration process. Our office assists clients in ensuring that they are filing a proper well supported application.
The Provisional Waiver program has been in existence since 2013, and over 44,000 applications have been filed with an average approval rate of 60%. This means that not all applications are approved and applicants must be cautious when applying for their waiver to ensure that they meet all of the eligibility requirements. Our firm works with qualifying relatives and applicants to ensure that they meet this criteria of the waiver program.
Travel Abroad to Complete Waiver
Once the provisional waiver has been approved, an applicant must travel to their home country to obtain an immigrant visa. An applicant completes the immigrant visa process and receives an interview appointment at the American Embassy in their home country. Based on our experience, provided that an applicant has not lied to a government official previously, and does not have a criminal record, they will be granted a visa and will come to the USA.
Generally, the entire consular process takes approximately 10 days and requires the applicant to conduct a medical exam, be interviewed by a US Consular Officer and await issuance of their visa.
Before Conditional Waivers
Prior to 2013, applicants for waivers had to file their applications overseas and await a reply from Immigration which could take several years. During this time, applicants were separated from their U.S. citizen or permanent resident spouses, parents, and children, causing financial and emotional harm.
Who Else Can File for Provisional Waiver
An individual subject to a final order of removal or deportation may now seek a provisional waiver, if they already requested and received approval for consent to reapply for admission.
The benefits of this rule are largely the result of streamlining the immigrant visa process for individuals who are inadmissible to the United States due to unlawful presence. This rule will provide applicants seeking provisional waivers and their family members advance notice of USCIS’ decision on their provisional waiver prior to leaving the United States for their immigrant visa interviews abroad, offering many individuals the certainty of knowing they have been provisionally approved for a waiver. This will result in months of reduced separation time based on the average adjudication time for Form I-601 waiver applications.
The new provisional waiver process will benefit significant numbers of U.S. citizen or permanent resident family members. Individuals applying for a provisional waiver will receive advance notice of USCIS’ decision to provisionally waive their 3- or 10-year unlawful presence, before they leave the United States for their immigrant visa interviews abroad. This offers applicants and their family members the certainty of knowing that the applicants have been approved before departing from the United States.
NOT TO BE RELIED UPON UNTIL YOU CONSULT WITH AN ATTORNEY - IMMIGRATION MATTERS ARE COMPLEX AND REQUIRE CAREFUL ANALYSIS CONSULTATION WITH AN ATTORNEY BEFORE TAKING ANY ACTION