Blog - Khandelwal Law

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CURRICULUM

Join Sweta Khandelwal, June 14th, as she speaks on how foreign-born entrepreneurs and start-up business owners can stay in the United States, start and work for their company without being deported!

Event Timeline Details

6:00PM – 6:45PM: Networking, light dinner

6:45PM – 7:00PM: Sponsor Introductions

7:00PM – 8:30PM: Discussion w/Sweta

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Last week’s post discussed the importance of a Green Card, a document that entitles the holder to work and reside legally in the United States. There are several ways of getting a Green Card, including through family relationship or special categories such as asylum-seekers and crime victims. One of the most common methods is by becoming employed in the country.

A labor certification is essential for getting Green Card through employment. A labor certification requires an American employer to demonstrate that there are no qualified or minimally qualified workers in the country to perform the job for which the individual in question is getting hired. The person must be hired as a full-time employee in a permanent position. The employer must specify reasonable educational and experience qualifications for the job in question. They cannot seem to be made specifically for the relevant employee.

The Secretary of Labor provides the labor certification. American employers must attest to how many people are available in the country to perform the job the applicant is going to do and also outline the effect the immigrant employee’s employment will have on the working conditions and wages of those working in similar positions in the country.

Obtaining an employment-based visa can be complicated and require a lot of paperwork to complete. However, this should not deter those who have been offered the opportunity to work in the land of opportunity. Those struggling with understanding the requirements of working in the US may want to consider consulting an experienced attorney.

The Trump administration has made another move that will change the way immigration works moving forward. In September, it was announced that the administration would end Deferred Action for Childhood Arrivals, also known as DACA. However, officials haven’t completely shut the door on Dreamers, as Congress was given a six-month deadline to come up with a solution to save some 690,000 DACA recipients from deportation. Now, as lawmakers try to put together a solution, the business sector is chipping in by supporting Dreamers during this complex process.

Companies Are Supporting Dreamers, But Why?

Over 60 trade organizations and companies are uniting to help Dreamers and push Congress to arrive at a solution that will save these young immigrants from deportation. Among these businesses are: Amazon, Apple, Facebook, General Motors, Google, Hewlett Packard, IBM, Microsoft and many more. They have launched a digital ad campaign asking for bipartisan legislation that secures the futures of Dreamers, and they want that legislation done this year.

DACA protects young undocumented individuals who were brought to this country as children by delaying deportation. It also allows them to get driver’s licenses, secure jobs and enroll in colleges. If these individuals were deported, the companies campaigning for Dreamers estimates that the economy could lose $215 billion from the country’s GDP as well as $24.6 billion in Social Security and Medicare contributions.

Apple CEO Tim Cook, during a special press event, reaffirmed the important role Dreamers in today’s society. He reaffirmed that these people have only known a life in America and love our country more than most. He believes they deserve an opportunity to be citizens, but some may be having difficulty in these tough political times.

Calling an immigration attorney could be a solution for many struggling to stay in this country legally. There are options you may not be aware of that the Law Offices of Sweta Khandelwal can help with. Don’t be afraid to find the help that you need.

Recent policy changes for immigrants have come down from the federal level, including new “public charge” rules. Since the 1800s, a public charge has referred to a person who is not capable of supporting themselves. This means that they are dependent upon government assistance to survive. Under the old rule, a public charge may have relied upon federal, state, or local government help for income maintenance. They may also have relied upon government aid for long-term care.

The New Public Charge Rules

The new public charge rules will extend the definition of what it means to be dependent upon government assistance. Under the extension, officials may consider someone a public charge if they use a public benefit for 12 months. Under the new rule, a public benefit will refer to a specific list of social safety net services. This list includes food stamps (SNAP), Medicaid, and housing assistance, among others. If someone uses two of these public benefits in one month, the new rule will count this as two months’ worth of benefits used, and so on.

For immigrants, these new public charge rules are very important. Immigration officials could deny certain legal statuses or admission to any immigrant deemed a public charge. For immigrants already in the country, if immigration agents determine that they are a public charge, officials may deny the immigrant’s green card application.

Naturally, the new public charge rules are inciting fear in San Jose’s immigrant families. Starting on October 15, immigrants who use certain public benefits for an extended period risk having their green cards denied. As a result, many families all over the country are not signing their children up for free or reduced school lunches out of fear of the new rule. Some are avoiding food banks. Others are withdrawing from WIC, a program that helps low-income families with various support services. Many are also avoiding medical services out of fear for their legal status.

However, some of these precautions are misguided. The new public charge rules outline a specific list of public benefits that are relevant. Many local immigrant families are mistakenly avoiding public services that do not apply. Furthermore, there are special provisions and exemptions for certain groups. Children under 21 can access some services as can those who are pregnant and military personnel.

Contact Our San Jose Immigration Lawyers for More Information

The new public charge rules can be complex. To understand how best to follow them, contact our San Jose immigration lawyers. We can help you determine which public services your family can receive, and which members of your family are exempt. This way, you can support yourself and your family while also remaining eligible for your green card. For more information, call us at (408) 542-0499 or reach out through our online contact form.

Among the relatives of U.S. citizens that are generally eligible for a green card are spouses. It is important to note though that, sometimes, the permanent resident status granted to spouses of citizens is conditional. Generally, this status is conditional if, at the time it was given, the marriage was less than two years old.

Conditional permanent resident status typically lasts for two years. Generally, at that point, the conditions either have to be removed or the spouse loses his or her permanent resident status.

There is a process for spouses to pursue having the conditions on their permanent resident status removed as their two-year conditional status period nears its end. To start this process, a spouse generally has to jointly file Form I-751 with his or her U.S. citizen spouse (there are a few narrow exceptions to the requirement to file jointly).

There is a specific window for filing this form. The window opens 90 days prior to the end of the two-year conditional status period (there are some exceptions to this) and closes when the conditional status period ends.

Once the form is filed, there are various additional steps the process may involve, including an interview. As a note, sometimes, the interview can be waived. U.S. Citizenship and Immigration Services recently issued new guidelines on when officials can waive interviews.

What happens when a spouse that was granted conditional permanent resident status is pursuing having the conditions on his or her status removed is very impactful. Failing to file Form I-751 on time or having one’s request to have conditions removed denied can lead to a spouse losing his or her green card and facing removal from the United States. Skilled immigration attorneys can help spouses with navigating the condition removal process and avoiding common pitfalls.

The immigration laws in the United States are changing rapidly every day under the Trump Administration. As such, may confuse immigrants entering the country and may also affect their immigration status. How the new rules affect you and your ability to live and work in the United States depends largely on the type of immigration visa you are applying for.

There are two categories of U.S. visas: immigrant visas and nonimmigrant visas. Understanding the differences is an essential step in the immigration process.

Understanding the Immigrant Visa

Foreign nationals who wish to live and work permanently in the United States must have an immigrant visa. In order to obtain an immigrant visa, you must typically obtain sponsorship from either a U.S. citizen or an employer. Your sponsor must fill out the immigrant visa with U.S. Citizenship and Immigration Services. In some cases, an immigrant can petition on their own behalf. However, these individuals must have some extraordinary ability or invention to make them eligible.

Once your sponsor has filled out the application for your immigrant visa, the appropriate U.S. Consulate or Embassy must process the application. If approved for an immigrant visa, you must present this visa at the U.S. port-of-entry before the expiration date. Once you enter the U.S., and a Customs and Border Protection officer endorses your immigrant visa, you are officially a permanent U.S. resident.

Understanding the Nonimmigrant Visa

If you wish to enter the United States temporarily, you need a nonimmigrant visa. This may be for vacation, business, medical treatment, or temporary work. In order to obtain this type of visa, you do not need to obtain sponsorship. Instead, you must apply directly to the U.S. Consulate or Embassy for your specific type of visa.

There are more than 25 different types of nonimmigrant visas. For a list of all nonimmigrant visa classifications and requirements, you can visit the USCIS website or the U.S. Department of State website.

Do You Need a Visa to Travel to the United States?

The U.S. permits citizens of some countries to enter and travel to the United States without a visa. This exemption is for the purposes of business or pleasure and lasts for 90 days or less. To qualify for this type of travel, you must have a round-trip ticket, a valid passport that does not expire for at least six months beyond the period of your intended stay, and a completed Form 1-94W. The Visa Waiver Program visitors may not apply to change their immigration status or extend their stay.

Concerned About Your Immigration Status? Call Us Today

Do you have concerns about your immigration status or fear deportation? We can help. Our California immigration attorneys can help protect your immigration status, so you can continue to live and work here in the United States. At the Law Offices of Sweta Khandelwal, we do everything possible to help you through these scary times. Contact our California office today by calling (408) 542-0499 or filling out our confidential contact form to schedule an initial consultation and review of your immigration case.

What is the Visa Bulletin?

The visa bulletin is where individuals who have filed petitions for various types of U.S. visas can see which round of Green Card applications are eligible to move forward in the process. The visa bulletin is updated and posted each month by the United States Department of State on its website. Individuals who have petitioned for a Green Card must refer to the visa bulletin to know where their Green Card application is in the approval process.

Why is the Visa Bulletin Important?

There is a limit on the amount of Green Cards that are issued each year, and each immigration visa category and every country of origin has its own annual limit of no more than 7% of the Green Cards in any given category. Because of these limitations, Green Card applicants often have to wait a long time until their application moves to the front of the line for approval. The visa bulletin is how applicants can understand when their Green Card application is ready for approval, or when applicants should file their application with the National Visa Center (NVC).

What Information Does the Visa Bulletin Have?

The visa bulletin contains a lot of information presented in a concise manner, which can make it difficult to understand if the terms used and charts are unfamiliar.

What are Statutory Numbers?

Statutory numbers refers to the statutory limit that is put on each visa category and country of origin. When employment-based and family-sponsored visa applications are filed in excess of the statutory limits, visas will be issued to eligible immigrants in the order in which a petition is filed.

The annual limit on employment-based visas is at least 140,000. The annual limit on family-sponsored is 226,000, with visas distributed to the family-sponsored visa categories:

First Preference (F1) Visa: Unmarried children of U.S. citizens. Capped at 23,400 plus any numbers not required for fourth preference

Second Preference (F2A & F2B) Visas: Spouses and children, and unmarried sons and daughters of permanent residents. Capped at 114,200.

Third Preference (F3) Visa: Married sons and daughters of U.S. citizens. Capped at 23,400 plus numbers not required by first and second preferences.
Fourth Preference (F4) Visa: Brothers and sisters of adult U.S. citizens. Capped at 65,000, plus any numbers not required by the first three preferences.

Each country is capped at 7% of the total annual visas for both employment-based and family-preference visas, or 25,620.

What are Dates for Filing and Final Action Dates?

For each of the major visa categories, the visa bulletin includes a chart that informs Green Card applicants of “dates for filing,” or “final action dates” along with cut-off dates. Cut-off dates are the month, day, and year shown beside each category on the charts that indicate whether an applicant has a Green Card available for them. Cut-off dates on the final action dates charts inform applicants when their Green Card is ready for approval. And, cut-off dates on the dates for filing charts inform Green Card applicants when it is time to submit their application with the NVC, which means the Green Card will likely be ready for approval within the next year.

Every individual applying for an immigrant visa is issued a priority date after his or her visa petition is filed. Both the final action date chart and the dates for filing chart on the visa bulletin shows a month, day, and year under the relevant visa category. If an individual applicant’s priority date is earlier than the listed final action date, then his or her Green Card is authorized for issuance. If an individual’s priority date is earlier than the listed date for filing, then the individual may file his or her application.

Why Do Specific Countries Appear on the Charts?

The visa bulletin includes a specific listing of dates for China, India, Mexico, and the Philippines because the United States receives excessive demand for Green Cards from these countries. The demand for Green Cards by individuals from these countries makes their wait time a lot longer. Due to the demand and the long wait, the visa bulletin shows the specific wait times to improve processing of these visas and better inform applicants.

What Does “C” and “U” Mean?

Some visa categories may show a “C” or “U” on a date of filing chart or a final action date chart. “C” is short-hand for “current.” On a date of filing chart, a “C” means that applications may be filed regardless of the applicant’s priority date because Green Cards are available. Likewise, on a final action date cart, a “C” means that numbers are authorized for issuance and there is no backlog within that category. “U” is shorthand for “unauthorized,” and appears on final action date charts. A category is unauthorized when no visas are authorized for issuance in that category.

Who Needs to Read the Visa Bulletin?

The visa bulletin shows the date of filing and final action dates for family-sponsored, employment-based, and diversity immigrant category visas. However, applicants who are the spouse, parent, or unmarried child under the age of 21 to a U.S. citizen do not face a Green Card backlog, and thus do not need to read the visa bulletin.

What is Visa Retrogression?

Retrogression occurs when more people apply for a visa in a particular category or from a particular country than there are visas available for that category or country in the given month. This causes the cut-off dates for the subsequent month to move backwards, pushing individuals further back in line than previously anticipated. This occurs most frequently around September, near the end of the fiscal year.

What are the Consequences of Retrogression?

If, due to retrogression, an applicant’s priority date no longer meets the cut-off date published in the visa bulletin at the time of adjudication, the applicant’s case will be held in abeyance until a visa is available.

For applicants who have already been interviewed at a USCIS office, but a visa is not available, the USCIS may hold their case at one of its service centers, based on whether the visa was family-sponsored or employment-based. Employment-based visa cases that have retrogressed are held at the Texas Service Center (TSC) once any required interview is completed and any other steps. Family-sponsored visa cases that have retrogressed are held at the National Benefits Center (NBC) once the interview is completed and any other steps.

If adjudication of an applicant’s Form I-485 does not require an interview at a USCIS office, the applicant’s case will be held at the USCIS Service Center where the applicant initially filed his or her application.

How are Adjustment of Status Cases Handled?

Individuals who are already living in the United States and would like to become a lawful permanent resident by obtaining a Green Card may file to adjust their status. When adjusting status, an applicant is given a priority date, much like other Green Card applicants, after the applicant’s employer or relative files an immigrant petition on the individual’s behalf or the Department of Labor accepts a labor certification for processing.

Once an applicant who is adjusting their status receives a priority date, he or she will refer to the visa bulletin for when to file Form I-485, Application to Register Permanent Residence or Adjust Status. The applicant adjusting his or her status should also refer to the USCIS website before reading the visa bulletin to know whether the applicant should refer to the “Final Action Dates” chart on the visa bulletin for the current month or the “Dates for Filing” chart. The USCIS will designate one of the two charts each month for adjustment of status and will link to the relevant chart on its website within one week of the visa bulletin being published.

Individuals who are applying through adjustment of status may apply for a travel permit (or advance parole document) and work permit (or employment authorization document) at the same time the Form I-485 is filed.

Registered nurses have the ability to work in various health care occupations in the United States if they are not permanent residents. There are a few options available for registered nurses since most do not qualify for temporary working visas. Within these options, it’s important that nurses understand the requirements for these specific application processes.

What Types of Visas Can a Registered Nurse Apply For?

TN Visas: If you are a registered nurse from Canada or Mexico, you can apply for temporary TN status in the US.

H-1B Specialty Occupation Visa: This type of visa can work if the facility that you are applying to, as an RN, allows the two-year associate degree requirements that RNs have to meet. Registered nurses have to be in possession of a VisaScreen certificate in order to obtain this status. VisaScreen is a special screening program for RNs that consists of an educational analysis, license validation, English language proficiency testing, and a thorough exam of nursing knowledge.

What Will I Need for My Application?

You will need a few things as part of your application process for permanent resident status as a registered nurse. Requirements include:

Credentials that prove that the applicant is an RN licensed to practice in his or her country.

Certification from a US commission that the meets VisaScreen educational, licensing and English language proficiency requirements of the US state where the nurse plans to work.

Proof of a job offer from a financially stable US health care facility that is willing to file an Immigrant Visa petition in behalf of the nurse.

If you would like more information on applying for a US visa as a registered nurse, the Law Offices of Sweta Khandelwal can help you through the application process. Contact us today.

What is the Affidavit of Support (Form I-864)?

The Affidavit of Support, known as Form I-864, is a United States immigration form that a sponsor must sign when agreeing to take financial responsibility for an applicant immigrating to the United States. When certain immigration applicants decide to apply for a United States immigration visa in order to live as lawful permanent residents and obtain their Green Card, they must have an existing U.S. citizen or Green Card holder, usually a relative, take financial responsibility for them until they receive a Green Card.

Who Submits an Affidavit of Support?

Usually, the sponsor is the same person who petitions for an immigrant visa on behalf of the applicant seeking to immigrate to the United States.

Family-Based Immigration Requirements

In cases where a petitioner filed the immigrant visa petition for his or her relative, the petition must be the immigration applicant’s sponsor. If the petitioner’s relative is a K-1 fiance(e), K-3 spouse, or K-2 or K-4 child, an affidavit of support does not need to be filed at the time Form I-129F is filed. An affidavit of support will need to be filed after the fiance(e), spouse, or child comes to the United States, at the time they adjust their status to permanent resident.

Age and Residency Requirements

A must be at least 18 years old and a U.S. citizen or permanent resident in order to be a sponsor. The sponsor must typically live in the United States unless the sponsor’s residency abroad can be proven to be temporary and the sponsor still has domicile in the United States.

Income Requirements

A sponsor must make a minimum income of equal to or higher than 125% of the U.S. poverty level for the sponsor’s household size. Sponsors who are active duty members of the U.S. Armed Forces need only have an income equal to 100% of the U.S. poverty level for the household size if the immigrant the sponsor is sponsoring is the sponsor’s own spouse or child.

When a sponsor does not meet the income requirements, he or she may add the cash value of his or her assets to meet the income requirement of 125% of the U.S. poverty level. Additionally, a sponsor may meet the income requirement by counting the income and assets of members of the sponsor’s household who are related to the sponsor by birth, marriage, or adoption and are listed as dependents on the sponsor’s latest federal tax return. These relatives must complete Form I-864A, Contract Between Sponsor and Household Member.

A sponsor may not add a joint sponsor in order to meet the income requirements. The joint sponsor and the sponsor’s income are considered independently and are not combined.

Joint Sponsors

A joint sponsor may sign the affidavit of support with the sponsor to accept the same obligations and requirements as the sponsor. Joint sponsors must meet the same income and other requirements independently, except the joint sponsor does not need to be related to the immigrant.

Substitute Sponsors

Substitute sponsors are necessary when the sponsor has died and the USCIS makes a decision to let the petition go forward. In such cases, an individual must be found who is willing to be a substitute sponsor and is related to the immigration applicant in a way that qualifies them to be a substitute sponsor. A substitute sponsor must also be at least 18 years old, living in the United States, a U.S. citizen or national or permanent resident, and must meet all income requirements. Substitute sponsors must also file Form I-864 to become a sponsor.

Relationships that qualify for substitute sponsorship include:

Son
Daughter
Spouse
Parent
Sibling
Child
Grandparent
Grandchild
Mother-in-law
Father-in-law
Son-in-law
Daughter-in-law
Sister-in-law
Brother-in-law
Legal guardian of the immigration applicant

When is an Affidavit of Support Necessary?

An affidavit of support may be necessary for petitioners to fill out both for applications for an immigrant visa or adjustment of status. However, only certain immigrant visa or adjustment of status applicants are required to have an Affidavit of Support, including:

Employment-based immigrants who had a U.S. citizen or permanent resident relative file the immigrant visa petition, or such relative has an ownership interest of 5% or more in the entity that filed the petition.
All immediate relatives of U.S. citizens, including parents, spouses, and unmarried children under the age of 21, and relatives who qualify for immigration to the United States under a family-based preference (First Preference, Second Preference, Third Preference, Fourth Preference).

In some cases, an Affidavit of Support is not needed, or the need for one has expired because the sponsored individual becomes a U.S. citizen or has worked for a certain period. Below are some cases where an Affidavit of Support is not needed:

The immigration applicant has earned or can be credited with 40 qualifying quarters of work (around 10 years) in the United States;
The immigration applicant has an approved Form I-360, Petition for Amerasian Widow(er), or Special Immigrant as a self-petitioning widow or widower;
The immigration applicant has an approved Form I-360 as a battered spouse or child;
The immigration applicant is an orphan adopted by U.S. citizens and the orphan has been fully and formally adopted before he or she acquires permanent residence, and both adoptive parents have seen the child before or during the adoption;
The immigration applicant is the child of a U.S. citizen and was admitted for permanent residence on or after February 27, 2001 and would automatically acquire citizenship under Section 230 of the Immigration and Nationality Act.

What Does Financial Responsibility Require?

A sponsor who signs an Affidavit of Support is entering into a binding legal contract that requires the sponsor to accept the legal responsibility for financially supporting the sponsored immigrant. The sponsor holds this responsibility until the immigrant becomes a U.S. citizen, is credited with 40 quarters of work, is deceased, or is no longer a lawful permanent resident and has left the United States.

Public Benefits

When a sponsored immigrant receives any form of means-tested public benefit, the sponsor is responsible for repaying the agency that provided them for the cost of the benefit. A failure to repay the agency benefits could cause the agency to sue the sponsor.

What is the Process for Filing an Affidavit of Support?

A sponsor for the immigration applicant must complete Form I-864, Affidavit of Support when the immigration applicant is scheduled for an immigrant visa interview at a Consulate or Embassy abroad, or when the immigration applicant is already in the United States and is ready to submit his or her application for adjustment to permanent resident status with the USCIS.

When filing Form I-864, any joint sponsor must submit the same form at the same time, and any related member of the household accepting responsibility and whose income will be considered must complete Form I-864A, Contract Between Sponsor and Household Member at the same time.

Form I-864 must be accompanied by required documentation, including proof of the sponsor’s current employment and his or her most recent U.S. federal income tax return. This information is necessary to approve the immigration applicant’s visa.

The affidavit must also be notarized in the United States or before a U.S. consular or immigration officer in order to be complete.

Once the Form I-864 is notarized and all documentation is together, the form should be provided to the immigration applicant to submit with his or her application for permanent resident status.

Adjustment of status is the process that you can use to apply for lawful permanent resident status, which is also known as a Green Card. This means that if you are present in the United States, then you can get a Green Card without having to return to your home country to complete your visa processing. There are many things you will have to determine, however, in order to see if you’re eligible to apply for a Green Card.

What Is the Process of Attaining an Adjustment of Status?

The eligibility requirements for adjustment of status will vary depending on the immigrant category you are applying under. The first step is to make sure that you fit into a specific immigrant category. These categories include Green Card through family, employment, special immigrant, refugee or asylum status, human trafficking and crime victims, abuse victims, and registry. Once you determine your category, you will then need to complete two forms: an immigrant petition and a Green Card application. Someone else usually has to file the petition for you (also known as a sponsor). You will need your immigrant petition approved before you can apply for the Adjustment Status/Green Card form.

Afterwards, you will need to check your visa availability in your category and file your Form I-485. You will then need to attend your Application Support Center appointment to give your fingerprints, photograph, and/or signature. After any extra interviews that might be needed, and/or additional evidence given to USCIS, or the United States Citizenship and Immigration Services. You will then be able to check your case status online. Finally, a written decision notice will be sent to you when the USCIS has decided they have approved your Adjustment of Status.

If you would like more information on how you can get your Green Card, then the attorneys at the Law Offices of Sweta Khandelwal can help you get the information you need to start your process. Contact us today.

Workshop for Entrepreneurs From Our San Jose Immigration Attorney, Sweta Khandelwal