Alice M. Yardum-Hunter :: Newsletters

"Immigration Status" Volume 2, Number 1

2/22/2006

Volume 2, Number 1 February 2006

Welcome to Alice M. Yardum-Hunter’s Immigration Status. Immigration Status is a periodic newsletter that covers a few select, in-depth, timely business and family immigration law and procedural issues with each publication.

TABLE OF CONTENTS

1. Next Chat on ilw.com – March 7, 2006, 2 PM Pacific Standard Time (5 PM Eastern Standard Time)
2. Family Immigration: The Engaged Couple
3. Business Immigration – Visa Number Availability
4. Family and Business Immigration – Guidance on Affidavits of Support
5. Business Immigration – H-1B Update and Alternatives to H-1B status

Next Chat – Join me at http://www.ilw.com, the largest immigration law portal on the internet, to participate in a chat that I will lead on business and family immigration matters, on Tuesday March 7, 2006 at 2 PM Pacific Standard Time (5 PM Eastern Standard Time).

Family immigration: The Engaged Couple - U.S. Citizenship and Immigration Services (CIS) publishes a monthly newsletter. January's issue tried hard to give the agency some needed positive public relations. It reported a story which was portrayed as special but which should be routine. It involved a soon-to-be-married bride who was refused entry into the U.S. a week before her wedding because there isn’t a visa that permits quick entry for long-term commitments, like marriage. Standard fiancée visas take too long to process to have much value. The immigration officers had to work extra hard to get her in; they succeeded after a lot of sweating.

Easy and rapid entry to the U.S. under these circumstances should be routine and not exceptional. Engaged people shouldn’t be forced to live in different countries or wonder whether they’ll be “lucky” enough to be united in the U.S. anytime soon. Our laws should support marriage, not hinder it, as is the state of U.S. immigration law today. If our leaders really believe in family values, they will acknowledge this anomaly and change these laws.

Business Immigration: Visa Number Availability – As of January 26, 2006, the Department of State (DOS) has seen a decrease in demand for employment-based visa numbers for CIS adjustment of status cases. This good news has resulted in the rapid advancement of the established cut-off dates. Still, DOS does not want to be too optimistic. If the demand again increases, it may be necessary to hold or retrogress (at some point) those dates. Below are DOS's comments on the outlook for employment-based numbers:

Worldwide: Based on the current level of number use in the Employment First and Second preference categories, there will be no need to impose a cut-off date for the categories…Third: Concern that the number of filings during March/April 2001 (under 245(i)) would result in a large concentration of demand, and limit movement of the cut-off date... has not been the case, and it may be that such cases (if they exist in large numbers) are still in the DOL backlog. China and India: The same lack of demand comments apply to these First and Second preference cut-offs. This has resulted in the rapid advancement of the China and India cut-offs, which [are expected] to continue for the next several months. China Third - Should stay at the worldwide date. India - This cut-off should continue to move, but such movement may become more limited.

Family and Business Immigration: Guidance on Affidavits of Support - Affidavits of Support for Family and Employment-Based Immigrants – When a person becomes a permanent resident (“green card” holder) of the United States, the general rule is that the person must prove that s/he is not likely to become a public charge. Simply, this means that the person must prove that the U.S. government will not likely become financially responsible for the person. This is one of several requirements of admissibility to the U.S. When petitioned by a family member or in the event of petition by an employer in which the person immigrating owns at least 5% of the business, Form I-864 (Affidavit of Support) must be filed to meet this requirement. There is another Affidavit of Support form, the I-134, but this form is used for some temporary entrants and other limited permanent resident entrants, most notably, spouses and children of employment-based aliens. The vast majority of immigrants who are required to file an Affidavit of Support must file the I-864 form.

The Affidavit of Support form includes information about the “sponsor” as well as the alien. The sponsor is the petitioner, but sometimes, when the petitioner does not have sufficient income or assets, there can be one or more co-sponsors (living with the alien) or joint sponsors (not living with the alien).

On November 23, 2005, CIS Acting Director for Domestic Operations, Michael Aytes, issued a memorandum which provides guidance on current policy relative to I-864 Affidavits of Support. The practice and section 213A(f)(6)(A)(i) of the Immigration and Nationality Act until then required that the sponsor submit copies of the sponsor’s three most recent Federal income tax returns. But the Act provides discretion to submit only the sponsor’s most recent Federal income tax return. Without discretion exercised, filings for adjustment of status often consisted of voluminous pages just of tax returns before the change in policy took effect. Fortunately, the discretionary provision by the Aytes memo now is the policy of the CIS. From the date of the memo, only the immediate prior year tax return is required. However, a sponsor is not limited to only filing the one return and can submit the prior two as well, if they will strengthen his or her financial wherewithal. In situations where only one tax return is filed though, a case could be denied, if judgment is not exercised carefully. A sponsor is not necessarily given the opportunity to provide the additional tax returns later in the case, before decision is reached.

The I-864 form is sufficient to meet the requirement of the law when the sponsor has income of more than 125% above the poverty guideline. The required amount depends on the number of dependents the sponsor has, where s/he lives. It varies each year. There are exceptions for certain kinds of employees who only need to meet the 100% poverty level. Until the Aytes memo, in addition to tax returns, letters of employment and pay stubs or other proof of payment for services were required to be filed with the I-864 form. But now, so long as the sponsor meets the poverty guideline percentage, this additional evidence is unnecessary. When the income dips below the poverty guideline, and there is no other proof that the required income level is otherwise met, then the additional evidence will be required.

Before looking to other sponsors’ income, in the event that a sponsor’s income does not meet the poverty guideline for the prior year, the CIS will request the current year’s income information, in lieu of more information on prior years. In this instance, the current year poverty guideline will be used rather than the year the Affidavit was signed. As long as sponsors have sufficient income, much paper will be saved and more trees will be happy that they don’t end up in CIS files. This new policy is a very welcome benefit to all those involved with the adjustment of status to permanent residence process. The sole caveat is to avoid documenting a case too little. If judgment lacks, then a denial would have to be surmounted, with attendant consequences.

H-1B Update and Alternatives to H-1B Status – As promised last time, here is some thought about what to do as H-1 specialty occupations are unavailable for employment that begins prior to October 1, 2006. First, for individuals who don’t need to begin employment right away, the October 1 start date is not far off. Applications for new H-1s can be filed beginning on April 1, 2006. This is the time to prepare those applications, in advance of expected unavailability even earlier than last year, which took place in July 2005. It is possible that the pent up demand could make availability end up very quickly. If you plan to file an H-1 petition, do it as close as possible on or after April 1, 2006.

Alternative strategies to H-1B became critical as a result of unavailability of H-1s even before the beginning of the fiscal year on October 1, 2005, except for those who received master’s level education in the United States. Alternatives to H-1B status could be needed this fiscal year even earlier. For master’s educated H-1Bs, an additional 20,000 new visas became available. But on January 17, 2006, CIS ran out of visa numbers for these people too. Not everyone is subject to this cap though. Exempt are people who already have H-1 status, those employed by nonprofit entities, post-secondary institutions of higher education, nonprofit, and government research institutions. Basically, it applies to new H-1 applicants who hold bachelor degrees or their equivalent. Most of these applicants are also recent graduates from a college or university.

New graduates are in a unique position: in addition to qualifying for H-1 status, they may be able to secure further training at the beginning of their careers as trainees. There are two different visa categories for trainees, the J-1 and the H-3. There are benefits and drawbacks to each. For example, the J-1 does not require a petition to be filed, but the H-3 is valid for twice as long (for three years instead of 18 months). There are other differences as well.

Experienced aliens in H-1 status who are further along in their careers have more options, but they may not qualify as readily. Some of the options are the O-1 (extraordinary ability aliens), E-1 or E-2 (treaty trader or investors and those with specialized qualifications or knowledge), L-1 (multinational executives, managers, and those with specialized knowledge), the R-1 (religious workers), the H-2 (prospective employees offered positions which by their nature are temporary) or the Q (cultural exchange visitors) visa categories.