Foreign nationals entering the U.S. on a B-1/B-2 visa are generally granted 6 months at their port-of-entry to accomplish the purpose of their trip, be it for pleasure or business. Most visitors for business or pleasure do not remain in the U.S. for the entire 6 months, since they have work and/or residences to return to overseas. For those seeking to remain in the U.S. for the entire 6 month period, or possibly extend or even convert their stay to another status, such as F-1 student, a variety of current trends and rules must be kept in mind. Featured below are some of the most up to date trends, policies and conditions impacting individuals entering on B-1/B-2 visas:

• Applications (Form I-539) to extend visits beyond a grant of 6 months are heavily scrutinized and granted only in the rarest of circumstances, such as where unexpected health problems or business conditions have arisen.
•  Applications to change from visitor, B-1/B-2 to student F-1 status continue to be viable, but applicants should be aware of the vast minefield at play, including: 
  • prohibition generally, against applying to school, or filing the change of status application (I-539) within 90 days of entering the U.S. and
  • prohibition against enrolling in school or commencing studies prior the approval of a change of status application

An applicant for a change of status who commences studies prior to approval will end of up having their application denied. Additionally, foreign nationals seeking to extend their visitor status will also be denied in the event they enroll in school during the term of their visit, since CIS considers such enrollment to constitute a status violation.

PUBLISHED September 8, 2010 – “IMMIGRATION LAW FORUM”
Copyright © 2010, By Law Offices of Richard Hanus, Chicago, Illinois

For about the tenth time in the past decade, I am writing about a new legislative initiative presented to allow for the legalization of the vast majority of those present in the U.S. in violation of our immigration laws. This time, the initiative is called Comprehensive Immigration Reform for America’s Security and Prosperity Act of 2009 (“CIR ASAP”). The measure was introduced before the U.S. House of Representatives on December 15, 2009 by Congressman Luis Gutierrez (D-IL), a lawmaker who has shown himself to be a leader in the comprehensive immigration reform movement. Gutierrez, like many other politicians in Congress, along with our President, realizes that eventually our society has to make a choice about what we will do about our nation’s 15 million or so undocumented individuals. Absorb? Deport? Some stay, some go?

Whatever the solution, for sure, by doing nothing our country ignores the issue and pretty much establishes a de facto amnesty, where the status quo is maintained and the undocumented population continues to be allowed to live and work in the U.S., albeit in the shadows. Based on the underlying premise of most undocumented workers’ embarking for the U.S. in the first place (“better to be in the U.S. illegally and make a living and get ahead than be in my home country legally”), this population will not be packing their bags for a trip home anytime soon, no matter the level of immigration enforcement.

CIR ASAP includes a broad range of initiatives, including enhanced border security and immigration law enforcement, improved verification systems for employers and otherwise establishing some integrity in our broken immigration system. The truly potent, provocative goodies in the legislative proposal involve the legalization of the undocumented population.

The most notable provision allows for the out of status/no status foreign national to establish an interim legal status by, among other requirements,

a) documenting their unlawful status in the U.S as of December 15, 2009,
b) paying an application fee, along with a $500 fine, and
c) attesting to having made societal contributions through employment, education, military service, or social service volunteering.

The applicant would also need to demonstrate a relatively clean criminal record, where a felony or three (3) misdemeanors will prompt ineligibility.

Other highlights of the CIR ASAP:

• Allows for adjustment to permanent status after a six (6) year interim, conditional status. In conditional status, while awaiting permanent status, an applicant will have the right to work in the U.S. and travel internationally; individuals in removal proceedings will be among the pool of eligible applicants.
• DREAM ACT: similar to above provision, except that students brought to the U.S. before 16 years of age would have an accelerated path to permanent residence upon high school graduation, completion of two (2) years of college study or several other milestones,
• Expands opportunities for U.S. employers to hire and keep foreign workers by liberalizing rules for facilitating temporary and permanent (immigrant) visas for foreign workers and
• Provides greater discretionary authority for Immigration Judges presiding over a long time U.S. resident’s removal (deportation) hearing.

There are at least another 100 interesting provisions included in this legislative proposal. Most likely, though, if and when any of these measures get signed into law, the details and language will probably only faintly resemble this proposed language. To many in Congress, a measure like CIR ASAP is toxic territory, where any type of support for this cause will open up the floodgates for criticism and accusations of “rewarding the lawbreaker.”

Certainly, for any sort of immigration reform to pass, courage and brutal honesty will have to find a way into the discussion — particularly to get past the argument that, in the end, the lawbreaker may very well be rewarded. But, looking at the potential benefits such reform may yield for our society, including a substantial economic shot in the arm (think of all the billions of dollars the 15 million undocumented will start spending knowing that their stay here is secure), as well as the cost of doing nothing, comprehensive immigration reform, in some form or another, is inevitable. Here’s hoping that the introduction of CIR ASAP at least gets an honest and courageous conversation started.

PUBLISHED December 16, 2009 – “IMMIGRATION LAW FORUM”
Copyright © 2009, By Law Offices of Richard Hanus, Chicago, Illinois

US lawful permanent residents renewing their Permanent Resident Cards by way of direct mailing of Form I-90 (as opposed to online filing) should pay attention to two important changes.

Firstly, I-90 applicants are now instructed to file their supporting documentation when submitting their application, as opposed to only presenting it when appearing for their post-filing biometrics appointment – as was the procedure previously in place.

Second, all I-90 applications are now to be filed with the following US CIS lockbox:

USCIS
P.O. Box 21262
Phoenix , AZ 85036

or if by courier/express mail:

USCIS
ATTN: I-90
1820 Skyharbor Circle S , Floor 1
Phoenix , AZ 85034

PUBLISHED April 29, 2009 – “IMMIGRATION LAW FORUM”
Copyright © 2009, By Law Offices of Richard Hanus, Chicago, Illinois

There are a multitude of perspectives in the debate about how our country should fix the problem of having 10 to 20 million undocumented individuals residing here. Days ago, Senator Dick Durbin (D) of Illinois once again has introduced legislation before the U.S. Senate to establish a “path to citizenship” for millions of undocumented foreign nationals who arrived in the U.S. as children. The bi-partisan team joining Durbin in presenting this proposal, known as the Development, Relief and Education for Alien Minors Act (DREAM), includes Senator Richard Lugar (R) of Indiana in the U.S. Senate. In the U.S. House of Representatives, a parallel version of the bill – known as the American Dream Act, was introduced by a separate bi-partisan team, which includes two Democrats and one Republican.

If this sort of legislative proposal sounds familiar, that’s because there have already been several stabs at it over the years, but with no success at passage. Whether or not Durbin’s “DREAM” stands a chance in today’s economic and political climate remains to be seen — although with President Obama likely taking a role in this bi-partisan play, anything can happen.

Some highlights of the legislative proposal include:

• Allowing certain, otherwise law abiding, immigrant students who are now under the age of 35 and qho arrived in the U.S. while under the age of 16 and at least 5 years before enactment of legislation, to obtain conditional permanent resident status as long as they gain acceptance to college, graduate from high school in the U.S. or obtain a GED.
• The period of conditional residence, which allows applicants to work, drive, attend school and take short trips abroad, will be generally be limited to 6 years. Thereafter, applicants can seek to convert their status to unrestricted lawful permanent residence if they maintain good moral character, avoid extended trips outside the U.S., and graduate from a two-year college, study at least two years toward a Bachelors or higher degree, or serve in the U.S. armed forces for two years.
• Allowing for conditional resident eligibility for federal work study and student loans, but not federal financial aid grants.
• Reversing federal penalties against states, like Illinois , which allow certain undocumented students in-state tuition benefits for higher education.
• Allowing time accumulated in conditional resident status to be counted toward U.S. citizenship eligibility.

The DREAM Act brings to light a sensitive sub-issue in the debate regarding what to do with our nation’s undocumented population as a whole, i.e. how to approach the peculiar circumstances of millions of young adults who generally were brought to the U.S. as innocent children and not by their own choosing, and have known no home country other than the U.S. For sure, it will be a lively, emotional debate, and a prelude to the larger discussion about the merits of a path to citizenship for the undocumented population at large.

PUBLISHED March 30, 2009 – “IMMIGRATION LAW FORUM”
Copyright © 2009, By Law Offices of Richard Hanus, Chicago, Illinois

As of this writing there truly is no speedy and simple way to facilitate the issuance of either immigrant or temporary work visas for Registered Nurses from most foreign nations (Canada and Mexico are the only exceptions). Knowing the truth about foreign nurses and US immigration law is critical, specifically because

• US employers and future US RN employees are desperate to be matched up with each other
• There is an abundance of misinformation out there, and
• Employers, and especially prospective work visa holders are vulnerable to misinformation and scams.

Supply and Demand for Nurses

Not a day goes by in my immigration law practice where the shortage of registered nurses and other health care professionals in the US does not come up. Whether it is an employer desperate to staff a position in a nursing home or hospital, or a licensed foreign health care worker who is ready, willing and able to work hard, the process cannot happen soon enough. In the vast majority of cases involving registered nurse positions, however, it will be a matter of years before the foreign worker can start work in the U.S . Why is this?

H-1B: There exists no realistic temporary visa option. US Citizenship and Immigration Services has declared that H-1Bs are inappropriate for RNs except in the rarest of sophisticated, highly specialized, or supervisory RN positions. For the fiscal year 2008, only 136 H-1B visa petitions for RNs were approved.

H-1C: First problem, the position must be in a designated “shortage area” in the US, and getting the US government to formally designate anything is no small job. Second, the yearly supply is limited to only 500 visas, and a per-state limit of 25. With exceedingly restrictive requirements, this visa program did not come close to being used to its limit, with no H-1C visas approved for 2006, just 49 for 2007, and 110 for 2008.

Immigrant Visa: The I-140 petition is relatively straightforward. Give me a solvent healthcare facility and a NCLEX passing or CGFNS certified foreign RN, and I will give you an approvable I-140. But after I-140 approval, comes an unpredictable and almost mysterious wait for visa availability in the Employment-Based 3rd Preference line. Based on the State Department’s visa bulletin for December 2008, visas are being issued to RNs who were originally petitioned back in May of 2005 (and it’s an even longer wait if the RN is from China, India or Mexico). That is because the yearly allotment of immigrant visas made available under current law cannot come close to meeting the demand. Absent some congressional measure to increase the yearly allotment of visas in this category, total processing time – from the time the I-140 is filed to visa issuance – could be close to four years.

Abundance of Misinformation and Scams

Some of the most interesting stories I hear are the ones that I never get the full details on. They start something like, “but I have this friend who was able to get their petition approved in 36 hours, and then a visa issued within just 28 minutes thereafter.” Certainly I have been around long enough to summarily reject these stories as rumors or puffing. (I am always curious, though, and do try to determine if I may have missed something important in my efforts to keep abreast of the latest developments in immigration law and procedures)

However, people who are otherwise pretty smart tend to become purposely ignorant when they feel vulnerable or desperate. There generally is no quick way to facilitate visa issuance for a RN seeking to work in the US. Notwithstanding that reality, suckers across the globe fall for the tactics of predatory staffing agencies or educational “institutions” promising quick work visa turnaround or study/work programs designed to facilitate student visas that will quickly lead to some sort of work visa status. Those who fall for these scams stand to lose large sums of money, and for some foreign workers, it means being stranded in the US without the work or pay promised. Some foreign workers may even find themselves under the control of the “sponsoring” organization that forces them to perform jobs for low pay and with the threat of deportation looming over their heads.

Talk of Change Continues

Last week, the US Department of Homeland Security’s Office of the Citizenship and Immigration Services Ombudsmen released a report entitled Improving the Processing of “Schedule A” Nurse Visas. As reflected in the reference to “Schedule A” in its title, the focus of the report was on immigrant visas for RNs. The report does a fine job reporting on the problem as outlined above (i.e., limited visa options for RNs and employers seeking to fill positions, and the massive visa availability delays), but other than suggesting the need for congressional action to change the law and to increase visa options and quantities, the only solution within the Agency’s control that could be offered and acted upon was the speedier, more consistent adjudication of I-140 petitions. That solution though, will have only a very limited impact on the problem, since no matter how fast an I-140 petition gets approved, the parties are staring at a lengthy wait for visa availability.

So, as is the case for our society’s other immigration problems, we wait for Congress to act.

The OPT (Optional Practical Training) program allows nonimmigrants who are in the United States – usually following the completion of their F-1 program – to temporarily, and with authorization, work in their field of training for one year.

The Department of Homeland Security has made two changes to the OPT program, both of which went into effect on April 8. From the standpoint of an advocate, these are positive changes for both employers and foreign students studying in the U.S.

1. Extension of OPT status for certain fieldsOne of the changes affects persons currently holding OPT status, whose degree and occupation are in the STEM (science, technology, engineering or mathematics) field. STEM students will now have the option of extending OPT status for 17 additional months. This means that STEM students/graduates could hold OPT status for up to 29 months.Persons who are eligible for this extension:
   • currently in OPT status (must apply for the extension before status expires)
   • completed a bachelors, masters or doctorate degree program in a STEM field (computer science applications, actuarial science, engineering, engineering technologies, biological and biomedical sciences, mathematics, statistics, military technologies, physical sciences, medical sciences, science technologies).
   • will work for an employer enrolled in the E-Verify Program (Department of Homeland Security’s new system for determining employment eligibility, where Social Security and Immigration databases are used together to verify information on an Employer’s Eligibility Verification Form I-9).

   This is an “interim” rule, meaning that there will be a comment period for the public to make suggestions about the changes. I imagine that there will be much discussion about what type of degree should and should not be considered a STEM degree.

   In order to apply for the extension of the OPT EAD, the student must:

   • obtain a recommendation from their school’s DSO (Designated School Official)
   • complete and submit Form I-765 (including $340.00 filing fee payment).

   There is a condition for this extension: every six months the OPT student must check in with the DSO to confirm information such as current address, current employer, employer’s address, job title, start date of job etc. This ensures that no OPT status holder is falling through the cracks by working outside of a STEM field or working for a non E-verify employer.

   As I said, this change is good news for employers and foreign workers. It addresses, albeit in a small way, what many high-tech companies have been complaining about regarding the short supply of temporary work visas available for non Americans, and not enough American high-tech workers to fill key positions.

2. F-1/H-1B “Cap-Gap” ReliefThe other change would affect a significant number of F-1/OPT status holders who have had H-1B petitions filed on their behalf. In the past, many F-1 visa holders have had their OPT status expire (late spring or early summer) while waiting to begin work (October 1) as the beneficiaries of approved H petitions. Such persons have had to return their home country when their status expired and go through nonimmigrant visa processing at a U.S. consulate to reenter months/weeks later with their H-1B visa. In some cases, people could obtain an extension of their F-1 status while awaiting the start of the fiscal year, however this did not include an extension of their OPT status, meaning they could not work while waiting.

   NOW, with this new rule, a person will have their OPT status automatically extended while waiting for the processing and approval of an H-1B visa petition. If the petition is denied or revoked, the OPT status extension will be terminated immediately. However, if the petition is approved, this means that the person can remain in the U.S. and continue working while waiting for the H-1B October 1 start date.

   In order to be eligible from this ‘cap-gap’ relief, the person cannot have violated his/her F/OPT status at any time.

   
   PUBLISHED April 14, 2008 - “IMMIGRATION LAW FORUM”
   Copyright © 2007-2008, By Law Offices of Richard Hanus, Chicago, Illinois

    

     

The most current version of the DREAM Act (which has been an evolving congressional concept since 2001) fell eight votes short of passing a Senate test vote on October 24, meaning that the bill will not be debated or amended.

The demised bill, sponsored by Democrat Senator Durbin of Illinois and Republican Senators Hagel of Nebraska and Lugar of Indiana, sought to provide illegal immigrant students with legal status who arrived in the U.S. before age 16, graduated from high school, and committed to either serving in the military or attending college for at least two years. The bill was designed to assist young people in the U.S. who are without legal status as a result of their parents’ decisions, rather than their own.

Congressional opponents of the bill saw it as an amnesty. The White House issued a statement opposing the bill finding it to be unfair to those who had followed immigration laws, stating that it included “loopholes” that would make immigrants convicted of crimes eligible and that it would lead to document fraud. The White House concluded by stating that although immigration is a top concern, “it needs to be addressed in a comprehensive and balanced way that avoids creating incentives for problems in the future.”

Admittedly, the new law in Oklahoma and the failure of the DREAM Act are setbacks for the undocumented community and its advocates. However, state legislation such as that enacted by Oklahoma may cause federal lawmakers to again focus their efforts on immigration reform. Some senators voted against the DREAM Act because it did not address immigration in a broad enough manner. Republican Senator Specter of Pennsylvania strongly supported this past summer’s proposed immigration legislation, which would have treated undocumented immigrants currently in the U.S. in a considerably favorable light. Specter said that the Dream Act “weakens our position to get a comprehensive bill.”

Lying about one’s immigration status can have serious consequences, especially when it involves a false claim to U.S. citizenship. A false claim to U.S. citizenship can mean an applicant will forever be barred from obtaining U.S. permanent residence, or for those already lawful permanent residents (“green card” holder), being denied U.S. citizenship. In rare cases, it can even be the basis for the initiation of removal/deportation proceedings. But what exactly constitutes a false claim to citizenship, how it becomes an issue, and how the government can prove their case are important questions to be addressed in any discussion on the topic, especially as it relates to the real world experiences of the immigrant population in the U.S.

Illustrative of the problem is the following common scenario: the lawful permanent resident that mistakenly registers to vote when renewing their driver’s license (as part of their license renewal paperwork), and then even proceeds to vote. A few years later, when appearing for their U.S. citizenship interview, the issue somehow comes up, and the applicant is left wondering what is going to happen?

Standing in line at a driver’s license facility can be a trying experience for anyone.  Visitors are welcomed with long lines, and sometimes rude or impatient representatives. When paperwork is stuck in front of you and a representative mumbles something quickly about registering to vote, many individuals just sign on the dotted rather than ask questions. “Tell me where to sign so I can get my new driver’s license and get out of here”, is pretty much what is on the forefront of most visitors minds when appearing at their local department of motor vehicles.

To deem an applicant’s actions a false claim to U.S. citizenship, it must be proven that the representation was intentional or willful. Is the applicant in the above scenario acting intentionally when he signs paperwork he has not read carefully? In more extreme cases, could it be the case that the act of voting may not necessarily constitute a false claim to citizenship since the applicant may not have realized that he needed to be a U.S. citizen to vote? In either situation, a good argument can be made that the applicant’s actions were indeed innocent and should not be a basis for an immigration examiner to conclude that a false claim to citizenship was asserted.

In the context of an application for permanent residence, the consequences are potentially worse since the applicant has not yet secured their permanent status in the U.S. and an officer’s legal conclusion that a false claim to citizenship was made could spell the end of their hope to remain in the U.S.

Usually, it is only a misrepresentation an applicant may have at some point made to a government agency that will be of consequence, since immigration status representations made to private parties or employers are generally not accessed by immigration authorities when considering a U.S. citizenship or permanent residence application.

Admissions relating to possible claims to U.S. citizenship should always be discussed with an attorney before proceeding with any immigration related application, so a proper assessment and strategy can be established before the fact.

Although the regulations governing the decision-making process for the issuance of student visas for foreign nationals abroad have not changed, a recent U.S. Department of State’s directive reminds U.S. consular officers of present day realities that need to be taken into account when deciding student visa applications.

First, the essential unchanged rules:

1. the student visa applicant must be in possession of Form I-20 – a document issued by the U.S. institution reflecting that the applicant has been accepted to an educational program at the school,

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2. the student must have funds, or a sponsor with funds, to cover their educational and living expenses and
3. the student must have “nonimmigrant intent” – that is, an intention to return to their home county and not remain in the U.S.

It is the last prong that typically gets in the way of student visa issuance, since a good deal of, if not most, student visa applicants wish to ultimately remain in the U.S. following the completion of their educational program. And it is on this issue that the recent State Department directive speaks. More specifically, consular officers are advised that it is the student’s present intention, and not potential long term plans, that should be the integral factor taken into account when reviewing student visa applications – primarily because it is so common for student visa applicants to change their intentions and form long term plans to remain in the U.S. The fact that a student’s intention might change, and they might wish to remain in the U.S., should now not be determinative in denying the visa application, according to the recent memo.

Additionally, like tourist/visitor visa applicants, conclusions regarding a student visa applicant’s intent have traditionally hinged upon the applicant’s “ties” to their home country. But in assessing these ties, consular officers are now to give less weight to a student visa applicant’s property or family obligation – or lack thereof – in their home country, since most student visa applicants are younger, and without dependents or their own assets.

The State Department directive also reminds consular officers not to deny visa applications solely because the proposed educational program would not be useful in the applicant’s home country or that the proposed curriculum is available in the home country.

In practice, though, a consular officer’s exercise of discretion to approve or deny a student visa application is pretty much unreviewable, and thus the real impact of this State Department memo will have is questionable. Time will tell. For the complete text of the memo see http://travel.state.gov/visa/laws/telegrams/telegrams_2734.html.

To be issued an F-1 student visa at a US consular post outside the US, an applicant must prove, among other things, that a) she has been admitted to an accredited educational program (by presenting a Form I-20 issued by the institution), 2) that funds are available to pay for the program and 3) that she intends on returning to her home country following completion of the program. As is the case for visitor visa applicants, it’s usually that last prong that leads to visa denials.

But what about those already in the US in some other legal status, such as B-1/B-2 visitor (and excluding visitors on the visa waiver program), who seek to commence an educational program and change their nonimmigrant status to F-1 student without departing the US? An avenue indeed is available for those seeking such a change of status, but applicants are advised to be very careful in how they go about filing their change of status application.

The appropriate form is I-539, and the attached instructions direct applicants are instructed to enclose various pieces of supporting documentation with their applications, including a) evidence that they have been admitted to an accredited educational program (Form I-20, again, issued by the school), b) evidence of the financial status of their sponsor (Form I-134, Affidavit of Support) or their own financial status, and c) evidence of their current nonimmigrant status (copy of Form I-94 reflecting current, unexpired, status at time of filing).

Important instructions not included on the I-539 Form. Do not apply for a change of status immediately after arrival in the U.S. Far too often I hear client stories of being denied their F-1 change of status requests because they submitted their applications too soon after arriving in the U.S., leading CIS to infer that they misrepresented their intent upon entering on their original visa.

For example, a typical visitor visa entrant is given permission to stay in the U.S. for a period of 6 months, and their Form I-94 is stamped with the date they must leave by. But, if the visitor’s intention to remain in the U.S. evolves too soon, say by submitting an application for admission to an accredited institution and obtaining a Form I-20 a couple weeks after arriving, their I-539 change of status application will be denied, no matter their financial status or intent to return to their home country.

How soon is too soon? It is advisable that applicants seeking a change of status to F-1 should not take steps until at least 90 days into their stay in the U.S. That means, only after 90 days of arriving should intending students seek admission into their program of choice, and ultimately submit their I-539 applications with the appropriate CIS office. Of course, the application should be filed before their current status expires. (warning: visitors granted less than 6 months at the port of entry will face a more complex set of legal issues in their plan to change to F-1 status, and are advised to seek counsel before taking any steps).

Another important instruction left off the I-539 application: Although you may be granted a change of status to F-1, you are in no way guaranteed reentry into the U.S. following any departure. With some exceptions, I generally will only advise clients to apply for a change of status in the U.S., if they do not care about going back to their home country for a visit in the midst of the program. That is because, the approval of a change of status to F-1 student status, only allows for a continued stay in the U.S. as a student, and is in no way a visa to reenter. In order to reenter as a student, the applicant will have to visit the U.S. Embassy in their home country and request an F-1 student visa. And the issuance of such a visa is not at all a sure thing, especially because U.S. embassy officials generally frown upon individuals who enter as visitors and change their minds and remain as students.

So for those intending students seeking the freedom to leave and reenter the U.S. in the middle of their program, it is usually advisable that a trip to a U.S. consular post outside the U.S. be made and an application for an F-1 student visa be made there, instead of seeking a change of status in the U.S. The only exception to that rule is the visitor who made it clear at the time of their B visa application and entry into the U.S. that the purpose of their entry was to visit a variety of schools and likely enroll in a program before returning home. But for this type of applicant, a desire to eventually depart and reenter the U.S. in the midst of a program will not pose any problem. Instead, the U.S. consular officer at a post outside the U.S. reviewing their F-1 student visa application will generally view the applicant as deserving of an F-1 visa since their true intention was revealed at time of initial entry into the U.S.

In conclusion, regardless of the type of guidance or advice provided by the international student adviser at the school of choice, intending students present in the U.S. in a nonimmigrant visa status other than F-1, are advised to obtain feedback from an experienced immigration attorney before submitting any F-1 change of status application.