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Articles Posted in Adjustment of Status

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The Chicago immigration lawyers of Zneimer & Zneimer handle employment-based immigration and are very familiar with the lengthy priority date line.  Many Indian and Chinese people who contribute to the economic engine of our country with knowledge, creativity, and skills, have been stuck for years in an invisible visa line that barely moves forward.  These neighbors and friends among us do their job and pay their taxes, but they never stop worrying if their sponsored job will last until the end of the visa line, if a whimsical regulation will deny them H-1B extension and make them out of status, if by the time they reach the end of the line, their minor kids will age out unable to become permanent residents.  Many people turn down a well-deserved promotion because it is not the sponsored job, and they need to keep the job with the same title, same description, same company, and work address, until they can file for the last step of the process, adjustment of status.

Priority date.  The law presumes that when an employer offers a permanent position to a noncitizen, the employer displaces a U.S. worker.  To sponsor a foreign worker, the employer therefore must test the U.S. market for U.S. workers, and only if there are no U.S. workers who are willing, able, qualified, and available to fill the job, the employer can receive a labor certification from the Department of Labor, and then file an immigrant petition on behalf of the foreign worker.  In some cases, where the work is in the national interest, the USCIS can waive the test of the U.S. market.  Once a petition is filed and approved, the foreign worker receives a “priority date”, which is the date in the Visa Bulletin that shows when a worker can receive his or her green card.   The “priority date” is like a number, that places the noncitizen in the visa line, and will be called when the visa becomes available.  For people born in India and China, this number is distant and the line is a decade-wait long.

These are legal immigrants, in jobs that U.S. workers were not willing, able, qualified, or available to take, but employers and our economy needed to be filled.  They may be doctors in rural and medically underserved areas, software engineers with unique skills, cancer researchers, radiation oncology physicists, and others.  All have Bachelor or higher degrees.  Due to the per country quota, a janitor born in another country does not have to wait for an immigrant visa, while a Nobel Prize winner from India must wait at least 2.5 years. Immigrants from India with Master Degree, M.D., Ph.D., even when the USCIS has found that their employment is in the national interest, must wait to receive an immigrant visa, or green card, for many years.

Visa Bulletin. That is why, when the State Department published the Visa Bulletin for October 2020, it created a stir.  Visas that could not be used due to the pandemic for consular processing, were released for people waiting on the employment line, moving the priority date forward.  The category for EB-3 (skilled workers and workers with Bachelor Degrees) moved faster than the category for EB-2 (advanced degrees or petitions in national interest). Continue reading →

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Our Chicago immigration lawyers have sifted through the DHS’s regulations and answers to the regulatory comments to understand the DHS decision making process when applying the public charge rules.  The Public Charge rule prescribes how DHS and the State Department will determine whether a foreign national who is applying for admission or adjustment of status is inadmissible in the United States because the foreign national is likely at any time to become a public charge.  The rule defines as a public charge a person who receives one or more public benefits for 12 months during a 36-month period.  If the person receives two benefits in one month, this will count as two in the 12 months, and a person who receives two benefits for 6 months within any 36-months-period will be considered a public charge.

The public charge rule does not apply to U.S. citizens, even if the citizens are related to the foreign national that is subject to the public charge inadmissibility ground.  However, if a U.S. citizen sponsor receives public benefits, the DHS will consider this receipt a negative factor for the alien.  The public charge inadmissibility does not apply to aliens whom Congress has exempted.  In addition, DHS has statutory discretion to waive the grounds of inadmissibility for public charge.

DHS does not have a crystal ball to determine whether an alien is likely to become a public charge.  Instead, the agency adopted a totality of the circumstances framework. Under this framework, the DHS adjudicators will review several factors and make a decision based on all of the evidence that supports each factor, and all of the evidence that supports all factors.  Because each factor can be positive or negative, and some factors are heavily positive or heavily negative, it is essential to recognize which factors can tip the scale in either direction and to offset the negative factors with positive evidence.  If overcoming a negative factor is not possible, for example,  age,  concentrate on increasing the weight on other factors to tip the scale in your favor.  Remember that the burden is the preponderance of the evidence, which means more likely than not.

Age

As already mentioned, some factors are immutable.  You cannot change your age at the time of the application, and the age will be either a negative or a positive.  However, other factors provide more flexibility, and with good lawyering, one can make a convincing argument in one’s favor.  For example, a person may be elderly. Still, if the person has an education, good health, work experience, or is a caretaker of someone else,  these positive factors will offset the negative factor of age.   To show age, you can submit your passport or your birth certificate.  If your age is between 18 and 61, this is a positive factor.

Applicant’s Health

Good health is a positive factor.  Poor health is not necessarily a negative factor.  A negative factor will be a medical condition documented by the civil surgeon as likely to require extensive medical treatment or institutionalization or that will interfere with the applicant’s ability to provide and care for himself or herself, to attend school, or to work upon admission or adjustment of status.

If you have a medical condition, don’t despair as the agency is willing to review expert reports that can mitigate the negativity of this factor.  Your treater can provide a description, explaining that your condition is Continue reading →

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The Chicago immigration attorneys of Zneimer & Zneimer follow closely the legal developments and litigation in the application of the Public Charge Rule.  The Department of Homeland Security’s regulations interpreting the Public Charge Inadmissibility include definitions and explanations about what factors DHS will consider in determining that a person is likely to become a public charge.  The DHS has enumerated the following factors:

  • Applicant’s Age
  • Applicant’s Health
  • Family Status
  • Applicant’s Assets, Resources, and Financial Status
  • Applicant’s Education and Skills
  • Applicant’s Immigration Status and Expected Period of Admission
  • Sponsor’s Ability to Support
  • Previous Public Charge Inadmissibility

The DHS will weigh each factor individually and cumulatively.  The DHS will assess the weighed degree to which each factor is negative or positive.  The factors will be weighed as positive, heavily weighed positive, neither positive or negative, negative, or heavily weighed negative.  The DHS (USCIS) and the DOS (Consulates) will apply the totality of circumstances framework to determine whether an alien is more or less likely to become a public charge in the future. Continue reading →

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The immigration attorneys of Zneimer & Zneimer PC have compiled a comprehensive checklist with resources for gathering the documents required to meet the public charge inadmissibility provision.   People who apply for an immigrant or nonimmigrant visa, unless statutorily exempt from the public charge inadmissiblity must complete form DS-5540.  People who apply for adjustment of status, unless statutorily exempt from the public charge inadmissibility must submit Form I-944.

Where applicable, you must also submit an Affidavit of Support.   You can download and use our checklist to gather your documents.

Checklist – Public Charge (Z&Z)

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A new legal wall for immigrants and nonimmigrants will go up on February 24, 2020.  The Department of Homeland Security will begin implementing the new Public Charge Rule.

The U.S. Citizenship and Immigration Services announced that it will begin implementing the Public Charge Rule on and after February 24, 2020.  The rule will not be applied for applicants with physical address in Illinois as a result of an injunction by the U.S. District Court for the Northern District of Illinois. The DHS has requested a stay of the injunction from the Seventh Circuit in light of the U.S. Supreme Court decision to stay the nationwide injunction.   If the Seventh Circuit lifts the injunction, the USCIS will provide additional guidance.  The USCIS has a special address and webpage for applicants from Illinois who live in Illinois.

According to public announcement, the USCIS will apply the rule to petitions and application postmarked on or after February 24, 2020.  For petitions or applications sent by commercial carrier, the postmark date will be reflected on the courier receipt.  For applications that are postmarked prior to February 24, 2020, the Department of Homeland Security will not consider the alien’s application, certification or approval to receive, or receipt of certain non-cash public benefits before Feb. 24, 2020. Similarly, when determining whether the public benefits condition applies to applications or petitions for extension of stay or change of status, USCIS will only consider public benefits received on or after Feb. 24, 2020.

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The Chicago immigration attorneys of Zneimer & Zneimer P.C. have been tracking the proposals to amend the public charge regulations, which will make it more difficult for immigrants to receive permanent residence if they or the sponsoring family had received public benefits for a specific period of time prior to the sponsorship.  According to a Politico article, between Oct. 1 and July 29, “the State Department denied 5,343 immigrant visa applications for Mexican nationals on the grounds that the applicants were so poor or infirm that they risked becoming a “public charge,” according to the statistics.”  In comparison, in the 2016 fiscal year, only seven people received denial based on “public charge”.

Today, the Department of Homeland Security announced that on August 14, 2019, it will publish the final rule, that amends the regulations by “prescribing how DHS will determine whether an alien applying for admission or adjustment of status is inadmissible to the United States under section 212(a)(4) of the Immigration and Nationality Act (INA or the Act), because he or she is likely at any time to become a public charge.”  The DHS final rule defines what is a “public charge” and what will be considered a “public benefit”:

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USCIS announced that in January the agency will accept employment-based adjustment of status applications based on the filing cut-off date instead of the final action cut-off date.  This will allow foreign workers to file for adjustment of status if their priority date predates the filing cut-off date.  USCIS has a grim view of February, however, and on its website notes that as soon as February 2019, it anticipates to revert back to final action cut-off date.   Although USCIS will accept the filing for adjustment of status based on the filing cut-off date, it cannot approve the adjustment of status until the final action cut-off date becomes current.

The backlogged employment-based categories moved by a few days to a few months, but the unconscionable wait for people born in China, Philippines, and especially India, continues.  The EB-1 category of priority workers that groups aliens of extraordinary abilities, outstanding professors and researchers, and multinational executives and managers, is backlogged for all immigrants.  It did inch forward a few days to a few weeks depending on the country of birth.  For example, the priority date for India-born priority workers moved from January 1, 2010, to April 1, 2010, which hardly leaves hope that India-born workers will get their green card before retirement age.  Our immigration system makes it easier and much faster for unskilled workers born elsewhere to receive a green than India-or-China-born professionals, including doctors, engineers, and even people with extraordinary abilities like Nobel Prize winners.

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The Chicago immigration attorneys Zneimer & Zneimer PC remind non-citizens that marijuana remains illegal under federal law.  Many states have decriminalized the use of marijuana.  Because under some states’ laws use or possession of marijuana is no longer a crime, many immigrants are under the very wrong impression that they can possess and use marijuana without consequences for their immigration status.  This is wrong because possession of marijuana continues to be a federal offense and immigration is in the province of federal law.

Immigration officials often question aliens about marijuana use or possession, especially in states that have legalized its use.  If an alien admits to an immigration official that he or she has ever used marijuana, the alien can face very serious immigration consequences.  The problems may occur even if the alien has never been convicted of a marijuana-related crime, and only admits that he or she used marijuana at home in a state where marijuana was legal.  Such admission will cause a number of serious problems.  Marijuana use will create immigration issues if the alien applies for permanent residence, citizenship, encounters ICE officials, travels internationally.

The best thing for any non-citizen is to avoid marijuana, including avoid investments in marijuana businesses, work in marijuana dispensaries or shops, or using marijuana.  A non-citizen should never carry any marijuana or paraphernalia, any frequent-buyer marijuana card, medical marijuana card, any phone with marijuana-related photos or messages, wear any marijuana-themed clothes, have a car with marijuana-themed bumper-sticker, and never, ever, post any self-incriminating statements about use of marijuana on social media.

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The immigration attorneys at Zneimer & Zneimer PC reviewed a noticed the Department of Homeland Security published in the Federal Register that announced the decision of DHS to increase its fees for numerous USCIS applications, effective December 23, 2016.  Even though the notice euphemistically calls the fee increase “adjustment” of fees, the result is a significant fee increase “by a weighted average increase of 21 percent.”  The applications for naturalization will have three levels. The N-400 will increase from from $595 to $640.  DHS will charge no fee to some applicants who have received a waiver or who have served in the military.  DHS will also have a reduced fee of $320 for applicants with family income greater than 150 percent but not more than 200 percent of the Federal Poverty Guidelines.  Additionally, USCIS will remove the regulatory provisions that prevent “USCIS from rejecting an immigration or naturalization benefit request paid with a dishonored check or lacking the required biometric services fee until the remitter has been provided an opportunity to correct the deficient payment.” The fee increase is substantial and becomes effective on December 23, 2016. This is the first fee adjustment since November 23, 2010.  The new fee must be submitted with all applications “mailed, postmarked, or otherwise filed” on or after December 23, 2016.

Applicants who want to avoid this increase should contact an immigration attorney as soon as possible to ensure that their application is filed before December 23, 2016.

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A foreign national can file an application to become a permanent resident if the foreign national has an immediately available visa.  A petitioner files an immigrant petition on behalf of a foreign national to establish the foreign national’s eligibility to immigrate to the United States and the US government sets aside an immigrant visa for the foreign national based on the approved immigrant petition.  The immigrant petition can be based on family relationship or on employment, and the filing date of the petition with USCIS determines the “priority date” of the foreign national for purposes of visa availability.

USCIS announced that for the purposes of adjustment of status, it will not be bound by the State Department decision, but it will decide every month which date to use – the “filing date” or the “final action date” from the Visa Bulletin. For the month of October, the USCIS will accept adjustment applications earlier as it will use the October Visa Bulletin “filing date” for all family based categories and for most employment based categories.  People who qualify should file as soon as possible before the November Visa Bulletin as the USCIS may change its mind at that time.

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