POSTING DATE: March 25, 2019
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This Week's Immigration News
Question: I have a question about immigration possibilities. My sister got her citizenship through her American husband and sponsored my parents in 2018 and they will receive their green cards soon. I am alone in Jamaica because all my family members left and are living in America, except for aunts, uncles and a few cousins. I am not married and am a nurse. I want to immigrate and join my family in the U.S. as soon as possible, before the American immigration law ends and I might be left out. What I want to know is whether my parents can sponsor me once they get their green cards in a few months and whether my sister can do it as well? Which one is best? How long does it take?
Answer: This is a very important question, especially now that family immigration may drastically be reduced in the future. The waiting line for adult, single children of U.S. Residents is about 7-8 years or longer (called F2B Family Preference category). However, the waiting line for siblings (brothers & sisters) of U.S. Citizens is even longer – 12-14+ years (called F4 Family Preference category). The drawback in being sponsored by a Resident parent is that in the F2B category, if you get married before your parent becomes a U.S. Citizen, your Immigrant Visa case will be cancelled. This is not the case with your sister’s sponsorship, since the F4 category for siblings includes spouses and children, but takes more time. In your case, you could have both your U.S. Resident parents and U.S. Citizen sister file family petitions for you. There is no limit on the number of immigrant visa petitions that can be filed for an immigrant in different family categories. This will protect you in case the immigration categories for adult children or siblings is eliminated by Congress in the future. Another option to think about is possible employment sponsorship. The U.S. has a shortage of registered nurses. If you are successful in getting a job offer from a U.S. hospital, you may be eligible to immigrate in as little as a year or so after going through the licensing requirements. Let me know if you would like more information about the process.
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Recent Bills introduced in the Florida Legislature, if passed, would allow undocumented immigrants to get a state Driver’s License. These renewed efforts to provide immigrants with legal driving privileges were introduced by Democrats in part to lower insurance premiums and make Florida’s roads and highways safer, so that all Floridians driving in the state are licensed and insured. Democratic Senator Jose Javier Rodriguez of Miami introduced the Drive Together Sunshine State effort in support of Senate Bill SB 1358 "Driver Licenses and Identification Cards", while Democratic Representative Dotie Joseph of North Miami, Introduced House Bill HB 969 "Driver Licenses" to expand driver's license privileges to undocumented immigrants who live in Florida.
Florida Considers Giving Driver’s Licenses
To Undocumented Immigrants
Proving Income For Affidavits of Support (I-864)
Most U.S. Residents and Citizens who sponsor a foreign relative, including a spouse, are required to submit an Affidavit of Support (Form I-864) to prove that the sponsor makes enough income to support their immigrating relative. In cases where the sponsor’s income does not meet the requirements, a U.S. Resident or Citizen can be used as a “Joint-Sponsor” whose income does qualify. Generally, meeting the minimum income requirements can sometimes be “tricky”, especially if an individual is self-employed, since in such cases, income is not earned by “wages” with an employer issuing a W-2 at the end of the year.
New 2019 Poverty Guidelines Released for Affidavit of Support (Form I-864)
The new minimum income requirements under the I-864 Affidavit of Support have been released. Beginning March 1, 2019, U.S. Citizen and U.S. Resident Sponsors are required to meet or exceed 125% of the Poverty Guidelines in order to qualify. The income requirements for 2019 have increased just slightly from 2018. For example, the minimum yearly income of $21,137 is now required to sponsor a Spouse, compared with $ 20,575 for 2018. The new guidelines are posted on the USCIS forms webpage as form I-864p and must be used beginning March 1st.
USCIS Announces Premium Processing Available
For This Year’s H1B Lottery!
Getting A Green Card Through Employment –Overview of the Labor Certification Process
Most Immigrants know that they can obtain U.S. Residency (a green card ) through family sponsorship, but the process to get a green card through a U.S. employer often remains a mystery. For instance, do you have to already be working for the company in order for them to sponsor you?
Do you have to be in the U.S. to get sponsored? How long does the process take? How do you qualify? All very important questions.
It’s estimated that there are currently some one million or more immigrants living in the state who don't have access to a legal Florida Driver's License. If this latest effort succeeds, the measure would go into effect on July 1, 2019 and make Florida the 13th state to issue licenses to undocumented immigrants, joining California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maryland, New Mexico, Nevada, Utah, Vermont, Washington, the District of Columbia, and Puerto Rico.
Take action now! Contact your state Representatives and Senators to let them know you support safer Florida roads by giving all immigrants in Florida the right to obtain a Driver’s License.
Contact your Florida Representative and Senator
Read the Florida Bills:
In an unexpected move, the USCIS reversed course from its past years practice of suspending premium processing services and issued a last minute announcement that it would in fact be offering the premium processing option for H1B petitions being filed this year on April 1st (for the fiscal year 2020 cap).
The services will be offered in a two-phased approach:
1) The first phase will be for H-1B cap-subject petitions which are filed requesting a change of status, for instance from F-1 student visa to H-1B visa inside the U.S..
2) The second phase will be for all other H1B cap cases, meaning those requesting consular notification, where the prospective H-1B employee is either not inside the U.S. or simply wishes to pick up the H-1B visa at the consulate in their home country and obtain an actual H-1B visa stamp in their passport which allows them to travel in and out of the U.S. during the term of their visa. For Phase One cases, the form I-907 requesting premium processing should be filed along with the H1B application, however the USCIS may not begin actual 15-day premium processing for those cases until May 20, 2019. For Phase Two, the form I-907 must not be filed along with the H-1B application. USCIS anticipates announcing a start date, which it has determined may be delayed until at least June 2019, to begin premium processing services for all other H-1B applications, (i.e consular processing). At that time, U.S. employer’s can file the form I-907 requesting premium processing. Those filed with Phase Two cases will be rejected.
Question: Hi, I just got my citizenship and am planning to sponsor my mom. She is in the U.S. and has been here for many years on an expired visa. The problem is that my aunt just died and my mom wants to go home for the funeral. I told her that might be a problem but I want to check with you first before I tell her not to go. Thanks.
Answer: Yes, you are correct, if your mother leaves the U.S. after having been here out of status, she will be barred from re-entering. An overstay of 180 days up to 364 days before leaving the U.S. is an automatic bar from reentering the U.S. of three years and overstaying by 365 days or more, then leaving results in an automatic bar of ten years. However, as part of her residency package, we will request a travel permit for your mom, which takes approximately four to six months for approval. Once approved, she can leave the U.S. and safely return without worrying about being barred from reentering. Unfortunately, until that time, mom needs to stay safely in the U.S.. See you soon.
Question: I am visiting here in Florida on vacation from Venezuela and have been here for almost 6 months. According to the time the immigration gave me, I have two more weeks to stay. My question is, can I request to stay for another month so I can attend an event coming up in Miami in late April? If I do that, am I legal to stay while the application is being processed? I want to leave before April 30th because I have some important meetings coming up in Caracas at that time and my airline return ticket is for April 29th. My question is whether requesting the additional month will be a problem or not? If I don’t get a decision by April 29th, can I just leave and go home? Thanks.
Answer: The law allows most foreign visitors in the U.S. who enter on tourist visas to file a request to extend their status in the U.S. in order to remain here legally for legitimate purposes. Extending your stay for additional time to attend a scheduled event is a valid purpose. If approved, the USCIS will automatically approve up to six more months to stay in the U.S.. The problem is that the processing time for extending your status can take 3 to 6+ months or more. That means that if you file the request now, a decision on your extension request may not be made until lets say, June, which is already after you are scheduled to leave. As such, once you file the request, since your period of stay expires while the USCIS is processing your application and you leave before the case is approved, your U.S. B1/B2 visa will automatically be cancelled. Even if the application is approved after you leave the U.S., the request is only valid for extension of stay while you were in the U.S., effectively forcing you to remain in the U.S. once you file the request, to avoid losing your U.S. tourist visa. There is no logic in this process, it is simply a ridiculous process which has gotten out of hand. So in your circumstances, it would be risky for you to file the request to extend status, since your period of stay expires in several weeks. Its best for you to avoid the risk and return home.
Self employed Sponsors or Joint-Sponsors may think they meet the financial requirements since their gross income meets 125% of the Poverty Guidelines, when in fact it does not. Commonly it is because sponsors are not aware that it is the final adjusted gross income on the individual’s Tax Return is the figure that the USCIS uses to determine eligibility, not the gross. As an example, a Nurses Aid may earn $30,000 a year. However, the gross wages reflected on the self-employment tax form called a Schedule C, are then reduced by expenses and the final adjusted gross income may only be $15,000 or less, which would not qualify under the USCIS guidelines.
When the USCIS issues a Request For Evidence to provide additional documentation to prove that the Sponsor (and/or Joint Sponsor’s) income meets the requirements, the Sponsor is generally only given one chance to respond to the USCIS request by providing a qualifying Joint Sponsor Affidavit of Support, Tax Return, Paystubs and Employer Letter which meet the guidelines. If the documents provided do not meet the requirements, the USCIS will not issue another Request, it will simply deny the entire case and all the filing fees will be lost. In order to proceed, a new Residency case must be filed all over again with new USCIS fees – very costly!!! So, make sure that a Joint Sponsor meets the income requirement on the adjusted gross income line of the Tax Return before sending the Affidavit of Support to the USCIS and include proof of Residency or Citizenship, recent Tax Return, Paystubs (3 mos) and a current letter from the Joint-sponsor’s employer stating the job title, # of hours per wk and the hourly wage or salary.
For background, immigration regulations allow U.S. employers to sponsor foreign immigrants to immigrate to the U.S. in order to take up an available job position, which the employer has been unable to find a U.S. worker to fill. Occupations which are often difficult to find qualified U.S. workers to fill cover the spectrum, from sheepherders (yes that is a real occupation) and tree cutters, to nurses, engineers and everything in between. Some occupations are more favorable for getting approved than others, depending upon the current job market and type of skills needed. For instance, low level positions which involve heavy labor or harsh conditions (often not requiring training or experience) such as for tree cutters working outside in the heat all day are very difficult to fill and are good prospects for labor certification approvals. Similarly, highly skilled jobs involving science, technology, engineering and math, requiring Bachelors and often Master’s degrees are likewise good candidates for approvals.
So how does the process work? First, it’s important to understand that the labor certification process to obtain residency through an employer does not in itself confer any legal immigration status or visa until the process is complete, so immigrants who are in the U.S. visiting cannot legally remain here during the process, unless they have legal status through another type of visa, i.e., H-1B work visa, F-1 student visa, etc. Sounds confusing, but it really does make sense, when you look at a typical labor certification case:
Yum Yum Chinese restaurant (Yum Yum) serves specialty Chinese cuisine. The restaurant is expanding and wants to open another location, but they have been unsuccessful in finding a qualified Chinese cook. The restaurant decides it must recruit and hire a cook from Hong Kong. Mr Wu who lives in Hong Kong has 15 years of experience as a specialty cook, sees an ad Yum Yum put in the Chinese newspaper looking for an experienced cook. Through an immigration attorney, Yum Yum begins the labor certification process, which first requires applying to the department of labor (DOL) to find out the minimum wage they are required to pay the cook, then proceeds with placing more ads to try to recruit a qualified U.S. worker cook and after no success, filing a labor certification application with the DOL requesting to permanently hire Mr. Wu for his green card.
After about four to five months, the DOL approves the labor certification application and in the next step, the immigration attorney files an employment Immigrant Visa application (called I-140) with the USCIS attaching the labor certification approval and other documentation, requesting approval of the visa. Thanks to expedited processing, the application is approved by the USCIS in as little as 15 days. Once approved, the USCIS sends the case to the National Visa Center to prepare the case form Mr. Wu’s appointment at the U.S. Consulate in Hong Kong. Approximately four months later Mr. Wu attends his consular appointment, receives his Immigrant Visa and comes to Miami a month later. Once he enters the U.S., immigration officers order his Green card and ask him what address he wants it sent to. Mr. Wu is now a U.S. Resident!
But what happens if Mr. Wu is already in the U.S. legally? Let’s say that Mr. Wu is here in the U.S. on an F-1 student visa attending courses at a cooking school. The process is exactly the same as above, except, once the I-140 Immigrant Visa application is approved by the USCIS in 15 days, Mr. Wu can immediately file his residency application to adjust status from a student visa to a Green card holder and he does not need to leave the U.S. and attend an interview at the consulate. Instead, after 6-8 months, he will attend his residency interview in Miami and receive his Green card in the mail within about 15 days.
This is the basic process in a nutshell. The only difference is in the timing for nationals of certain countries that have waiting lines for employment visas, so some immigrants have to wait longer than others. But for immigrants of most countries (except China, India and the Philippines), there are currently no waiting lines for employment green cards.
So how does an immigrant get sponsored by a U.S. employer? Well, that is the key, finding an employer in the U.S. willing to go through the above immigration process. It’s also important to note that for immigrants who are in the U.S. already working for an employer, but are out of legal status, immigration rules generally do not allow them to get a green card, except under certain limited exceptions.
Read the 2019 Poverty Guidelines
Here’s a few important tips for Sponsors to remember when filing an Affidavit of Support for loved ones:
Always include a copy of: a) your most recent tax return and W-2 b) past 3 months paystubs and c) current letter from your employer stating your fulltime position, dates of employment and wages (which match your paystubs). Importantly, self-employed income can often be problematic, since after deducting expenses, the net income is often far below the guidelines. Note that even if the sponsor does not meet the requirements, and uses the income of a Joint Sponsor, he or she must still file an I-864 and include evidence of income.
When submitting an I-864 from a Joint-sponsor who does meet the minimum income qualifications, be sure to include: a) copy of the Joint-sponsor’s U.S. Birth Certificate, U.S. Passport, Naturalization Certificate or Green Card b) copy of the most recent tax return and W-2 c) past 3 months paystubs and d) current letter from his or her employer stating fulltime position, dates of employment and wages (which match his or her paystubs).
Final note, most U.S. Citizen Parents sponsoring biological minor children under age 18 are not required to file an Affidavit of Support, since the immigrating child will automatically become a U.S. Citizen upon obtaining U.S. Residency. Instead, form I-864W is required requesting the exemption. You can get free information about preparing I-864 Affidavits of Support, meeting the minimum income requirements or requesting an exemption by calling our office at: 954-382-5378.
