Wait Approximately Two Years? No, Become a U.S. Citizen!

Q: I’m a lawful permanent resident (LPR) (i.e. I have a green card), and my spouse entered the U.S. with a tourist visa. If I file an immigrant visa petition for my Mexican husband, Form I-130, how long will we have to wait?

A: Two years, approximately. The June 2015 Visa Bulletin shows that the current priority date for F2A Mexico is 08AUG13. The difference between June 1, 2015, and August 8, 2013, is about two years. So today, June of 2015, Mexican spouses who filed their I-130s about two years ago, on or before August 8, 2015, now have an immigrant visa available.  --- BUT WAIT! THERE’S MORE: The problem is that even though the Mexican spouse entered the U.S. with a tourist visa, his stamp or I-94 expired already. Any 6-month extension would have also expired already. By overstaying, your husband failed to continuously maintain lawful status. Falling out of status makes one ineligible to apply for adjustment of status. This means your husband can’t get a green card inside the U.S. and there isn’t any waiver. Your husband will have to go to Ciudad Juarez, then apply for a waiver, Form I-601, AND WAIT OUTSIDE THE U.S. for the waiver to get (hopefully) approved. He could be trapped outside the U.S. for an unknown number of months, with zero guarantee. The solution is for the LPR wife to naturalize. The moment he is the husband of a U.S. citizen, two things happen: 1) there’s no penalty for his failure to continuously maintain lawful status, and 2) he’s adjustment eligible. This means he’ll be able to get a green card inside the U.S. and he won’t need any waiver. Whew!

Can you get a TWIC if you have an EAD? Maybe. Maybe not.

Q: Does my Employment Authorization Document (EAD), i.e. work permit card, make me eligible for a Transportation Worker Identification Card (TWIC)?

A: Depends. The following EAD category codes are TWIC eligible:

(a)(3) Refugee

(a)(5) Asylee (asylum granted)

(a)(10) Withholding granted

(a)(13) Family Unity Granted

(a)(14) LIFE Legalization

(a)(12) TPS

(a)(19) U-1

What’s in YOUR wallet?

Work Permit Renewed in Only 27 Days!

On April 2, 2015, we electronically filed ("e-filed") our client's Employment Authorization Document (EAD) renewal application, Form I-765. 

On April 10, 2015, U.S. Citizenship and Immigration Services (USCIS) CIS issued the notice of the fingerprinting appointment, set for April 27, 2015.

On April 29, 2015, USCIS approved the renewal (new EAD valid 07/24/15 to 07/23/16).

So the total processing time was only 27 days!

TPS Re-Registration Approved – Even Though Filed Many Years Late!

A person who has Temporary Protected Status (TPS) must re-register before his TPS expires. USCIS will deny an application filed late.

Mrs. C of Honduras was granted TPS in 1999, but after U.S. Citizenship and Immigration Services (USCIS) approved the I-130 immigrant visa petition filed on her behalf by her permanent resident husband, she failed to re-register. Years and years went by.

In 2014, Rodriguez & Moretzsohn, PLLC, helped Mrs. C ask USCIS to please excuse her failure to timely apply for re-registration. Seven months later, USCIS issued a Notice of Intent to Deny (NOID). Rodriguez & Moretzsohn, PLLC, helped Mrs. C respond. Her failure to timely re-register was due to extraordinary circumstances beyond her control. She misunderstood the interaction of her approved I-130 and her ongoing need for TPS. She also relied to her detriment upon the erroneous belief that the approved I-130 somehow protected her and gave her status in the U.S. (which it didn’t).

Thankfully, USCIS approved her TPS re-registration – even though filed many years late.

An ICE hold is "not to exceed 48 hours"

You know how we’re innocent until proven guilty? Well, there’s also a federal law says that from the time a non-citizen’s bond is paid a jail can keep holding him (to wait for Immigration to come get him) for only 48 hours. 8 C.F.R. 287.7(d).

On Friday afternoon, 02/20/15, I called the local county jail.

“I need to send a fax to whomever is in charge,” I explained to the jailer. “It’s been more than 48 hours, so it’s illegal for the county to keep holding my client. Where should I send my fax?”

“You’re a lawyer,” the jailer said, derisively. “You should know where you can put your fax.” 

Then he hung up on me.

Whaaaa? Did he seriously just tell me to put my fax where the sun don’t shine?!

I then wrote and faxed an S.L.L. (Scary Lawyer Letter) to the chief of the jail. This was at 3:40pm. Government employees don’t answer their phones after 4pm, especially on a Friday. I didn’t expect anything to happen. 

So I was surprised when, that evening at 8:30pm, my client called me to thank me. They let him out of jail. He was already back home with his family. My SLL worked!

10 Basics About H-1B Visas

1.     Why should you care to know anything about the H-1B visa?

Because of we call care about specialty occupation employees (e.g. doctors, teachers, engineers, scientists, etc.). Either you yourself work in a specialty occupation, or you employ someone in a specialty occupation, or you or someone you care about needs the services of someone in a specialty occupation who isn’t an American.

2.  What is the H-1B visa?

It’s permission to work in the U.S. in a specialty occupation, i.e., a job that requires a four-year college degree or the equivalent.

3. Who is the H-1B visa for?

For both the employer who needs to hire a foreign professional, and obviously it’s also for the foreign professional employee.

4. When can you apply for and use an H-1B visa?

You can/must overnight the petition packet on Tuesday, March 31, 2015, to arrive at the Department of Homeland Security (DHS), U.S. Citizenship & Immigration Services (CIS) on Wednesday, April 1, 2014. Not before. Applying after this date is risky since Congress set the annual cap at 65,000 (plus 20,000 for master’s degree jobs) and historically way more than that number apply. So CIS solves this cap dilemma by drawing names from a hat. Yep. A lottery.

Monday, September 21, 2015, is the first date that an H-1B employee may enter the U.S., unless she’s already in the U.S. with some other visa status, e.g., a student visa.

Wednesday, October 1, 2015, is the first date that the H-1B employee is authorized to work.

5. Where does one apply for an H-1B visa?

California or Vermont, depending upon the job location.

6. How does an employer apply for an H-1B visa?

First, a first-time employer must get from the U.S. Internal Revenue Service (IRS) a Federal Employer Identification Number (FEIN). Next the first-time employer must email to the U.S. Department of Labor (DOL) the FEIN for “verification.”

Next, in mid-March, the employer e-files with the (DOL) the Labor Condition Application (LCA) which is a promise to obey all the requirements for hiring a foreign employee. About 5-7 working days later, the DOL emails to the employer the certified LCA.

Next, on Tuesday, March 31, 2015, the employer ships to CIS a packet of forms, fees, photos and supporting documents about the employer and the employee.

7. How much money does it take to apply for an H-1B visa?

The employer must pay to CIS:

$325 filing fee for the application

$750 data collection fee for employers with 1 to 25 full-time equivalent employees

($1,500 for employers with 26 or more full-time equivalent employees)

($2,000 if 50 or more employees in the U.S., if more than half are in H-1B or L-1 visa status)

$500 fraud prevention and detection fee

The employer or the employee may pay to CIS an optional $1,225 premium processing fee to get a decision (approval or denial) or a request for more evidence in 15 calendar days.

8. How much time does it take to get an H-1B visa?

About 2 weeks minimum to prepare the packet, then about 2-8 months to get CIS’ decision.

9. How many times can one apply for an H-1B (duration / extensions / renewals)?

It lasts for three years.

One 3-year extension is allowed, for a total of six years.

Extensions beyond six years are possible if a labor certification or green card case has been pending for 365 days.

10. Does H-1B status extend to dependents?

Good news: Yes! A spouse and children (unmarried, age 20 and younger) get H-4 status.

Bad news: They can’t work. L But that bad news should change soon; on 05/12/15 the DHS proposed allowing H-4s to work. Fingers crossed!

Disclaimer

This article is merely a summary of the law and doesn’t address possible exceptions, nor does it constitute legal advice, so before relying on this information to make any decisions you should first consult competent counsel about your specific situation.

About the Author

William Henry Humble III is an attorney at Rodriguez & Moretzsohn, PLLC, in Corpus Christi, Texas. The firm represents clients all over the U.S. and in countries around the world for all types of immigration cases including U.S. citizenship, employment-based visas, family-based visas, PERM labor certification, deportation defense, and appeals. For a free consultation, call (361) 883-8900 and mention this article!

Honduran Victim of Domestic Violence Granted Withholding of Removal

Ms. C from Honduras suffered years of beatings at the hands of her husband. She tried to join her parents in the U.S. who had left Honduras when she was a child. Twice ICE caught her and flew her back to Honduras. When ICE caught her a third time, Rodriguez & Moretzsohn, PLLC, immigration attorneys in Corpus Christi, TX, helped her request a Credible Fear Interview (CFI). She passed the interview but wasn’t released from custody. An Immigration Judge (IJ) from Los Angeles, CA, heard her testify at a detained-docket Individual Hearing in Houston, TX.  Immigration Attorney William Henry Humble III represented her and — ¡Gracias a Dios! — the IJ granted withholding of removal. Ms. C will now be set free to join her parents in Florida.

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Guatemalan Victim of Domestic Violence Granted Asylum

Ms. D from Guatemala was constantly beaten by her husband. She walked all day to ask a court in Guatemala for help but was only handed a hearing date notice that she herself would have to give to her abuser. When she escaped to the United States, she was taken into ICE’s custody, then released. Rodriguez & Moretzsohn, PLLC, immigration attorneys in Corpus Christi, TX, helped her apply for asylum. Immigration Attorney Maria Pia Prebisch represented her. The case took two years and four months, but finally on January 7, 2015, an Immigration Judge in Harlingen, TX, granted asylum. Ms. D may now file Form I-730, Refugee/Asylee Relative Petition to request follow-to-join benefits for her children in Guatemala.

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