New Version of Form I-485 to Take Effect, Incorporating Final Public Charge Rule
Beginning on December 23, 2022, applicants filing for adjustment of status to permanent resident in the United States must use the 12/23/22 version for Form I-485. Per U.S. Citizenship and Immigration Services, the new version of the I-485 is revised to incorporate questions that address and implement the Department of Homeland Security’s final rule on the public charge ground of inadmissibility. Public charge inquiries are intended to determine whether an applicant for permanent residence is likely to become a public charge, or reliant on the United States government for financial assistance. The DHS final rule was published on September 9, 2022, and was intended to provide clarity and consistency for noncitizens on how DHS will administer the public charge ground of inadmissibility.
The public charge ground of inadmissibility has waxed and waned over the years in terms of its importance to the overall adjudication of permanent residence applications, but a public charge inquiry for applicants remains a central component of permanent residence applications. If you have questions about the effect of the new DHS rule on public charge on your permanent residence process, please reach out to our office to schedule a consultation today!
DOMA Ruling Clears the Way for Immigration Sponsorship for Same-Sex Spouses
With a truly historic decision, the U.S. Supreme Court ruled the Defense of Marriage Act (DOMA) unconstitutional, paving the way for U.S. citizens and permanent residents to sponsor their same-sex spouses for immigration benefits. The 5-4 ruling was celebrated at the annual convention of the American Immigration Lawyers Association, which began the same day the Court issued its ruling. Prior to the ruling, some citizens had taken the bold move to apply for permanent residence for their same-sex partners, only to have their petitions denied due to DOMA. Director of the USCIS, Alejandro Mayorkas, speaking at the convention, stated that USCIS had kept track of all the applications that had been denied under DOMA and alluded that USCIS may take corrective action on its own. Already the first foreign gay spouse has received permanent residence and Secretary of Homeland Security, Janet Napolitano, has issued an implementation statement clarifying that in general individuals can sponsor their same-sex spouses for permanent residence provided they were married in a state in which same-sex marriage is legal. Stay tuned for further developments related to this exciting news.
Día Nacional de Acción y El Proyecto de Ley de Reforma Migratoria
 |
| Emily Assunta White en D.C. |
Una abogada de Stern & Curray, Emily Assunta White, recientemente viajó a Washington D.C. para reunirse con miembros del Congreso de Colorado acerca de la urgente necesidad de una reforma migratoria, incluso un camino a ciudadanía para las 11 a 15 millones de personas en los Estados Unidos sin estatus de inmigración legal. Emily ha asistido en años anteriores, pero informa que este año fue en gran medida el más productivo desde que cada oficina del Congreso parecía estar de acuerdo en que hay que hacer algo para arreglar nuestro sistema roto de inmigración y que debe hacerse pronto. Los informes en Capital Hill indicaron que el proyecto de ley del Senado “Gang of Eight” se introduciría esta semana y a finales de este miércoles, el proyecto de ley finalmente se introdujo.
A pesar de que la ley de inmigración del Senado (S.744) tiene más de 800 páginas, Emily ha identificado algunos de los cambios potenciales más importantes:
- Legalización para algunos inmigrantes indocumentados. Esto permitiría darle estatus legal a los inmigrantes indocumentados que entraron a los Estados Unidos antes del 31 de diciembre de 2011 mediante la creación de una categoría llamada Inmigrante Provisional Registrado (Registered Provisional Immigrant-RPI). Aquellos que son elegibles para este estatus estarían dispuestos a pagar una multa e impuestos atrasados, y se les dará autorización de trabajo y viaje. Después de 10 años como un RPI, podrían solicitar una tarjeta verde, y más tarde, la ciudadanía.
- La creación de un nuevo tipo de visa para trabajadores temporarios, llamada visas W. Un W-1 permitiría a los trabajadores menos calificados una manera de trabajar legalmente en el país, mientras que las visas W-2 y W-3tomarían el lugar del programa del trabajador agrícola H-2A.
- Los cónyuges y los hijos de residentes permanentes legítimos se considerarían parientes inmediatos, y los derivados de parientes inmediatos se permitirían. Como resultado, se eliminarían los períodos de espera de varios años para el cónyuge y los hijos de los residentes permanentes legales. La compensación consiste en que la categoría preferente basada en la familia para hermanos y hermanas de ciudadanos estadounidenses sería eliminada, significando que un ciudadano de los Estados Unidos ya no podía solicitar a un hermano.
- Estafar a sabiendas a un inmigrante, incluyendo fingiendo ser unabogado o representante de inmigración, se haría un delito.
En los próximos días, semanas y meses, sin duda, habrá muchos debates sobre lo que el proyecto de ley significará si se promulga y probablemente habrá muchas propuestas de enmiendas al proyecto de ley. Emily se quedará activa en esfuerzos de la defensa que ocurren alrededor de la legislación propuesta. Cuando haya actualizaciones significativas de la legislación o nueva información para compartir, enviará una actualización a través de nuestro boletín de noticias de la reforma de inmigración.
Los abogados de Stern & Curray también actualizarán nuestra blog y página de Facebook con frecuencia. Estén atentos para más información acerca de esta fascinante, legislación histórica.
¡Extienda la palabra y comparta este boletín de noticias con sus amigos y queridos quiénes son afectados por la reforma de inmigración!
National Day of Action and the New Immigration Reform Bill
 |
| Emily Assunta White in D.C. |
Stern & Curray attorney, Emily Assunta White, recently traveled to Washington D.C. to meet with Colorado members of Congress about the pressing need for immigration reform, including a path to citizenship for the 11 to 15 million people in the United States without lawful immigration status. Emily has attended in years past, but reports that this year was by far the most productive as every Congressional office seemed to agree that something must be done to fix our broken immigration system and that it must be done soon. Reports throughout Capitol Hill indicated that the Senate’s “Gang of Eight” bill would be introduced this week and as of late last Wednesday, the bill was finally introduced.
While the Senate immigration bill (S.744) is over 800 pages long, Emily has identified some of the most important potential changes:
- Legalization for some undocumented immigrants. The bill would give legal status to undocumented immigrants who entered the U.S. before December 31, 2011 by creating a category called Registered Provisional Immigrant (RPI). Those who are eligible for this status would pay a fine and any back taxes, and would be given work and travel authorization. After 10 years as an RPI, they could apply for a green card, and later, citizenship.
- Creation of a new visa type for temporary workers, called W visas. A W-1 would allow lesser-skilled workers a way to work in the country legally, while W-2 and W-3 visas would take the place of the H-2A agricultural worker program.
- Spouses and children of legal permanent residents would be considered immediate relatives, and derivatives of immediate relatives would be allowed. As a result, several year waiting periods for spouse and children of legal permanent residents would be eliminated. The tradeoff is that the family-based preference category for brothers and sisters of U.S. citizens would be eliminated, meaning that a United States citizen could no longer apply for a sibling.
- Knowingly defrauding an immigrant, including by pretending to be an attorney or immigration representative, would become a crime.
Over the next days, weeks, and months, there will no doubt be many debates about what the bill will mean if enacted and likely many proposed amendments to the bill. Emily will be staying active in advocacy efforts taking place around the proposed legislation. When there are significant updates to the legislation or new information to share, she will send an update through our immigration reform newsletter.
Stern & Curray attorneys will also be updating our blog and our Facebook page frequently. Stay tuned for more information about this exciting, historic legislation.
Potential Change to the I-601 Waiver Process, the Waiver for Unlawful Presence in the United States
While there is no guarantee from the U.S. Government that the process for adjudicating I-601 unlawful presence waivers will change, USCIS has issued a notice of intent to change the current procedure. The primary change would be to allow a person to apply for an I-601 waiver while still in the United States in order to reduce lengthy separations from their family that result from the current process of having to leave the country before the application is ever made. USCIS plans to publish a notice of proposed rulemaking in the coming months and will be receiving comments from interested parties during this time before publishing a final rule.
I-601 waivers are required to obtain a waiver of the three and ten year bars that attach to a person who has accrued more than six months of unlawful presence in the United States. The potential change to the current I-601 adjudication process is based on the serious problems with the current procedures. Currently, a person who has accrued unlawful status is required to leave the United States before filing the I-601 with appropriate consulate abroad. The person then will file the I-601 waiver as well as an application for visa processing abroad. The person then must wait for the appropriate consulate or embassy to adjudicate the I-601 waiver. The adjudication times can run into years in some cases. Furthermore, there is no guarantee that the waiver will be granted. Resultantly, a person who has accrued unlawful presence in the United States, but has a mechanism to adjust their status to that of a lawful permanent resident, faces a very significant hurdle in terms of long term and potentially permanent separation from his or her U.S. family. The new proposed procedure would alleviate the time that a person with a meritorious case for an I-601 waiver is separated from their family by allowing the person to file their I-601 waiver with the appropriate consulate while still present in the United States. This would greatly reduce the period of separation from the family. Upon approval of an I-601 waiver, the person would still be required to exit the United States and obtain their visa through normal consular processing.
The potential new provisional waiver process will have limitations. While the I-601 waiver applies where there is hardship to LPR spouses or parents, the provisional waiver process would only apply to cases where the hardship is to U.S. citizen spouses or parents. Additionally, the new rule will only be available to individuals who only need unlawful presence waivers. People who need additional waivers for other grounds of inadmissibility such as fraud or certain criminal convictions will have to continue to use the normal waiver adjudication process (leaving the country before the waivers are submitted to the consulates abroad). This new, potential rule would dramatically reduce the period of separation between a person eligible for an I-601 waiver and his U.S. family members. Under current rules, an individual is not permitted to even apply for the waiver until a consular officer has made a finding of inadmissibility. If this rule is passed, the waiver application will be adjudicated while the person remains in the United States.
As a final reminder, no new rule is yet in place. Any application for a provisional waiver of unlawful presence will be rejected by USCIS at this time. USCIS is working diligently on the rule making process and hopes to have a final rule published by the end of 2012 after which there will be a 60 day comment period on the proposed rule.
USCIS to Issue Two-Year Employment Authorization Documents
USCIS to Issue Two-Year Employment Authorization Documents
New EADs Limited to Certain Individuals Who Have Applied for LPR Status
WASHINGTON – U.S. Citizenship and Immigration Services (USCIS) announced today that beginning on June 30, 2008 it will issue Employment Authorization Documents (EAD) valid for two years. The new two-year EAD is only available to individuals who have filed to become a lawful permanent resident (LPR) using a Form I-485, Application to Register Permanent Residence or Adjust Status, and filed for employment authorization under Section 274.a.12(c)(9) of Title 8, Code of Federal Regulations (8 C.F.R.) but are unable to become an LPR because an immigrant visa number is not currently available.
USCIS will decide whether to renew an EAD for either a one or two year validity period based on the most recent Department of State Visa Bulletin available at http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html.
For applicants who have an available immigrant visa number and who are filing for employment authorization under 8 C.F.R. Section 274.a.12(c)(9), USCIS will continue to grant EADs that are valid for one-year. USCIS may issue a two-year renewal EAD if the applicant’s immigrant visa availability date retrogresses (when actual demand for visa numbers exceeds forecasted supply) after the Form I-485 is filed.
If an individual requests to replace an EAD that has not expired, USCIS will issue a replacement EAD that is valid through the same date as the previously issued EAD. However, if the previous EAD has expired, USCIS will process the request for a renewal EAD and determine the appropriate validity period based on the applicant’s priority date and the Department of State Visa Bulletin.
For more information on Employment Authorization Documents, please contact the USCIS National Customer Service Center at (800) 375-5283 or review the USCIS Employment Authorization Documents web page at: http://www.uscis.gov/.
Breaking News for Pending I-485 Cases Awaiting Security Clearance
In a memo by Associate Director, Domestic Operations, Michael Aytes, dated Feb. 4, 2008 USCIS outlined revised FBI name check procedures for adjustment of status cases. The memo states, in part, “where the application is otherwise approvable and the FBI name check request has been pending for more than 180 days, the adjudicator shall approve the I-485, I-601, I-687, or I-698 and proceed with card issuance.” This means that most long-standing I-485 applications for permanent residency should see significant progress up to and including final adjudication in the coming months. However, the memo adds, “[i]f derogatory or adverse information is received from the FBI after the application is approved, USCIS will determine if rescission or removal proceedings are appropriate and warranted.” Please note the policy change does not apply to delayed security checks in N-400 Application for Naturalization cases. Please contact an attorney at Stern & Curray LLC if you have questions regarding this new development.
U.S. Ratifies the Hague Convention on Intercountry Adoption
On November 16th, President Bush signed Congress’ ratification of the Hague Convention on International Adoption. This Convention was negotiated in 2000, and aims to prevent improper adoptions and promote the integrity of international adoptions. The U.S. will officially become a member of the Hague Convention on April 1st, 2008. As of that date, the Department of State and the Department of Homeland Security will become much more involved in intercountry adoptions. The Department of State will be designated as the central authority for intercountry adoptions in the United States and will be responsible for making sure that the Convention is implemented as required. In order to implement the Convention, the Department of State will need to accredit U.S. adoption service providers, maintain a registry of adoption cases and implement a system of receiving complaints and comments about accredited adoption service providers.
TANF AND I-601 WAIVER
On October 31, 2007, the AAO (Administrative Appeals Office)decided an I-601 case originating from Ciudad Juarez, Mexico. The AAO considered various pieces of information in deciding whether the applicant’s qualifying relatives demonstrated sufficient hardship to waive the applicant’s ten year re-entry bar. While the waiver application contained hardship information based on the qualifying relative’s medical conditions, the AAO relied heavily on the qualifying relative’s inability to support herself financially. The AAO was particularly concerned about the qualifying relative’s reliance on TANF (Temporary Assistance for Needy Families). While it is unclear whether the AAO will rely as heavily on the acceptance of TANF in other I-601 adjudications, this case may represent a new pattern for I-601 determinations.