Presentation on theme: "A1 and A2 Diplomatic Personnel"— Presentation transcript:
1A1 and A2 Diplomatic Personnel Section 13 for principal and spouse A-1 or A-2, or G-1 or G-2Unable to return to the country represented by the governmentPublic interestPerson of good moral characterOtherwise admissibleOut of StatusBlue listQuota
2Section 13 Principal, Spouse and Dependents (continued) LogisticsNo separate I-360 requiredI566 not endorsedI508No Travel grounded until AP issuedClassic definition of derivatives appliesCompare A1/A2 derivative “habitual member of household” for NIV StatusDeath of Principal doesn’t – family still eligible
3Petition Procedures File I-485 and related I-131, I-765 Must include I-566 (not endorsed) and I-508Processing is currently about 24 monthsAOS considered abandoned if travel before AP is issued
4NIV - Basic Rules for A1 A2 Dependents A1/A2 trumps all other nonimmigrant visa statusesDependents can adjust status but generally cannot change statusMust obtain work permit (employment authorization document) to workGrace period – 30 days vs. 60 days
5NIV - Basic Rules for A1 A2 Dependents (continued) Immediate familySpousesParentsChildren – Various Age ThresholdsOthersHabitual member of householdB2 for Cohabitating partnersAugust 17, 2011 USCIS Policy Memo
6Problems for Dependents Leaving A1/A2 Status Can’t change status to most other nonimmigrant visa status – such as F-1students, J-1exchange visitors;May be able to change to H-1B if child can demonstrate independence from principal;Can’t work after age 21, or 23 if in school
7Visa Options if A1/A2 Principal is Terminated Termination requiredGrace Period/Timing of FilingLocation of “Change”: I539 v. ConsularI539 Change –Endorsed I566 requiredI508
8Compliance with A1/A2 Taxes due for dependents Effect of Violations §222(g)
9G-4 International Workers and Their Family Special immigrant visas (SIV) for retiring principal and spouse - eligibility requirementsSIV for children – eligibility requirementsSpecial Issues/Considerations/Petition ProceduresOptions for G-4s not likely to meet retirement eligibility criteria or when children are aging outNIV Options
10Basic Rules for G-4 Dependents G-4 trumps all other nonimmigrant visa statusesDependents can adjust status but generally cannot change statusMust obtain work permit (employment authorization document [EAD]) to workGrace period – 30 days vs. 60 days
11SIV Basic Requirements for Retiring Principal and Spouse Retiring Principal G-4 – INA Section 101(a)(27)(I)(iii)Retiring G-4 with minimum 15 years aggregate of residence and presence in U.S. and in G-4 status3.5 years min. physical presence and residence within 7 years preceding applicationMust apply within 6 months of retirementOfficial business outside of US and “customary leave” not subtracted from designated periods assuming residence remains US and duty station of principal continues to be US 8 CFR Section 101.5(c)
12SIV for Retiring Principal and Spouse (continued) Spouses of retiring principalSpouse need not have been in G-4 statusSpouse cannot file independent of principal G-4No separate I-360 requiredSpouse does not need to meet designated periods of time
13Issues / Considerations Can principal accrue 15 years before mandatory retirement?What is the timing of Field Office Assignments?Beware of departures after retirement and re-entries in G-4 status due to CBP error.
14Death of Principal G-4 and Impact on Surviving Spouse SIV available to surviving spouse if principal G-4 met requirements except actual retirementSpouse must be in G-4 or N StatusMust file within 6 months of death
15SIV for Children Eligibility requirements: Have been in G-4 status (or N status) for 7 years between ages 5 and 21 (until 22nd birthday)Have half of 7 years actual presence and residence in the U.S. before date of applicationApplies before age of 25 and is unmarriedResidence and physical presence in U.S. interrupted by school abroad; absences on “customary leave” permissible and do not interrupt designated time periods; periods need not be continuous
16Petition ProceduresFile I-360 concurrently with I-485 and related I-131, I-765Must include I-566 (not endorsed) and I-508Need PID (personal identification number)Processing is currently about 4 monthsAOS considered abandoned if travel before AP is issued
17Problems for ChildrenCan’t change status to most other nonimmigrant visa status – such as F-1students, J-1exchange visitors; may be able to change to H-1B if child can demonstrate independence from principalCan’t work after age 21, or 23 if in school
18Options When SIV Not Feasible Other employment-based preferences if spouse’s employer will sponsorCan apply while in G-4 statusDV LotteryGreen card under Extraordinary Ability, NIW or EB-5 for Principal
19Visa Options if G-4 is Terminated N for Parents and Children of SIVsSIV child must be under 21 yearsWork authorization incident to statusGranted for 3 years; extensions in 3 year incrementsB-2 of F-1 children who are students – but only if no longer eligible for G-4
20J Visas two-year foreign residence requirement and waivers Some J-1 exchange visitors are subject to the two- year foreign residence requirement of INA § 212(e). One subject to the two-year foreign residence requirement is subject to several legal disabilities that do not go away until one obtains a waiver or fulfills the requirement. See INA § 212(e). These legal disabilities are (one subject cannot do the following):Apply for H or L visa stamps;Apply for permanent resident status;Apply for an immigrant visa; andApply for change of status (except A or G for non-physicians) See INA § 248(a).
21Three ways to become subject INA § 212(e) lists three ways one can become subject to the two-year foreign residence requirement:U.S. or foreign government funding;Training in an area on the Skills List for the home country;Participation in graduate medical education.
22Government financingEV is subject if his/her participation in the program was financed in whole or in part, directly or indirectly, by an agency of the government of the United States or by the government of the country of his/her nationality or last residence.Government financing that does not go directly to the EV should not subject the EV to the two-year foreign residence requirement.That said, the State Department WRD tends to err on the side of finding people subject in this circumstance.Fulbright funding is the most common form of funding seen in J-1 practice. This kind of case is especially difficult to win.Note that foreign government funding is not subject to the special problems associated with U.S government funding.
23Skills listAn EV is subject to the two-year foreign residence requirement if he/she, at the time of obtaining EV status, was a national or resident of a country that had designated the EV’s field of specialized knowledge of skill as clearly required by the country.Current skills list and previous skills list are found on the State Department’s website.The easiest and most common way to obtain a waiver for one subject based on the skills list is through a no objection waiver application.
24Graduate medical education or training EV’s who come to the United States to receive graduate medical education or training are subject.These individuals must be sponsored by the Educational Commission for Foreign Medical Graduates (ECFMG).
25J-2 derivativesDOS and USCIS consider J-2s subject if the J-1 is subject. See 22 C.F.R. § 41.62(c)(4) and 8 C.F.R. § (c)(4).If the J-1 receives a waiver, the J-2 derivatives also receive waivers.A J-2 is independently subject to the two-year foreign residence requirement, but J-2s cannot independently apply for waivers.
26J-2 derivatives (continued) J-2s can request that the State Department act as an interested government agency to waive the requirement in three limited circumstances:J-1 and J-2 spouse divorce;J-1 spouse dies; orJ-2 children reach the age of 21.
27Determining whether two-year foreign residence requirement applies Annotations on J visa stamps and DS-2019s (formerly IAP-66s) are frequently incorrect and are not legally binding.One can request an advisory opinion from the State Department WRD. Caution: The WRD errs on the side of finding people subject even when the individual is not.Both USCIS and the WRD assert that they are the final arbiters of whether one is subject.
29Delay return requirement EV’s that are subject cannot change status (except to A or G), but he/she can depart and apply for B, E, F, or O visa status at a consulate abroad.
30FulfillmentRequires the EV to return to country of last residence or nationality for two years.Fulfillment requires residence and physical presence.Total period must be two years, although it can be done incrementally.Substantial fulfillment is a positive equity in waiver applications.
31No objection waiversThe two-year foreign residence requirement may be waived if the EV’s home country issues a no objection statement.Home country transmits no objection statement to WRD through diplomatic channels.Each country has its own requirements for issuance. Some will not issue a no objection statement.No objection waivers are good options for individuals that are subject based on the skills list or purely foreign government funding.ECFMG sponsored physicians are ineligible for this kind of waiver.No objection waivers usually won’t overcome the special problems associated with U.S. government funding, although these sometimes can be won.
32Hardship waivers Must have a qualifying relative. Qualifying relative is a USC or permanent resident spouse and/or USC or permanent resident child or children.Exceptional hardship must be unusual, with a significant probability of occurrence, and it must be relatively uncommon.Only hardship to qualifying relatives is supposed to count, although you can argue hardships to the applicant to the extent those will cause hardship to the qualifying relatives.
33Hardship waivers (continued) Must demonstrate exceptional hardship in every possible travel alternative. Focus on hardship minimizing travel alternative.Hardship waivers are adjudicated based on the totality of the circumstances.
34Persecution waiversThe applicant must demonstrate that he/she has a well-founded fear of persecution upon return to the home country on the basis of race, religion, and/or political opinion.The basis or bases must be strong and provable through documentary and testimonial evidence.The standard has been likened to the “well-founded fear of persecution” standard in asylum.
35IGA waiversAny U.S. government agency that is willing to show that the EV’s departure would be detrimental to the program or activity that is of interest to the agency.For J-1 physicians, an IGA may also be a state department of health.Applicant need not be a current or prospective employee of the sponsoring agency.