2 Overview Overview of Family Based Immigration Priority Date Retention Priority Date RetentionK-1 visas:1. K-1 or IV?2. Matter of Sesay3. K-2 overstays and aging outSelf-petitioning spouses of USC’s:1. Widows and widowers of U.S. citizens and INA Section 204(l)2. Abuse (VAWA)3. Impact of separation/divorce during pending I-751Affidavit of Support:1. Maintaining domicile of petitioner2. Self-sponsoring beneficiariesMatter of Arrabally and Yerrabelly1. Overview of the decision2. Effect on spouses of US citizens, DACA applicants, TPS
4 Overview of Family Based Immigration Immigration Status of PetitionerEligible Family Member BeneficiariesCategory in Visa BulletinUnited States CitizenSpouseImmediate Relative - Not in the Visa Bulletin; Visa Immediately AvailableParent (Petitioner must be age 21)Children: Unmarried (Under Age 21)Unmarried Sons and Daughters (Age 21 and Older)FB1 (Family-Based, First Preference)Married Sons and DaughtersFB3 (Family-Based, Third Preference)Brothers and SistersFB4 (Family-Based, Fourth Preference)Lawful Permanent Resident(Must an be Adult, 21 Years of Age or Older)FB2A (Family-Based, Second Preference, A)FB2B (Family-Based, Second Preference, B)Preference Petitions vs Petitions for Immediate Relatives:Immediate Relatives are eligible for concurrent I-130/I-485 or to proceed with Consular Processing for an Immigrant Visa once the I-130 petition is approved.A Beneficiary of a preference petition must wait for a visa number to become available before s/he can file the I-485 or apply for an Immigrant Visa
5 Preference PetitionsSection 201 of the Immigration and Nationality Act (INA) sets an annual minimum family-sponsored preference limit of 226,000. What about wait times for the various preference petitions? A look at the recent November 2012 Visa Bulletin will give an idea of general wait timesFamily-SponsoredAll Charge-ability Areas Except Those ListedCHINA- mainland bornINDIAMEXICOPHILIPPINESF101NOV0522JUN9301JUL97F2A15JUL1022JUN10 F2B08OCT0415OCT9215FEB02F301JUN0215FEB9322JUL92F422MAR0115MAR0108JUL9601MAR89
6 Priority Date Retention Automatic conversion and priority date retention if:Child in FB2A category becomes over 21, and drops down to FB2B category for unmarried adult sons & daughters of LPRsPetitioner naturalizes, Child in FB2A moves to either become an Immediate Relative of a USC or becomes FB1 (depending on child’s age if under or over 21)Beneficiary in FB1 category can become FB3 if Beneficiary marriesCaution! No category for married sons and daughters of LPRs. So if Beneficiary of FB2 category petition marries before the Petitioner naturalizes, the I-130 becomes invalid
7 Child Status Protection Act (CSPA) Definition of “child” in the INA as found at Section 101(b)(1) resulted in some children “ageing-out” of the immigration process once they turned 21. CSPA, enacted August 6, 2002, amended the INA creating sections 201(f) and 203(h)CSPA applies to:Immediate Relatives (including orphans and adopted children based on an I-600 and I-600A filing, and derivative child of a widow or widower’s I-360 filing)Direct beneficiaries of family-based preference petitionsDerivative beneficiary of family and employment based petitionsDiversity visa derivative applicantsAsylee and refugee derivatives applicantsCSPA does not apply to:NIV applicantsNACARA/HRIFA applicantsFamily Unity applicantsSpecial Immigrant JuvenilesK2 children of K1 fiancés
8 Child Status Protection Act (CSPA) Immediate Relative Children: Once a child, always a child … unless you get marriedImmediate relative child’s age freezes on the date of filing the I-130.If LPR files for unmarried child before the child is 21, child’s age freezes on the date the Petitioner naturalizesDo the Math! … How to calculate the beneficiary’s CSPA ageDetermine actual biological age of beneficiary on date the visa number first became availableSubtract number of days the immigrant petition was pendingIf the resulting number is less than 21 years old, then the beneficiary may benefit from CSPA age-out protectionBeneficiary must seek to acquire permanent residence within one year of becoming eligible. “Seek to acquire” can mean: file Form I-485, submit Form DS-230, or file Form I-824 on behalf of derivative. Some case law also indicates more flexibility.
9 Child Status Protection Act (CSPA) Any hope for the aged-out child?If you do the CSPA math, and the beneficiary is still 21 years or older at the time the visa number becomes available, then automatic conversion may still be an optionAutomatic conversion under the CSPA allows the aged-out child to retain the priority date of the original immigrant petitionAdverse decisions from the BIA: Matter of Wang and Matter of Patel.But … the 5th Circuit and 9th Circuit are keeping hope alive!Split among the Circuits regarding whether the retention of priority date is application in all categories:5th Circuit – Automatic conversion applies to all derivatives Khalid v. Holder, No (5th Cir. Sept 8, 2011)9th Circuit - De Osorio v. Mayorkas No. No (9th Cir. Sept. 26, 2012). This decision overturned BIA in Matter of Wang and affirmed CSPA automatic conversion/priority date retention.2nd Circuit – Automatic conversion limited to F2A derivatives. Li v. Renaud, 2011 U.S. App. LEXIS (2nd Cir, June 30, 2011)
11 K-1 Fiance(e) Visas Relevant Statutes: INA 101(A)(15)(K)(i) 8 CFR 214.2(k)9 FAM 41.81, N.2O.I (k)
12 K-1 Fiance(e) Visas Key Requirements: Fiancé of a US citizen, Seeks to enter US solely to conclude valid marriageBona fide intention to marry within 90 days of fiance’s entryNo legal impediments to marriageMet in person within 2 years of filing petition (unless waived)Minor children under 21 may accompany fiancé on K-2 visaNo more than 2 previously filed K petitions filed by USC spouse in past 2 years.USC spouse discloses any criminal history if any.K-1 Beneficiary may seek Inadmissibility Waiver, through I-601, because K is treated like an IV, but it is only fully effective once the intended marriage takes place. 8 CFR 212.7(a)(4).
13 K-1 Fiance(e) Visas Immigrant Visa through K-1: 3 Step Process Step 1: I-129F PetitionStep 2: Consular Processing and Visa InterviewStep 3: I-485 Adjustment of Status Application and Affidavit of Support
14 Immigrant Visa through K-1: 3 Step Process Step 1: I-129F PetitionAllows the foreign national fiancé to apply for immigrant visa at consular abroadMust include bona fides of relationship, including proof that the petitioner and beneficiary have met in the past 2 years and affidavits that the couple intends to get married within 90 days of the FN’s US entry. 8 CFR 214(d)(1)I-129F Petition approval valid for 4 months.QUESTION – MEETING REQUIREMENT - Can you file a fiancé visa petition when they have not met in person?Maybe – but must seek waiver of “in person meeting” requirement. Practice Tip:In person meeting requirement can be waived if extreme hardship to the petitioner or violate strict cultural practices of the beneficiary. 8 CFR 214.2(k)(2).
15 Immigrant Visa through K-1: 3 Step Process Step 2: Consular ProcessingSubmit to NVC:Forms DS-230, DS-156(in duplicate), DS-156K and photosRequired civil documents ( birth certificate, police certificate, divorce or death certificates of prior spouses)Medical examinationPractice Tip: Vaccinations are not required for medical evaluation [9 FAM N108] but submitting proof of vaccinations saves a step at the adjustment stage.More proof of relationship since filing I-129FProof that beneficiary will not become public chargePractice Tip: Form I-134 can be used instead of I-864. Lower standard of proof (income must exceed 100% vs. 125% of poverty guideline)Step 2: Visa InterviewProcessed like an immigrant visa at consulateSimilar to marriage interview. Prepare fiancé. Know the USC family, important dates and all information provided in the I-129F petition.4 month petition validityQUESTION. – I-129F EXPIRATION - What happens if I-129F expires while K-1 visa is pending, as it is only valid for 4 months? Request that Consulate revalidate petition based upon 8 CFR 214.2(k)(5), but cannot do so if it is the process of revocation and passes 4 month mark.Practice Tip: Administrative processing delays may occur during the visa review (doubts about bona fides of relationship, criminal background checks) resulting in I-129 expiry before processing completed. Consular Officer has authority to revalidate petition for an additional 4 months [8 CFR 214.2(k)(5)].An approved I-129F may be revalidated any number of times for additional periods of four months from the date of revalidation, provided the officer concludes that the petitioner and the beneficiary remain legally free to marry and continue to intend to marry each other within 90 days after the beneficiary's admission into the United States[9 FAM Note 6.2]QUESTION – Why would an I-134 be used instead of an I-864? There is a lower standard of proof for the I-134 because the income only has to exceed 100% of poverty guidelines instead of 125%.
16 Immigrant Visa through K-1: 3 Step Process Step 3: I-485 Adjustment of Status ApplicationMust marry within 90 days but not necessary to file I-485 within 90 daysI-864 must be submittedNew medicals do not need to be submitted [8 CFR 245.5] but proof of vaccines is required.Employment Authorization is generally processed in 90 days after filing adjustment application.Practice Tip: In the interim, applicants are work authorized pursuant to K-1 status [8 C.F.R. 274a.12(a)(6)]and may present I-94 card annotated with K-1 to satisfy I-9 List C documents for the 90 day duration of the K-1 status. K-1 entrant may request friendly port office to annotate the card. A letter provided by the immigration attorney explaining authorization to work pursuant to status may be helpful. [AILA InfoNet Doc ]Divorce or Death after Marriage but Prior to FilingK-1 visa holder may be granted adjustment of status if the marriage to the petitioner no longer exists at the time the application is adjudicated if:Married the USC petitioner within 90 days of entry as a K-1Marriage was bona fideQUESTION - When the Fiance comes to the US, can he or she work? The K-1 is work authorized during the 90 day duration of the K-1 status and can ask at the POE (with an attorney letter requesting based upon 8 CFR 274a.12(a)(6)) to annotate their I-94 card. The I-94 card satisfied I-9 List C documents. Then when I-485 is filed they can work when they get the I-765 application approved.QUESTION – What happens if the K-1 visa holder dies? If they married within the 90 days the K-1 status holder and their K-2 children can still be granted adjustment of status along with proof of the bonafides. No need to file an I-360 (which the next panelist will talk about).
17 K-1 Fiance(e) Visas K-1 Status in the US No extensions of stay 8 CFR 214.1(c)(3)May apply for work authorizationMay not change status INA 248May only adjust status through USC spouse who filed I-129F. INA 145(d).K-1 and K-2 must leave the US if does not marry within 90 days.
18 K-1 Fiance(e) Visas ADJUSTMENT OF STATUS INA 245(d) and 8 CFR 245.1(c)(6) Adjustment of Status for K-1 status fiancés.Must Marry within 90 days.File I-485, G-325A, I-765 and I (I-129F takes place of the I-130)Must prove admissibility at time I-485 filed. – I-864 required. I-864 remains intact. INA 212(a)(4)(C). I-864 remains intact for spouse even though divorced and I-864 can be submitted after divorced. 8 CFR 213.2(b)(1).
19 K-1 Fiance(e) Visas Matter of Le- Children of Fiance(e) 8 CFR 214.2(k)(6)(ii) Children between age 18 and 21 can be derivative beneficiary of an I-129F petitionChildren age of foreign national cannot be considered step child of USC petitioner in immigrant visa petition so an I-130 petition cannot be filed for them even if their parents are immigrating.Plus, children who enter on K-2 before 21 may adjust after turning 21 (Matter Le)Matter of Le, 25 I & N Dec. 541 (BIA 2011) (child who is over 21 may adjust as long as their parent married within the 90-day period), following Carpio case.Carpio v. Holder, 592 F.3d 1091 (10th Cir. 2010).Aytes Memo, HQOPRD AD07-04 March 15, 2007, AILA DocQUESTION – CHOOSING CONSULAR PROCESSING - If your client ‘s fiancé is in the US, and has children over 18, should you have them go through fiance visa processing overseas?Practice Tip: fiancé inside the US with children between 18 and 21 may consider leaving and filing I-129F, but carefully analyze unlawful presence and 3 and 10-year bar issues before advising clients to leave the USCost benefit to I-129F - may also be a consideration. Children under 18 are step-children of USC and can file immigrant visa petitions but there is additional cost of filing separate I-130 petitions for each child.QUESTION – What happens when a child of the Fiance, who enters on a K-2, turns 21? Remember, children can be 18 or over, and enter the US under a K-2 (unlike step children who file under an 1-130). The K-2 is tied to the status of the K-1, and must leave if the K-1 does not marry. Likewise while the adjustment of status is pending and the K-2 turns 21 or older, they can still adjust status.In Carpio case the court looked to the age of the child “when they sought to enter the US” and not when the I-485 was filed.s
20 K-1 Fiance(e) Visas K-1’s WHO DIVORCE USC SPOUSE Matter of Sesay, 25 I & N Dec. 431 (BIA 2011). K-1 can only adjust status through the USC spouse.Birdsong v. Holder, 641 F.3d 957 (8th Cir. 2011). Notwithstanding 245(i) K-1 can not adjust through another (non-K-1) USC spouse.Matter of Zampetis, 14 I & N Dec. 125 (BIA 1972). K-1 may adjust if beyond 90 days in certain circumstances.QUESTION – What happens if the couple divorces before the end of the conditional residency period? Matter of Sesay addressed the issues surrounding K-1s under INA 245(a) and INA 245(d). A conditional resident through the K-1 process is treated similarly as a a person who immigrates through the I-130 process and goes through the I-751 process. They must file and I-751 Removal of Conditions and if necessary may file I-751 waiver. If the K-1 status holder adjusts after the marriage has been in effect for 2 years then no need to file I-751 and it is okay if divorced
22 Self-Petitioning Spouses of USC’s Widows and widowers of U.S. citizens and INA Section 204(l)Abuse (VAWA)Impact of separation/divorce during pending I-751
23 Self-Petitioning Spouses of USC’s Upon death of USC spouse, I-130 petition automatically converts to I-360 self-petitions. INA section 201(b)(2) (A)(i);C.F.R. section 204.2(i)(1)(iv)Automatic conversion even when the marriage is less than two years old.Widow(er) of a U.S. citizen, regardless of the length of marriage, may file an I-360 self-petition even if their U.S. citizen spouse never filed a petition on their behalf provided that :they were not divorced or legally separated from the US citizen spouse at the time of death,the petition is filed within two years of the death of the citizen, andthe immigrant spouse has not remarried. INA section 201(b)(2) (A)(i); 8 C.F.R. §204.2(b)(2)(iv)Widow(er)s present in the United States who qualify for adjustment of status may concurrently file an I-360 and I-485.Widow(er)s who become a permanent resident based on marriage to a deceased spouse are not subject to conditional permanent residence.INA 204(l) DEATH OF USC SPOUSE - K-1 who marries the petitioner within ninety days of admission and K-2 may adjust status even when USC Spouse dies. INA 204(l), AFM 10.21(b) USCIS Policy Memo PM (Dec. 16, 2010, AILA Doc No I-864 required because meets exception. If USC dies before K-1 enters the US, the K-1 visa not valid.-Example: Mr. Smith, a USC, marries the love of his life Mary, a French national, in November. They file an I-130 that same month. In December Mr. Smith discovers he has stage 4 cancer and has 1 month to live. The couple comes to you and wants to know if Mrs. Smith’s I-130 will be denied in the event of her husband’s death and if there is any way for her to remain in the US.Mrs. Smith does not lose her status as immediate relative in the event of death of her spouse while the petition is pending. If Mr. Smith’s death is disclosed or discovered, the petition is automatically converted to I-360.-Example: What if Mr. Smith had promised to file the I-130 petition when they got married but his sudden illness prevented the couple from completing the petition before he passed away?Even though Mrs. Smith is widowed before an I-130 petition is filed and approved, her immediate relative status is preserved and she may concurrently file an I-360 and I-485. No I-751 removal of conditions is required if the marriage is less than 2 years old.- Example: If Mrs. Smith receives approval of I-129F petition, enters on K-1 visa and marries Mr. Smith within 90 days. If Mr. Smith dies before she files the I-485, can she still adjust status ?If K-1 spouse dies after petition approved, and after they are married, can still use I-485 to adjust status as widower of the citizen petition without filing I-360.
24 INA 204(l): Spouses (and other derivatives) of Asylum, Refugee, T and U Petitions U Visas – Helping Victims of CrimeCreated in October 2000 and regulations effective October 2007See Fed. Reg. 09/17/07 Vol.72, No. 179, PAvailable to victims of certain criminal activity who assist government officials in investigating or prosecuting the crime.Strengthens ability of law enforcement to investigate and prosecute such crimes as domestic violence, sexual assault and trafficking, while offering protection to victims.Victims are both direct and indirect. Direct victim suffered proximate harm, including bystanders. Indirect – if victim is deceased incapacitated then spouse, child under 21 (or if victim under 21, his parents and unmarried siblings under 18). 72 FR 53014, (Sept. 17, 2007)U visas provide:Temporary nonimmigrant status (as a U visa holder) for 4 years for the applicant and derivative family membersCan apply for Permanent Residence after 3 years INA 245(m)T visas – Trafficking5,000 visas per year for victims of severe trafficking. 22 U.S.C. § 7102Must be physically present in the U.S. and the Secy. Of DHS and AG agree have complied with a request by federal, state or local law enforcement agency to assist in the investigation or prosecution of trafficking crimes; or for a victim is unable to cooperate due to physical or psychological trauma; or who is under 18 and would suffer extreme hardship upon removalIf the victim is over 21, spouse and children may be includedIf under 21, T visa includes spouse, parents, and unmarried siblings under 18.
25 INA 204(l): Spouses (and other derivatives) of Asylum, Refugee, T and U Petitions INA 204(l) may benefit spouses and other derivatives of deceased principal refugees who want to adjust.The death of a principal refugee does not affect the eligibility of a derivative refugee for adjustment who has already been admitted. INA 209(a); See Memorandum from William R. Yates to Field Offices, “Procedural Guidance on Admission and Adjustment of Status for Refugees” at p. 9 (May 15, 2000).INA 204(l) may benefit the beneficiary of a Form I-730 if the principal dies before the derivative is admitted,INA 204(l) can benefit a spouse who seeks adjustment based on:a derivative asylum grant, under INA 209 ,a derivative T nonimmigrant under INA 245(l), ora derivative U nonimmigrant under INA 245(m)Derivative must still establish that he or she is eligible for adjustment, apart from the qualifying relative’s death, under the governing statute.
26 Violence Against Women Act (VAWA) 2000/2005: VAWA amendments. See 8 CFR 204.2VAWA Advantages – Self-petitioner files own petition on Form I-360, bypassing abusive spouse. Once approved, apply for permanent residence based on I-360 (or if spouse a USC can file I-360/I-485 concurrently)For those in the preference category – apply for EAD and receive deferred action status while waiting for priority date to become current.
27 Violence Against Women Act (VAWA) Who Qualifies for VAWA Self-Petitioning?Abused spouse (or intended spouse) of USC or LPR. See AILA InfoNet at Doc. No for more information on intended spouse.Abused child of USC or LPR parent includes non-abused spouse of USC or LPR whose child has been abused by the USC or LPR spouseAbused parents of U.S.C sons and daughters 8 CFR 204 (a)(1)(A)Abused son/daughter of USC, if applying before 25 and can show abuse was a central reason for not applying prior to age 21 and met all qualifying factors before age 21. See 8 CFR 204(a)91)(D)Non-abused children of USC or LPR can be included in parent’s petition as derivatives. They do not need to show abuse and do not age out as long as self petition filed before child turns 21
28 Violence Against Women Act (VAWA) Requirements for VAWAAbusive spouse is a USC or LPR, andRelationship to abuser: marriage or intended marriage, andMarriage entered into “in good faith”, andBattery or extreme cruelty by USC or LPR during marriage, andGood moral character, andPast or present residence with USC/LPR spouse, andCurrent residence in the US, or if living abroad, abuser must be: an employee of US government, member of the armed services, or some of the abuse occurred in the U.S.
29 Violence Against Women Act (VAWA) Marital RelationshipAbused spouse can self petition within two years of LPR or USC deathIf marriage ends in divorce can file self-petition within 2 years of divorce if connection between divorce and abuse. 8 CFR 204(a)(1)(A)(vi). If divorce occurs after self-petition filed, can continue with self-petition. If self-petitioner remarries AFTER approval, self petition will not be revokedIf the abusing spouse renounced or lost USC/LPR status the victim of abuse can still self petition if the loss of USC/LPR status was related to domestic violence.Follow-up on VAWA problems with USCIS at orJuana married Jim, who said he had never been married before. After the marriage, Jim became abusive. Juana met Jim’s first wife and learned that they had never been divorced. Jim has not filed any visa petition for Juana. Is Juana eligible to self-petition?Veronica is married to Paul, a USC. They live together, along with Veronica’s eight-year old daughter who is in second grade. Paul has severely beaten Veronica on several occasions but she never called the police or sought medical attention. She confided in her priest but otherwise hasn’t told anyone about what has happened to her. Can Veronica self-petition?Same facts, except after Veronica speaks to her priest about the abuse, Paul suddenly passes away. Can Veronica self petition?Paula is from Honduras. She and her ten-year old daughter entered the U.S. EWI three years ago. For the last two years, they have lived with Kurt, a USC. Paula and Kurt have a USC baby but they never married. Paula just discovered that Kurt raped her daughter. She fled with her children and wants to know if you can help her. Can she self-petition? Can her daughter self-petition?
30 Separation/Divorce During Pending I-751 Individual who obtains conditional permanent resident status through marriage to a U.S. citizen or lawful permanent resident and petitioning spouse must jointly file Form to remove the conditions on his or her residence. INA 216(c)( 1)(A) ; 8 C.F.R (a)( 1)Joint filing requirement may be waived if:Removal from the United States would result in extreme hardship;The CPR entered the marriage in good faith, but the marriage was terminated (other than through death); orCPR entered the marriage in good faith, but the petitioning spouse or parent battered the CPR spouse or child. INA §216(c)(4); 8 CFR §216.5Waiver may be requested at time of filing or any time during pendency of the petitionCIS officer issues RFE with response period of 87 days to produce evidence of eligibility for the waiverEvidence may include credible reports of psychologist, police reports, divorce decree or annulmentMiriam, a citizen of Nigeria married James, a U.S.C. in November Miriam receives her CPR in April 2010 and she and James jointly file the I-751 March Miriam comes to see you because she just received an interview notice for the I She explains that she and James separated in May 2012 and she also tells you that since they have been married James has been very mean to her. She explains that one time kicked in the stomach when she was 6 months pregnant with their baby and another time he choked her so hard he left a mark on her neck. She went to her doctor after James kicked her because she wanted to be sure the baby was ok. What do you advise her to do? Miriam can file the waiver of the joint I-751 filing requirement based on abuse at any point during the pendency of the I-751.
31 Separation/Divorce During Pending I-751 No waiver of the joint filing requirement based solely on entering the marriage in good faith, but legally separated from the petitioning spouse or currently in divorce or annulment proceedings.Legal separation or initiation of divorce or annulment proceedings may suggest that the CPR entered into the marriage for the sole purpose of procuring permanent resident status.Indicators of separation:Married filing separate tax returnsSeparate addresses on W-2sUtility bills in name of only one spouseNo joint bank or credit accounts
33 Affidavit of Support I-864 Basics Exemptions to Filing I-864 Financial RequirementsFiling RequirementsSponsorship Requirements
34 I-864 Basics WHAT DOES SPONSORSHIP MEAN? Law and regulations including key definitions under INA 213A and CFR 213a.1-a.5.Obligations of the I-864 INA 213A(a) & (b)Sponsor attests the following:will “provide support to maintain the sponsored alien at an annual income that is not less than 125 percent of the Federal poverty income line,”will reimburse a government agency of benefits provided to immigrant,submit to jurisdiction of any court for the enforcement of the affidavitand notify USCIS of change of address within 30 days on Form I-865
35 I-864 Basics How long is the sponsor obligated? INA 213A(a)(2)&(3) Sponsor required to provide support to the immigrant from the day they become an LPR until one of the following occurrences:the immigrant becomes a U.S. Citizen,the immigrant earns 40 qualifying quarters,the immigrant’s death,the immigrant loses LPR status and departs from the US,the immigrant is ordered removed but readjusts,ORthe sponsor dies.
36 I-864 Basics How is the I-864 enforced? INA 213A(a)&(b) I-864 requires that the sponsor maintain their support of him or her -including monetary or other types of support such as housing, food or clothing- at an “annual income that is not less than 125 percent of the Federal poverty line” taking into account income of the sponsored immigrant. INA 213A(a)(1)(A).I-864 is legally enforceable by the sponsored immigrant or eligible government agency.Liu v. Mund, 686 F.3d 418 (7th Cir. 2012), court found the sponsor's obligation is paramount, and therefore sponsored person is not required to seek employment as an effort to "mitigate" the sponsor's obligation to support his ex-wife.Stump v. Stump, 2005 WL (N.D. Ind. Oct. 25, 2005) - The obligation of the I-864 continues until termination and upheld a sponsored immigrant's right to recover money from her sponsoring USC husband and that even though the couple had separated the sponsor was still obligated, to support his spouse at 125% of the poverty guideline. But I-134 not enforceable.Chesire v. Cheshire, 2006 WL Citing Stump, that I-134 not enforceable, but I-864 is enforceable, and divorce does not terminate the contractual obligations of the I-864 .The sponsored immigrant may sue the sponsor to enforce the Affidavit of Support.Davis v. Davis, 2004 WL Court ordered that sponsored immigrant has standing to ask court to enforce I-864 against USC.The government entity providing benefits to the immigrant may seek reimbursement from the sponsor – means tested programs, like, SSI, Medicaid, TANF, SCHIP.
37 I-864 Basics When is the Affidavit of Support is required? Form I-864 Affidavit of Support required in order that immigrant is not found inadmissible under the public charge ground. INA 212(a)(4)(A)-(D) (Public Charge) and INA 213A; 8 CFR 213a.2. (Requirements for Affidavit of Support)Need separate I-864 for intending immigrant and for his or her derivative beneficiaries immigrating through the same petition. 8 CFR 213a.2(a)(1)(iii).All immigrant visa applications and adjustment applications based upon an approved I-130 Petition must contain Affidavit of Support. 8 CFR 213a.2(a)(2)(i)(A)&(B).Unless EXEMPT as a “self-petitioner” OR “self-sponsoring beneficiary.” 8 CFR 213a.2(a)(2)(ii)(A)-(E). [Discussed below]ORCertain immigrant visa or adjustment application for the I-140 based visa applicant - if the applicant’s “relative” filed the I-140 or if a “relative” of the applicant has a 5% or more ownership interest in the I-140 business entity. INA 213A(f)(4)(D). 8 CFR 213a.2(a)(2)(i)(C).Known as “Five Percent rule.”The term “relative” defined in 8 CFR 213a.1 relates to person who could have filed an I-130 petition. But A/S not required if the relative is a brother or sister of the intending immigrant and the relative brother or sister is NOT a USC. 8 CFR 213a.2(a)(2)(i)(D).QUESTION WHEN CHILD IS ALSO IMMIGRATING - What about for immigrant child, do you need separate I-864? Yes, but can use copy of I-864 and documents if both are applying for permanent residency at the same time.
38 Who is Exempt From Filing I-864? “Self-petitioner” OR “Self-sponsoring beneficiary”8 CFR 213a.2(a)(1)(i)(B). For each type of case exempted they must submit exemption request form, I-864W.8 CFR 213a.2(a)(2)(ii) lists those intending immigrants exempted from having a sponsor file an I-864.Intending immigrant has earned or is credited with 40 quarters of income demonstrated through social security earnings statements through SSA. 8 CFR 213a.2(a)(2)(ii)(C).Intending immigrant is an adopted child who will become a U.S. citizen upon entry into the US as an adopted child of USC parents. 8 CFR 213a.2(ii)(E).Self–petitioning battered spouse or child with approved I CFR 213a.2(a)(2)(ii)(A).Self-petitioning widower with approved I CFR 213a.2(a)(2)(ii)(A). Note different requirements for a Substitute sponsor based upon death of petitioning sponsor (below).40 quarterly hrs of work. You have a client who has been in H1B status for 5 years. She has been married to a USC for 3 years. They filed the I-130 but not the I She now finally filing her I-485 adjustment based upon the approved USC spouse’s I She also first worked on OPT for 18 months before being in H1B status. Does she need to file an I-864?Yes. To qualify for exemption under 40 quarters, she would have to prove she has 10 years of lawful employment, or that her husband accrued it during their marriage. She has almost 40 quarters but is just short by about 2 quarters (a half a year). She can count her OPT and H1B employment, and her husband employment during the 2 years of marriage, which adds up to 9 ½ years. Regardless it will be very easy for her to file the I-864.- I-360 VAWA. You have a client who’s USC husband filed an I-130 with a concurrent I-485 that included an I But now your client is going to file and I-360 because she began suffering severe physical and emotional abuse and moved out. The I-130 was never approved. You are about to file a notice to withdraw the I-130 and file an I Does she need a sponsor? Is the husband still responsible for the I-864?No, regardless of whether the I-130 was approved or not, the self-petitioner under VAWA does not need to file an I After the I-360 is approved the self-petitioner can file the I-485 with an exemption through form I-864W.ADOPTED CHILD - You have clients who are about to become parents of a child born overseas based upon an approved Orphan petition and are applying for the visa at the consulate to bring their child home. Do they need to provide an I-864 for their adopted child?It depends. If their adopted child will be a USC upon admission into the US (because the parents saw their child prior to or during the adoption proceeding abroad then the child is a USC) then, No, they do not need an I-864, and must instead file an exemption request on form I-864W.If the child will enter the US as a LPR then they will need to file an I-864.
39 Derivative beneficiaries of employment based petitions. CERTAIN INTENDING IMMIGRANTS DO NOT NEED TO FILE I-864 AT ALL AND DO NOT NEED “EXEMPTION”K visa applicant – must instead wait to submit the I-864 when they adjust status in the U.S.V visa applicant – must instead wait to submit the I-864 when they adjust status in the U.S.Derivative beneficiaries of employment based petitions.Plus others who adjust without the use of I-130 include: asylees, refugees, special immigrant juveniles, diversity visa applicants, NACARA, Cuban Adjustment, and most employment based LPR applicants.DV Lottery - You have a client that is a 23 year old full-time student and hasn’t worked. He is from Germany. He was selected under DV Lottery Program and wants to file an I-485 adjustment of status. He is not married to USC spouse and never worked in the US. Does he need a sponsor and must he file the I-864?No. He is not required to file I-864 and does not need to file exemption because no I-864 is required for DV permanent resident visas, nor is I-864 required for asylee or refugee adjustments, NACARA or Cuban adjustments, or special immigrant juveniles.
40 WHAT ARE THE Financial Requirements ? INA 213A(f)(6) Sources of Income of Sponsor to be used for Affidavit of SupportSufficient household income – 125% of federal poverty lineException of 100% for active duty members of the armed forces who are petitioning for spouse or childCurrent income from a variety of sources, such as pensions, interest income, dividends, alimony, or child support.Financial support does not require actual employment, can include other assets.Sponsor does not have to be employed. Can be self-employed, retired, or unemployed.QUESTION FOR LOW INCOME SPONSOR- You have a client who makes $23,000, and he is sponsoring his wife and her child, and the intending immigrant lives in the same house, and works in a secure position, and he owns a house that he bought in 2000, will he qualify? (He only needs $ more to show he qualifies.)Yes, likely, because 23k is so close, and he can use the intending immigrant’s income. Because there is a child immigrating, there must also be an I-864A Household Contract form filed in order to use the intending immigrants’ income.QUESTION – If the sponsor is retired will they qualify under the I-864, even where there is no joint sponsor, or where can not use intending immigrants income? A person who does not work can meet the eligibility requirements of a sponsor. Income may include “retirement benefits, unemployment compensation, workers’ compensation – any taxable and non taxable income. AILA Infonet They must of course show that they obtain this income through regular income type statements.QUESTION – What happens if the sponsor does not have to file taxes? If they do not have taxes for all three years that should be fine too, if they are not required to file. However, under 8 CFR 213a.2(c)(2)(i)(B) [Proof of income] must provide legal explanation including tax section of what is tax exempt .QUESTION – If the person is only working part-time or is on family leave, how can they qualify under poverty guidelines? A person who can not qualify through income can qualify through assets, but with assets they have to show the assets are “available for the support of the alien.” INA 213A(f)(6)(A)(ii). Plus, must show can be converted to cash within one year. (Can’t use car unless you have an extra – can’t be your only vehicle.)Assets can be owned by either the sponsor, the other household members who execute a Form I-864A, or the intending immigrant.However, value of assets varies in terms of the amount that is needed to meet poverty guidelines. 8 CFR 213a.2(c)(2)(iii)(B). You figure out what is the difference between the guidelines and the income and then have to prove value of assets is either 3 times or 5 times that figure. Could be 3 times the amount if for spouse and child 18 and over, or for most others it is 5 times the amount, but if orphan other requirements. For example, if it is for USC spouse, and need 20k to fill the gap, then need to show assets of at least 60k, which is 3 times the amount of 20k.QUESTION – Sponsor is on disability, his intending spouse can’t work, and so they do not make income requirements nor have any real assets, but he has 2 older children, one lives with him, and one lives on his own and is a wealthy Wall Street broker. Can he include both their incomes? Sponsor can count his son’s income that is living with him (not wealthy one), and that son would need to submit I-864A with a copy of his tax returns, which also should show they live in the same house.4. QUESTION ABOUT FUTURE INCOME - What happens if husband was about to be promoted and in 2 months from now will make 32k?Speculative and risky. Although USCIS may make determination at interview when the income may be sufficient by then, USCIS looks at preceding years taxes and income as of date of filing (which is an estimate of the current year’s income).
41 WHAT ARE THE Financial Requirements ? INA 213A(f)(6) Other sources of income in addition to the Sponsor’sOther income – consider household income plus assets, and or/ sponsored immigrant income, and/or joint sponsor.Income from relatives and dependents living in the household or listed as dependents and sign a Form I-864A.Income from intending immigrant if they will be continuing with that income after they are LPR and if they are living with the sponsor (but if spouse, then does not need to prove living at time of application)Use of Assets and the assets of any household member who has signed a Form I-864A, or the assets of the intending immigrant.Joint Sponsor if they can show their income and or assets equal 125 percent.QUESTION ABOUT USING HOUSE AS ASSET - What about if intending immigrant was not working, they could prove assets of home, showing equity in house over past 10 years, which he can prove with certified appraisal and mortgage documents and letter showing equity in the home.A joint sponsor (for I-864) must be a USC or LPR. I do not see the same qualifier for the Income for a Household Member (I-864A). Foreign national spouse and USC spouse (full-time college student with no income) live with the FN's parents, who are here in E-2 status. Can E-2 parents submit an I-864A as household members, thus satisfying the Affidavit of Support requirements?The answer is in the definitions under 8 CFR 213a.1 and 8 CFR 213a.2(c)(2)(i)(C)(1) defining household members and relatives. There is not stated requirement that the "household member" be in LPR or USC or any status in the US, so theoretically the E2 family member's income could be used if1. they are a relative - spouse, parent, child - 18 or older- adult son/daughter or sibling.2. 18 or older3. submit proof of relationship4. submit proof of residing5. submit social security number if he or she has one6. submit last years IRS taxes
42 WHAT ARE THE Financial Requirements ? INA 213A(f)(6) Key Points on Other Sources of IncomeFamily Unit size – 8 CFR 213a.2(c)(2)(i)(C)(1) – Household income includes the sponsor, the sponsor’s household members (both family and non-family dependents) and other dependents and aliens who they have sponsored even if they are not part of that household, plus the intending immigrant and all accompanying derivative family members.May include “relatives” residing with sponsor to compute Household income – 8 CFR 213a.2(c)(2)(i)(C)(1) – spouse, child, adult son/daughter, parent or sibling. Household relatives must be at least 18 and have a social security number, but do not have to be USC, LPR, nor residing in the US with lawful status.May include income from the following sources if they are residing with the sponsor: sponsor, spouse, spouse’s unmarried children under 21, intending immigrant and all accompanying derivative family members, dependents claimed by the sponsor on the most recent tax returns, and can include an immigrant who obtained LPR status through that sponsor.If income from household relative is considered, the household relative must submit Form I-864A, withsocial security number, andtax returns for same year as sponsor, (if the intending immigrant is not submitting I-864A then does not need to provide tax returns but income is included on the sponsors form)proof of relationship, and proof of residence with the sponsor, unless it is the income of the intending immigrant.8 CFR 213a.2(c)(2)(i)(C)(5)
43 WHAT ARE THE Financial Requirements ? INA 213A(f)(6) Requirements for counting the intending immigrant’s incomeResiding with the sponsor OR be the sponsor’s spouse OR claimed dependentIncome derived from lawful employment or source that will continue after they become LPR.Unlawful employment in the US cannot be considered.Income overseas cannot be considered. If intending immigrant outside the US then since they will be changing employment once they become an LPR then their income source can not be considered.Offers of employment cannot be considered. Income must be derived from “lawful employment in the US or from some other lawful source that will continue to be available to the intending immigrant after he or she acquires permanent resident status.” 8 CFR 213a.1, USCIS Memo Aytes Nov. 23, 2006.Intending immigrant does not need to submit I-864A – even if his/her income will be considered - unless he or she has a spouse or derivative beneficiary that is immigrating with them. 8 CFR 213a.2(c)(2)(i)(C)(3)
44 Filing Requirements Timing of I-864 Filing and Adjudication I-864 filed when the I-485 Adjustment application is filed with USCIS or upon NVC request when consular processing. 8 CFR 213a.2(a)(1)(ii).Documentation assessed for sufficiency in the year when the application is filed or when permanent residency or immigrant visa application is adjudicated. 8 CFR 213a.2(a)(1)(v).But if issue arises at the interview then provide current documentation, from most recent tax year and not for time that the I-864 was filed. 8 CFR 213a.2(a)(1)(v)(B); USCIS Memorandum, M. Aytes, “USCIS Policy Regarding USCIS Form I-864, Affidavit of Support.” Nov. 23, 2005.
45 Filing RequirementsDocumentation from sponsor of financial ability to support8 CFR 213a.2(c)(1)(i) / Proof of income.Tax return from most recent tax year.IRS transcripts optional but recommended.Or Tax returns from most recent 3 years.Must include W-2, Form 1099, and all other attachments and schedules submitted with IRS return.Employment letter and paystub – only in borderline cases and where income level changes from year to year.Allows income from retirement benefits, unemployment compensation, workers’ compensation. 71 Fed Register 35731, (June 21, 2006)If tax exempt, 8 CFR 213a.2(c)(1)(i)(B) attach(1) written explanation (from credible source) (“preponderance of the evidence” standard not required to file taxes)AND(2) proof of annual income from other sources.NOTE: Sponsor must indicate on Form I-864 the Sponsor’s last 3 years of income.
46 Filing RequirementsSignificant Assets as source of financial means/ 8 CFR 213a.2(c)(1)(5)(iii)(B)(1)-(3)Submit proof of assets – must be 3 times the shortfall between sponsor’s income and the required amount Or 5 times the shortfall if using assets of household member filing I-864A. Or for adoption, value of assets must exceed shortfall.Documentation / evidence of “significant assets” needs special attention. 9 FAM Procedural Notes 2.5(a), AFM Ch.20.5(d)(1). Examples- Bank statements should be for 12 months. Real Estate requires extensive documents, such as certified appraisal, or to count a vehicle the sponsor must own more than one car and they must be in working order – use blue book value.Assets of intending immigrants are listed on I-864 not I-864A unless the intending immigrant has spouse or child immigrating with him/her.FILING REQUIREMENTS WHEN JOINT SPONSOR USED - If a sponsor plans to use a joint sponsor, does he still have to submit I-864?Yes, absolutely. Plus joint sponsor is liable and must prove all the same requirements of income and / or assets.QUESTION – If a joint sponsor steps in, is the sponsor of the immigrant required to file I-864? If yes, can the joint sponsor just make enough to make up the difference? Even if there is a joint sponsor the sponsor must file the I-864, and is obligated, and the joint sponsor has to meet exactly the same requirements, no matter how many joint sponsors are found.
47 WHO CAN QUALIFY AS THE SPONSOR? Sponsored Defined INA 213A(f); 8 CFR213.a.2(c)(1)(i)Petitioning for the intending immigrantAt least 18 years of ageUS Citizen, a National, or LPRDomiciled within the U.S. or in any U.S. territory or possessionDemonstrates has the “means to maintain an annual income equal to at least 125 percent of the Federal Poverty line” INA 213A(f)(1)(E)Exception to 125 percent ruleJoint SponsorActive duty armed service member of spouse or child who can demonstrate 100 percent INA 213A(f)(3)Practitioners are aware of the issue of whether a person meets the federal poverty line but there are other scenarios that petitioners need to be aware of, such as where the sponsor is domiciled, or what is required under joint sponsorship.
48 WHO CAN QUALIFY AS THE SPONSOR? Joint Sponsorship / INA 213A(f)(5), 8 CFR 213a.2(c)(2)(iii)(C), AFM 20.5(d)(7)(A)May cure sponsor’s inability to show sufficient income or assets but does not cure the other requirements, such as domicile.Sponsor must still file an I Does not relieve Sponsor of obligations or liability.May have up to 2 joint sponsors but each are jointly and severally liable.Joint sponsor must execute a separate I-864 and satisfy the income requirement separately.Same requirements as principal sponsor (18 or over, LPR or USC, and financially able)
49 WHO CAN QUALIFY AS THE SPONSOR? Rule for Substitute SponsorThe self-petitioning widow exemption when an I-360 is filed is different from the situation where a substitute sponsor is used where the I-130 was filed by the sponsor died.A substitute sponsor can file an I-864 when an I-130(spouse) or I-129f (fiancé) was filed and the sponsor dies after the petition was filed and approved /or after the I-130 was filed (2009 law expanded substitute sponsor provision) and is still pending.“Substitute sponsor” submits I-864 with proof of relationship (as surviving relative) and check Box 1.f in Part 1 of the I-864, (substitute sponsor) and where necessary provide evidence of humanitarian reasons. INA 204(l); INA 213A(f)(5)(B)(i) & (ii); 8 CFR 213a.2(c)(2)(iii)(D).WIDOWS– Self Sponsoring Widow. If the intending immigrant has a pending I-130 or I-129F and their USC spouse/fiancé dies, do they need a sponsor? Do they need to prove humanitarian grounds?Yes. They need a substitute sponsor who is a “surviving relative” and the I-130 does not have to be approved.QUESTION – What happens if the sponsor dies before the immigrant adjusts status, does he still need a sponsor? Yes, this is when he needs a “substitute sponsor”. If he filed an I-360 he does not need one, but in cases where he can adjust with the I-130 and I-485 then no need to file the I-360, but must find a “substitute sponsor.” Substitute sponsor must submit I-864 (check off “box 1.f”) and also not only income but proof of relationship with intending immigrant.
50 WHO CAN QUALIFY AS THE SPONSOR? Domicile Requirements 8 CFR213.a.2(c)(1)(ii).US citizens or LPRs who are living abroad, even temporarily, may not be able to sponsor a family member, unless they qualify under an exception.The key definitions for this requirement are “domicile” and “Residence.”“Domicile” is defined as “the place where a sponsor has his or her principal residence, as defined in INA 101(a)(33) with the intention to maintain that residence for the foreseeable future.” INA 213A(f)(1)(C), 8 CFR 213a.1.“Residence” is defined as the person’s “place of general abode” or the “principal, actual dwelling place in fact, without regard to intent.” INA 101(a)33)If the USC or the LPR does not have employment abroad that does not meet one of the exceptions, they will have to return to the US and establish their domiciled in the US.ORUSC or LPR can submit the I-864 if they can convince USCIS or the Consular officer that they will reestablish domicile in the US on or before the date the immigrant obtains LPR status. 8 CFR 213a.2(c)(1)(ii)(A).USCs who are accompanying the immigrant to the port of entry will be deemed to have established domicile in the US. 8 CFR 213a.2(c)(1)(ii)(B).LPRs can try to accompany the immigrant like the USC but may be denied admission. 8 CFR 213a.2(c)(1)(ii)(B).DOMICILE - You have a USC client who is working for a company in Brazil who wants to petition for her parents, can she “sponsor” her parents?Most likely not, and she may have to wait until she returns or is planning to return to the U.S. The USC daughter over 21 not living in the US will not be considered “domiciled” in the US and has the burden of proving by a preponderance of the evidence, that her domicile (as that term is defined in 8 CFR 213a.1) is the US. 8 CFR 213a.2(c)(1)(ii) Determination of domicile.OR is she proves by a preponderance of the evidence, that she will establish a domicile in the United States on or before the date of the principal intending immigrant's admission, in other words, file the I-864 for IV purposes and then prove at interview traveling to the US on or before the parents are immigrating to the US. This solution is not recommended for LPRs (even though possible in rare situations and allowed) because as LPRS they may not be able to overcome the abandonment issues that could arise.DOMICILE BUT OVERSEAS EMPLOYMENT QUALIFIES UNDER 319b – If USC sponsor living overseas and her employment abroad meets the requirements of section 319(b)(1) of the Act (employment by US govt or international org, research etc.) , may still sponsor someone. This exception regarding employment does not apply if she would have been and LPR.
51 WHO CAN QUALIFY AS THE SPONSOR? How to Prove Domiciled in the USPreponderance of the evidence standard applies if sponsor is residing abroad. 8 CFR 213a.2(c)(1)(ii)(A).If the sponsor is residing abroad they may still be found to be domiciled in the US if they are an LPR and fall under INA 316(b), INA 317, or a USC and fall under INA CFR 213a.2(c)(1)(ii)(A).Sponsors living outside the US and whose employment is directly related to their absence from the US and who still have a residence in the US which they use as their principal, actual dwelling place can still sponsor an immigrant.LPRs - LPRs living abroad should file a N460 Preservation of residence under INA 316(b) or 317Under 316(b) - To preserve residence the LPR must have (1) have been physically present for one year as an LPR before applying (2) be employed overseas by US government, international agency or by an employer involved in research or foreign trade (3) absence is on behalf of employerUnder INA 317 – To preserve residence the LPR must have (1) have been physically present for one year as an LPR before applying (2) Employed by a religious organization (3) absence is for the purpose of performing religious activities.USCs – US Citizens living abroad. INA 319(b)(1)Same as the LPR requirements for employment overseas except they do not need to meet the physical presence requirement.Must be employed by US government, international agency or by an employer involved in research or foreign trade or religious organization.
52 Matter of Arrabally and Yerrabelly Overview of the decisionEffect on spouses of US citizens, DACA applicants, TPS
53 Matter of Arrabally and Yerabelly Basic Holding: AOS applicants who entered lawfully but afterwards accrued ULP may travel on AP without triggering 3yr/10yr bar;Facts – EB3 case pending for many years; aliens didn’t extend H1B; using EAD/AP; left and returned prior to AOS; denied;Field Office & Imm Court denied them; BIA here distinguishes by agreeing trip on AP is not a “departure” as described in IIRAIRA;BIA cites key elements:was approved in advance by the US government on the basis of an application demonstrating the alien’s qualification for and worthiness of the benefit sought,presupposed the alien’s authorized return thereafter, andwas requested solely for the purpose of preserving the alien’s eligibility for adjustment of status.Matter of Arrabally and Yerabelly, 25 I&N Dec. 771, at 778 (BIA 2012) (emphasis added).QUESTIONS FOR INTRO OF PANELWhat can you do when your marriage client comes to you and needs to travel home urgently because of a family emergency? Is there a basis for AP? Evaluate 3 and 10 yr bar. Get them an emergency AP even if it means going to the local office to apply for it.What can you do for your K-1 client who had an accident after entering and never married within the 90 day window? Now she needs to leave the US because she’s being sued back home. A and Y It does not help. You have to have an AOS.What can you do for your VWP client who got married here but who also wants to get married in the church back home for her family soon after her civil ceremony?What can you do for your TPS client whose mother is dying back home and he may not see her if he waits for his green card? These are the scenarios where people are looking at A and Y. AP gives proof of entry hoping to apply for AOS down the road.What can you do for your DACA applicant who wants to see his father who returned home years ago when the rest of the family stayed here in the US?What can you do for a client who comes to you because his AOS was denied for ULP after traveling on AP?
54 Matter of Arrabally and Yerabelly 212(a)(9)(B)(i) In general.--Any alien (other than an alien lawfully admitted for permanent residence) who--212(a)(9)(B)(i)(I) was unlawfully present in the United States for a period of more than 180 days but less than 1 year, voluntarily departed the United States (whether or not pursuant to section 244(e) [sic]Sic. Probably should be sec. 240B .) prior to the commencement of proceedings under section 235(b)(1) or section 240, and again seeks admission within 3 years of the date of such alien's departure or removal, or212(a)(9)(B)(i)(II) has been unlawfully present in the United States for one year or more, and who again seeks admission within 10 years of the date of such alien's departure or removal from the United States,is inadmissible.212(a)(9)(C) Aliens unlawfully present after previous immigration violations.--212(a)(9)(C)(i) In general.-- Any alien who--212(a)(9)(C)(i)(I) has been unlawfully present in the United States for an aggregate period of more than 1 year, or212(a)(9)(C)(i)(II) has been ordered removed under section 235(b)(1), section 240, or any other provision of law,and who enters or attempts to reenter the United States without being admitted is inadmissible.
55 Matter of Arrabally and Yerabelly Who Benefits?Marriage AOS applicants who have fallen OOS since entry and need to travel outside US;Employment AOS applicants whose category retrogressed after they filed AOS, and employer doesn’t want to pay to keep extending H1B;EB-3 “skilled or other workers” AOS applicants who aren’t eligible for H1B;245(i) applicants who need to travel;TPS applicants who obtain AP and then AOS?DACA applicants who obtain AP and then AOS?
56 Matter of Arrabally and Yerabelly Who does not benefit?Unclear effect on those who ewi’d—TPS/DACAApplicants subject to 3yr/10yr barApplicants subject to permanent barApplicants with other issues in addition to ULPHyposB2 overstay falls OOS and then files AOS & travelsVWP overstay falls OOS and then files AOS & travelsremember: Bradley v. Holder brief allows VWP overstay to AOSK-1 marries late & files AOS & travels
57 Matter of Arrabally and Yerabelly AAO Revised Decision Arrabally/Yerrabelly TPS CaseEWI TPS applicants subject to 212(a)(9)(B) can AOS after entry on APNo I-601 waiver requiredDecision applied Matter of Arrabally and Yerrabelly
58 Matter of Arrabally and Yerabelly What to do for Clients whose cases have been denied for ULP after travel of AP?MTRAppeal to AAORetroactive Application?
59 Matter of Arrabally and Yerabelly Helpful CitationsMatter of Arrabally and Yerabelly, 25 I&N Dec. 771, (BIA 2012). AILA Doc. NoAAO Revised Decision in Matter of Arrabally/Yerrabelly TPS Case, AILA Doc. NoSample Motion to AAO, courtesy of Steve Thal. AILA Doc. NoINA § 212(a)(9)(B)(i)INA § 212(a)(9)(C)(i)
60 AILA Post Election Conference Call—Breaking News! Obama’s re-elected; House is now Republican majority; Senate slight Democratic majority. This makes CIR unlikely, but may be possible if Republicans see that President won in part on immigration platform.Immigration is a high priority for Americans and for Obama. Sixty-five percent of Americans want to see the system improved and Obama mentioned immigration as one of his top priorities during his acceptance speech, and also twice in the past year in speeches.Here is the update on legislative and administrative action for a second Obama term.1. Deferred Action for Childhood Arrivals (DACA). This program will almost certainly continue. With Obama’s re-election it’s likely the program will remain and that more immigrants will be likely to sign up for it. AILA desires to see the Affordable Care Act extended to DACA recipients.2. State-side waiver program. It was announced in the spring that there would be a waiver program that would allow persons who needed a waiver to adjust status to apply for that waiver while in the United States rather than return abroad to make application, thus minimizing time outside of the United States. With Obama’s re-election this program will be implemented and may even be more favorable than initially expected.3. DREAM Act. It is uncertain whether a federal DREAM Act will be passed. Such an act would grant lawful permanent residence to over one million persons in the United States and would be considered a major reform. Locally, Maryland passed its state version of the DREAM Act by 58%, which allows out of status students to pay in state tuition rates.