H1B Visa Lawyer Blog
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- What is the purpose of this Parole in Place if there is already an established path to a Green Card for undocumented Spouses of U.S. Citizens? There is a path, but that path is inherently risky and lengthy. Spouses of U.S. citizens are considered ‘immediate relatives’ of U.S. citizens and as such are generally eligible for an immigrant visa to obtain a green card/become a lawful permanent resident. Spouses of U.S. citizens who did not enter the country with permission (meaning they did not have a lawful admission, they were not inspected, admitted or paroled) they entered without inspection (EWI) and as a result have a much more difficult path to take to obtain a green card/become a lawful permanent resident. Because they have not been ‘inspected and admitted’ or ‘inspected and paroled’ they cannot apply to adjust status from within the United States. They are required to depart the country and attend an immigrant visa interview at a Consulate or Embassy abroad. However, once they leave to go to the Consulate, they often trigger either the 3 or the 10-year bar on legally re-entering and would be prevented from returning to the U.S. for up to 10 years for those who were unlawfully present in the U.S. for more than 1 year. Spouses of U.S. citizens who fall into this category may apply for a waiver called a Form I-601A Wavier, Application for Provisional Unlawful Presence Waiver that will forgive the ‘unlawful presence’ if approved. They must be able to establish through a totality of the circumstances that their U.S. citizen spouse would suffer ‘extreme hardship’ if the two were separated for a long time. Spouses apply for this provisional waiver BEFORE leaving the United States because approval of the wavier is not guaranteed and leaving without it is entirely too risky. Moreover, the USCIS is currently taking over 41 months to adjudicate these I-601A waivers. If the I-601A Waiver is approved, the Spouse of the U.S. Citizen would then need to make arrangements abroad to appear at the Consulate or Embassy for their immigrant visa interview, and if successful, would return to the U.S. as a lawful permanent resident/green card holder.
In other words, Spouses of U.S. citizens that entered the U.S. unlawfully and remained here are not eligible to apply for adjustment of status because they have not been ‘inspected and admitted’ or ‘inspected and paroled’. They would need to make plans to depart the U.S. and appear at a Consulate abroad for the Immigrant Visa interview. Leaving the U.S. without an approved I-601A provisional waiver would subject the Spouse of the U.S. citizen to a 3- or 10-year bar from returning to the United States.
Parole in Place would ‘correct’ the unlawful entry allowing them to be ‘inspected and paroled’ thus allowing them to apply to adjust status to become a lawful permanent resident/Green card holder from within the United States.
- What is the process for obtaining an E3 Australian Visa? If you are outside of the United States applying from Australia, you would petition the Consulate directly. You would need proof of the legitimate job offer, a letter of support from the U.S. employer, a certified Labor Condition Application (LCA) from the Department of Labor (DOL), and your academic or other qualifying credential documentation available for review. Once all of these items are gathered, you would proceed with scheduling an E3 nonimmigrant visa appointment by completing Form DS-160 and submitting it to the Department of State (DOS), along with all requested documentation to establish eligibility. You would then appear for your interview at the scheduled date and time. If successful, your E3 visa will be issued and placed in your passport.
If you are inside the United States in another visa status and wish to change status to E3 or are working with a different employer and wish to change employers, you would need to first petition the United States Citizenship and Immigration Service (USCIS). You would need to have a letter of support from the U.S. employer, along with Form I-129, Petition for Nonimmigrant Worker completed by the U.S. employer, and a certified LCA from the DOL, along with documentation to establish your eligibility. These forms and paperwork need to be filed with the USCIS, likely with premium processing. You cannot assume E3 status or begin working with a new U.S. employer until the USCIS has approved your case. Premium processing costs an additional $2805.00 to obtain a decision within 15 business days of filing.
- What is the USCIS filing fee for renewing EAD and AP if our I-485 has been pending since 2021? Per the USCIS guidance found at https://www.uscis.gov/forms/filing-fees/frequently-asked-questions-on-the-uscis-fee-rule: If you filed your Form I-485 before April 1, 2024, and paid the fee, there will be NO FEE to file Form I-131 or Form I-765 while your Form I-485 remains pending.
- What is the USCIS filing fee for filing Form I-765 and Form I-131 with the Form I-485? As of April 1, 2024, there are now separate USCIS filing fees required for the filing of Form I-131, Travel Authorization at $630.00, and $260.00 for filing Form I-765, Employment Authorization, along with $1440.00 for Form I-485, Application to Adjust Status.
- When is someone on a visa or a green card able to vote in a federal election? Only United States Citizens are eligible to vote in a federal election. A foreign national on a nonimmigrant visa is NOT allowed to vote, nor are they eligible to vote. A lawful permanent resident (LPR) with a Green Card is also NOT allowed to vote, nor are they eligible to vote. Only United States Citizens are eligible to vote in a federal election. A nonimmigrant visa does not provide a pathway to U.S. citizenship. Lawful permanent residence does provide a pathway to U.S. citizenship. If a foreign national has been in LPR status for at least 3 years and remains married to & living with the US Citizen that sponsored them, they may be eligible to file Form N400, Application for Naturalization with the USCIS to petition to become a U.S. Citizen. All other foreign nationals are required to remain in LPR status for at least 5 years before they may be eligible to file Form N400, Application for Naturalization with the USCIS to petition to become a U.S. Citizen. Only once the LPR passes their Civics test, are approved for Naturalization, and take the sworn oath to become a U.S. Citizen, and receive their Official Naturalization Certificate would they become eligible to vote in a federal election. Once receiving the Official Naturalization Certificate, they would first need to register to vote with their State Board of Elections before they are able to vote in a federal election.
- Is the filing fee for an Advance Parole document the same as the filing fee for a Re-Entry permit? Yes, Form I-131 requires a USCIS filing fee of $630.00 whether you are filing to request Advance Parole, or a Re-Entry permit.
- How do I find out what documents the Consulate will need for my sister’s case? I am assuming you are referring to Consular Processing for your sister’s Immigrant visa once her I-130 is approved. You can find particular country requirements for civil supporting documents by visiting https://travel.state.gov/content/travel/en/us-visas/Visa-Reciprocity-and-Civil-Documents-by-Country.html and selecting the specific country from the A-Z list on the left hand side of the screen. Once you choose a country, you can scroll down and see the country’s requirements for: Birth, Death and Burial Certificates; Marriage, Divorce Certificates; Adoption Certificates; Identity Card; Police, Court, Prison Records; Military Records; etc.
- What happens if I need to term/lay off an employee prior to the date listed on their H-1B visa? As an employer if you terminate an employee prior to the expiration of their H-1B status, you are responsible for making an offer to cover their reasonable travel expenses to return to their home country. Once the candidates are terminated from employment with your company, they will have 60 days (“60 grace period”) to find another U.S. employer sponsor to transfer their H-1B visa, change status to a dependent H4 visa status, or change status to another eligible visa category, or make plans to leave the United States. If they can secure another U.S. employer sponsor willing to transfer their H-1B status, then they will be able to begin working with that company immediately upon the filing of the H-1B transfer/extension petition with the USCIS and will not have to have the case premium processed if all is filed within the 60-day grace period. Accordingly, if the candidate is unable within the 60 day grace period to find a sponsor, does not change to another visa status, and plans to leave the U.S., your company will have to provide sufficient funds to cover the reasonable travel expenses for them to return home (only them, you are not responsible for anything involving their dependents). Once they are terminated, you should draft the necessary notice and mail it to the USCIS notifying them of the termination.
- I overstayed my nonimmigrant visa; would I be eligible to apply for the PIP program? No, parole in place is only available to those who are present in the United States who have NOT been admitted.
- What are the current enforcement priorities under Biden? What were they under Trump? Under the Biden Administration, they have prioritized the apprehension and removal of noncitizens who are a threat to (1) National Security – a noncitizen engaged in or is suspected of terrorism or espionage, or terrorism-related or espionage-related activities, or who otherwise poses a danger to national security; (2) Public Safety – serious criminal conduct – requires an assessment of the individual and the totality of the facts & circumstances; and (3) Border Security – they are apprehended at the border or port of entry while attempting to unlawfully enter the U.S.; or they are apprehended in the U.S. after unlawfully entering after November 1, 2020. More detailed information is contained in the Memorandum from Secretary Alejandro N. Mayorkas issued on September 30, 2021.
When Trump was President, he signed Executive Order, “Enhancing Public Safety in the Interior of the United States,” which massively expanded immigration enforcement within the interior of the United States. The executive order prioritized the deportation of the following individuals: noncitizens who have been convicted of ANY criminal offense; noncitizens charged with ANY criminal offense, where the charge has not been resolved; noncitizens who have committed acts that constitute a chargeable criminal offense; noncitizens who have engaged in fraud or willful misrepresentation in connection with any official matter or application before a gov’t agency; noncitizens who have abused any program related to the receipt of public benefits; noncitizens who are subject to a final order of removal but have not deported; and noncitizens in the judgment of an immigration officer, otherwise pose a risk to public safety or national security. More detailed information is contained in the Executive Order published on the White House website.
MVP Law Group would like to thank everyone who contributed a question or comment.
Our next “Immigration Q & A Forum” is scheduled for Friday, October 11, 2024!
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