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WHEN A FAMILY PETITION IS DENIED
The I-130 petition is the first step in immigrating to the United States through a family member. It is filed by U.S. citizens or lawful permanent residents to establish a relationship with an alien relative.
U.S. citizens may file an I-130 for a spouse, unmarried child under 21 years of age, unmarried son or daughter 21 years or older, married son or daughter of any age, brother or sister, or a parent. Lawful permanent residents may file for their spouses and unmarried children only.
When an I-130 is denied, it does not necessarily mean that the process is over. In some cases, the reasons for the denial are impossible to overcome. But many times, denial is just a hurdle that only tests one’s determination. When faced with a denial there are several options to choose from as circumstances may allow.
The denial may be appealed to the Board of Immigration Appeals (BIA). The petitioner files the appeal on Form EOIR-29 with the USCIS service center or district office that denied the petition. The petitioner must file it within 30 days of the date of the decision and pay the filing fee of $110. On the other hand, the petitioner may also opt to simply re-file the petition.
The reasons given by the USCIS for denial are probably the first thing to consider when deciding whether to appeal. For instance, the I-130 must have been approvable when filed in order to make appealing the denial worthwhile. For example, the spouses in a marriage-based petition must be legally married at the time of filing. If the husband’s divorce was not yet final at the time he remarried, the petition could not be approved.
On the other hand, if the reason for denial was a finding of fraud in a marriage-based petition, the petitioner should definitely consider contesting the denial because a fraud finding bars the approval of any other immigrant petition for the beneficiary.
Also, if the I-130 was denied due to failure to submit required documentation, presenting the documentation before the BIA will not necessarily result in a reversal. For example, a beneficiary child’s birth certificate will most likely not be considered “new evidence” by the BIA because it was already available or it “could have been discovered or presented” when the petition was filed. In this scenario, the petitioner may be better off re-filing the petition.
The petitioner may actually choose to do both – simultaneously appealing the denial and re-filing the petition – but several other factors may influence the petitioner to choose one option over the other.
For instance, unless one has an immediate relative petition, he/she would most likely be concerned about priority date preservation, especially when the I-130 took years before it was adjudicated. Re-filing an I-130 means that the priority date in the first petition would be lost.
Another factor is processing time. Appeals with the BIA can take years while I-130 adjudication may take a shorter time. One more thing to consider is the cost: the I-130 filing fee of $535 must be paid again when re-filing, which is a lot more money compared to the appeal fee.
If an appeal to the BIA is unsuccessful, the petitioner may seek a review of the I-130 denial in a federal court.
The petitioner’s other options include the filing of a motion to reopen/reconsider. A motion to reopen must include new facts supported by affidavits or other documentary evidence. In a motion to reconsider, the petitioner must show that the decision was incorrect based on the evidence of record at the time of the decision.
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PROLONGED TRAVEL ABROAD MAY JEOPARDIZE YOUR GREEN CARD
By Reuben Seguritan
Permanent resident status is a privilege that may be lost and/or revoked if not maintained and preserved.
Abandonment is one of the ways a noncitizen can lose his lawful permanent resident (LPR) status. It is especially important for an LPR to know what constitutes abandonment in order to protect and preserve his status.
An LPR may leave the U.S. for short temporary visits abroad at any time. This is one of the privileges of being a permanent resident. Absence of more than six months but less than a year will ordinarily not trigger an examination of his intent to abandon residence upon re-entry to the U.S. In most cases, the LPR will only need to show his permanent resident card when he returns to the U.S.
The LPR should keep in mind that it is not the length of his absence that will be scrutinized; it is his intent. Therefore, even if the absence from the U.S. is less than a year, there may still be a finding of abandonment of permanent residence. Factors of possible abandonment include employment abroad; the presence of immediate family members who are not permanent residents; lack of fixed address in the U.S. and frequent prolonged absence from the U.S. Declaring oneself as a nonresident on tax returns may also result in a finding of abandonment of permanent residence status.
An absence from the U.S. of more than one year is generally treated as abandonment of permanent residence. Thus, an LPR who is planning to be away from the U.S. for more than one year should apply for a re-entry permit by filing Form I-131. It is recommended that the LPR who frequently travels abroad obtain a re-entry permit which is generally valid for up to two years.
The reentry permit will serve as proof of the LPR’s intent that he is merely returning from a temporary trip abroad and therefore he did not abandon U.S. residence. However, the LPR cannot merely rely on the reentry permit to be readmitted to the U.S. Even with the reentry permit, the LPR may still be found to have abandoned his U.S. residence.
In order to establish that there was no intent to abandon permanent residence, the LPR may show evidence of employment, business, or properties in the U.S., homeownership in the U.S., maintenance of U.S. bank accounts, maintaining a U.S. driver’s license and family ties in the U.S., among others.
A permanent resident may maintain his permanent residence status by obtaining a social security number and renewing his permanent resident card before expiration. Filing tax returns in the U.S. is crucial even when the noncitizen is not in the United States.
Maintenance of permanent residence is important for naturalization purposes. One of the requirements in a citizenship application is continuous residence in the United States for at least 3 or 5 years. The applicant must not have, within the last 3 or 5 years, been outside of the U.S. for one year or more. Absences of less than 6 months generally do not break continuous residence, while absences of more than 6 months but less than 1 year raise a rebuttable presumption of abandonment of residence.
When his LPR status is challenged as having been abandoned, he has the right to have that issue determined by a judge. It is important to note that even while in removal proceedings, the LPR remains a permanent resident and continues to be so until a final administrative order is issued that changes that status.
PROVISIONAL WAIVER SHORTENS VISA WAIT ABROAD
Individuals who are not eligible to adjust their status because they were unlawfully present in the U.S. have to depart to process their immigrant visa at a US embassy or consulate abroad. The problem is if they leave, they will be subject to a 3 year or 10-year bar from reentering the US because of their unlawful presence. The 3-year bar is imposed if they have overstayed for more than 6 months. The 10-year bar is imposed if they have overstayed for more than a year.
Examples of individuals who are not eligible for adjustment are crewmen, those who overstayed, those who entered without inspection, and those who entered as a fiancé(e) but did not marry their petitioner.
Fortunately, there is a process available to waive their unlawful presence. They may file for an I-601A provisional waiver.
The I-601A Application for Waiver of Grounds of Inadmissibility is a way for the undocumented immigrants to show that their qualifying US citizen or lawful permanent resident (LPR) relative/s would be under extreme hardship if they are not allowed to re-enter the US or remain in the US with them. There is no one definition of what constitutes extreme hardship but various cases of the Board of Immigration Appeals (BIA) have stated that there is a non-exclusive list of factors that will be considered to determine whether the undocumented immigrant can remain in the US or re-enter the US on the ground of extreme hardship to his/her qualifying relative.
These factors are: the presence of LPR or US citizen family ties in the US; qualifying relative’s family ties outside the US; conditions in the country or countries which the qualifying relative would relocate to and the extent of the qualifying relative’s ties to such countries; financial impact of departure from the US; significant conditions of health and the unavailability of adequate medical care in the country which the qualifying relative would have to relocate to if the immigrant’s waiver is denied; and any other factors peculiar and relevant to the case
A psychological evaluation should be included in the waiver application to establish the fear, depression, and emotional and psychological state of the US citizen/ LPR spouse or parent of the waiver applicant because of the possibility that the undocumented immigrant would be deported. All of these details should be clearly explained in order to convince the USCIS that they should remain in the US or be allowed to return to the US, as the case may be.
The provisional waiver applicant must be inadmissible solely because of unlawful presence and demonstrate that the denial of the waiver would result in extreme hardship to the U.S. citizen or lawful permanent resident spouse or parent whether their visa petition is family-based or employment-based.
Those who do not qualify for the provisional waiver, perhaps because the required showing of extreme hardship was not made or because they were inadmissible on other or additional grounds such as fraud or misrepresentation or prior removal, may still avail of the existing waiver process (I-601) which requires a departure from the U.S. and filing of the waiver application abroad.
This would require them to leave the U.S. to apply for an immigrant visa abroad, appear at the visa interview, wait for the denial of their visa application because of their inadmissibility due to unlawful presence – which was itself triggered by their very departure – and then file the unlawful presence waiver application from outside the U.S. and wait for its approval there.
This existing process could take many months especially because of the pandemic. Because of the risks, costs, and hardships involved, many individuals chose to remain undocumented in the U.S.
The new provisional waiver process was designed to alleviate the hardships caused by the lengthy family separation
The DHS has reiterated that the provisional waiver is discretionary and does not guarantee admission into the U.S. and that it does not grant any lawful immigration status, create a period of authorized stay or authorize any interim benefits like employment authorization or advance parole.
FILING EMPLOYMENT-BASED PETITIONS
By Reuben S. Seguritan
To ensure that employment-based petitions (Form I-140) will not be rejected or delayed in their adjudication, the United States Citizenship and Immigration Services (USCIS) has a question and answer guideline on how to prepare and file them.
An I-140 petition is filed by an employer to classify an alien beneficiary as eligible for an immigrant visa based on employment. Examples are domestic, therapists, nurses, teachers, and other professionals. It may also be filed by an alien on his/her behalf if the alien is a person of extraordinary ability or if he/she is a professional with an advanced degree or is of exceptional ability and seeks an exemption of the job offer requirement in the national interest.
The guideline instructs a petitioner to answer all the questions, indicate the correct visa category, and submit all the required documentation and evidence with the forms. Failure to indicate a visa category will result in a rejection while indicating an incorrect category will result in the denial of the petition. If the beneficiary is eligible for more than one category, a separate petition with the required fee and documentation must be filed for each.
If a labor certification is required, the original copy must be submitted within 180 days from its approval. The labor certification must be signed by both the petitioner and the beneficiary.
The guideline also provides information regarding the transfer of priority dates, withdrawal of petition, change of employment, and change in ownership of petitioner’s business.
The priority date of an employment-based petition is either the date of the filing of the labor certification or the date of the filing of the petition if no labor certification is required. If the beneficiary is entitled to an earlier priority date based on a previously approved petition, a copy of the petition approval must be submitted. Priority dates for the first three employment-based categories may be transferred.
If a petitioner requests the withdrawal of an I-140 petition, he/she must write the USCIS and include the receipt number, the name, address, and phone number of the petitioner, and the name of the beneficiary.
An alien beneficiary with a pending or approved I-140 petition but whose adjustment of status (I-485) application has been pending for 180 days may transfer to another employment provided the new job is the same or has a similar occupational classification.
The beneficiary must send a letter from the new intended permanent employer specifying the job title and duties, the minimum education or training requirement, the date the alien beneficiary began (or will begin) employment, and the offered salary or wage. The letter should include a copy of the I-140 approval notice or receipt and a copy of the Form I-485 receipt notice.
Change of employment is allowed even though the I-140 petition is still pending provided the petition was approvable when filed. This means that the petition contained a valid job offer at the time it was filed and that it was filed on behalf of the alien.
Regarding the issue of a successor employer using the labor certification filed by a predecessor, the guideline states that this is allowed provided the job offer of the successor is the same as the job offer of the predecessor. The successor must provide evidence of eligibility in all respects such as proof of the predecessor’s ability to pay the proffered wage as of the filing date of the labor certification.