WHEN OUT-OF-STATUS RNS AND PTS MAY ADJUST STATUS
May a foreign registered nurse (RN) or physical therapist (PT) file for a green card while in the US if she has fallen out of status?
This common situation among foreign RNs and PTs arises from a variety of reasons. For instance, the tourist visa of the RN may have expired while waiting for the CGFNS Certificate or NCLEX exam results, or perhaps the H-1b visa of the RN or PT expired or the employment of such foreign worker has been terminated.
Adjustment of status by foreign RNs and PTs may be available for those who have fallen out of status. Generally, a foreign national is not eligible to apply for a green card if she has fallen out-of-status. There are exceptions to this rule though.
The most common recourse for out-of-status foreign workers is Section 245 (i) of the Immigration and Nationality Act (INA). Since this program actually ended on or before April 30, 2001, a growing number of out-of-status aliens would find it harder to meet the eligibility criteria of this provision.
Briefly, the alien must have been the beneficiary of an immigrant visa petition or labor certification application filed on or before April 30, 2001, in order to qualify for Section 245 (1). In addition, the applicant must have been physically present in the US on December 21, 2000, if the petition or application was filed after January 14, 1998.
Another remedy for out-of-status foreign workers is Section 245 (k). this provision has another set of requirements for eligibility.
Foreign RNs and PTs who have fallen out of status may apply for their green card if they meet the following eligibility requirements of Section 245 (k): first, they must have entered the US lawfully; second, they must be present in the US at the time the adjustment of status application is filed; third, they must not have violated the conditions of their stay or engaged in unauthorized employment for an aggregate period not exceeding 180 days as of the date of filing the adjustment of status application.
The adjustment of the status application is not affected by status violations occurring after it has been filed because the above requirements for eligibility are reckoned from the date of filing. Neither will the application be affected by status violations which occurred before the alien re entered the US and applied for adjustment of status under section 245 (k). In other words, the requirements for eligibility refer to the last admission to the US that the alien is currently in.
Moreover, the foreign RN or PT may still qualify under this provision even if she worked without permission or violated her status, as long as such unauthorized employment or violation did not exceed 180 days.
The aggregate 180-day period must be counted from the last day of the alien’s lawful stay in the US. The expiration date of the alien’s lawful stay is stamped on the 1-94 departure record and depends upon the type of visa under which the alien enters the US.
A foreign RN or PT who meets the requirements of section 245 (k) can certainly apply for a green card, despite having fallen out of status while in the US.
Democrats place all bets on third attempt to include immigration in economic bill
Democrats’ Plan to Overhaul Legal Immigration Focuses on Green Card Backlog
US Citizens at Birth
By Reuben Seguritan
When a child is born in the United States, he or she is a United States citizen at birth. If a child is born outside the United States, the child may also be a US citizen at birth, so long as at least one parent is a US citizen at the time of the child’s birth.
When both parents are US citizens, there is no doubt that the child is a US citizen at birth, even if the child was born abroad. The same is true when a US citizen is married to a non-US citizen and a child is born because of this union. The child is a US citizen from birth, regardless of where the child was born. However, the law requires that the US citizen parent must have lived in the United States for at least five years prior to the birth of the child and at least two years of that period must be after the age of 14.
If the child was born in the Philippines, the United States requires that the birth of the child be reported to the US Embassy in Manila. After completing the required forms, submitting the required documents, payment, and interview at the Embassy, the Consular Report of Birth Abroad (CRBA) will be issued. The CRBA is an official record of U.S. citizenship issued to a person under age 18 who was born abroad to United States citizen parent(s) and acquired citizenship at birth. Only the child’s biological parent or legal guardian, preferably the US citizen parent, can apply for the CRBA. Either parent, including the non-US citizen parent, may execute and sign the application. If it will be signed and executed by a legal guardian, a special power of attorney from the parent or parents or guardianship affidavit must be submitted. The application must be made before the child’s 18th birthday and the child must make a personal appearance at the US Embassy.
In one case decided by the US Supreme Court, the question was raised as to whether a child born abroad to his unwed parents, his US citizen father and his South American mother, made him a US citizen at birth.
The Immigration and Nationality Act (INA) provides the framework for acquisition of US citizenship from birth by a child born abroad, when one parent is a US citizen and the other parent is a citizen of another nation. Applicable to married couples, the main rule requires the US citizen parent to have five years of physical presence in the United States prior to the child’s birth, at least two of which were after attaining the age of 14. The rule is made applicable to unwed US citizen fathers. However, this rule does not apply to unwed US citizen mothers. The rule for unwed US citizen mothers only requires them to have continuously lived in the US for one year prior to the child’s birth.
In the said case, the child was born out of wedlock and lived in the United States since he was 13. He asserted his US citizenship based on the US citizenship of his biological father. His father moved to the Dominican Republic 20 days short of his 19th birthday, therefore failing to satisfy the required five years’ physical presence after age 14. There, he lived with the Dominican mother of the child. The US citizen accepted parental responsibility and included the child in his household. He then married the mother of his child and his name was then added to hers on the child’s birth certificate.
In 2000, the Government sought to remove the child based on several criminal convictions, stating that he was an alien because, at his birth, his father did not satisfy the requirement of five years of physical presence after age 14. The immigration judge rejected his citizenship claim and ordered his removal.
Lawyers for the child argued that the gender-based difference in the law governing the acquisition of US citizenship by a child born abroad, when one parent is a US citizen, and the other a citizen of another nation was unconstitutional.
The US Supreme Court agreed with the child and stated the gender-difference in the pre-birth residence in the United States requirement of the US citizen parent violated the equal protection principle and must be struck down. Hence, the rule now states that the five-year physical presence requirement should apply, prospectively, to children born to unwed US citizens, regardless of gender.
On April 18, 2018, the United States Citizenship and Immigration Services (USCIS) issued a policy alert clarifying the new requirement. The required pre-birth physical presence of five years in the United States for the US citizen parent, regardless of gender, applies to children born out of wedlock on or after June 12, 2017. For children born before June 12, 2017, the old rule applies.
The USCIS also added that a separate agreement or contract is not required in order to prove the father of the child accepted the legal obligation to support the child (before the age of 18) or that such obligation to provide support was imposed on the father by a court or an administrative governmental agency.
After Setback, Democrats Vow to Push Ahead on Immigration Overhaul
Congress pushes for a path to citizenship for ‘documented Dreamers.’
Adjustment of Status as a Form of Immigration Relief
By Reuben Seguritan
Adjustment of Status is the process of becoming a United States lawful permanent resident (LPR) or more commonly known as getting a green card. The applicant files form I-485 with the USCIS while in the United States. There are many ways that a person can apply for a green card. The most common way is the family-based green card.
The spouse, parent, or child of the applicant who is a US citizen may file the I-130, Petition for Alien Relative for the applicant. These petitioners are known as immediate relatives. However, in order for the child of the I-130 petitioner to be considered an immediate relative, the child must be unmarried and below 21 years of age. An LPR may also file for his spouse or unmarried child. After the I-130 is approved, the applicant can then file the I-485. The applicant may also file the I-485 concurrently with the I-130 petition.
There are certain eligibility requirements which the applicant must meet when filing his I-485 such as physical presence in the US, lawful entry, and immigrant visa availability.
An applicant may also be eligible to file the I-485 if he qualifies under INA Section 245(i). This Section allows undocumented immigrants to file I-485 even if they did not enter the US lawfully or if they otherwise violated their immigration status. This section requires the applicant to be the beneficiary of a visa petition or labor certification that was submitted to either the USCIS or the Department of Labor on or before April 30, 2001, and he can prove that he was physically present in the US on December 21, 2000. Proof of physical presence on December 21, 2001, is not required if it was filed on or before January 14, 1998. Any such visa petition or labor certification in favor of the applicant must have either been approved or been approvable when filed. This means that the petition was valid and not fraudulent and that there was a genuine relationship when the petition was filed.
When the applicant files the I-485, he may also file I-765, Application for Employment Authorization so that he can work while the I-485 is pending. However, there is no certainty that the USCIS will approve the I-485 application. The granting of the I-485 is always discretionary. Applicants are advised to ensure that all required documents, such as the proof of marriage to the US citizen or LPR spouse, or the birth certificate to show that the petitioner is the parent of the child applicant, are clear and true.
An applicant can also file the I-485 while he is in removal proceedings. Removal proceedings is the procedure of the government to remove aliens who are illegally in the United States or who are otherwise inadmissible to the US. However, since the applicant is already in removal proceedings, the immigration judge will receive the I-485 application and not the USCIS. This will form part of the defense of the applicant to being removed from the US. The immigration judge will only accept the I-485 application after the USCIS has processed and approved the I-130. The USCIS will only approve the I-130 after evaluating the petitioner’s proof of US citizenship or LPR status and proof of the petitioner and applicant’s relationship.
The I-485 applicant during removal proceedings must show by clear and convincing evidence that he is eligible to adjust status because of his relationship to the I-130 petitioner. Clear and convincing evidence is showing that it is more likely than not that what the applicant is saying is true and real. The evidence of the applicant must outweigh the evidence of the government so that the judge will be convinced that the application for permanent residence should be granted. If he is the spouse of the petitioner, he must prove by clear and convincing evidence to the immigration judge that their marriage is genuine and not to gain a green card. Immigration judges are critical if the applicant and petitioner got married after the removal proceedings began. Hence, they must show all of the evidence they have to show that the relationship is legitimate and they want to build a life together as a married couple in the US.