Notarios, Visa Consultants, and Immigration Consultants Are Not Attorneys

Notarios, Visa Consultants, and Immigration Consultants are not Attorneys and therefore cannot represent you in immigration court or provide legal services or for that matter give legal advice.

Bonded immigration consultants in California can translate information, get copies, and file forms.

If you are seeking immigration help please note that only licensed attorneys and “accredited representatives” can represent you in immigration court, can provide legal services, and can give legal advice.

To avoid being a victim of Immigration Fraud:

• DO NOT sign applications or other papers that are blank.
• DO NOT sign applications or other papers that you do not understand.
• DO NOT sign applications or other papers that have false information.
• DO NOT pay money without getting a receipt, and be careful when people ask you to pay a lot of money for immigration help.
• DO get copies of all applications or other papers prepared or filed for you.
• DO check that an attorney or “accredited representative” can represent you in immigration court.
• DO report complaints about notarios, visa consultants, and immigration consultants to the U.S. Department of Justice.

Tougher H1-B Standards to be Imposed – Sign up for a Free Conference

We will be hosting an Informative Webinar for H-1B employers regarding recently issued USCIS guidelines about employer-employee relationship.

The webinar will be held on February 23rd at 11am ET. To register and receive the invitation to the webinar, please email us at webinar@mithraslaw.com with your name, company name, and your email address. Once we receive this information, an email will be sent out to you with detailed information on how to join the webinar.

VISA BULLETIN FOR MARCH 2010

A. STATUTORY NUMBERS

1. This bulletin summarizes the availability of immigrant numbers during March. Consular officers are required to report to the Department of State documentarily qualified applicants for numerically limited visas; the Bureau of Citizenship and Immigration Services in the Department of Homeland Security reports applicants for adjustment of status.  Allocations were made, to the extent possible under the numerical limitations, for the demand received by February 5th in the chronological order of the reported priority dates. If the demand could not be satisfied within the statutory or regulatory limits, the category or foreign state in which demand was excessive was deemed oversubscribed.  The cut-off date for an oversubscribed category is the priority date of the first applicant who could not be reached within the numerical limits.  Only applicants who have a priority date earlier than the cut-off date may be allotted a number.  Immediately that it becomes necessary during the monthly allocation process to retrogress a cut-off date, supplemental requests for numbers will be honored only if the priority date falls within the new cut-off date which has been announced in this bulletin.
   
2. Section 201 of the Immigration and Nationality Act (INA) sets an annual minimum family-sponsored preference limit of 226,000.  The worldwide level for annual employment-based preference immigrants is at least 140,000.  Section 202 prescribes that the per-country limit for preference immigrants is set at 7% of the total annual family-sponsored and employment-based preference limits, i.e., 25,620.  The dependent area limit is set at 2%, or 7,320.
   
3. Section 203 of the INA prescribes preference classes for allotment of immigrant visas as follows:
   

    

   FAMILY-SPONSORED PREFERENCES
   
   

• First:  Unmarried Sons and Daughters of Citizens:  23,400 plus any numbers not required for fourth preference.
  
• Second:  Spouses and Children, and Unmarried Sons and Daughters of Permanent Residents:  114,200, plus the number (if any) by which the worldwide family preference level exceeds 226,000, and any unused first preference numbers:
  
  • Spouses and Children:  77% of the overall second preference limitation, of which 75% are exempt from the per-country limit;
    
  • Unmarried Sons and Daughters (21 years of age or older):  23% of the overall second preference limitation.
    
• Third:  Married Sons and Daughters of Citizens:  23,400, plus any numbers not required by first and second preferences.
  
• Fourth:  Brothers and Sisters of Adult Citizens:  65,000, plus any numbers not required by first three preferences.
  

 

EMPLOYMENT-BASED PREFERENCES

• First:    Priority Workers:  28.6% of the worldwide employment-based preference level, plus any numbers not required for fourth and fifth preferences.
  
• Second:  Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability:  28.6% of the worldwide employment-based preference level, plus any numbers not required by first preference.
  
• Third:  Skilled Workers, Professionals, and Other Workers:  28.6% of the worldwide level, plus any numbers not required by first and second preferences, not more than 10,000 of which to “Other Workers”.  
  
• Fourth:  Certain Special Immigrants:  7.1% of the worldwide level.     
  
• Fifth:  Employment Creation:  7.1% of the worldwide level, not less than 3,000 of which reserved for investors in a targeted rural or high-unemployment area, and 3,000 set aside for investors in regional centers by Sec. 610 of P.L. 102-395.
  

 

1. INA Section 203(e) provides that family-sponsored and employment-based preference visas be issued to eligible immigrants in the order in which a petition in behalf of each has been filed.  Section 203(d) provides that spouses and children of preference immigrants are entitled to the same status, and the same order of consideration, if accompanying or following to join the principal.  The visa prorating provisions of Section 202(e) apply to allocations for a foreign state or dependent area when visa demand exceeds the per-country limit.  These provisions apply at present to the following oversubscribed chargeability areas:  CHINA-mainland born, INDIA, MEXICO, and PHILIPPINES.
   
2. On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see paragraph 1); “C” means current, i.e., numbers are available for all qualified applicants; and “U” means unavailable, i.e., no numbers are available.  (NOTE:  Numbers are available only for applicants whose priority date is earlier than the cut-off date listed below.):
   

Family	All Charge- ability Areas Except Those Listed	CHINA-mainland born	INDIA	MEXICO	PHILIPP-INES
1st	22JUN04	22JUN04	22JUN04	01OCT92	01MAR94
2A	01APR06	01APR06	01APR06	01JUL04	01APR06
2B	01FEB02	01FEB02	01FEB02	15JUN92	22AUG98
3rd	22MAY01	22MAY01	22MAY01	08OCT92	01MAR92
4th	15JAN00	15JAN00	15JAN00	08DEC95	01SEP87

 

*NOTE:  For March, 2A numbers EXEMPT from per-country limit are available to applicants from all countries with priority dates earlier than 01JUL04.  2A numbers SUBJECT to per-country limit are available to applicants chargeable to all countries EXCEPT MEXICO with priority dates beginning 01JUL04 and earlier than 01APR06.  (All 2A numbers provided for MEXICO are exempt from the per-country limit; there are no 2A numbers for MEXICO subject to per-country limit.)

 

	All Charge-ability Areas Except Those Listed	CHINA- mainland born	INDIA	MEXICO	PHILIP-PINES
Employment -Based
1st	C	C	C	C	C
2nd	C	08JUL05	01FEB05	C	C
3rd	15DEC02	15DEC02	01JUL01	01JUL02	15DEC02
Other Workers	01JUN01	01JUN01	01JUN01	01JUN01	01JUN01
4th	C	C	C	C	C
Certain Religious Workers	C	C	C	C	C
5th	C	C	C	C	C
Targeted Employ-ment Areas/ Regional Centers	C	C	C	C	C
5th Pilot Programs	C	C	C	C	C

 

The Department of State has available a recorded message with visa availability information which can be heard at:  (area code 202) 663-1541.  This recording will be updated in the middle of each month with information on cut-off dates for the following month.

Employment Third Preference Other Workers Category:  Section 203(e) of the NACARA, as amended by Section 1(e) of Pub. L. 105-139, provides that once the Employment Third Preference Other Worker (EW) cut-off date has reached the priority date of the latest EW petition approved prior to November 19, 1997, the 10,000 EW numbers available for a fiscal year are to be reduced by up to 5,000 annually beginning in the following fiscal year.  This reduction is to be made for as long as necessary to offset adjustments under the NACARA program.  Since the EW cut-off date reached November 19, 1997 during Fiscal Year 2001, the reduction in the EW annual limit to 5,000 began in Fiscal Year 2002.

 

B. DIVERSITY IMMIGRANT (DV) CATEGORY

Section 203(c) of the Immigration and Nationality Act provides a maximum of up to 55,000 immigrant visas each fiscal year to permit immigration opportunities for persons from countries other than the principal sources of current immigration to the United States.  The Nicaraguan and Central American Relief Act (NACARA) passed by Congress in November 1997 stipulates that beginning with DV-99, and for as long as necessary, up to 5,000 of the 55,000 annually-allocated diversity visas will be made available for use under the NACARA program.  This reduction has resulted in the DV-2010 annual limit being reduced to 50,000.  DV visas are divided among six geographic regions.  No one country can receive more than seven percent of the available diversity visas in any one year.

For March, immigrant numbers in the DV category are available to qualified DV-2010 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number:

Region	All DV Chargeability Areas Except Those Listed Separately
AFRICA	29,600	Except: Egypt: 18,000 Ethiopia: 16,950 Nigeria: 14,350
ASIA	12,000
EUROPE	24,700
NORTH AMERICA (BAHAMAS)	4
OCEANIA	880
SOUTH AMERICA, and the CARIBBEAN	985

 

Entitlement to immigrant status in the DV category lasts only through the end of the fiscal (visa) year for which the applicant is selected in the lottery.  The year of entitlement for all applicants registered for the DV-2010 program ends as of September 30, 2010.  DV visas may not be issued to DV-2010 applicants after that date.  Similarly, spouses and children accompanying or following to join DV-2010principals are only entitled to derivative DV status until September 30, 2010.  DV visa availability through the very end of FY-2010 cannot be taken for granted.  Numbers could be exhausted prior to September 30.

C. ADVANCE NOTIFICATION OF THE DIVERSITY (DV) IMMIGRANT CATEGORY RANK CUT-OFFS WHICH WILL APPLY IN APRIL

For April, immigrant numbers in the DV category are available to qualified DV-2010 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number:

Region	All DV Chargeability Areas Except Those Listed Separately
AFRICA	31,700	Except: Egypt: 20,800 Ethiopia: 19,300 Nigeria: 14,600
ASIA	13,600
EUROPE	26,300
NORTH AMERICA (BAHAMAS)	4
OCEANIA	1,000
SOUTH AMERICA, and the CARIBBEAN	1,000

Stricter H-1B Evidence Requirements and Eligibility Standards to be Imposed

The U.S. Citizenship and Immigration Services (USCIS) through a recent memo has issued guidance and clarification as to what constitutes a valid employer-employee relationship to qualify for the H-1B ’specialty occupation’ classification. The memo also discusses the type of evidence H-1B petitioners may have to provide to establish that an employer-employee relationship exists and will continue to exist with the beneficiary throughout the duration of the requested H-1B validity period.

Although the new USCIS guidance does not change any of the requirements for an H-1B petition, it establishes enhanced evidence requirements on employers who will be filing H-1B petitions. This means employers will be required to provide more detailed documentation than before. The employer petitioning for an H-1B visa will not only have to show that a valid employer-employee relationship exists between itself and the employee but will continue to comply with all the requirements for an H-1B petition including:

• Establishing that the beneficiary is coming to the United States temporarily to work in a specialty occupation;
  
• Demonstrating that the beneficiary is qualified to perform services in the specialty occupation; and 
  
• Filing of a Labor Condition Application (LCA) specific to each location where the beneficiary will perform services.
  

So for instance, if you are an employer who will be employing an H-1B visa holder to perform services in more than one work location, you will have to submit a complete itinerary of services or engagements as well as file an LCA specific to each work location for the H-1B visa holder

The guidance also means that H-1B petitions for independent contractors, third-party placements and self-employed workers may not qualify for the H-1B classification if the employer is not able to show that an employer-employee relationship exists and it has a right of control. Instances of demonstrating control over the employee include the employer’s ability to show it has control over that H-1B visa holder’s assignment, daily tasks, and progressive reviews.

As a result of the guidance offered by USCIS, employer can expect to see an increase in documentation required as part of new, transfers and extensions of H-1B petitions.

We will continue to monitor the effect of the new guidance memo so please check the blog for updates. We will be holding an informative teleconference for employers, HR managers, or employment representatives of companies, on February 23^rd 11 a.m. EST where we will review the new memo and the new documentation requirements. Please visit our website: www.mithraslaw.com to sign up.

Zeituni Onyango, President Obama’s Aunt Second Asylum Hearing Today

Onyango, 57, who is the Kenyan half-sister of Obama’s late father, has been living in Boston illegally since being ordered deported in 2004. Last year Onyango was granted a temporary stay to remain in the country by U.S. Immigration Judge Leonard I. Shapiro and he agreed to reopen her case.

Today, Onyango gets a second chance to make her case for political asylum before Judge Shapiro in Boston. The Burden is on Onyango, as an asylum seeker, to prove a well-founded feear of persecution in her home country of Kenya.

Our Attorney, Hanishi Ali, was referenced by AP reporter Denise Lavoie, for the full AP article please see: http://hosted2.ap.org/APDEFAULT/8ef5320729ce4298abefc1903704c7d5/Article_2010-02-03-US-Obama-Aunt/id-p6d30e5816eb24c7da71e78c5fb9c8ab1

Know the Effects of Divorce or Separation on your Immigration Status

This article provides basic information about the effects of divorce or legal separation on one’s immigration status where a foreigner marries a US citizen (USC) or a legal permanent resident (LPR) and is given an immigrant benefit because of the marriage. Where a couple is contemplating divorce or separation, it is important for the foreign spouse to understand the impact a divorce or separation can have on his or her immigration status. It should also be pointed out that marriage to a USC does not automatically confer any type of immigration status on the foreign spouse.

Divorce decree obtained before Green Card:

Where a foreign spouse is attempting to obtain permanent residency through the sponsorship of his or her USC spouse or LPR spouse as a result of marriage to him or her and a divorce decree is granted before the foreign spouse has obtained a green card, then the foreign spouse cannot be granted the green card because the divorce has ended the legal marriage and the foreign spouse cannot be granted the green card based on marriage.

The same is true, where a divorce takes place prior to the adjustment approval, typically, the foreign spouse almost always finds himself or herself out of status, unless he or she maintained (typically L-1 or H-1B) non-immigrant status.

Divorce granted after foreign spouse receives Green Card:

1. Where a divorce is granted after the foreign spouse obtains a green card (now called an immigrant spouse), the effect of a divorce is minimal and it does not change/ invalidate a granted green card where the immigrant spouse has been married to the USC for three years or more and has received an unconditional green card. However, the foreign spouse may have to wait 5 years (instead of being able to take advantage of the 3 year residency requirement where married to a USC) to apply for naturalization.
   
2. Where a foreign spouse is married to the USC for a short time (two years or less) and a conditional green card has been granted, the implication is very different. The conditional permanent residence status is typically granted for two years and to attain full permanent resident status, the conditional resident must file a petition within the 90 day period with the USCIS before the conditional residency expires and this petition needs to be signed jointly by the USC spouse. At that time, if the spouses are still married, the immigrant spouse will receive a full permanent residence. Conversely, if a divorce decree has been obtained than the immigrant spouse’s conditional permanent resident status can be terminated and s/he can lose his/her immigrant status  because divorce terminates the conditional permanent residency granted.  In certain circumstances, a waiver can be granted. For instance, if the marriage was based on good faith and the couple  have a child together or own property jointly, then it is possible for the foreign spouse to obtain a waiver.
   

Separation:

Separation can mean either legal separation or physical separation. Physical separation i.e. spouses living apart, in general does not in itself constitute termination of the marriage for immigration purposes and a petition may not be denied merely because the couple cohabits separately.  Legal separation, on the other hand, is a court order or a written agreement directing or authorizing the spouses to live separate and apart. Legal separation can constitute termination of marriage for immigration purposes and the USCIS may deny a green card in cases where the parties entered into a valid marriage, but have since obtained a legal separation prior to the final adjudication of the green-card.

If any of the above described situations is applicable to you or whether you are contemplating separation or divorce, it is recommended that you discuss your circumstances with an experienced immigration attorney who can help you understand the implications and guide you about your best options.

VISA BULLETIN FOR FEBRUARY 2010

A. STATUTORY NUMBERS

1. This bulletin summarizes the availability of immigrant numbers during February. Consular officers are required to report to the Department of State documentarily qualified applicants for numerically limited visas; the Bureau of Citizenship and Immigration Services in the Department of Homeland Security reports applicants for adjustment of status. Allocations were made, to the extent possible under the numerical limitations, for the demand received by January 8th in the chronological order of the reported priority dates. If the demand could not be satisfied within the statutory or regulatory limits, the category or foreign state in which demand was excessive was deemed oversubscribed. The cut-off date for an oversubscribed category is the priority date of the first applicant who could not be reached within the numerical limits.

Only applicants who have a priority date earlier than the cut-off date may be allotted a number. Immediately that it becomes necessary during the monthly allocation process to retrogress a cut-off date, supplemental requests for numbers will be honored only if the priority date falls within the new cut-off date which has been announced in this bulletin.

2. Section 201 of the Immigration and Nationality Act (INA) sets an annual minimum family-sponsored preference limit of 226,000. The worldwide level for annual employment-based preference immigrants is at least 140,000. Section 202 prescribes that the per-country limit for preference immigrants is set at 7% of the total annual family-sponsored and employment-based preference limits, i.e., 25,620. The dependent area limit is set at 2%, or 7,320.

3. Section 203 of the INA prescribes preference classes for allotment of immigrant visas as follows:

FAMILY-SPONSORED PREFERENCES

First: Unmarried Sons and Daughters of Citizens: 23,400 plus any numbers not required for fourth preference.

Second: Spouses and Children, and Unmarried Sons and Daughters of Permanent
Residents: 114,200, plus the number (if any) by which the worldwide family preference level exceeds 226,000, and any unused first preference numbers:

A. Spouses and Children: 77% of the overall second preference limitation,
of which 75% are exempt from the per-country limit;

B. Unmarried Sons and Daughters (21 years of age or older): 23% of the overall second preference limitation.

Third: Married Sons and Daughters of Citizens: 23,400, plus any numbers not required by first and second preferences.

Fourth: Brothers and Sisters of Adult Citizens: 65,000, plus any numbers not required by first three preferences.

EMPLOYMENT-BASED PREFERENCES

First: Priority Workers: 28.6% of the worldwide employment-based
preference level, plus any numbers not required for fourth and fifth preferences.

Second: Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability: 28.6% of the worldwide employment-based preference
level, plus any numbers not required by first preference.

Third: Skilled Workers, Professionals, and Other Workers: 28.6% of the worldwide level, plus any numbers not required by first and second
preferences, not more than 10,000 of which to “Other Workers”.

Fourth: Certain Special Immigrants: 7.1% of the worldwide level.

Fifth: Employment Creation: 7.1% of the worldwide level, not less than 3,000 of which reserved for investors in a targeted rural or high-unemployment area, and 3,000 set aside for investors in regional centers by Sec. 610 of P.L. 102-395.

4. INA Section 203(e) provides that family-sponsored and employment-based preference visas be issued to eligible immigrants in the order in which a petition in behalf of each has been filed. Section 203(d) provides that spouses and children of preference immigrants are entitled to the same status, and the same order of consideration, if accompanying or following to join the principal. The visa prorating provisions of Section 202(e) apply to allocations for a foreign state or dependent area when visa demand exceeds the per-country limit. These provisions apply at present to the following oversubscribed chargeability areas: CHINA-mainland born, INDIA, MEXICO, and PHILIPPINES.

5. On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see paragraph 1); “C” means current, i.e., numbers are available for all qualified applicants; and “U” means unavailable, i.e., no numbers are available. (NOTE: Numbers are available only for applicants whose priority date is earlier than the cut-off date listed below.)

Fam-ily	All Charge- ability Areas Except Those Listed	CHINA-mainland born	INDIA	MEXICO	PHILIPPINES
1st	01JUN04	01JUN04	01JUN04	08SEP92	01JAN94
2A	01MAR06	01MAR06	01MAR06	01MAR04	01MAR06
2B	01JAN02	01JAN02	01JAN02	08JUN92	15JUL98
3rd	22MAY01	22MAY01	22MAY01	22SEP92	01JAN92
4th	15NOV99	15NOV99	15NOV99	01DEC95	01JUL87

*NOTE: For February, 2A numbers EXEMPT from per-country limit are available to applicants from all countries with priority dates earlier than 01MAR04. 2A numbers SUBJECT to per-country limit are available to applicants chargeable to all countries EXCEPT MEXICO with priority dates beginning 01MAR04 and earlier than 01MAR06. (All 2A numbers provided for MEXICO are exempt from the per-country limit; there are no 2A numbers for MEXICO subject to per-country limit.)

	All Charge-ability Areas Except Those Listed	CHINA- mainland born	INDIA	MEXICO	PHILIPPINES
Employm-ent Based
1st	C	C	C	C	C
2nd	C	22MAY05	22JAN05	C	C
3rd	22SEP02	22SEP02	22JUN01	01JUL02	22SEP02
Other Workers	01JUN01	01JUN01	01JUN01	01JUN01	01JUN01
4th	C	C	C	C	C
Certain Religious Workers	C	C	C	C	C
5th	C	C	C	C	C
Targeted Employment Areas/ Regional Centers	C	C	C	C	C
5th Pilot Programs	C	C	C	C	C

The Department of State has available a recorded message with visa availability information which can be heard at: (area code 202) 663-1541. This recording will be updated in the middle of each month with information on cut-off dates for the following month.

Employment Third Preference Other Workers Category: Section 203(e) of the NACARA, as amended by Section 1(e) of Pub. L. 105-139, provides that once the Employment Third Preference Other Worker (EW) cut-off date has reached the priority date of the latest EW petition approved prior to November 19, 1997, the 10,000 EW numbers available for a fiscal year are to be reduced by up to 5,000 annually beginning in the following fiscal year. This reduction is to be made for as long as necessary to offset adjustments under the NACARA program. Since the EW cut-off date reached November 19, 1997 during Fiscal Year 2001, the reduction in the EW annual limit to 5,000 began in Fiscal Year 2002.

B. DIVERSITY IMMIGRANT (DV) CATEGORY

Section 203(c) of the Immigration and Nationality Act provides a maximum of up to 55,000 immigrant visas each fiscal year to permit immigration opportunities for persons from countries other than the principal sources of current immigration to the United States. The Nicaraguan and Central American Relief Act (NACARA) passed by Congress in November 1997 stipulates that beginning with DV-99, and for as long as necessary, up to 5,000 of the 55,000 annually-allocated diversity visas will be made available for use under the NACARA program. This reduction has resulted in the DV-2010 annual limit being reduced to 50,000. DV visas are divided among six geographic regions. No one country can receive more than seven percent of the available diversity visas in any one year.

For February, immigrant numbers in the DV category are available to qualified DV-2010 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number:

Region	All DV Chargeability Areas Except Those Listed Separately
AFRICA	27,500	Except: Egypt: 15,600 Ethiopia: 14,700 Nigeria: 14,000
ASIA	10,550
EUROPE	22,400
NORTH AMERICA (BAHAMAS)	4
OCEANIA	870
SOUTH AMERICA, and the CARIBBEAN	950

Entitlement to immigrant status in the DV category lasts only through the end of the fiscal (visa) year for which the applicant is selected in the lottery. The year of entitlement for all applicants registered for the DV-2010 program ends as of September 30, 2010. DV visas may not be issued to DV-2010 applicants after that date. Similarly, spouses and children accompanying or following to join DV-2010principals are only entitled to derivative DV status until September 30, 2010. DV visa availability through the very end of FY-2010 cannot be taken for granted. Numbers could be exhausted prior to September 30.

C. ADVANCE NOTIFICATION OF THE DIVERSITY (DV) IMMIGRANT CATEGORY RANK CUT-OFFS WHICH WILL APPLY IN MARCH

For March, immigrant numbers in the DV category are available to qualified DV-2010 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number:

Region	All DV Chargeability Areas Except Those Listed Separately
AFRICA	29,600	Except: Egypt: 18,000 Ethiopia: 16,950 Nigeria: 14,350
ASIA	12,000
EUROPE	24,700
NORTH AMERICA (BAHAMAS)	4
OCEANIA	880
SOUTH AMERICA, and the CARIBBEAN	985

Is a Green-card Holder Spouse’s Right to Obtain Citizenship after a Divorce Jeopardized?

This article provides basic information about how a divorce can affect a spouse’s citizenship or naturalization application where a green-card holder spouse (an immigrant spouse),  marries a US citizen (USC) and has received his/her green card/permanent residency through marriage. So where an immigrant spouse is contemplating divorce or has obtained a divorce decree it is important to understand the consequences of  a divorce on a naturalization/citizenship application.

Assuming, that the marriage was not a sham or for fraudulent purposes, divorce does not adversely affect a spouse’s immigration status after the immigrant spouse has obtained an unconditional green card or permanent residence and in such instances a divorce will not invalidate the green card or cause the U.S. Citizenship and Immigration Services (USCIS) to deny a citizenship application automatically. More importantly, the sponsoring USC spouse cannot take the right away or attempt to revoke the green card from the immigrant spouse.

A divorce, however, may pose doubts and require the divorced immigrant spouse seeking to obtain U.S. Citizenship to reassure the USCIS interviewing officer that the marriage was not a sham. A good way to prove that your marriage was genuine is to take copies and originals of documents that show that you and your ex-spouse lived together, had joint bank accounts, and shared important and memorable moments during your time together. Examples of documents include, home title or rent receipts or home lease in both names, joint bank account statements, credit card statements, photographs of both spouses on vacation, birth certificates of children born during the marriage, etc.

Also, a divorce can delay an immigrant spouse’s right to obtain citizenship. For instance, a divorced immigrant spouse who was married to a U.S. citizen will not be able to take advantage of the short three year residency requirement, if the spouse is not married to the U.S. citizen for at least three years before the naturalization exam date. In essence, if the immigrant spouse divorces the U.S. citizen spouse before three years of marriage have passed, then s/he will have to wait until the normal five year residency requirement has elapsed before s/he is eligible to apply to become a naturalized U.S. Citizen and cannot take advantage of the three year residency requirement.

Depending on each individual’s personal circumstances, the immigration consequences can be varied and it is therefore recommended that you consult with a qualified immigration attorney to discuss your options and strategize before making a hasty decision.

Next month, I will address the implications of a divorce where a spouse has not yet obtained a green card or is in process of obtaining a green card, as a result of the marriage, and instances where a spouse has a conditional green card.

Reproduced from Lokvani where the article written by our attorney, Hanishi T. Ali, was originally published http://www.lokvani.com/lokvani/article.php?article_id=6239

Visiting India as a Foreign National – Know the Registration Requirements:

Who should register?

All foreigners including foreigners of Indian origin visiting India on long term (more than 180 days) are required to get themselves registered with concerned Registration Officer within 14 days of his/her first arrival, irrespective of the duration of their stay.

These categories include:

a. Student visa(S) (including those coming for study of Yoga, Vedic Culture, Indian system of dance and Music),
b. Research Visa(R)
c. Employment Visa(E)
d. Medical(M)
e. Medical Attendant(MX) and
f. Missionary Visa (M)

Foreigners visiting India on other categories of long term visa including business/Entry(X) visa would not require registration with the concerned FRROs/FROs if , repeat if duration of his/her stay does not exceed 180 days on a single visit. In case a foreigner intends to stay for more than 180 days on a single visit he should get himself registered well before the expiry of 180 days.

It should be noted that Pakistan Nationals are required to register within 24 hours and Afghanistan Nationals are required to register within 7 days of their arrival in India.

Registration Facilities:

Registration facilities are not provided at the airport and are carried out in the office of FRROs or District Superintendents of Police (FROs).

No registration required for:

Children below 16 years of age do not require registration, on any type of visa.

New modification to long term tourist visas:

Foreign nationals , who are already holding long term tourist visas for 10/5 years with stay stipulation of 180 days/90 days and with multiple entry facility, there should be gap of at least 2 months between two visits to the country on tourist visa.

11 New Countries Added to the H-2 Visa Programs

The Department of Homeland Security (DHS) has issued a notice identifying 39 countries whose nationals are eligible to participate in the H–2A and H–2B programs for the coming year. The H-2A and H-2B non-immigrant visa programs, allows U.S. employers to bring foreign nationals to the United States to fill temporary or seasonal jobs for which U.S. workers are not available

Department of Homeland Security Secretary Janet Napolitano has recently designated 11 new countries as eligible to participate in the H-2A and H-2B non-immigrant visa programs. These new countries are:

Croatia, Ecuador, Ethiopia, Ireland, Lithuania, The Netherlands, Nicaragua, Norway, Serbia, Slovakia and Uruguay, which join 28 countries previously designated as eligible to participate in these programs.

It should be noted that the initial lists of participating countries for the H-2A and H-2B programs—published in December 2008—expired on January and that this notice does not affect the status of aliens who currently hold H-2A or H-2B non-immigrant status.

Now the following 39 countries are eligible to participate in the H-2A and H-2B visa programs:

Argentina, Australia, Belize, Brazil, Bulgaria, Canada, Chile, Costa Rica, Croatia, Dominican Republic, Ecuador, El Salvador, Ethiopia, Guatemala, Honduras, Indonesia, Ireland, Israel, Jamaica, Japan, Lithuania, Mexico, Moldova, The Netherlands, Nicaragua, New Zealand, Norway, Peru, Philippines, Poland, Romania, Serbia, Slovakia, South Africa, South Korea, Turkey, Ukraine, United Kingdom, Uruguay.

DHS has also said that it may allow a worker from a country not on the participating country list to be eligible for the H- 2A or H-2B program if such participation is in the interest of the United States.