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

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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

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Written by MithrasLaw

January 29, 2010 at 10:21 am

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

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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.

Written by MithrasLaw

January 28, 2010 at 10:30 am

The Social Security Administration’s Policy on SSN Issuance for United States Citizen children Born to Undocumented Parents

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The Social Security Administration (SSA) clarified its policy to the American Immigration Lawyers Association on issuance of social security cards (SSN) to United States citizen (USC) children born to undocumented parents.

Q: Are SSNs issued automatically to USC children born in US hospitals?
A: Yes, if the parents choose Enumeration at Birth (EAB), which is a request made while mother and newborn are in the hospital.

Q: Are there any restrictions on undocumented parents requesting or receiving SSNs or SSN cards for their USC children?
A: If the SSN is requested through Enumeration at Birth (EAB) then there are no restrictions.

Q: What happens if a USC newborn is issued an SSN through Enumeration at Birth but the SSN Card is lost or misplaced?
A: A replacement SSN card can be issued but only a relative with acceptable evidence of identity can apply for a replacement card on behalf of the USC child.

Q: Can a non-citizen parent without valid status apply for an SSN for his/her USC newborn outside an Enumeration at Birth request?
A: No. A person filing an application on behalf of a numberholder or someone entitled to be a numberholder must submit the same types of identification documents required for the numberholder. For non-citizens, U.S. immigration documents are the only acceptable type of identification document, unless the applicant meets the requirements to be issued a non-work-authorized SSN. Foreign passports are not acceptable unless they contain current immigration entries, such as an I-94 or a stamp or visa indicating it is temporary evidence of permanent resident status.

Q: If Enumeration at Birth (EAB) was not utilized, what options are there for SSA to issue SSN and card to USC child if the parents are undocumented?
A: Another relative, who is able to submit documents SSA accepts, could apply, or the child can apply once he or she is old enough to sign his or her name (no age limits apply).

Written by MithrasLaw

January 20, 2010 at 3:17 pm

Temporary Protected Status Granted to Haitian Nationals Present in the US

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Department of Homeland Security Secretary, Janet Napolitano, has announced the designation of Temporary Protected Status (TPS) for Hatian nationals who were in the United States as of January 12, 2010.  The DHs has issued a statment that this is a historic disaster and TPS will allow eligible Hatian nationals who are currently in the United States to continue living and working in our country for the next 18 months. 

TPS designation will protect Hatians who would otherwise be endangered by returning home. It should be noted that TPS will apply only to those individuals who were in the United States as of January 12, 2010. Those who attempt to travel to the United States after January 12, 2010 will not be eligible for TPS and will be repatriated.

Haitians in the U.S. who are eligible to apply for TPS can go to http://www.uscis.gov/ or call USCIS toll-free at (800) 375-5283 to claim TPS status.

Is the O Visa for Extra-Ordinary Ability For You?

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Are you one of the top people in your field or have you won a major international award or have you received national or international acclaim and recognition in your field of work?

If so, you may qualify for an O visa.

O visas are issued to non-immigrants with extra-ordinary ability in the sciences, arts, education, business, or athletics.

No Numerical Cap:
Although there is no numerical cap on the annual admissions of these non-immigrants, O visas require that its visa holders must intend to work in the area of extra-ordinary ability claimed.

No Limit on Duration of Stay:
Another advantage of the O visa is that there is no explicit statutory limitation on the period of stay for O visa holders. An initial period of stay can be approved for 3 years and extensions of stay for an O-1 visa holder can be granted in increments of 1 year.

Pending GC application is OK:
An O visa holder can have a green card application pending while on an O-1 status and the O-1 beneficiary does not need to show that s/he is maintaining a residence abroad to which s/he intends to return.

Free-lancing is not allowed:
An O visa holder can only be admitted to perform services in “specific, identified events, performances, competitions, or engagements” and an O-visa holder cannot enter the United States to free lance.

Application process:
The procedure for an O visa is in three steps:
(1) An O beneficiary cannot petition for himself and an employer, manager or agent is required to sign the application form and generally, a petition can be approved only after the employer, manager, or agent consults with a peer group, management organization, or labor organization, who attests that they have no objection to the applicant being granted an O visa.
(2) An approval by the USCIS of an O petition supported by the above mentioned advisory opinion from an employer, manager, or agent.
(3) Issuance by a U.S. Consulate of an O visa based on the approved petition.
If you are not sure whether you qualify for an O visa or if you need additional guidance, feel free to contact our office.

Reproduced from E-sandesh, where our attorney, Hanishi Ali’s article was published: http://iswonline.org/iswSite2/index.php?option=com_content&view=article&id=232:is-the-o-visa-for-extra-ordinary-ability-for-you&catid=95:community-orgs&Itemid=200

Written by MithrasLaw

December 17, 2009 at 4:32 pm

Posted in Uncategorized

AAO Processing Times as of November 1, 2009

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Case Type Time
I – 129F Petition for Fiancée 2 Months*
I – 129 H1B Nonimmigrant Specialty Occupation Worker 13 Months
I – 129 H2 Temporary Nonimmigrant Worker 6 Months*
I – 129 H3 Temporary Nonimmigrant Worker 6 Months*
I – 129 L Nonimmigrant Intracompany Transferee 8 Months
I – 129 O Nonimmigrant Extraordinary Ability Worker 2 Months*
I – 129 P1, P2, P3 Athletes, Artists and Entertainers 6 Months*
I – 129 Q Cultural Exchange Visitor 6 Months*
I – 129 R N/I Religious Worker 5 Months*
I – 131 Application for Travel Document 3 Months*
I – 140 EB1 (A) ‐ Alien with Extraordinary Ability 5 Months
I – 140 EB1 (B) ‐ Outstanding Professor or Researcher 5 Months*
I – 140 EB1 (C) ‐ Multinational Manager or Executive 10 Months
I – 140 EB2 (D) – Advanced Degree Professional 27 Months
I – 140 EB2 (I) – National Interest Waiver 6 Months*
I – 140 EB3 (E) – Skilled or Professional Worker 23 Months
I – 140 EB3 (G) – Other Worker 22 Months
I – 212 Application to Reapply for Admission 2 Months*
I – 360 EB4 Petition for Religious Worker 5 Months*
I – 360 C Special Immigrant Juvenile 2 Months*
I – 360 VAWA Violence Against Women Act Petition 4 Months*
I – 485 Cuban Adjustment Act Application 5 Months*
I – 485 LIFE Act Adjustment Application 6 Months*
I – 485 Section 13 Adjustment Application 4 Months*
I – 526 EB5 Alien Entrepreneur 5 Months*
I – 600 Petition for Orphan 2 Months*
I – 601 Application for Waiver of Inadmissibility 26 Months
I – 612 Application for 212(e) Waiver 2 Months*
I – 687 Legalization Application for Temporary Residence 18 Months
I – 690 Legalization/SAW – Waive Grounds of Excludability 2 Months*
I – 698 Legalization Adjustment Application 2 Months*
I – 700 Special Agricultural Worker 2 Months*
I – 821 Temporary Protected Status 4 Months*
I – 905 Application to Issue Cert for Health Care Workers 2 Months*
I – 914 Application for T Nonimmigrant Status 2 Months*
I – 918 Petition for U Nonimmigrant Status 2 Months*
N – 470 Application to Preserve Residence 4 Months*
N – 565 Replacement Naturalization/Citizenship Doc 4 Months*
N – 600 Certificate of Citizenship 4 Months*
N – 643 Certificate of Citizenship for Adopted Child 2 Months*


* Within current USCIS processing time goal of six months or less

Written by MithrasLaw

November 6, 2009 at 4:12 pm

State Department Visa Bulletin November 2009

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VISA BULLETIN NOVEMBER 2009

A. STATUTORY NUMBERS

1. This bulletin summarizes the availability of immigrant numbers during November. 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 October 9th 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 PHILIPP-INES
1st 15OCT03 15OCT03 15OCT03 08JUL92 22OCT93
2A 15AUG05 15AUG05 15AUG05 15JUN03 15AUG05
2B 01OCT01 01OCT01 01OCT01 01JUN92 15MAY98
3rd 01MAR01 01MAR01 01MAR01 01MAY92 22OCT91
4th 15JUN99 15JUN99 15JUN99 08NOV95 15JAN87

*NOTE: For November, 2A numbers EXEMPT from per-country limit are available to applicants from all countries with priority dates earlier than 15JUN03. 2A numbers SUBJECT to per-country limit are available to applicants chargeable to all countries EXCEPT MEXICO with priority dates beginning 15JUN03 and earlier than 15AUG05. (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
Employ-ment -Based          
1st C C C C C
2nd C 01APR05 22JAN05 C C
3rd 01JUN02 01JUN02 22APR01 01JUN02 01JUN02
Other Workers 01JUN01 01JUN01 22APR01 01JUN01 01JUN01
4th C C C C C
Certain Religious Workers U U U U U
5th C C C C C
Targeted Employ-ment Areas/ Regional Centers C C C C C
5th Pilot Programs U U U U U

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 November, 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 14,000 Except:
Egypt: 6,200
Ethiopia: 6,700
Nigeria: 8,700
ASIA 7,200  
EUROPE 9,500  
NORTH AMERICA (BAHAMAS) 2  
OCEANIA 475  
SOUTH AMERICA, and the CARIBBEAN 575  

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-2010 principals 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 DECEMBER

For December, 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 17,800 Except:
Egypt: 9,100
Ethiopia: 9,000
Nigeria: 10,400
ASIA 8,250  
EUROPE 12,400  
NORTH AMERICA (BAHAMAS) 3  
OCEANIA 675  
SOUTH AMERICA, and the CARIBBEAN 725  

D. EXPIRATION OF TWO EMPLOYMENT VISA CATEGORIES

Employment Fourth Preference Certain Religious Workers: Pursuant to Section 133 of Division B of Public Law 111-68, the non-minister special immigrant program expires on October 30, 2009. No SR-1, SR-2, or SR-3 visas may be issued overseas on or after October 30, 2009. Visas issued prior to this date may only be issued with a validity date of October 30, 2009, and all individuals seeking admission as a non-minister special immigrant must be admitted (repeat, admitted) into the U.S. no later than midnight October 30, 2009.

Employment Fifth Preference Pilot Categories (I5, R5): Pursuant to Section 130 of Division B of Public Law 111-68, extended this immigrant investor pilot program through October 30, 2009. The I5 and R5 visas may be issued until close of business on October 30, 2009, and may be issued for the full validity period. No I5-1, I5-2, I5-3, R5-1, R5-2 or R5-3 visas may be issued after October 30, 2009.

The cut-off dates for the categories mentioned above have been listed as “Unavailable” for November. If there is legislative action extending one or both of these categories for FY-2010, those cut-off dates would become “Current” for November.

E. EMPLOYMENT PREFERENCE VISA AVAILABILITY

The receipt of demand from Citizenship and Immigration Services Offices has far exceeded their earlier indications of cases eligible for immediate processing. As a result, it has been necessary to hold most of the Employment cut-off dates for November. At this time, it is not possible to provide any estimates regarding future cut-off date movements.

Written by MithrasLaw

November 6, 2009 at 3:59 pm

Posted in Uncategorized, Visa Bulletin

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