Author Archives: 13567227

Whistleblower Complaint Leads to Investigation of ICE Forced Sterilization Claims

Lasalle Corrections’ Website Boasts of Offering a Broad Spectrum of Correctional Services, Which Allegedly, May Include Ethnic Cleansing through Forced Sterilization

Recently, Project South along a coalition of other nonprofit organizations filed a whistleblower complaint on behalf of former ICDC nurse, Dawn Wooten, alleging that  Irwin County Detention Center, situated an hour south of Atlanta in Ocilla, Georgia, is conscripting detained immigrant women to undergo what are often unnecessary and/or non-consensual hysterectomies. Some of the women are of child-bearing age and are now sterilized due to non-voluntary participation in an irreversible procedure.

Unfortunately, while shocking, this practice of the forced sterilization of non-white women has deep roots in this country. Historically, women of color were the target of forced or coerced sterilization, with proponents reasoning that such extreme measures were necessary in order to slowly and permanently eradicate what Justice Oliver Wendell Homles, Jr. deemed as “those who are manifestly unfit from continuing their kind.”  In Buck v. Bell (1927), a Supreme court case upholding a Virginia law that authorized forced, non-consensual sterilization, Justice Oliver Wendell Holmes, Jr. perfectly encapsulated the pervasive ethos of racial supremacy when he stated: “It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes. Jacobson v. Massachusetts, 197 U. S. 11, 25 S. Ct. 358, 49 L. Ed. 643, 3 Ann. Cas. 765. Three generations of imbeciles are enough.”

The New York Times is now confirming these reports with interviews with 16 of the female victims, all performed by the same doctor in the nearby town of Douglas, Georgia. The Times reported that at least one lawyer brought complaints about the gynecological care to officials at the Irwin County Detention Center in Ocilla, Georgia. After additional review of the medical files by physcians, the Times reported that “Dr. Amin seemed to consistently recommend surgical intervention, even when it did not seem medically necessary at the time and nonsurgical treatment options were available.” The same doctor was also named in a civil case from 2013 that alleged he had overbilled Medicare and Medicaid by “performing unnecessary procedures on terminal patients and leaving the emergency room staffed by nurses while billing for diagnoses and treatments as if they had been performed by doctors.”

I have written many times about the inhumane practices at private prisons, funded by taxpayer money, our money, whose main objective is reducing costs to maximize profits.

No one is advocating that these detainees are housed at the Ritz, but at the very least we can all agree that their treatment be humane. They crossed the border without authorization, a crime akin to reckless driving, which after a statutory period becomes a civil offense. Some of the detainees have bona fide asylum claims. These individuals made a long dangerous journey to come to America, escaping inexplicable conditions in their home country because of their ideal that America embodies just and benevolent principles. This is not a political issue, this is a human issue. There are many who have touted the value of life as per their religious beliefs in support of certain policies. It is now time for you to speak, requesting a thorough investigation of these charges given the horrifying nature of the allegations.

Read the whistleblower complaint and then sign the petition: Stand against the Forced Sterilization of Immigrants detained in the Irwin County Detention Center (ICDC) and demand an investigation. You can also contact your elected representatives to ask them to prioritize medical care and humane treatment of detained immigrants. 

This is not a political issue, this is a human issue.

Congress Passes Bill Expanding Premium Processing (& Increasing the Cost)

Congress Passes Bill Expanding Premium Processing (& Increasing the Cost)

Legislators expanded Premium Processing to new benefit types in a Continuing Resolution (CR) passed by the House and Senate. When signed into law by the President, the resolution will prevent a shutdown and fund the federal government through December 11, 2020. Included in the bill was the “Emergency Stopgap USCIS Stabilization Act” that boosts USCIS by increasing premium processing revenues. Premium processing allows certain individuals and companies to pay an optional fee for expedited processing for select petitions and applications. The fee is currently set at $1,440 and guarantees action within 15 days or the fee is returned and the case continues to be processed expeditiously. Premium Processing is available only to Form I-129 and certain Form I-140s at this time.

If signed into law, the bill will increase the fee from $1,440 to $2,500 for most case types and would also expand premium processing to new petitions and applications. The revenues may be used by USCIS to improve adjudication and naturalization services and reduce backlogs, including delays for non-premium applicants. Previously, collected fees were only to be used to fund premium processing operations and infrastructure improvements. The bill states premium processing must be made available to the following additional immigration benefits:

  • employment-based nonimmigrant petitions not already subject to premium processing;
  • certain employment-based green card petitions (EB-1, EB-2, and EB-3) not already subject to premium processing;
  • applications to change or extend nonimmigrant status;
  • applications for employment authorization; and
  • other immigration benefit requests as USCIS deems appropriate.

The new fees and timeframes would be set through the Department of Homeland Security rulemaking. The bill will also allow biennial adjustments of premium fees to account for inflation.

The bill also confirms that premium processing requestors have direct and reliable access to their current case status information and the ability to communicate with the premium processing service units. USCIS may only suspend premium processing if circumstances prevent the completion of a “significant number” of premium requests within the required 15-day timeframe.

The bill would also allow USCIS to set premium fees for new benefit types without rulemaking if the fees do not exceed the below guidelines:

Benefit Type Fees Processing Times
EB-1 petitions for multinational executives and managers $2,500 45 days
EB-2 petitions involving National Interest Waiver (NIW) $2,500 45 days
Change of Nonimmigrant Status to F (academic student), J (exchange visitor), or M (vocational student) $1,750 30 days
Applications to Change or Extend Status as a dependent of an E (treaty trader or investor); H (temporary worker), L (intracompany transferee), O (extraordinary ability), P (artist or athlete), or R (religious worker $1,750 30 days
Applications for Employment Authorization $1,500 30 days

The bill also requires USCIS to develop a 5-year plan to implement:

  • electronic filing procedures for all benefit requests,
  • accept electronic payments,
  • correspond with benefit requestors electronically (including decisions, requests for evidence, and notices of intent to deny)
  • reduce processing timeframes for all immigration and naturalization benefit requests.

The agency will be required to conduct semi-annual briefings to the appropriate congressional committees.

Since this bill is intended to be an emergency stopgap to stabilize the USCIS budget, there may be an accelerated implementation timeline. Save $1,040 and check to see if your employment-based case is eligible for a premium processing upgrade. Contact us at info@challalaw.com to get started.

Additional Resources

Join us on Wednesdays for a live webinar at 12 PM ET on critical immigration updates

Don’t miss out on the immigration news! You can sign up for our mailing list or follow us on FacebookTwitterInstagramYouTube, or LinkedIn.

Contact us at info@challalaw.com or 804-360-8482 to get your case started today.

USCIS Fee Rule Postponed by Court Order

Injunction Leaves USCIS Claiming Underfunding by “Millions Each Business Day”

USCIS fees were scheduled to increase on October 2, 2020 for many immigration and naturalization benefit requests with the agency citing rising costs for processing the requests. USCIS had also been planning to furlough two-thirds of the workforce in August and pointed to declining revenues due to COVID-related closures and lower filing volumes. Although the furloughs were canceled, some categories are already suffering from delays and the earlier shutdown of a printing facility led to backlogs for green cards and EADs. Lawmakers also discovered that many Kansas City contractors were furloughed despite the formal announcement stating there would be no employment reductions.

The fee rule was to allow the agency to remain in operation without additional furloughs or reductions in service. On September 29, the U.S. District Court for the Northern District of California issued a nationwide preliminary injunction enjoining the fee increases for citizenship and other immigration benefits. U.S. Citizenship and Immigration Services Deputy Director of Policy Joseph Edlow issued the following statement:

“This unfortunate decision leaves USCIS underfunded by millions of dollars each business day the fee rule is enjoined. Unlike most government agencies, USCIS is fee funded. As required by federal law, USCIS conducted a comprehensive biennial fee review and determined that current fees do not recover the cost of providing adjudication and naturalization services. This is nothing new or abnormal. In fact, the fee rule is two years behind schedule, and is a smaller percentage increase than the previous. In a fee-funded agency such as USCIS, this increase is necessary to continue operations in any long-term, meaningful way to ensure cost recovery. This decision barring USCIS from enacting its mandatory fee increase is unprecedented and harmful to the American people.”

What to Expect After October 2, 2020

While the rule is temporarily enjoined, it could become effective with little or no notice if the injunction is lifted. There is likely to be a grace period for new forms and fees before USCIS will begin rejecting cases for the wrong payment amount or form version. Although most fees are increasing, a $10 discount is offered for online submission where available. Current fee information can be found on the USCIS website.

Employment Visa Updates

Employers are understandably concerned about the potential effect the rule has on H-1B, L-1, and other immigrant employees. For employers with more than 50 employees and more than 50% of those employees in H-1B or L-1 status, a $4,000 fee applies. The rule expands the Public Law 114-113 fee of $4,000 to both H-1B and L-1 new employment as well as extensions of stay for employers that meet the 50 employee, 50% dependability test. The Public Law fee will apply regardless of whether the fraud fee applies. Extension requests for H-1B, L-1A, and L-1B visas filed by the same petitioner for the same employee or H-1B, L-1A, and L-1B amended petitions were previously exempt from the additional fee.

DHS will now separate the I-129 into forms based on case type and eliminate the current supplements to the I-129 form. This also allows DHS to charge separate fees for each form depending on the classification. DHS states that the current base filing fee of $460 doesn’t accurately capture the costs associated with adjudication since the fee is paid regardless of how many nonimmigrant workers will benefit from the petition or application, the type of worker evaluated, whether an employee is identified, or how long it takes to adjudicate the different nonimmigrant classifications.

The rule updates the filing fees as follows:

Case Type Current Fee Final Fee Change Percent Change
E-1

E-2

TN

$460 $695 $235 51 percent
H-1B $460 $555 $95 21 percent
H-2A
(named beneficiaries)
$460 $850 $390 85 percent
H-2B
(named beneficiaries)
$460 $715 $255 55 percent
L-1A

L-1B

$460 $805 $345 75 percent
O-1 $460 $705 $245 53 percent
H-2A
(unnamed beneficiaries)
$460 $415 -$45 -10 percent
H-2B
(unnamed beneficiaries)
$460 $385 -$75 -16 percent


Green Card Fee Changes

Children under the age of 14 filing for a green card with their parents can currently pay a reduced fee of $750 instead of the $1,140 (plus $85 biometrics fee) currently charged to older applicants. All applicants will pay $1,130 under the new rule.

DHS also chose to separate the filing fees for Form I-765, Application for Employment Authorization, and Form I-131, Application for Travel Document, when either filed concurrently with Form I-485 or after the Form I-485 has been accepted and is still pending. Current regulations allow individuals to pay the I-485 fee, but also file the I-765 and I-131 without additional fees if filed concurrently.

The rule claims: “Debundling allows individuals to pay for only the services actually requested. Thus, many individuals may not pay the full combined price for Forms I-485, I-131, and I-765.” The newly established fees are as follows:

  • Form I-131, Application for Travel Document: $590
  • Form I-765, Application for Employment Authorization: $550
  • Form I-485, Application to Register Permanent Residence or adjust Status: $1,130

Individuals applying for work and travel documents along with their permanent residence application will now pay a total of $2,270.

Citizenship Fees

DHS will remove the N-400 fee waiver (Form I-942) and the reduced fee option “in order to recover full cost for naturalization services.” The rule also removes the fee waiver for the N-600, Application for Certificate of Citizenship. However, the removal of fee waivers will reduce the cost of Forms N-600 and N-600K because the increased fee would no longer need to cover the cost of the fee-waived form adjudication.

However, the N-400 would not be afforded the same price decrease as the N-600: DHS raised the naturalization fee an astounding 83% from $640 to $1,170 for the paper-based filing. With the removal of the reduced fee option, naturalization may be financially out of reach for many families.

Premium Processing

Currently, petitioners or applicants can pay $1,440 for certain employment-based petitions to be adjudicated within 15 calendar days. The new rule will change the 15-day calculation from calendar days to business days, while also excluding federal holidays and regional or national office closures due to weather or other causes.

The rule also states that the 15-day period be paused when USCIS issues a notification of an approval, denial, RFE, or NOID. The rule would also clarify that a new 15 business day period will begin upon receipt of an RFE or NOID response. If an investigation is opened for fraud or misrepresentation, USCIS can retain the fee and not reach a conclusion to the request within 15 days.

The agency claims that the shift to calculating by business days will allow USCIS additional time to complete processing on a premium processing petition and could reduce the need for USCIS to suspend premium processing when request filing volumes are high.

Biometrics Fees

The new rule incorporates biometrics fees into the underlying immigration benefit request to “simplify the fee structure, reduce rejections of benefit requests for failure to include a separate biometric services fee, and better reflect how USCIS uses biometric information.” The fee includes FBI name checks, FBI fingerprints, Application Support Center (ASC) contractual support, and biometric service management (including federal employees at ASC locations). The rule outlines that a separate biometric services fee will be retained for Temporary Protected Status in the amount of $30, but requests for other immigration benefits will include the biometric fee.

Timeline for Rule Implementation

This final rule is effective Oct. 2, 2020. Since there is a temporary injunction, the court order prevents the fee change at this time. If the injunction is lifted, any application, petition, or request postmarked on or after the new effective date must include payment of the new, correct fees established by this final rule and the updated forms.

Don’t wait until the last minute to file for new visas or extensions! Contact us to get started before the delays affect your immigration status.

Additional Resources

Don’t miss out on the immigration news! You can sign up for our mailing list or follow us on FacebookTwitterInstagramYouTube, or LinkedIn. Please email us with any additional questions.

Are you ready to start your case prior to the fee and process shifts? Contact us at info@challalaw.com or 804-360-8482 to get started today.

Evidence of Self-Sufficiency: Required Public Charge Documentation for Form I-944

Required Public Charge Documentation for Form I-944

A September 11, 2020 court decision removed blocks on the Inadmissibility on Public Charge Grounds rule nationwide. All applications and petitions subject to the rule postmarked or submitted after February 24, 2020 will be required to submit the I-944 form. USCIS will issue Requests for Evidence in those cases that did not include the form until October 13, 2020. If the I-944 form is not included after October 13, 2020, Form I-485 will be rejected at the time of filing.

Beneficiary Documents

☐ Social Security earnings and benefits statement (if beneficiary has worked for 40 qualifying quarters in the U.S.)

☐ Income tax from abroad, if last employment was abroad

☐ Proof of employment

☐ Employment verification letter

☐ Letter offering employment

☐ W-2s

☐ Most recent pay stubs for current year

☐ Documentation of liabilities and debts:

☐ Mortgages

☐ Car loans

☐ Medical debt

☐ Unpaid child or spousal support

☐ Unpaid taxes

☐ Credit card debt

☐ Other debts and liabilities

☐ Judgments and bankruptcies:

☐ Copies of any filings for bankruptcies

☐ Copies or information of any judgments

☐ Credit report and credit score (or evidence from credit bureau that proves no U.S. credit report exists)

☐ Evidence of Assets:

☐ Real Estate deeds, appraisal or mortgage documents showing equity

☐ Checking account statements for 12 months prior

☐ Savings account statements for 12 months prior

☐ Annuities showing monthly payments

☐ Stocks and bonds (cash value)

☐ Certificates of Deposit

☐ Retirement account statements for 12 months prior

☐ Educational account statements for 12 months prior

☐ Net cash value of real estate holdings

☐ Automobiles (if two or more)

☐ Other evidence of substantial assets

☐ Evidence of health insurance:

☐ Policy Declaration Page

☐ Proof of deductible or annual premium amount

☐ Copy of IRS Form 8962 or Form 1095A if you received a Premium Tax Credit or Advanced

Premium Tax Credit

☐  Proof of when insurance terminates or must be renewed

☐ Enrollment terms and type of coverage

☐ Form 1095-B Health Coverage; 1095C Employer Provided Health Insurance Offer and

Coverage with evidence of renewal or coverage for the current year

☐ Additional income documents for yourself and household members including (but not limited to):

☐ Child Support

☐ Social Security

☐ Unemployment Benefits

☐ Documents showing receipt of public benefits, including:

☐ Any Federal, State, local, or tribal cash assistance for income maintenance

☐ Supplemental Security Income (SSI)

☐ Temporary Assistance for Needy Families (TANF)

☐ Federal, State or local cash benefit programs for income maintenance (called “General

Assistance” or under other names)

☐ Supplemental Nutrition Assistance Program (SNAP, or “Food Stamps”)

☐ Section 8 Housing Assistance under the Housing Choice Voucher Program

☐ Section 8 Project-Based Rental Assistance (including Moderate Rehabilitation)

☐ Public Housing under the Housing Act of 1937

☐ Federally funded Medicaid.

☐ Documents showing education and skills:

☐ Transcripts, diplomas, degrees and trade certificates

☐ If a current student, evidence of full-time studies

☐ If foreign degree – Credentials Evaluation

☐ Training certificates and/or licenses for any specific occupations or professions

☐ Certifications or courses in English and other languages in addition to English

☐ Native English speakers – high school diplomas and college degrees for English courses

studied for credit

☐ Any records related to criminal charges, arrests, or detainments by law enforcement officers for any reason:

☐ Official statement confirming no charges filed

☐ Copy of complete arrest record and/or disposition for each incident

☐ Sentencing record for each incident

☐ Probation or parole record

☐ Probation Evidence of alternative sentencing program or rehabilitative program

☐ Court order vacating, setting aside, sealing, expunging or otherwise removing the arrest or

conviction or a statement from the court that no record exists of your arrest or conviction

Click here to download a copy of the I-944 Declaration of Self-Sufficiency – Document Checklist & Questionnaire.

Additional Resources

Join us on Wednesdays for a live webinar at 12 PM ET on critical immigration updates

Visit our COVID-19 resource page for the latest updates or follow us on FacebookTwitterInstagram, or LinkedIn. You can also sign up for our mailing list or email us at info@challalaw.com.

FAQs for Changing Employers & EB-2 to EB-3 Porting

OTHER FREQUENTLY ASKED QUESTIONS

What if my EB-3 filing is denied? Is my EB-2 still valid?

If your EB-3 is denied, it does not automatically invalidate your EB-2 filing.

My new employer wants to sponsor my green card. Can I transfer my new I-140 to a pending I-485?

After a new labor certification and new I-140 are approved with the new employer, the applicant can potentially request that USCIS transfer the petition to a pending I-485 Application for Adjustment of Status. No new fees or filings are required, but the request must be made in writing and will be decided on a case-by-case basis. The beneficiary must continue to be eligible for adjustment of status (current priority date) and the application must still be pending. The risk is that USCIS could determine you did not “intend” to work for the original employer if you never return to that position.

I have an approved I-140 from Employer A. Can I use the approval to extend my H-1B status beyond six years with a new employer?

Yes, you can use the approved I-140 petition to request an H-1B change of status or an extension if the I-140 is still valid and was not revoked by the original employer.

I’m no longer with my sponsoring employer but my priority date is current. Can I still apply for a green card?  

The green card process is for a future position. The employee does not need to remain with the sponsoring employer as long as:

  • The employer continues to have an intention of permanently employing the individual once they receive the green card (and did not notify USCIS to withdraw their I-140 job offer upon the individual’s departure from the company); and
  • The individual continues to have an intention of accepting the permanent job offer upon receiving the green card.

The other issue to keep in mind is that the sponsoring company must continue to have an ability to pay the individual from the time of filing the labor certification all the way until receiving the green card. Some employers are only able to show this by currently paying the individual at or above the proffered wage. If the individual leaves the employer, but the job offer remains valid and the individual still intends to accept the job offer, then the employer needs to be able to show an ability to pay the individual by its tax returns, either by Net Income or Net Current Assets.

If the job offer does not remain valid then the individual will need to start the process over with the new employer but can retain the priority date at the time of filing the I-140.

The previous employer would need to submit the I-485J confirming the job offer is still available. You can only proceed with the I-485 with a new employer if you had an I-485 pending for at least 180 days. Under that scenario your new employer could submit the I-485J, but if you have not previously filed an I-485, then the previous employer would need to sign the I-485J.

My job title changed through my current employer. Am I still eligible under the previous PERM labor certification?

If your role has only changed slightly, you may be able to file an I-140 amendment to update USCIS. If you are still performing the same job duties listed on the PERM labor certification you can continue with an I-485 based on the PERM with the old job title.

Your PERM labor certification is specific to the position, the employer, and the geographic location so if any of those variables change, you may be required to file a new PERM and I-140. However, you can still retain your priority date in subsequent filings. Please confirm with an attorney whether any changes need to be reported to USCIS or may affect your ability to retain the existing PERM.

I want my green card through my current employer. Do I have to start over?

A job change is likely to require a new PERM and I-140, but all is not lost: you can still retain your priority date.

I have changed employers while my I-485 is pending. Can I still adjust status?

If Form I-485 has been pending for a minimum of 180 days (from receipt date) and the new job is in the same or similar occupation, AC21 allows an individual to change jobs to a new employer.

Next Steps

Check out our document checklist on our October Visa Bulletin release post. When you’re ready to initiate your case, email us at info@challalaw.com to initiate your EB-2 to EB-3 case.

Filing a Green Card for Dependent Children

Filing a Green Card for Dependent Children: Utilizing the Child Status Protection Act

The USCIS allow some protections for children who are close to the “aging out” as a dependent derivative through the Child Status Protection Act. The Child Status Protection Act (CSPA) defines a “child” as an individual who is unmarried and under the age of 21. Once a child turns 21, he or she is no longer eligible for immigration benefits based on the relationship to the parent. This is known as “aging out.”

The CSPA covers most immigrant petitions. Under the CSPA, a child’s age essentially freezes on the date the I-140 petition is filed until the date the I-140 petition is approved. This helps protect the child of an individual applying for a green card from aging out, as long as the I-140 petition was filed before the child’s 21st birthday. Once the I-140 petition is approved, the child’s age unfreezes and he or she must seek to acquire permanent residence within one year of a visa becoming available.

The date that a visa becomes available is the later of (a) the first day of the month of the Department of State (DOS) Visa Bulletin, which indicates the availability of a visa for that preference category or (b) the petition approval date if a visa number is already available on the approval date. To determine the age of the child on the date that a visa number becomes available you first need to make the following calculation:

  1. First, you calculate the days the immigrant petition was pending with the USCIS.
    • Example: The I-140 was filed on January 1, 2018 and approved on August 30, 2018. Using an online time calculator, you can see that the petition was pending for 34 weeks and 2 days or a total of 240 days.
  2. Next, you subtract the period the immigrant petition was pending from the age of the child. That becomes the child’s CSPA age.
    • Example: If the child was 20.5 years old when the petition was filed, you would subtract 240 days from their real age to get their CSPA age of 19.84 years.
  3. If the visa number becomes available while the CSPA age of the child is under 21, then the child is eligible to obtain the immigration benefit by applying for permanent residence status within one year of eligibility.
    • Example: Even though the child turned 21 prior to the I-140 approval, they would still be eligible for permanent residence if the visa bulletin shows a visa is available within the 240 days allowed for processing under the CSPA. In this example, the visa must be available before the end of April in 2019.
  4. If the CSPA age of the child is over 21 when a visa number becomes available, then the child cannot apply for permanent residence.
    • Example: Upon approval of the I-140, the child’s age “unfreezes.” If there was no visa available per the visa bulletin for child in the example above until 1.5 years after the I-140 approval, the individual’s CSPA age would be 21 years old. They would not be able to apply for permanent residence using their parent’s employment-based immigrant visa status.

Another way to view this calculation is to take the 21st birthday, add the number of days the immigrant visa petition was pending and you get the CSPA 21st birthday or the deadline for applying for permanent residence. The child must take the next step by filing an I-485 or DS-260 within one year of visa availability.

On the date of the immigrant visa or I-140 approval, CSPA un-freezes the child’s age. If there is no visa available, it is possible the child will still age out if they are unable to file DS-260 or I-485 per the visa bulletin.

Ready to file for your green card or have additional questions?

Additional Resources

Join us on Wednesdays for a live webinar at 12 PM ET on critical immigration updates

Visit our COVID-19 resource page for the latest updates or follow us on FacebookTwitterInstagram, or LinkedIn. You can also sign up for our mailing list or email us at info@challalaw.com.

Next Steps for Filing Your I-485 in October 2020

Next Steps for Filing Your I-485 in October 2020

If you are current using the Dates for Filing chart, contact us immediately to get your case started.

  1. Request an engagement letter and invoice.
  2. Determine whether you need to request work and travel permits and note on engagement letter.
    If you depart the U.S. prior to receiving your travel approval, USCIS will determine you have abandoned your request to adjust status. 
  3. Once the invoice is paid, funds remain in your client trust account.
  4. You will be invited to our secure client portal.
  5. Don’t forget to schedule your Civil Surgeon Medical Exam. Find a USCIS doctor here
  6. The legal team will send you the appropriate checklists and questionnaires.
  7. Complete the questionnaires and upload the documents back to the portal.
  8. The attorney will guide you through the whole process and request any additional information to improve your filing.
  9. File before October 30, just in case the predictions for “rapid forward movement” don’t hold true due to the increased filings.

ATTORNEY TIP: If you are unable to secure a medical examination prior to filing, you may file without it and USCIS will request it later by issuing a Request for Evidence (RFE). However, some employment-based green cards are being approved without an interview. If you didn’t submit a medical exam, the subsequent RFE could delay your processing or even prevent an automatic approval.

Processing Times

Currently, the I-140 processing time is estimated to be between 5 and 32 months. The I-485 processing time is estimated to be between 7 and 32 months. This depends on the location where the form is processed and will also vary due to COVID protocols and application volumes.

Premium Processing is available for new I-140s, but not duplicate or subsequent filings. If available, Premium Processing guarantees adjudication or action on the case within 15 days. Read more on premium processing for I-140s when shifting visa categories: Should I shift from EB-2 to EB-3? 

Many applicants file Form I-131 to request permission to travel internationally, or “Advance Parole” (AP). If you depart the U.S. prior to receiving your AP approval, USCIS will determine you have abandoned your request to adjust status. Form I-131 is currently taking 5 to 7 months to process.

When filing your I-485, you may also request a work permit or Employment Authorization Document (EAD). Current EAD processing times vary by service center but range from 3 to 8 months.

Check USCIS Processing Times

Not quite current? Start gathering your documentation to prepare for the rapid forward movement. Send your country of birth and priority date to info@challalaw.com so we can notify you if you may be eligible for filing when the next Visa Bulletin is released.

REQUIRED DOCUMENTATION

International Travel: Please advise our office if you have planned or anticipate any international travel in the next twelve months.

If you have ever been arrested in the U.S. or another country, please disclose to our office immediately so that our office can best represent you.  

  • Copy of Foreign Passport (and expired passport if it includes immigration history)
  • Most recent I-94
  • Copy of all prior immigration documentation (I-797s, I-20s, DS-2019s, I-601 waiver, etc.)
  • Copy of Employment Authorization Document (EAD) work cards
  • Copy of Birth Certificate*
  • Copy of Marriage Certificate
  • For prior marriages, copy of marriage certificate and evidence of legal termination (divorce decree or death certificate)
  • Police Certificates – ONLY REQUIRED FOR CONSULAR PROCESSING (Must be obtained for any arrests in the U.S. or in another country.)
  • Documentation of any criminal arrests, convictions, etc. (REQUIRED IF APPLYING FROM U.S.)
  • Certificates of citizenship to other countries other than country of birth
  • Copy of any U.S. federal tax returns for three most recent years
  • Copy of any W-2 statements for three most recent years (or covering all years of employment for an employer-sponsored green card)
  • Copy of paystubs for six most recent months
  • Six (6) U.S. passport-style photos
  • Civil Surgeon Medical Exam – Form
    I-693 (sealed in an envelope with full name printed on the outside; must be submitted to USCIS within 60 days of physician’s signature)
  • I-485 Supplement J for employment-based cases (signed by original petitioning employer demonstrating continued offer of employment)
  • USCIS Filing Fee and Legal Fee

Any document not in English must be accompanied by a certified English translation.

* If your birth certificate is not available, you may have to provide secondary evidence. Read more: No Birth Certificate or Mismatched Information: How Can I Meet Green Card Requirements? 

PUBLIC CHARGE DOCUMENTATION

A recent court ruling has allowed the “Public Charge” rule to go into effect, mandating Form I-944 for all I-485 filings. Explore what documents are required:

Additional Resources

Join us on Wednesdays for a live webinar at 12 PM ET on critical immigration updates

Visit our COVID-19 resource page for the latest updates or follow us on FacebookTwitterInstagram, or LinkedIn. You can also sign up for our mailing list or email us at info@challalaw.com.

No Birth Certificate or Mismatched Information: How Can I Meet Green Card Requirements?

How to Meet Green Card Birth Certificate Evidentiary Requirements 

What if my Indian birth certificate is missing or issued many years after my date of birth?

When your birth certificate is missing, USCIS requests both of the following:

  1. Two separate affidavits from two different people who can attest they have firsthand knowledge of the birth
  2. Certificate of unavailability from the local recordkeeping body in the locality where the person was born.

In India, the recordkeeping body is the registrar or panchayat. Previously the Indian Embassy in Washington, D.C. would also issue the certificate of unavailability, but only pursuant to a Request for Evidence from USCIS.

What if my Indian birth certificate has an error?

When there is an error on the birth certificate, the error can be explained as described above: with two affidavits from two separate individuals who can attest to firsthand knowledge of the birth and additional secondary evidence, such as school-leaving certificates and documents described in the next section below.

Samples

 

Affidavit of Birth Non-Availability Certificate

 

General Guidelines for All Other Countries

Birth certificate availability varies by country and locality. You can check the reciprocity agreement for your country with the Department of State. Each Reciprocity Page will provide detailed information about how to obtain these civil documents from the country you have selected, as well as the location of the U.S. Embassy or Consulate where you can apply for your visa. For more information about civil document requirements for immigrant visa cases, see civil documents.

Secondary Evidence

If you are unable to obtain a certificate, you may need to include secondary evidence. Secondary evidence may include:

  • School records, school-leaving certificate, matriculation certificates, or graduation certificates (document provided to students when they cease attending a particular school, be it public or private),
  • Certificate of Recognized Boards/Exams from the school last attended by the applicant 
  • Insurance records
  • Employment records
  • Financial records (tax returns, money orders)
  • Government records (passports, identification documents) or census or tribal records
  • Baptismal or other certificate from a church or religious institution
  • Hospital or medical (immunization) records
  • A notarized affidavit executed by either a parent, if living, or another close relative older than the applicant.  
    • This affidavit should clearly state the relationship between the deponent and the applicant, how well the deponent knows the applicant, the date and place of the applicant’s birth, the names of both parents, and any other related facts. If the applicant has no living relatives that witnessed their birth, a self-attested affidavit detailing their knowledge of the facts of their birth may be accepted.

Certificate of Non-Availability

You may also be required to obtain a Certificate of Non-Availability. The regulations state:

Where a record does not exist, the applicant or petitioner must submit an original written statement on government letterhead establishing this from the relevant government or other authority. The statement must indicate the reason the record does not exist, and indicate whether similar records for the time and place are available.

Check the Reciprocity Document Details for Your Country

DOCUMENT TIP: Always check with your attorneys to determine what secondary evidence is appropriate for your country. Although the Department of State guidelines may suggest multiple documents are permissible, adjudicative trends may indicate differently. An experienced attorney can advise on the strongest evidence for your case.

Ready to file for your green card or have additional questions?

Additional Resources

Join us on Wednesdays for a live webinar at 12 PM ET on critical immigration updates

Visit our COVID-19 resource page for the latest updates or follow us on FacebookTwitterInstagram, or LinkedIn. You can also sign up for our mailing list or email us at info@challalaw.com.

Should I shift from EB-2 to EB-3 for the October Visa Bulletin?

Requirements & Benefits of “Downgrading” Your EB-2 to EB-3

The October Visa Bulletin allows EB-3 applicants with priority dates before January 1, 2015 to file their I-485 for permanent residence. EB-2 applicants are still backlogged, with priority dates before May 15, 2011 eligible to apply. Should EB-2 applicants switch to the EB-3 category to save a few years in processing?

Please note that the visa bulletin states that the employment-based categories will continue to have rapid forward movement, which may make downgrading unnecessary.

PROCESS: Converting an Approved EB-2 petition to an EB-3 petition

  1. We need to assess whether the PERM supporting the EB-2 petition is eligible for an EB-3 filing.
    • What does that mean? The requirements for EB-2 and EB-3 are different. The relevant minimum qualifications needed to support an EB-3 I-140 petition are the following:
      • Professional means a qualified alien who holds at least a United States baccalaureate degree or a foreign equivalent degree and who is a member of the professions.
      • Therefore, an example of when an EB-2 would not qualify for an EB-3 filing is when the PERM supporting the approved EB-2 petition, only requests a Master’s degree and does not also require a BA plus five years of experience. The EB-3 petition will be filed as a new petition, but you must include evidence submitted for the EB-2 petition.
  2. The EB-3 petition will be filed as a new petition, but you must include evidence submitted for the EB-2 petition.
  3. If the EB-3 priority date (based on your approved EB-2 I-140 petition) then you can file an adjustment of status concurrently.

TIPS AND TRICKS TO CONSIDER

  1. Your EB-2 priority date is not lost. Where there are multiple approved petitions, (one for the EB-2 and another for the EB-3) the beneficiary retains the earliest priority date.
  2. The previous EB-2 petition remains valid, even if the EB-3 is denied.
  3. Your underlying nonimmigrant status remains valid, therefore, even if the EB-3 concurrently filed adjustment of status is denied, your status is not impacted. You can later refile the AOS once the EB-2 priority date becomes current.
  4. Third, the main benefit of the new EB-3 I-140 filing is the ability to concurrently file the adjustment of status. However, you must understand that the EB-2 and EB-3 categories dates keep moving forward, then retrogressing, and the USCIS each month decides whether the “Final Action Dates” chart will apply or the “Dates for Filing” chart. In the final analysis, you may not move through the process much faster, but you have the benefit of the pending AOS.
  5. The permanent residence process is for prospective employment. Even if you are no longer working for employer who sponsored your I-140 petition, as long as they did not revoke the petition and there is a bona fide continued offer of employment, the previous I-140 can be used to file your I-485.

Remember, the visa number may retrogress in November so you want to make sure the adjustment of status and the conversion is filed consistent with the USCIS requirements, otherwise if the petition is not filed properly, even if a signature is missing, it would be returned and you may miss this golden window.

H-1B/GREEN CARD TIP

Some individuals receive their Employment Authorization Document (EAD) as part of the green card application process and allow their H-1B visa to elapse. However, if processing delays occur or the worst-case scenario occurs, you receive a denial, it is beneficial to maintain the underlying H-1B validity until your green card is approved.

Still have questions? Review our Frequently Asked Questions on EB-2 to EB-3 porting.

Next Steps

Check out our document checklist and review the next steps for filing your I-485. When you’re ready to initiate your case, email us at info@challalaw.com to initiate your EB-2 to EB-3 case.

 

October Visa Bulletin Released!

October Visa Bulletin Released: Are You Current?

UPDATED at 4:20 PM, 9/24/2020: DATES FOR FILING CHART WILL BE USED FOR EMPLOYMENT-BASED CASES

The much anticipated October Visa Bulletin has been released! At first glance, it may look disappointing based on the July comments of Charlie Oppenheim, Chief of the Visa Control and Reporting Division at the Department of State, who predicted that the conditions could allow employment-based allocations to increase to at least 250,000 immigrant visas. Instead, we are seeing family-based numbers remain the same and there are moderate advances in the employment-based categories.

We now know USCIS will allow the “Dates for Filing” chart, which opens up visas to several years of additional applicants in each category. The Visa Bulletin also predicts “rapid forward movement” so the Department of State and USCIS may be basing the charts on expected processing capacity. We should continue to see forward movement through 2021. 

DATES FOR FILING OF EMPLOYMENT-BASED VISA APPLICATIONS

Since USCIS is allowing the Dates for Filing Chart, Oppenheim’s predictions look more accurate:

  • Dates for Filing progressed significantly
  • All Chargeability Areas Except Those Listed is current across all categories
  • INDIA
    • EB-1 would advance 2.5 years
    • EB-2 would advance just shy of 2 years
    • EB-3 would advance over 5 years
  • CHINA
    • EB-1 would advance over 2 years
    • EB-2 would advance 9 months
    • EB-3 would advance 1 year and 4 months
    • EB-5 would advance 4 months

MORE GOOD NEWS: “Rapid forward movement” for EB-1, EB-2, EB-3

The Visa Bulletin included more detail on the expected advancement through January of 2021.

FAMILY-sponsored categories (potential monthly movement)

Worldwide dates:

F1:  Up to three weeks
F2A: Current
F2B: Up to three weeks
F3:  Up to two weeks
F4:  Up to one week

EMPLOYMENT-based categories (potential monthly movement)

Employment First:

WORLDWIDE:   Current
China:               Rapid forward movement
India:                Rapid forward movement

Employment Second:

Worldwide:  Current
China:          Rapid forward movement
India:           Rapid forward movement

Employment Third:

Worldwide:   Current
China:           Rapid forward movement
India:            Rapid forward movement
Mexico:        Current
Philippines:  Likely to remain at the Worldwide date

Employment Third – Other Workers:

Worldwide:    Current
China:            Steady forward movement

Employment Fourth:  Current for most countries

El Salvador, Guatemala, and Honduras:  Steady forward movement
Mexico:  Steady forward movement

Employment Fifth:  The category will remain “Current” for most countries

China:       No forward movement
Vietnam:   Limited forward movement

The above final action date projections for the Family and Employment categories indicate what is likely to happen on a monthly basis through January.   The determination of the actual monthly final action dates is subject to fluctuations in applicant demand and a number of other variables.

Next Steps

If you are current using the Dates for Filing chart, contact us immediately to get your case started.

  1. Request engagement letter and invoice.
  2. Determine whether you need to request work and travel permits and note on engagement letter.
    If you depart the U.S. prior to receiving your travel approval, USCIS will determine you have abandoned your request to adjust status. 
  3. Once the invoice is paid, funds remain in your client trust account.
  4. You will be invited to our secure client portal.
  5. The legal team will send you the appropriate checklists and questionnaires.
  6. Complete the questionnaires and upload the documents back to the portal.
  7. The attorney will guide you through the whole process and request any additional information to improve your filing.
  8. File before October 30, just in case the predictions for “rapid forward movement” don’t hold true due to the increased filings.

Not quite current? Start gathering your documentation to prepare for the rapid forward movement. Send your country of birth and priority date to info@challalaw.com so we can notify you if you may be eligible for filing when the next Visa Bulletin is released.

REQUIRED DOCUMENTATION

International Travel: Please advise our office if you have planned or anticipate any international travel in the next twelve months.

If you have ever been arrested in the U.S. or another country, please disclose to our office immediately so that our office can best represent you.  

  • Copy of Foreign Passport (and expired passport if it includes immigration history)
  • Most recent I-94
  • Copy of all prior immigration documentation (I-797s, I-20s, DS-2019s, I-601 waiver, etc.)
  • Copy of Employment Authorization Document (EAD) work cards
  • Copy of Birth Certificate
  • Copy of Marriage Certificate
  • For prior marriages, copy of marriage certificate and evidence of legal termination (divorce decree or death certificate)
  • Police Certificates – ONLY REQUIRED FOR CONSULAR PROCESSING (Must be obtained for any arrests in the U.S. or in another country.)
  • Documentation of any criminal arrests, convictions, etc. (REQUIRED IF APPLYING FROM U.S.)
  • Certificates of citizenship to other countries other than country of birth
  • Copy of any U.S. federal tax returns for three most recent years
  • Copy of any W-2 statements for three most recent years (or covering all years of employment for an employer-sponsored green card)
  • Copy of paystubs for six most recent months
  • Six (6) U.S. passport-style photos
  • Civil Surgeon Medical Exam – Form
    I-693 (sealed in an envelope with full name printed on the outside; must be submitted to USCIS within 60 days of physician’s signature)
  • I-485 Supplement J for employment-based cases (signed by original petitioning employer demonstrating continued offer of employment)
  • USCIS Filing Fee and Legal Fee

Any document not in English must be accompanied by a certified English translation.

Additional Resources

Join us on Wednesdays for a live webinar at 12 PM ET on critical immigration updates

Visit our COVID-19 resource page for the latest updates or follow us on FacebookTwitterInstagram, or LinkedIn. You can also sign up for our mailing list or email us at info@challalaw.com.