By: Michael H. Markovitch, Esq.
On September 3, 2013, the Department of State implemented use of the DS-260, Online Immigrant Visa and Alien Registration Application, and the DS-261, Choice of Address and Agent. These two forms are to be used for immigrant visa applicants processing at all U.S. embassies and consulates abroad. The DOS introduced the online forms in 2010, but until now required them only for applicants processing at a limited number of posts.
The online DS-260 and DS-261 are replacing the paper DS-230 and DS-3032. The online forms are submitted to DOS through the Consular Electronic Applications Center (CEAC) website at ceac.state.gov. In order to access the online forms, the applicant or preparer must input his or her NVC case number and invoice I.D. number. All of the information entered online is accessible by the National Visa Center (NVC) and the consular posts, and the applicant is not required to submit a paper version to the NVC or bring a copy to the visa interview. Applicants applying for immigrant visas under the Diversity Lottery Visa program and the Cuban Family Reunification Parole program will continue to use the DS-230.
Most fields on the DS-260 must be completed before the application can be submitted to DOS. The system will not allow you to continue without providing the required information unless the field is specifically marked "Optional." If a mandatory field is left blank, an error message will appear and the applicant must complete the required field before proceeding with the form. A partially completed application can be saved by clicking on the "Save" button at the bottom of each page. It is recommended that data be saved often to ensure information is not lost. A saved application can be accessed by returning to the CEAC website and selecting View/Edit from the IV and Alien Registration section of the Immigrant Visa - Summary Information screen. The applicant can continue completing the form by clicking on the "Edit" button on the right side of the application's listed status. Once all of the fields are completed, the applicant submits the form by clicking on the "Sign and Submit Application" button. Should the applicant need to make any changes to the form after submission, he or she will have to contact the NVC to request access to the form. If a case has already been sent by NVC to the appropriate U.S. embassy or consulate interview, any changes to the form will have to be made at the post.
The NVC has indicated that if an applicant has already submitted the DS-230 and it has been accepted, the DS-260 will generally not be required unless specifically requested by NVC or a consular officer. If a case is already documentarily qualified and awaiting scheduling of the IV interview, the case will proceed with the DS-230. If a case is still in the document collection phase and NVC sends a checklist for additional information or documents, a request may be made to complete the DS-260 even if the DS-230 was previously submitted. The applicant will be instructed by NVC if completion of the DS-260 is necessary.
It is important to distinguish the now mandatory use of the DS-260 for processing at all embassies and consulates worldwide from the "Electronic Processing Program" used for electronic submission of documents and the I-864 Affidavit of Support for processing at select embassies and consulates. Under this program, the I-864 is downloaded, completed, signed, scanned, saved as a PDF file and e-mailed to the NVC. Also, the required civil documents and supporting documents must be converted to pdf files and then e-mailed to the NVC. For these select consular posts it is not required to mail the I-864, civil documents, and other supporting documents to the NVC, but the applicant must be prepared to present the original physical documents at the time of the visa interview. For all other posts, the I-864 and documentation are still mailed to the NVC.
All immigrant visa applicants processing are required to submit their documents and I-864 electronically under the electronic processing program
For further information or questions you may have, please do not hesitate to contact The Law Offices of Michael H. Markovitch or go to travel.state.gov and read the FAQs on DS-260 Immigrant Visa Electronic Application and the instruction pages on Required Electronic Processing and Optional Electronic Processing.
By: Michael H. Markovitch, Esq.
Many times clients pose questions about petitioning for relatives. While there are many detailed subject matter on family-based immigration, the purpose of this article is to address the initial, fundamental question: who may file for permanent immigration benefits to provide the "green card" for their relatives? Who May Petition for Green Cards for Relatives?
As can be seen in the chart below, petitioners must always be adults, 21 years of age or older. They may be either U.S. citizens (by birth or naturalization) or U.S. permanent residents (green card holders). The list of relatives for whom a permanent resident can file is not the same as the relatives for whom a U.S. citizen may file as sponsor or petitioner. Which Relatives Can Benefit?
The second column of the chart identifies the relatives who may be beneficiaries in a family-based petition.Both U.S. citizens and green card holders may petition for their spouses, minor children, and unmarried sons and daughters (21 or older). However, as mentioned before, there are other differences between the relatives who may be beneficiaries of a case filed by a U.S. citizen, as opposed to those in a case filed by a green card holder. U.S. citizens may petition for their parents, married sons and daughters, as well as their siblings. (U.S. citizens can also file for fiancé/es, but because this is a temporary category, it is not included in the chart pertaining to permanent immigration benefits.)How Long Will the Process Take?
The question of how long a particular case will take can be a bit complicated. The United States sets strict annual limits on the number of individuals who may immigrate permanently each year. This is determined by the case category and country of chargeability. The date that the petition for a relative (Form I-130) is filedestablishes the priority date. This, essentially, sets the family member's place in the queue. The waiting time in some categories is measured in years and, in some situations, is more than a decade. The situation for those cases categorized as immediate relatives, as explained below, is far more favorable.
The U.S. Department of State (DOS) controls the annual legal limits on permanent immigration to the United States by the use of visa numbers, available in accordance with the legal limits. The availability of visa numbers by category is reflected in the monthly DOS visa bulletin.
The third column in the chart contains the visa bulletin category for the various types of family-based petitions. The categories are known as preferences.
As noted, some relatives of U.S. citizens are categorized as immediate relatives. These cases are not subject to visa number backlog, and are not reflected in the visa bulletin. These cases can move forward without waiting times for visa numbers. The paperwork needs to be processed by the U.S. Citizenship and Immigration Services and, in some cases, the DOS, through a U.S. consulate abroad. The waiting time for this paperwork processing is usually far less than the waiting time for visa number availability in family-preference cases.Derivative Family Members: What About the Kids?
The chart reflects the relatives for whom a petition may be filed. The relative being sponsored is known as the primary beneficiary. The next concern, in many instances, is the spouse and/or children of the primary beneficiary.
In the family-preference categories, the spouse and/or minor children of the primary beneficiary may also benefit from the single-petition filing. These family members are eligible for the same family-based category and priority date as the primary beneficiary. Their immigration benefits are dependent upon approval of the primary beneficiary's case.
This benefit is limited to preference relatives, and does not extend to immediate relatives. Immediate relatives do not have derivative beneficiaries. Thus, their spouses and/or children must have petitions filed for them separately, and must independently qualify for those benefits. This is confusing for some and failing to file for dependents of the immediate relative can result in lengthy and unexpected delays. It is important to understand the charts. In many cases, it is advisable to consult with an immigration lawyer who can guide you if you are not sure how to proceed.Example A
A U.S. citizen files an I-130 petition for his brother. The brother is married. Once the priority date becomes current, the brother and his wife (petitioner's sister-in-law) and their unmarried children under 21 years of age can immigrate under the family-based, fourth preference (FB4) category. The entire family in the FB4category all obtain the same priority date based on a single I-130 petition. Example B
A U.S. citizen files an I-130 for his mother. The case falls within the immediate relative category. Thus, thereare no derivative beneficiaries. If the U.S. citizen also wants his father to immigrate, a separate I-130 petition must be filed for the father.
Moreover, there are also no benefits given to other children of the parents in Example B, even if those children are under 21 years of age. The U.S. citizen would have to file yet another I-130 for each sibling who wished to immigrate. The case for the siblings, however, would fall under the FB4 category, and would have a long waiting time (often 10 to 12 years). The case for the parents has no visa number waiting time, it hasonly the standard paper work processing times.One Cannot Sponsor In-Laws, Aunts or Uncles
The rules for derivative beneficiaries often cause confusion as to which relatives can file for whom. One may believe that s/he immigrated based on a petition filed by an aunt or uncle, or by an in-law.
In truth, such a person immigrated as a derivative beneficiary, with a petition that was filed for his/her ownspouse or parent. The aunt or uncle would have filed an FB4 petition for her/his sibling, and the nieces and nephews would immigrate as derivative beneficiaries of their own parent (the primary beneficiary).
The same concept holds true of petitions filed by an in-law. The filing is made for the direct relative (childor sibling), as a primary beneficiary. The spouse (the petitioner's daughter/son-in-law or brother/sister-in-law ) immigrating as a derivative beneficiary.Conclusion
While there are many details and nuances within family-based immigration, the starting point is to know which relatives one is allowed to legally sponsor under U.S. immigration law. With the referenced family chart, it is easy to obtain this information, and to ascertain how to track waiting times based on the DOS visa bulletin.
For further information or questions you may have, please do not hesitate to contact The Law Offices of Michael H. Markovitch.
|Immigration Status of Petitioner ||Eligible Family Member Beneficiaries ||Category in Visa Bulletin |
|United States Citizen (Must be an Adult, 21 Years of Age or Older) ||Spouse ||Immediate Relative - Not in the Visa Bulletin; Visa Immediately Available |
|Parent ||Immediate Relative - Not in the Visa Bulletin; Visa Immediately Available |
|Children: Unmarried (Under Age 21) ||Immediate Relative - Not in the Visa Bulletin; Visa Immediately Available |
|Unmarried Sons and Daughters(Age 21 and Older) ||FB1 |
(Family-Based, First Preference)
|Married Sons and Daughters ||FB3 |
(Family-Based, Third Preference)
|Brothers and Sisters ||FB4(Family-Based, Fourth Preference) |
|LawfulPermanent Resident(Must be an Adult, 21 Years of Age or Older) ||Spouse ||FB2A |
(Family-Based, Second Preference, A)
|Children: Unmarried(Under Age 21) ||FB2A |
(Family-Based, Second Preference, A)
|Unmarried Sons and Daughters(Age 21 and Older) ||FB2B |
(Family-Based, Second Preference, B)
By: Michael H. Markovitch, Esq.
The Senate is on the cusp of approving historic immigration legislation offering citizenship
to millions in the U.S. illegally and spending billions of dollars to secure the border.
The vote on final passage of the White House-backed bill is expected any day, after a series of test votes so far this week demonstrated supporters command a bipartisan majority well over the 60 votes needed to secure passage and send the bill to the House. First must come two more procedural tests set for Thursday.
"We're on the edge of passing one of the most significant pieces of legislation that this body has passed in a very long time," Sen. Chuck Schumer, D-N.Y., said on the Senate floor Wednesday. "The vast majority of members in this body realize that the immigration system is broken and needs fixing."
Supporters posted 67 votes or more on each of three procedural tests Wednesday. More than a dozen Republicans sided with Democrats on each, ensuring bipartisan support that the bill's backers hope will change minds in the House.
The outlook there is uncertain. Many in the GOP-controlled House oppose the pathway to citizenship at the center of the Senate bill. And many prefer a piecemeal approach rather than a sweeping bill like the one the Senate is producing.
The House Judiciary Committee is in the midst of a piece-by-piece effort, signing off Wednesday on legislation to establish a system requiring all employers within two years to check their workers' legal status.
The Judiciary Committee was turning its attention Thursday to a bill on high-skilled workers. Last week it approved two more measures, one on agriculture workers and a second to make illegal presence in the country a federal crime, instead of a civil offense as it is now.
At its core, the legislation in the Senate includes numerous steps to prevent future illegal immigration, while at the same time it offers a chance at citizenship to the 11 million immigrants now living in the country unlawfully.
It provides for 20,000 new Border Patrol agents, requires the completion of 700 miles of fencing and requires an array of high-tech devices to be deployed to secure the border with Mexico.
Businesses would be required to check on the legal status of prospective employees. Other provisions would expand the number of visas for highly skilled workers relied upon by the technology industry. A separate program would be established for lower-skilled workers, and farm workers would be admitted under a temporary program.
The basic legislation was drafted by four Democrats and four Republicans who met privately for months to produce a rare bipartisan compromise in a polarized Senate. They fended off unwanted changes in the Senate Judiciary Committee and then were involved in negotiations with Republican Sens. John Hoeven of North Dakota and Bob Corker of Tennessee on a package of tougher border security provisions that swelled support among Republicans.
We will keep you posted on the most recent developments as they happen.
By: Michael H. Markovitch, Esq.
On June 26, 2013 the Supreme Court unequivocally affirmed that there is no legitimate reason for the federal government to discriminate against married couples on account of their sexual orientation. The Justices struck down section 3 of the Defense of Marriage Act (DOMA), which defines marriage as between a man and a woman, noting in their decision, "DOMA's principal effect is to identify a subset of state-sanctioned marriages and make them unequal."
Today's historic decision means that our immigration system must stop treating gay and lesbian families differently than other families. For far too long, gay and lesbian U.S. citizens and lawful permanent residents have been barred from obtaining immigration status for their noncitizen spouses. As a result, families have been separated and spouses of U.S. citizens and permanent residents have been deported from the United States.
President Obama issued an immediate directive
to the Attorney General to "work with other members of my Cabinet to review all relevant federal statutes to ensure this decision, including its implications for Federal benefits and obligations, is implemented swiftly and smoothly."
The Secretary of Homeland Security, Janet Napolitano also issued a statement
to press confirming that DHS is "working with our federal partners, including the Department of Justice, [to] implement today's decision so that all married couples will be treated equally and fairly in the administration of our immigration laws."
"Far too often, exceptions have been carved out to exclude immigrants from basic rights and protections. We are pleased that the Administration has made it clear it intends for this important decision to apply fully to the immigration system" said Benjamin Johnson, Executive Director of the American Immigration Council. "We urge the immigration agencies to work quickly to unite these families and honor the marriages that the Supreme Court has affirmed."
By Michael H. Markovitch, Esq.
On April 17, 2013, the bipartisan group of senators known as the "Gang of Eight" introduced S. 744, the "Border Security, Economic Opportunity, and Immigration Modernization Act
." We commend the Senators for their work on the proposed bill. Below are eight initial points of interest taken from the bill's provisions.More analysis to follow in the upcoming weeks.
Just to barely scratch the surface, here are but a few things S.744 would do:1. Legalization: Allow noncitizens who are unlawfully present and who entered the U.S. before December 31, 2011 to adjust status to that of Registered Provisional Immigrant (RPI). Eligible applicants would be required to pay a penalty and back taxes. Individuals in RPI status would receive work authorization and may travel abroad. They would also become eligible to apply for LPR status after 10 years, and can apply for naturalization 3 years after acquiring a green card. Includes generous provisions for DREAMers and agricultural workers.
2. Family-Based Immigrants: Move the current FB-2A category (spouses and children of permanent residents) into the immediate relative classification, allow for derivatives of immediate relatives, eliminate the FB-4 category (brothers and sisters of U.S. citizens), cap the age of eligibility of married sons and daughters of U.S. citizens at 31, and bring back the V visa.
3. Employment-Based Immigrants: Exempt the following categories from the quota: EB-1 immigrants (priority workers), doctoral degree holders, physicians who have completed the foreign residency requirement, and derivatives. Add a new "EB-6" category for certain entrepreneurs.
4. Temporary Workers: Create a W-1 visa for lesser-skilled workers, a W-2 visa for aliens coming to the U.S. temporarily to perform agricultural services or labor under a written contract, and a W-3 visa for "at-will" workers with an offer of full-time employment in an agricultural occupation. The W-2 and W-3 visas would replace the current H-2A agricultural worker program.
5. Asylum: Eliminate the one-year filing deadline and authorize asylum officers to grant asylum during credible fear interviews.
6. E-Verify: Require all employers to be on the system after 5 years.
7. H-1Bs: Increase the quota to a floor of 110,000 and a ceiling of 180,000, increase the U.S. advanced degree exemption to 25,000 but limit it to STEM graduates, add a recruitment requirement for all H-1B labor condition applications involving a detailed posting on an Internet site designed by the Labor Department, add a non-displacement attestation, change the prevailing wage formula, provide employment authorizations for spouses, and add a 60-day grace period after an H-1B has been terminated from his or her job.
Make it a crime to knowingly defraud an immigrant or hold oneself out as an attorney or BIA accredited representative when one is not authorized to do so. Require the identification of individuals who assist immigrants with the completion of forms and empower the Attorney General with injunctive authority to act against an unscrupulous "immigration service provider" at the federal level.
By: Michael H. Markovitch, Esq.
Previous statistics for H-1B
cases show that planning in advance of April 1st for the H-1B visa
is the key to actually being one of the 65,000 successful H-1B visa
It is that time of year again! April 1, 2013 marks the first day when prospective H-1B petitioning employers and prospective H-1B employees will be able to apply to the U.S. Department of Labor (DOL) for Labor Condition Applications (LCA) and H-1B visa petitionsfor employment in the fiscal 2013-2014 year (FY 2013). Our advice to H-1B employers continues to be that they need to think about filing H-1B petitions on (or very close to the) April 1st deadline for new and existing employees (usually international students in Optional Practical Training [OPT]) who will be eligible for first-time H-1B visas to begin their employment on or after October 1st, 2013.
By way of background, each Fiscal Year (FY), Congress mandated an annual cap of 65,000 H-1B visas for "professional and specialty occupation workers" who possess the equivalence of a U.S. Bachelor's Degree. There are also an additional 20,000 H-1B visas available for individuals who possess the U.S. Master's Degree or other advanced degrees from U.S.Colleges or Universities.
Some cases are NOT subject to the cap. For example, Institutions of Higher Education and Government Research Organizations are H-1B Cap exempt organizations. It continues to be the case that H-1B visa petitions filed on behalf of current workers who have been counted previously against the H-1B visa
cap are also not included in the annual cap. Additionally, pursuant to the Chile and Singapore Free Trade Agreement, 6,800 H-1B visas
are available exclusively to Chile and Singapore Nationals. The Singapore/Chile numbers reduce the total allotment of H-1B visas available each fiscal year to 58,200.
In 2008, there was a regulation that gave some assistance to international students in the U.S. who applied for H-1B during their OPT. At that time, a regulation was promulgated that provided "cap-gap" relief for F-1 students with approved H-1B petitions if the H-1B was filed while the student was still in a period of approved work authorization. In other words, F-1 student visa holders who received work authorization in OPT were permitted to extend the authorized work authorization and period of stay until October 1st as long as they have received an approved H-1B visa prior to the expiration of their OPT.
Also, many Science, Technology, Engineering, and Mathematics (STEM) students continue to use the STEM extension as a way to get two (2) bites at the apple and to obtain the additional time they need to petition in a subsequent H-1B cycle. To get the STEM extensions, an employer needs to be enrolled in E-Verify. Now E-Verify allows the public to view which are and which are not E-Verify employers.
In the past, the H-1B filing period lasted for several months. This past year, the H-1B allocation went faster. There have been periods in the past when the H-1B allotment was actually exhausted within three (3) days of the H-1B visas
becoming available on April 1st. This required the USCIS to conduct a "lottery". It is likely that the demand for H-1B visas
this fiscal year beginning on April 1, 2013, may be greater than it was for last year. We keep hearing that "economic recovery" continues in 2013. For this reason, it is strongly advisable that H-1B employers consider filing on April 1st, 2013, or as close to April 1st, as possible.