CAN I GET STATUS IF I HAVE A FAMILY MEMBER IN THE MILITARY?

PAROLE IN PLACE

USCIS may grant parole in place on a case-by-case basis for urgent humanitarian reasons or significant public benefit under section 212(d)(5)(A) of the INA.  A person may be eligible for parole in place in 1-year increments if they are the spouse, widow(er), parent, son or daughter of:

• An active-duty member of the U.S. armed forces;
• An individual in the Selected Reserve of the Ready Reserve; or
• An individual who (whether still living or deceased) previously served on active duty or in the Selected Reserve of the Ready Reserve and was not dishonorably discharged.

This primarily helps those who entered the U.S. illegally.  By applying for Parole in Place (PIP), that immigrant is considered to have been “paroled” into the country and therefore entered legally.  This change of status opens the door for many immigrants to apply for adjustment of status to permanent residence, especially if they are married to a U.S. citizen.

If an immigrant entered the U.S. lawfully but overstayed their visa (or are otherwise in the U.S. past their period of authorized stay), they are not eligible for parole in place because they are not an applicant for admission. However, an immigrant may qualify for deferred action.

Background.

In November 2014,, USCIS issued a policy memorandum which created the Parole in Place program.  "Parole of Spouses, Children and Parents of Active Duty Members of the U.S. Armed Forces, the Selected Reserve of the Ready Reserve, and Former Members of the U.S. Armed Forces or Selected Reserve of the Ready Reserve and the Effect of Parole on Inadmissibility under Immigration and Nationality Act § 212(a)(6)(A)(i)". ¹

The memorandum directs that undocumented immigrants present in the United States without having been admitted or paroled, and who are spouses, children, or parents of military members, reservists, or veterans, will be entitled as a class to "parole in place" — a quasi-legal status in the U.S. that opens the door for them to adjust status in the U.S.

Adjustment of Status.

Parole in Place allows a person to obtain permanent residence through adjustment of status in the U.S., if they have a U.S. citizen spouse or a child over 21 years of age.  Normally, the immigrant would need a pardon and the pardon procedure (I130/I601A/CP) requires the final step outside the U.S. at the Consulate in the immigrant’s home country.  Often the person is not eligible for a pardon.

This Parole in Place procedure greatly simplifies the procedure for permanent residence.  The applicant can do the entire process here and  does not need a pardon.

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CHRISTOPHER A. KEROSKY of the law firm of KEROSKY PURVES & BOGUE has practiced law more than 25 years and has been recognized as one of the top immigration lawyers in Northern California for 9 years by“Super Lawyers” www.SuperLawyers.com .   He graduated from University of California, Berkeley Law School and was a former counsel for the U.S. Department of Justice in Washington D.C.  His firm has offices in San Francisco, Los Angeles and six other locations in California. 
WARNING: The foregoing is an article discussing legal issues. It is not intended to be a substitute for legal advice. We recommend that you get competent legal advice specific to your case.

USCIS TO RESUME PREMIUM PROCESSING FOR FY2019 H-1B CAP PETITIONS ON MONDAY

USCIS announced that it will resume premium processing on Monday, January 28, 2019, for all FY2019 H‑1B cap petitions, including those eligible for the advanced degree exemption (the "master's cap"). The previously announced temporary suspension of premium processing remains in effect for all other categories of H‑1B petitions to which it applied.

LAWSUIT CHALLENGES TRUMP LIMITATIONS ON SPECIAL IMMIGRANT JUVENILE STATUS (SIJS)

By Christopher A. Kerosky, Esq.

Since the beginning of 2018, the Trump Administration has been rejecting immigration applications from certain immigrants, despite state court orders finding that they were entitled to Special Immigrant Juvenile Status.  That Trump policy was the target of a lawsuit filed last year.  In October, a U.S. District Court in Northern California issued an injunction preventing the Trump Administration from deporting any immigrant pursuant to this restricted policy.

This Trump policy was directed at certain states like California which passed laws to permit young immigrants to obtain the required status up until their 21^st birthday. 

What is the Special Immigrant Juvenile Status program?

Special Immigrant Juvenile Status (“SIJS”) is a program that grants legal status to certain minors without parents in the United States and, in some cases, without one parent if they meet certain conditions.   Typically this is an application appropriate when a child is in the U.S. as a refugee or else loses a parent through death or other loss.  It can be a path to lawful permanent residence in this case that is often a good alternative to lengthy asylum or adoption proceedings.

How does one qualify for SIJS?

In order for a child to qualify for Special Immigrant Juvenile Status, a state juvenile court must appoint a guardian to the youth involved and make initial findings for SIJS related to the child involved.  The required findings are as follows:

·                 The child is “dependent” upon the juvenile court within the meaning of 8 U.S.C. §s 1101(a)27(J) and 8 C.F.R.  § 204.11 (a) and (d)(2)(I);

·                 The child is “eligible” for long term foster care” due to abuse, neglect or abandonment within the meaning of 8 U.S.C. §1101(a)27(J) and 8 C.F.R.  §204.11 (a) and (d)(2)(I); and

·                 it is not the “best interest” of the child to be “returned to her country of origin” within the meaning of   8 U.S.C. § 1101(a)27(J) and 8 C.F.R. § 204.11 (a) and (d)(2)(I).

How does one apply to Immigration for SIJS?

Once the state court order with the factual findings required is obtained through the state Court, the child can apply for Special Immigrant Juvenile Status (SIJS) with the U.S. Citizen and Immigration Service (“USCIS”). See 8 C.F.R. § 204(d). The USCIS has discretionary authority to approve or deny the child ’s application.

This petition generally is made with supporting documentation highlighting the child’s abandonment by his or her parents and status as a dependent of the state, as well as the interest in the child not returning to his or her country of origin.

Once the CIS grants Special Immigrant Juvenile Status (“SIJS”), the last step is an application package submitted to obtain the child permanent residence.  This involves a large packet of application forms, medical examination, photos and related application materials.  The process culminates in an interview of the applicant and any caretakers at the Immigration Service (CIS) office. 

Change in state law prompted this Trump policy.

In 2015, the California Legislature changed existing law to allow courts to appoint guardians for people 18 to 20 years old for the purpose of applying for SIJS. In approving the bill, the Legislature wrote that it was “particularly necessary in light of the vulnerability of this class of unaccompanied youth, and their need for a custodial relationship with a responsible adult as they adjust to a new cultural context, language, and education system, and recover from the trauma of abuse, neglect, or abandonment.”

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CHRISTOPHER A. KEROSKY of the law firm of KEROSKY PURVES & BOGUE has practiced immigration law for over 25 years.   He graduated from University of California, Berkeley Law School and was a former counsel for the U.S. Department of Justice in Washington D.C. 

Mr. Kerosky has been recognized as one of the top lawyers in Northern California for 9 years by “Super Lawyers” Magazine.  See www.superlawyers.com. 

WARNING: The article above is not intended to be a substitute for legal advice. We recommend that you get competent legal advice specific to your case.

IT’S TIME TO BEGIN PREPARING YOUR H-1B VISA APPLICATIONS

By Christopher A. Kerosky, Esq.

The H-1B visa is a very commonly used visa for foreign national professionals hired by a U.S. employer – covering everyone from IT professionals to winemakers. 

Under current law, no more than 65,000 H-1B visas can be issued each year.  This quota has been used up in the first week of the application process for each of the last 5 years.  So, in truth, applications are due on April 1^st and it’s time to consider your plans and get any H-1B applications ready soon so that they won’t be submitted too late.

What is an H-1B visa?

H-1Bs can be hired only for what the government calls "specialty occupations," -- jobs requiring the equivalent of at least a bachelor's degree in the field.  

This is a visa commonly used for IT professionals of all types – computer programmers, engineers, computer assisted design professionals.  It also includes all variations of other professionals such as doctors, engineers, professors, accountants, lawyers, physical therapists and a host of other jobs.

In order to qualify, the employer must demonstrate that the position requires a professional in a specialty occupation and that the intended employee has the required qualifications. Typically, the minimum qualification is a university (bachelor’s) degree or its equivalent.  

Employers must also pay a wage to every H-1B worker the “prevailing wage”, that is at least as much as what is typically paid in the region for that type of work   Employers cannot make the H-1B nonimmigrants work under conditions different from their U.S. counterparts.

The H-1B visa is issued for 3 years, but can be extended up to 6 years.  Presently, the processing of such visas takes between 4-6 months. 

What is required to obtain an H1B visa?

An H-1B visa requires that the job qualify as a “specialized occupation” which requires a bachelor’s degree.  The applicant must also have a bachelor’s degree in the same or similar field or its equivalent.

Am I eligible for an H-1B visa?

In order to qualify, the employer must demonstrate that the position requires a professional in a specialty occupation and that the intended employee has the required qualifications. Typically, the minimum qualification is a university (bachelor’s) degree or its equivalent.  

What can I do on H-1B visa?

·       May legally work in the U.S.

·       Travel to and from the U.S. and reenter as many times as you wish during the validity period of the H-1B visa, as long as you have a valid stamp in your passport.

·       H-1B visa holders may simultaneously seek Lawful Permanent Residency or a Green Card for themselves and for their family.

What are the limitations of H-1B visa?

·       If you change jobs you must reapply for a new visa, under the new position

·       You can only work for the company with petitioned for you.

Can I bring my dependents on H-1B visa?

Yes, you may bring your dependents on an H-1B visa. Your spouse and unmarried children are entitled to a H-4 visa and they can stay as long as you maintain valid H-1B status..

How long can I stay in the U.S. on an H-1B visa?

Generally H-1B visa is granted for three years. It may then be extended, up to six years total.

Can I transfer my H-1B visa to another company?

Yes, but a new petition must be filed by the company.

What if there is a change in my working conditions while I'm on  H-1B status?

As long as you continue to provide H-1B services to a U.S. employer, most changes will not affect your H-1B status. You may change H-1B employers without affecting status, but your new H-1B employer must file a new visa application before you start work.

Is there an annual quota on the number of H-1B visas issued?

Yes. The current annual quota on the H-1B category is 65,000 for each Fiscal Year.

Is everyone covered by the annual quota for H-1B visas?

There are certain exceptions to the annual cap:

• Persons who are employed, or who have received an offer of employment, by institutions of higher education or a related or affiliated nonprofit entity, as well as those employed, or who will be employed, by a nonprofit research organization or a governmental research organization are exempt from the cap.

• Also, there is a special allocation of H-1B visas for foreign workers with a Master's or higher level degree from a U.S. academic institution. 20,000 beneficiaries of H-1B petitions on behalf of persons who hold such credentials are statutorily exempted from the cap for each year.

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CHRISTOPHER A. KEROSKY of the law firm of KEROSKY PURVES & BOGUE has practiced immigration law for over 25 years.   He graduated from University of California, Berkeley Law School and was a former counsel for the U.S. Department of Justice in Washington D.C. 

Mr. Kerosky has been recognized as one of the top lawyers in Northern California for 9 years by “Super Lawyers” Magazine.  See www.superlawyers.com. 

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WARNING: The above is a summary discussing legal issues. It is not intended to be a substitute for legal advice. We recommend that you get competent legal advice specific to your case.