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Supreme Court Strikes Down DOMA, Affirms Immigration Rights of Gay and Lesbian Couples
On June 27, 2013, the Supreme Court issued its decision in the case, United States v. Windsor, striking down section 3 of the Defense of Marriage Act, or DOMA, on the basis that it violated equal protection under the due process clause of the 5th Amendment. DOMA established an exclusively heterosexual definition of “marriage,” and denied same-sex couples any federal benefits, including immigration benefits. This is a historic day for gay and lesbian marriage rights, as DOMA disqualified same-sex couples from over a thousand federal benefits, and made same-sex couples in committed relationships second-class citizens in the eyes of the federal government.
In particular, the case involved whether Edith Windsor should have been forced to pay hundreds of thousands of dollars in federal estate taxes, taxes that married persons do not have to pay, upon the death of her spouse that she had lawfully married in 2007. Because of DOMA, the Internal Revenue Service did not recognize their marriage and refused to refund the estate tax.
Although the case does not directly involve immigration law, the Supreme Court’s decision will profoundly affect the lives and rights of gay and lesbian bi-national couples. Under DOMA, lesbian and gay U.S. citizens and lawful permanent residents were barred from obtaining permanent residency and any other immigration protections for their same-sex spouses. As a result, gay and lesbian families have been torn apart, same-sex spouses of citizens have been deported and thousands of U.S. citizens have been forced to choose between their life-partners and exile from the United States.
In the 5-4 ruling, Justice Kennedy stated that “DOMA…violates basic due process and equal protection principles…the avowed purpose and practical effect of the law here in question are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages…[DOMA] is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in person hood and dignity.”
Secretary of Homeland Security Janet Napolitano has issued a statement applauding the decision striking down the discriminatory law. She vows to immediately begin implementing the decision to allow same sex spouses to obtain immigration benefits: “This discriminatory law denied thousands of legally married same-sex couples many important federal benefits, including immigration benefits. I am pleased the Court agreed with the Administration’s position that DOMA’s restrictions violate the Constitution. Working with our federal partners, including the Department of Justice, we will implement today’s decision so that all married couples will be treated equally and fairly in the administration of our immigration laws.”
The importance of this decision for the immigration rights of gay and lesbian couples cannot be understated. There are an estimated 28,500 bi-national same-sex couples in the United States. These couples will now be afforded many of the same immigration benefits and protections as all other couples under the U.S. immigration laws.
Same-sex couple can enjoy the federal immigration benefits as any other heterosexual couple ranging from simple alien relative petition (I-130) to waiver, cancellation of removal and more.
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Provisional Unlawful Presence Waivers (Form I-601A) (2013)
(Readers are advised to read the 2016 changes to the rules of 2013 Provisional Unlawful Presence Waivers mentioned below)
Beginning March 4, 2013, certain immigrant visa applicants who are spouses, children and parents of U.S. citizens (immediate relatives) can apply for provisional unlawful presence waivers before they leave the United States. The provisional unlawful presence waiver process allows individuals, who only need a waiver of inadmissibility for unlawful presence, to apply for a waiver in the United States and before they depart for their immigrant visa interviews at a U.S. embassy or consulate abroad.
The new process is expected to shorten the time U.S. citizens are separated from their immediate relatives while those family members are obtaining immigrant visas to become lawful permanent residents of the United States. Under current law, immediate relatives of U.S. citizens who are not eligible to adjust status in the United States must travel abroad and obtain an immigrant visa. Individuals who have accrued more than 180 days of unlawful presence while in the United States must obtain a waiver of inadmissibility to overcome the unlawful presence bars under section 212(a)(9)(B) of the Immigration and Nationality Act before they can return to the United States. Under the existing waiver process, which remains in effect, immediate relatives cannot apply for a waiver until after they have appeared for an immigrant visa interview abroad, and a Department of State (DOS) consular officer has determined that they are inadmissible to the United States. Immediate relatives of U.S. citizens who are eligible for the new provisional unlawful presence waiver can still choose to apply for a waiver using the existing process by filing a Form I-601, Application for Waiver of Grounds of Inadmissibility, after a DOS consular officer has determined that he or she is inadmissible to the United States.
What You Need to Know:
The new provisional unlawful presence waiver process does not change the immigrant visa process. Even if your provisional unlawful presence waiver is approved, you are still required to depart the United States for your immigrant visa interview with a U.S. consular officer abroad.
If a provisional unlawful presence waiver is approved, it will only take effect after:
1.You depart the United States and appear for your immigrant visa interview, and
2. A DOS consular officer determines that you are otherwise admissible to the United States and eligible to receive an immigrant visa.
NOTE: Do not depart until the National Visa Center (NVC) notifies you of your scheduled immigrant visa interview date and time at the designated U.S. Embassy or Consulate. DOS may cancel your immigrant visa application process if you fail to appear at your interview.
If you are in removal proceedings, you are ineligible for a provisional unlawful presence waiver unless, at the time you file your Form I-601A, your proceedings are administratively closed and have not been put back on the Department of Justice, Executive Office for Immigration Review (EOIR) calendar to continue your removal proceedings.
While USCIS does not envision placing I-601A applicants in removal proceedings, USCIS will follow current Department of Homeland Security (DHS) and USCIS Notice to Appear (NTA) guidance governing initiation of removal proceedings. For more information on USCIS NTA priorities, see USCIS Policy Memorandum, Revised Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Removable Aliens (Nov. 7, 2011).
Eligibility Requirements:
To be eligible for a provisional unlawful presence waiver you must fulfill ALL of the following conditions:
1. Be 17 years of age or older.
2. Be an immediate relative of a U.S. citizen (not a preference category immigrant who has a visa available). An immediate relative is an individual who is the spouse, child or parent of a U.S. citizen.
3. Have an approved Form I-130, Petition for Alien Relative, or Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant.
4. Have a pending immigrant visa case with DOS for the approved immediate relative petition and have paid the DOS immigrant visa processing fee.
5. Be able to demonstrate that refusal of your admission to the United States will cause extreme hardship to your U.S. citizen spouse or parent.
6. Be physically present in the United States to file your application for a provisional unlawful presence waiver and provide biometrics.
7. Not have been scheduled for an immigrant visa interview by DOS before January 3, 2013.
8. Meet all other requirements for the provisional unlawful presence waiver, as detailed in 8 CFR 212.7(e) and the Form I-601A and its instructions.
You are not eligible for a provisional unlawful presence waiver if any of the following conditions apply to you:
1. You are subject to one or more grounds of inadmissibility other than unlawful presence.
2. DOS initially acted before January 3, 2013, to schedule your Immigrant Visa (IV) interview for the approved immediate relative petition upon which your provisional unlawful presence waiver application is based, even if your immigrant visa interview has been canceled, you failed to appear for the interview, or your interview was rescheduled on or after Jan. 3, 2013.
Note: The date and time that you are scheduled to appear for your immigrant visa interview at the designated U.S. Embassy or Consulate is not the date USCIS will use to determine if you are eligible to file a Form I-601A. If DOS initially acted before January 3, 2013, to schedule your immigrant visa interview, you are not eligible to file a Form I-601A, even if you failed to appear for your interview or if you or DOS cancelled or rescheduled your interview for a date on or after January 3, 2013.
Instead, you may file a Form I-601, Application for Waiver of Grounds of Inadmissibility, from outside the United States after you have been interviewed for your immigrant visa, and the consular officer has found that you are inadmissible for a ground that may be waived.
3. You are in removal proceedings that have not been administratively closed.
4. At the time of filing, you are in removal proceedings that have been administratively closed but have been placed back on the EOIR calendar to continue your removal proceedings.
5. You do not meet one or more of the requirements, as outlined in the Form I-601A and its instructions.
How to Apply:
Carefully follow the Form I-601A instructions and fully complete the application. USCIS will reject any application that is not accompanied by the proper filing and biometric fees OR that does not meet the filing criteria specified in 8 CFR 212.7(e)(5). Use the checklist available on the last page of the form instructions to make sure your application is complete before filing.
Do not concurrently file Form I-601A with any other application or petition.
Please make sure that you follow these steps to prevent your application from being rejected and returned to you:
1. Complete Form I-601A.
2. Enclosed a check for the USCIS fee. The fee is $585. If you are under 79 years of age, you must also pay the $85 biometric services fee. If you are 79 years of age or older, you do not have to pay the $85 biometrics fee.The Form I-601A fees cannot be waived.
Having a pending application for a provisional unlawful presence waiver or an approval of such a waiver will NOT:
1. Grant you any benefit or protect you from being removed from the United States.
2. Allow you to apply for interim immigration benefits such as work authorization or advance parole.
3. Guarantee you will be issued an immigrant visa.
4. Guarantee your admission into the United States by U.S. Customs and Border Protection.
5. Give you a legal immigration status.
6. Change the requirement that you must depart the United States in order to obtain an immigrant visa.
Until your approved unlawful presence waiver takes full effect, USCIS may reopen or reconsider its decision on the Form I-601A at any time.
Reasons Your Provisional Waiver May Be Revoked:
Your approved provisional unlawful presence waiver is automatically revoked if:
1. DOS ends the immigrant visa application process.
2. USCIS revokes the underlying approved immigrant visa petition (Form I-130 or Form I-360).
3. The consular officer at the U.S. embassy or consulate determines that you are inadmissible on grounds of inadmissibility other than unlawful presence.
4. You reenter or attempt to reenter the United States without being inspected and admitted or paroled, before or after your provisional unlawful presence waiver is approved or before your immigrant visa is issued.
If You Are in Removal Proceedings:
If USCIS approves your Form I-601A, you and/or your legal representative should take steps immediately to have your removal proceedings formally terminated or dismissed by EOIR before you depart the United States to attend your immigrant visa interview. If you leave the United States before your removal proceeding is terminated or dismissed, you may experience delays in the processing of your immigrant visa or risk becoming ineligible for an immigrant visa based on another ground of inadmissibility.
After you receive the approval notice for your Form I-601A, you and/or your legal representative should contact the Office of the Principal Legal Advisor at U.S. Immigration and Customs Enforcement (ICE) to make arrangements to have those proceedings dismissed.
Denial of Form I-601A or Withdrawal of Form I-601A:
No Appeal or Motion to Reopen from the Denial:
If USCIS denies your provisional unlawful presence waiver, you cannot file an administrative appeal or a motion to reopen or reconsider.
However, if your provisional unlawful presence waiver request is denied or if you withdraw your provisional unlawful presence waiver application before USCIS makes a final decision, you may file a new Form I-601A, in accordance with the form instructions and with the required fees. Your immigrant visa case must also be pending with DOS. In the case of a withdrawn Form I-601A, USCIS will not refund the filing fees because USCIS has already taken steps to adjudicate the case.
Alternatively, if USCIS denies your Form I-601A or you withdraw your Form I-601A before USCIS makes a final decision, you can apply for a traditional waiver using the existing process and Form I-601, Application for Waiver of Grounds of Inadmissibility. You cannot apply for a Form I-601 until after you attend your immigrant visa interview and after DOS determines that you are subject to other grounds of inadmissibility. If you decide to file Form I-601 after the interview abroad, you must file the Form I-601 in accordance with its instructions and with the required fees.
AMENDMENTS TO RULES OF PROVISIONAL WAIVER OF 2013 ALLOWING ADDITIONAL APPLICANTS TO BECOME ELIGIBLE FOR PROVISIONAL WAIVER
This article will provide the difference between the current rules of 2013 and the new rules of 2016 that will be effective on August 29, 2016.
On July 29, 2016, DHS published a final rule expanding the availability of the provisional unlawful presence waiver to individuals who would be statutorily eligible for an unlawful presence waiver under INA §212(a)(9)(B)(v). The rule also makes additional changes to the current provisional waiver process. The following FAQs provide background information on the unlawful presence bars, the provisional waiver process and an overview of the changes that will be implemented as of the effective date of the rule, August 29, 2016.
BACKGROUND
Q: What Are the “Unlawful Presence” Bars to Admissibility?
A: Under INA §212(a)(9)(B), a person who has accrued more than 180 days of “unlawful presence” in the United States is subject to a 3-year bar to readmission that is triggered upon departure from the United States. A person who has accrued one year or more of unlawful presence will trigger a 10-year bar to readmission. “Unlawful presence” is a term of art that is not defined in the regulations. On May 6, 2009, USCIS rescinded its prior unlawful presence guidance and issued a 51-page consolidated unlawful presence memorandum with corresponding updates to the USCIS Adjudicator’s Field Manual.
In general, individuals who have an approved immigrant visa petition, but who are present in the United States without having been inspected and admitted or paroled, are ineligible to adjust their status to lawful permanent resident (LPR) while remaining in the United States. Instead, such individuals must leave the United States and apply for an immigrant visa at a U.S. embassy or consulate abroad. However, as described above, departure may trigger a 3- or 10-year bar to readmission. As a general matter, the 3- or 10-year bar to readmission may be waived, under INA §212(a)(9)(B)(v), if the applicant can demonstrate that the refusal of his or her admission would cause “extreme hardship” to a U.S. citizen or LPR spouse or parent.
Q: What Is a Provisional Waiver and How Is it Different from a Regular Waiver?
A: Prior to 2013, when the provisional waiver process was rolled out, an individual who departed the United States to apply for an immigrant visa at a U.S. embassy or consulate, and who was found inadmissible based on prior unlawful presence, could only apply for a waiver of inadmissibility by filing Form I-601, Application for Waiver of Grounds of Inadmissibility, with USCIS, and only after a consular officer made a finding of inadmissibility at the visa interview. In 2013, in recognition of the hardships that are imposed upon American families during the lengthy separation that often accompanies the “regular” waiver process, USCIS published a final rule implementing a new “provisional” unlawful presence waiver.
The provisional waiver process allows an applicant who knows he or she will be subject to the 3- or 10-year bar upon departure to apply for “provisional” approval of an unlawful presence waiver prior to departing the United States for the immigrant visa interview. Assuming there are no other eligibility or admissibility issues, an approved provisional waiver should permit a consular officer to issue an immigrant visa without undue delays. It is reported that the average length of time a person must remain outside the United States to await issuance of an immigrant visa following the grant of a provisional waiver is about two weeks. Prior to the implementation of the provisional waiver process, it was not uncommon for individuals to be stuck outside the United States for many months, and sometimes years, while they awaited approval of a waiver.
THE 2016 RULES
Q: Who Can Apply for a Provisional Waiver Under the 2016 Rule and How Is This Different From the 2013 Rule?
A: A number of changes to the threshold eligibility requirements are included in the final 2016 rule:
a. Visa Classification/Qualifying Relative:
• 2013 Rule: Under the 2013 rule, a provisional waiver was limited to those immigrating to the U.S. as “immediate relatives,” (spouses and children of U.S. citizens and parents of adult U.S. citizens) who could demonstrate extreme hardship to a U.S. citizen spouse or parent.
• 2016 Rule: Under the 2016 rule, anyone who is statutorily eligible for an unlawful presence waiver under INA §212(a)(9)(B)(v), may apply for a provisional unlawful presence waiver, regardless of their immigrant visa classification. In other words, if the visa applicant can demonstrate extreme hardship to a U.S. citizen or LPR spouse or parent, he or she may apply for and receive a provisional waiver, whether the basis for the immigrant visa is an employment-based preference category, a family-based preference category, the diversity visa lottery, or a special immigrant classification.
b. Elimination of Cut-off Dates:
• 2013 Rule: Under the 2013 rule, if the Department of State (DOS) initially acted to schedule the immigrant visa interview prior January 3, 2013 (the date of publication of the final 2013 rule), the individual was ineligible for a provisional unlawful presence waiver. The actual date and time of the interview was not relevant to the eligibility determination. This rule applied even if the individual failed to appear for the interview, cancelled the interview, or requested that it be rescheduled.
• 2016 Rule: Under the 2016 rule, DHS is eliminating the restrictions based on the date that DOS acted to schedule the immigrant visa interview.
c. Final Order of Removal:
• 2013 Rule: Under the 2013 rule, an individual with a final order of removal, deportation, or exclusion was ineligible for a provisional waiver.
• 2016 Rule: Under the 2016 rule, an individual with a final order of removal, deportation, or exclusion may apply for a provisional waiver if he or she has filed a Form I-212, Application for Permission to Reapply for Admission into the United States After Deportation or Removal, and such application has been conditionally approved. This change is considered an important one as it allows the individuals who are otherwise eligible but got stuck in the country due to an outstanding order of removal.
Q: I Heard that USCIS Is Eliminating the “Reason to Believe” Standard. What Does This Mean?
A: One significant change in the 2016 rule is the elimination of the “reason to believe” standard. Under current 8 CFR §212.7(e)(4)(i), USCIS must deny a provisional waiver application if USCIS has “reason to believe” that the applicant may be subject to a ground of inadmissibility other than unlawful presence at the time of the immigrant visa interview.
The “reason to believe” standard has been the source of much confusion. Since its implementation in 2013, USCIS was applying an overly rigid interpretation of “reason to believe,” and denying applications for individuals who would clearly not be deemed inadmissible for reasons other than unlawful presence at a consular interview. On January 24, 2014, USCIS issued a memorandum revising its policy in this area, but only when reviewing potential criminal ground of inadmissibility.
Noting the confusion that has persisted over the past few years, USCIS is eliminating the “reason to believe” standard from the provisional waiver adjudication process with the 2016 rule. Thus, when adjudicating a provisional waiver application, USCIS will only consider whether extreme hardship has been established and whether the applicant warrants a favorable exercise of discretion.
In addition, it is essential to thoroughly review the applicant’s entire immigration, criminal, and personal background and ensure all potential grounds of inadmissibility are vetted and reasonably eliminated prior to filing.
Q: What Does the New Rule Say About Reinstatement of Removal?
A: Under current 8 CFR §212.7(e)(4)(vii), an individual is ineligible for a provisional waiver if he or she is “subject to” reinstatement of a prior removal order under INA §241(a)(5). In the 2016 rule, USCIS clarified that individuals are ineligible for a provisional waiver if ICE or CBP, after following notice procedures outlined in 8 CFR §241.8, has reinstated a prior removal order, either before the client filed a provisional waiver application or while the application is pending. Thus, individuals who are “subject to” reinstatement, but have not yet received notice under 8 CFR §241.8, may apply for a provisional waiver under the 2016 rule. However, it should be noted that the provisional waiver approval would be automatically revoked if the applicant is ultimately found inadmissible under INA §212(a)(9)(C) for having unlawfully returned to the United States after a prior removal or prior unlawful presence.
Q: Did USCIS Address “Extreme Hardship in the 2016 Rule?
A: No, USCIS did not define or otherwise address the “extreme hardship” standard in the 2016 rule, saying only that it will continue to make extreme hardship determinations on a case-by-case basis, consistent with agency guidance. However, on October 7, 2015, USCIS released proposed guidance on extreme hardship determinations, including information on the burden of proof, relevant case law, factors that adjudicators should consider, and special circumstances that may exist. While USCIS has not yet published the final guidance, it is expected to be released in the coming weeks.
Q: Will There Be a New Version of Form I-601A, Application for Provisional Unlawful Presence Waiver?
A: Yes, USCIS announced in the supplementary information to the 2016 rule that changes to Form I-601A, Application for Provisional Unlawful Presence Waiver, are forthcoming. USCIS stated in a press release that these changes would go into effect along with the final rule, and that the updated form would be posted on USCIS’s website on August 29, 2016.
Q: When Does the 2016 Rule Become Effective?
A: The 2016 rule is effective August 29, 2016.
On March 31, 2010, Supreme Court held that criminal defense lawyers must advise their noncitizen clients about the risk of deportation if they accept a guilty plea. The Court recognized that current immigration laws impose harsh and mandatory deportation consequences onto criminal convictions, and that Congress eliminated from these laws the Attorney General’s discretionary authority to cancel removal in meritorious cases. The Court said, “These changes to our immigration law have dramatically raised the stakes of a noncitizen’s criminal conviction. The importance of accurate legal advice for noncitizens accused of crimes has never been more important.” The case, Padilla v. Kentucky, involved a Vietnam War veteran who has resided lawfully in the U.S. for over 40 years. His criminal defense lawyer told him not to worry about the immigration consequences of pleading guilty to a crime, but that advice was wrong. In fact, the guilty plea made Mr. Padilla subject to mandatory deportation from the United States. The state of Kentucky said that Mr. Padilla had no right to withdraw his plea when he learned of the deportation consequence. Today’s decision reverses the Kentucky court. It also rejected the federal government’s position (which had been adopted by several courts) that a noncitizen is protected only from “affirmative misadvice” and not from a lawyer’s failure to provide any advice about the immigration consequences of a plea. The right to counsel is at the very core of the criminal justice system. The Court affirms that immigrants should not be held accountable when they rely on incorrect advice from their lawyers or where counsel fails to provide any immigration advice at all.
Kucana v. Holder, 558 U.S. ___, 2010 U.S. LEXIS 764 (Jan. 20, 2010)
In a unanimous decision, the Supreme Court held that the courts of appeals have jurisdiction to review a BIA decision denying a motion to reopen. The case focuses on the scope of INA § 242(a)(2)(B)(ii), the bar to judicial review of discretionary decisions. This section provides that “no court shall have jurisdiction to review … any other decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified under this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland Security.” In the underlying decision, Kucana v. Holder, 533 F.3d 534 (7th Cir. 2008), the Seventh Circuit had said that this provision applies to determinations declared discretionary by the Attorney General through regulation. Thus, according to the Seventh Circuit, motions to reopen, which are discretionary by regulation, are not reviewable. The Supreme Court reversed the Seventh Circuit, finding that § 242(a)(2)(B)(ii) bars review only of determinations made discretionary by statute.
The Court began its analysis by noting that a “motion to reopen is an ‘important safeguard’ intended to ‘ensure a proper and lawful disposition’ of immigration proceedings” and that there is long history of judicial review over reopening decisions. Employing tools of statutory interpretation, the Court looked to § 242(a)(2)(B)(ii)’s context and placement in the statute. It found that the surrounding judicial review provisions, § 242(a)(2)(A) (barring review over expedited removal decisions under § 235(b)(1)) and § 242(a)(2)(C) (barring review where person is removable based on specified criminal grounds) depend on statutory provisions, not on regulations, to define their scope. The Court also found that § 242(a)(2)(B)(ii) must be read in conjunction with § 242(a)(2)(B)(i), which likewise bars review over the granting of relief under specified statutory provisions (namely, waivers under 212(h) and 212(i), cancellation of removal, voluntary departure, and adjustment of status). Moreover, the Court found significant the character of the decisions Congress enumerated in § 242(a)(2)(B), which are “substantive decisions . . . made by the Executive in the immigration context as a matter of grace.” Such decisions are distinguishable from decisions on motions to reopen, which are a procedural device “serving to ensure that aliens are getting a fair chance to have their claims heard.” Finally, the Court found that had Congress intended the jurisdictional bar to apply to decisions specified as discretionary by regulation, it could have said so explicitly as it did in other places.
Next, the Court looked to the history of the motion to reopen and judicial review provisions. The Court noted that through IIRIRA Congress simultaneously codified the motion to reopen statute and numerous bars to judicial review of executive decisions. “Had Congress elected to insulate denials of motion to reopen from judicial review,” the Court said, “it could have so specified together with its codification of directions on filing motions to reopen.”
Finally, the Court found that any “lingering doubts” about § 242(a)(2)(B)(ii) would be resolved by the presumption in favor of judicial review. There is no “clear and convincing evidence” that Congress intended to bar review over determinations made discretionary by regulation. Moreover, the Court said that under the Seventh Circuit’s construction of the statute “the Executive would have a free hand to shelter its own decision from abuse of discretion appellate review simply by issuing a regulation declaring those decisions ‘discretionary.’ Such an extraordinary delegation of authority cannot be extracted from the statute Congress enacted.”
This landmark decision has protected the immigrants' rights to challenge the BIA's denial of motion to reopen under the "abuse of discretion" standard.
On October 28, 2009, President Obama signed on the bill that became Public Law Number 111-83, ending Widow Penalty. The bill contains two measures to address survivors’ issues: 1) self-petitioning rights for all widow(er)s of American citizens and their children; and 2) certain survivors’ rights for other immigrants.
PART ONE: WIDOW(ER)S OF AMERICAN CITIZENS AND THEIR CHILDREN
The law removes the two-year marriage requirement from the current law (Immigration and Nationality Act Section 201(b)(2)(A)(i)) that permits widows and widowers (“widow(er)s”) of U.S. citizens to file a self-petition for themselves and their children, while retaining the requirement to show a good faith marriage. The law does not alter the rights of widow(er)s who were married two years or more, who have been able to self-petition since 1990.
It will allow a widow(er) who was married less than two years at the time of the citizen spouse’s death to file an I-360 self-petition form within two years of the law’s passage. This self-petition can be filed concurrently (together) with an Application for Adjustment of Status to Lawful Permanent Resident (Form I-485) if the widow(er) is in the United States pursuant to a lawful entry. If the widow(er) is outside the United States, he or she can apply for an immigrant visa following the I-360 approval. The law does not require that a petition have ever been filed by the U.S. citizen spouse.
In cases where the widow(er) was already the beneficiary of an I-130 Petition for Alien Relative filed prior to the citizen petitioner’s death, such I-130 petitions can be considered automatically converted to an I-360 self-petition. Current regulations already allow such auto-conversion for self-petitions. 8 C.F.R. 204.2(i)(1)(iv). USCIS will apply those regulations to the new law, and allow for a previously denied I-130 petition (and accompanying I-485 application) to be reopened and approved as an I-360 petition.
If you are relying on the automatic conversion of a previously-filed I-130 petition, be aware that an I-360 should be filed within the two years following the law’s passage if guidance is not established by that time.
Does the law require me to obtain an Affidavit of Support Sponsor?
No. The law allows the widow(er) to self-petition, which removes the requirement that another person file an affidavit of support on behalf of the immigrant. Form I-864, Affidavit of Support, will not be required of self-petitioners. Widow(er)s must still prove they are not likely to become a public charge, based on a totality of factors listed under INA Sec. 212(a)(4)(B).
Does the law allow my children to be included?
Yes. Unmarried children of the widow(er) may be included on Form I-360 that is filed by the widow(er). Those children who are under the age of 21 years at the time the petition is filed should be eligible, as well as those children whose age determination is calculated under 201(f) of the Immigration and Nationality Act (Child Status Protection Act, or “CSPA”). CSPA allows children to qualify, even when over age 21, where the petition was filed before the child’s 21st birthday. CSPA calculations can be difficult, so competent counsel should be consulted.
If an I-130 was previously filed by the U.S. citizen on behalf of the child before the child’s 21st birthday, such petition may be considered automatically converted, and may be used to establish the child’s age for self petitioning purposes. This will be particularly helpful in cases where children have already reached age 21 at the time of the law’s passage. In cases where the child is still under 21 at the time of the law’s passage, however, it is urged that widow(er)s file the I-360 self-petition for themselves and their children in case of controversy over this auto-conversion and CSPA interpretation.
Can I receive benefits if I have remarried?
While the self-petition provision in the new law specifically requires that the widow(er) not have remarried, the provision dealing with “Surviving Relative Consideration” (see PART TWO below) does not. That section requires a petition to have been filed previously, so if no previous petition was ever filed before the death, remarriage prior to receiving permanent resident status may foreclose benefits. If a petition was filed on your behalf by your spouse, but you have now remarried, please review PART TWO below.
Are there deadlines?
Yes. For those married less than two years at the time of the citizen’s death, the law permits the filing of a self-petition on Form I-360 within two years of the law’s enactment. Because the law was enacted October 28, 2009, the deadline is October 28, 2011. After this two-year period, a petition must be filed within two years of the citizen’s death. In cases where an I-130 was previously filed by the U.S. citizen, it can be considered to have automatically converted to an I-360 petition. For those married at least two years at the time of the citizen’s death, the law remains the same: an I-360 must be filed within two years of the citizen’s death, unless automatic conversion occurs as explained above. This new law does not change that deadline.
PART TWO: OTHER SURVIVORS
What other benefits to survivors does the law provide?
The law adds a new section of law, Sec. 204(l), to the Immigration and Nationality Act. The new section allows petitions that were filed prior to the death to be adjudicated despite the death of the petitioner or the principal immigrant in cases where the beneficiary or derivative beneficiary resided in the United States at the time of the death and continues to reside in the United States. The law covers the following survivors:
Does the law require an Affidavit of Support?
Yes. Unlike the self-petitioning widow(er)s (see PART ONE), 204(l) requires an Affidavit of Support, Form I-864. The law amends INA 213A(f)(5) to provide for a substitute sponsor in the case of a petition that is being adjudicated under the new INA 204(l).
I resided abroad at the time that my relative died. Am I covered under this new law?
Only self-petitioning widow(er)s and their qualifying children (see PART ONE) are covered under the new law where the survivor resided abroad at the time of the qualifying relative’s death. If the petition was approved prior to the qualifying relative’s death, however, current “humanitarian reinstatement” provisions found at 8 C.F.R. 205.1(a)(3)(i)(C)(2) may allow continued validity of the previously-approved petition, followed by consular processing of an immigrant visa. This would be the case even where the beneficiary was residing abroad.
Can I receive benefits if I have remarried?
While the self-petition provision in the new law specifically requires that the widow(er) not have remarried, the provision dealing with “Surviving Relative Consideration” does not.
Specifically, if a widow(er) resided in the United States at the time of the death of the qualifying relative and continues to reside in the United States, he or she shall have a petition or application for adjustment of status and any related applications adjudicated notwithstanding the death of the qualifying relative as long as the widow(er) “was…the beneficiary of a pending or approved petition for classification as an immediate relative…immediately prior to the death of his or her qualifying relative.” The clear language of the statute requires only that the person was an immediate relative immediately prior to the death. In the case of a widow(er) who remarries, this requirement is met despite the remarriage, provided a petition was filed prior to the death.
Can my petition still be denied?
The law gives the Secretary of Homeland Security some discretion to deny a petition if it is determined that approval would not be in the public interest. Most cases should be approved under this standard.
Will other related applications be adjudicated on the same basis?
Yes. New INA Section 204(l) provides that the petition, any application for adjustment of status, “and any related applications” be adjudicated notwithstanding the death of the qualifying relative. It is clear from this provision that it was the intent of Congress that such cases be treated humanely, and that the death of the relative should not form the sole reason for denial. Applications related to petitions and applications for adjustment of status include such things as waiver applications (Form I-212, Form I-601).
Under the new law, it should be possible for survivors (including spouses of American citizens, and all listed survivors) to be approved for waivers of inadmissibility notwithstanding the death of the qualifying relative, provided a petition was filed by the qualifying relative prior to the death, or in the case of a derivative, on behalf of the qualifying relative.
(Note: This information is of a general nature and cannot be substituted for advice of competent counsel in an individual case.)
[As the Court struck down this memo, this positing is left for the purpose of reference].
September 5, 2017
9/5/2017 Memorandum on Rescission Of DACA.
Reasons stated in the Fifth Circuit and district court opinions regarding DAPA and expanded DACA. The letter from US Attorney General, Jeff Sessions, notes that if DHS does not rescind the DACA memo by September 5, 2017, the States will seek to amend the DAPA lawsuit to include a challenge to DACA.
The Attorney General sent a letter to the Department on September 4, 2017, articulating his legal determination that DACA “was effectuated by the previous administration through executive action, without proper statutory authority and with no established end-date, after Congress' repeated rejection of proposed legislation that would have accomplished a similar result. Such an open-ended circumvention of immigration laws was an unconstitutional exercise of authority by the Executive Branch.”
The letter further stated that because DACA “has the same legal and constitutional defects that the courts recognized as to DAPA, it is likely that potentially imminent litigation would yield similar results with respect to DACA.” Nevertheless, in light of the administrative complexities associated with ending the program, he recommended that the Department wind it down in an efficient and orderly fashion, and his office has reviewed the terms on which our Department will do so.
Rescission of the June 15, 2012 DACA Memorandum
Elaine C. Duke, Acting Secretary of DHS stated that "taking into consideration the Supreme Court’s and the Fifth Circuit’s rulings in the ongoing litigation, and the September 4, 2017 letter from the Attorney General, it is clear that the June 15, 2012 DACA program should be terminated. In the exercise of my authority in establishing national immigration policies and priorities, except for the purposes explicitly identified below, I hereby rescind the June 15, 2012 memorandum."
Recognizing the complexities associated with winding down the program, the Department will provide a limited window in which it will adjudicate certain requests for DACA and associated applications meeting certain parameters specified below. Accordingly, effective immediately, the Department:
Will adjudicate - on an individual, case-by-case basis—properly filed pending DACA initial requests and associated applications for Employment Authorization Documents that have been accepted by the Department as of the date of this memorandum, i.e., 9/5/2017.
Will reject - all DACA initial requests and associated applications for Employment Authorization Documents filed after the date of this memorandum, i.e., 9/5/2017.
Will adjudicate—on an individual, case by case basis—properly filed pending DACA renewal requests and associated applications for Employment Authorization Documents from current beneficiaries that have been accepted by the Department as of the date of this memorandum (9/5/2017), and from current beneficiaries whose benefits will expire between the date of this memorandum and March 5, 2018 that have been accepted by the Department as of October 5, 2017. In other words, individuals whose DACA status is expired, they will will remain eligible for renewals and can file their DACA renewals applications on or before October 5. 2017.
Will reject - all DACA renewal requests and associated applications for Employment Authorization Documents filed after 10/5/2017.
Will not terminate - the grants of previously issued deferred action or revoke Employment Authorization Documents solely based on the directives in this memorandum for the remaining duration of their validity periods.
Will not approve - any new Form I-131 applications for advance parole under standards associated with the DACA program, although it will generally honor the stated validity period for previously approved applications for advance parole. Notwithstanding the continued validity of advance parole approvals previously granted, CBP will, of course, retain the authority it has always had and exercised in determining the admissibility of any person presenting at the border and the eligibility of such persons for parole.
On June 15, 2012, Department of Homeland Security (DHS) Secretary Janet Napolitano issued a new memorandum to U.S. Customs and Border Protection (CBP), U.S. Citizenship and Immigration Services (USCIS), and U.S. Immigration and Customs Enforcement (ICE) explaining how prosecutorial discretion should be used with respect to individuals who came to the United States as children. Specifically, the memorandum directs that certain young people who do not present a risk to national security or public safety and meet specified criteria will be eligible to receive deferred action for two years, subject to renewal, and to apply for work authorization. Requests for relief are to be decided on a case-by-case basis, and applicants must pass a background check before they can receive deferred action. The memorandum, which was accompanied by a list of Frequently Asked Questions (FAQ), builds on prior DHS guidance regarding the exercise of prosecutorial discretion in low priority cases.
Individuals who meet the following criteria from Secretary Napolitano’s June 15, 2012 memorandum will be considered for deferred action:
Deferred action is a discretionary DHS decision not to pursue enforcement against a person for a specific period. A grant of deferred action does not confer lawful immigration status or alter an individual’s existing immigration status. While deferred action does not cure any prior period of unlawful presence, time in deferred action status is considered a period of stay authorized by the Secretary of DHS. An individual does not accrue unlawful presence for purposes of INA §§212(a)(9)(B) and (C)(i)(I) while in deferred action status. However, deferred action cannot be used to establish eligibility for any immigration benefit that requires maintenance of lawful status. A grant of deferred action can be renewed or terminated at any time.
The deferred action offer will be available to those in proceedings, as well as those who apply affirmatively. [NOTE: Individuals who are NOT in proceeding should NOT apply affirmatively at this time.]
Some provisions of the memorandum took effect immediately. Notably, ICE and CBP were instructed to exercise their discretion to refrain from placing individuals who meet the eligibility criteria into removal proceedings or being removed from the United States. ICE further was instructed to grant deferred action to anyone who meets the eligibility criteria and was offered prosecutorial discretion under ongoing review of pending removal cases first announced in August 2011, regardless of whether the offer was accepted or declined.
Individuals who meet the eligibility criteria and are not currently in removal proceedings, including those subject to final orders of removal, will be able to submit affirmative applications for deferred action to USCIS. USCIS must establish an application process within 60 days of the date of the memorandum, i.e., on or before August 14, 2012. Applicants should not submit applications to USCIS before this process has been established, as they will be rejected. ICE will review cases of individuals in removal proceedings to determine whether they meet the eligibility criteria. ICE’s process for review is evolving. Currently, ICE Headquarters appears to be granting deferred action to individuals known to meet the eligibility criteria without requiring any further action on their part.
It should be noted that the memorandum does not require uninterrupted physical presence for five years—only continuous residence. Brief and innocent absences undertaken for humanitarian purposes will not violate this requirement. Eligible applicants must provide documentations that will satisfy each requirement or criteria mentioned above.
From August 15, 2012, USCIS has started accepting the Deferred actions applications. The Form 821D, I-765, I-765Ws should be utilized.
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HISTORICAL FACTS OF TPS FOR NEPAL:
[The article primarily details the initial designation of TPS for Nepal announced on June 24, 2015 and the developments thereafter. Readers must be aware of the fact that TPS designation for Nepal was terminated with a delayed expiration date of June 24, 2019. On April 26, 2018, the DHS secretary Kirstjen Nielsen had announced the termination of TPS designation for Nepal.
However, as result of series of legal challenges commenced by various TPS designated countries like El Salvador, Haiti etc. (Ramos v. Nielson), Nepal and Honduras also followed the same suit and filed a lawsuit against Department of Homeland Security (Bhattrai v. Nielson). As a result of the temporary injunction issued by a Federal Court in California, TPS termination orders have been lifted for those Plaintiff countries. On May 10, 2019, USCIS issued a policy alert that has extended the validity of TPS status for Nepal until March 24, 2020. USCIS extended TPS for Nepal until October 4, 2021 due to pending legal proceedings. On September 9, 2021, DHS again announced that it extended TPS until December 31, 2022 for Nepal and other certain countries like El Salvador, Haiti, Nicaragua, Honduras and Sudan. On November 16, 2022, DHS announced in FRN that it extended TPS for Nepal until June 24, 2025.
REINSTATEMENT OF TPS FOR NEPAL BY BIDEN ADMINISTRATION
DHS RESCINDS PRIOR ADMINISTRATION’S TERMINATION OF TEMPORARY PROTECTED STATUS (TPS) DESIGNATION FOR NEPAL:
On June 13, 2023, DHS announced the recession of the Trump Administration’s termination of the TPS designations for EL SALVADOR, HONDURAS, NEPAL, AND NICARAGUA and the extension of TPS for countries for 18 months.
On June 21, 2023, the Notice was published in the Federal Register (FR) and provided the details of TPS eligibility criteria, timeliness, and procedures necessary for current beneficiaries to re-register for TPS and renew their EADs.
The Notice states that existing TPS beneficiaries will be able to re-register to continue their TPS status throughout the 18-month extension. Individuals who arrived after the TPS after the continuous residence date for the designations are NOT eligible for the new TPS extension.
For Nepal, the continuous residence date is June 24, 2015.
For Nepal, TPS is extended until June 24, 2025. The new extension allows about 14,500 existing TPS beneficiaries from Nepal to re-register to retain TPS through June 24, 2025, if they otherwise continue to meet the eligibility requirements for TPS.
Duration for Re-registration:
Existing TPS-Nepal beneficiaries who wish to extend their status through June 24, 2025, must re-register during the the re-registration period from October 24, 2023, through June 24, 2025. The extension of re-registration period was published on Federal Register on December 13, 2023. In other words, the re-registration period runs throughout 18 months period of TPS.
The decisions to rescind the termination of the designations of these countries for TPS became effective on June 9, 2023.
Re-registration is limited to individuals who have previously registered or reregistered for TPS under Nepal’s designation, whose applications were granted, and whose TPS has not been withdrawn for individual ineligibility for the benefit. Failure to reregister properly within the reregistration period may result in the withdrawal of your TPS following appropriate procedures. See 8 CFR 244.14.
For individuals who have already been granted TPS under Nepal’s designation, although USCIS initially announced the 60-day re-registration period from October 24, 2023 through December 23, 2023, now, it has extended the re-registration period until June 24, 2025. USCIS will issue new EADs with a June 24, 2025 expiration date to eligible Nepalese TPS beneficiaries who timely re-register and apply for EADs.
Individuals who have a Nepal TPS application (Form I–821) and Application for Employment Authorization (Form I–765) that were still pending as of June 21, 2023 do not need to file either application again. If USCIS approves an individual’s pending Form I–821, USCIS will grant the individual TPS through June 24, 2025. Similarly, if USCIS approves a pending TPS-related Form I–765 filed in connection with a Form I–821, USCIS will issue the individual a new EAD that will be valid through the same date. If you have TPS and only a pending Form I–765, you must file the Form I–821 to reregister for TPS or risk having your TPS withdrawn for failure to timely reregister without good cause. There are currently approximately 14,500 beneficiaries under Nepal’s TPS designation who may be eligible to continue their TPS under the extension announced in this Notice.
What Is TPS?
When an Asylee or Refugee Can Apply for U.S. Citizenship
The question “When will I become eligible for filing N-400, Application for Naturalization?” has always been a crucial and important question for many lawful permanent residents who tend to apply for US citizenship. In general, most of the people know that you have to wait for 5 years from the time you obtained your permanent resident status and 3 years if you obtained your resident status through your marriage to a US Citizen Spouse. But many who obtained their permanent resident status based on their refugee or asylee status are still confused with the length of the time they need to accrue from the time they obtained their lawful permanent resident status (Green Card) to the time they file Form N-400, Application for Naturalization. This article will help clarify the required passage of time for filing Form N-400 for a lawful permanent resident who obtained such resident status through either asylee or refugee status.
You may count at least one year of your time as a refugee or asylee toward your required five years of permanent residence.
Nearly everyone wishing to apply for U.S. citizenship (naturalization) must prove that he or she has had permanent residence (a green card) for a minimum number of years. The required number is usually five.
However, if you got your green card based on having had asylum or refugee status first, you will want to understand how your years as an asylee or refugee count toward those required five years. Part of that time will be counted as permanent residence, based on a concept known as “rollback.” The result is that you may be able to apply to naturalize sooner than you thought.
When Refugees Can Apply to Naturalize
If you were granted refugee status while in another country, and then entered the U.S. as a refugee, you can count your date of U.S. entry as the beginning of your permanent residence - assuming, of course, that you eventually succeed in becoming a permanent resident. All your years as a refugee in the U.S. will count toward the required five years of permanent residence for naturalization eligibility purposes. (See the Code of Federal Regulations at 8 C.F.R. § 209.1(e).)
So, for instance, if you spend five years as a refugee in the U.S. before finally getting around to applying for a green card, you have fulfilled the five-year requirement already, and can apply for citizenship as soon as U.S. Citizenship and Immigration Services (USCIS) approves you for permanent residence.
(You should, however, have applied for a green card one year after your date of entry as a refugee, as is required by law.)
When Asylees Can Apply to Naturalize
If you were granted asylum in the United States, a maximum of one year of your time in asylee status counts as permanent residence. In other words, you will be able to add one year of asylee status to your residence requirement to become eligible for citizenship from the date your application for adjustment of status is approved. If you waited longer than a year to apply for your green card, that extra time will not do you any good—you will still need to wait another four years after your green card approval before applying for U.S. citizenship.
Don’t Be Confused by the Date on Your Green Card
In recognition of the rollback doctrine, USCIS will "back date" your green card—that is, actually put your date of U.S. entry (if you were a refugee) or the date one year before your green card approval (if you were an asylee) on your green card, in the space for the date you became a permanent resident. (See 8 C.F.R. § 209.2(f ).)
So, whatever you do, do not look at the date on your card and expect to be applied to apply for U.S. citizenship four years later. The date placed there should make it convenient for you to count forward the required five years before you submit an application for U.S. citizenship.
The 90-Day Early Application Rule
One more helpful bit of guidance, if you’re eager to apply for U.S. citizenship: You can turn in your citizenship application (USCIS Form N-400) 90 days before your required years of permanent residence have passed. This 90-day period compensates for the fact that USCIS may not act on your application (call you in for an interview) for at least that amount of time.
If you have any further questions about your eligibility for U.S. citizenship, consult an experienced immigration attorney.
AN OVERVIEW OF F-1 EMPLOYMENT IN THE USA
There are many rules and restrictions related to F-1 student employment in the United States. Non-immigrant visas are issued for specific, temporary reasons to visit the U.S.
When issuing a non-immigrant visa, United States Citizenship and Immigration Services (USCIS) takes measures to validate that the applicant intends to return home. Therefore, there are additional checks to make sure employment is related to your education.
When evaluating their employment options, many international students are surprised to learn about these 3 lesser known F-1 student employment facts:
FACT 1: Losing F-1 Status
Work through your school’s International Student Office, and specifically get permission from your designated school official (DSO), before seeking or accepting employment. If your school’s DSO learns that you are working without permission, the DSO is obligated to report it through SEVIS. This could jeopardize your F-1 visa. That means that you will have to leave the United States immediately, and you may not be allowed to return. Don’t jeopardize your F-1 status. There are many opportunities to work and getting permission is a relatively simple process.
FACT 2: F-1 Student Employment Opportunities Available Immediately
Most F-1 students know that they may not work off-campus during the first academic year. However, there may be immediate opportunities for employment on campus. Although on-campus employment does not require USCIS approval, you should check with your school’s International Student Office to confirm that you have permission. Read more about on-campus F-1 student employment.
FACT 3: Additional Options for Those That Don’t Qualify for OPT, CPT and STEM
Many international students don’t realize there are other options available besides the standard Occupational Practical Training (OPT), Curricular Practical Training and STEM. Students that have suffered a “severe economic hardship” can qualify for employment authorization on that basis. International F-1 students may also be employed by a “qualifying international organization.” There is even an option for students that have run out of OPT – students can be authorized for 12 months of OPT for each successive level of degree achieved. Therefore a student can do 12 months of OPT after receiving an undergraduate degree, and then do 12 months of OPT after receiving a graduate degree. Read more about economic hardship.
Generally, all employment is contingent on remaining within the terms and restrictions of your F-1 visa. F-1 students may not work off-campus during the first academic year, but may accept on-campus employment subject to certain conditions and restrictions. There are various programs available for F-1 students to seek off-campus employment after the first academic year. In all there are five paths for an F-1 student to obtain employment authorization within the United States:
1. On-Campus F-1 Student Employment
2. Optional Practical Training (OPT)
3. Curricular Practical Training (CPT)
4. Severe Economic Hardship
5. Qualifying International Organization
1. On-Campus F-1 Student Employment
USCIS rules provide the greatest latitude and freedom for on-campus employment. What’s more, it does not require USCIS approval. Unfortunately, on-campus employment opportunities are limited and often do not relate to your area of study. Additionally, you cannot rely on an on-campus job to prove your financial ability to attend school. Many schools do require that you obtain permission from the International Student Office prior to accepting any on-campus employment and may not permit such employment in a student’s first semester or year.
For on-campus work, an F-1 student is subject to the following rules:
* You must maintain valid F-1 status.
* You can work up to 20 hours per week while school is in session.
* You can work full-time on campus during holidays and vacation periods if you intend to register for the next academic semester.
* The employment may not displace (take a job away from) a U.S. resident.
* The definition of on-campus employment includes:
Work performed on the school’s premises directly for your school (including work affiliated with a grant or assistantship).
Work performed for on-location commercial firms which provide services for students on campus, such as the school bookstore or cafeteria. (Employment with on-site commercial firms which do not provide direct student services, such as a construction company building a school building, is not deemed on-campus employment for the purposes of the rule.)
Work performed at an off-campus location which is educationally affiliated with the school. The educational affiliation must be associated with the school’s established curriculum or related to contractually funded research projects at the post-graduate level. The employment must also be an integral part of the student’s educational program.
Before seeking employment or accepting a job, check with your school’s International Student Office to confirm you have permission. When determining if an employment situation is within the on-campus guidelines, also seek support from the International Student Office. Your first priority should be keeping your visa in good status.
2. Optional Practical Training (OPT)
F-1 student employment OPT
F-1 students in the U.S. may be permitted to work off-campus in optional practical training (OPT) status both during and after completion of their degree. Guidelines established by USCIS govern the implementation of OPT, and all OPT employment requires prior authorization from USCIS and from your school’s International Student Office.
How to Get an EAD Based on OPT
STEP 1: Communicate with Your School. Contact your school’s International Student Office to apply for OPT. They are there to assist you. You can apply for OPT after being enrolled for at least 9 months.
STEP 2: Complete Form I-765
Prepare Form I-765, Application for Employment Authorization. File the Form I-765 with your Form I-20, Certificate of Eligibility of Nonimmigrant (F-1) Student Status, and any other documents specified in the filing instructions. Your Form I-20 must be endorsed by a Designated School Official within the past 30 days. Commonly known as a work permit, an EAD can take over 90 days to acquire.
STEP 3: Begin Work
Once you have obtained your EAD (work permit), you may accept employment anywhere in the U.S. However, you must validate your OPT within 3 months of the date of your OPT issuance. In other words, you must notify your DSO that you obtained a paid or unpaid employment at a company or employer.
General OPT Requirements:
Employment must be “directly related” to the student’s major
Student must maintain lawful F-1 status
Student must apply for OPT before completion of all work towards a degree
Students who have engaged in 12 months or more of full-time Curricular Practical Training (CPT) are not eligible for OPT
OPT is permitted for up to 12 months full-time in total – part-time OPT (while still in school) reduces available full-time OPT by half of the amount of part-time work (for instance, if you work part time for 6 months, you can work full-time for up to 9 months). Students can be authorized for 12 months of OPT for each successive level of degree achieved. Therefore a student can do 12 months of OPT after receiving an undergraduate degree, go back to graduate school, and then do 12 months of OPT after receiving a graduate degree. Pre-completion OPT (students are still in school) and post-completion OPT (students have completed their degree) each have different rules:
OPT before completing a degree:
Students must be enrolled in school full-time
Students may only work 20 hours per week while school is in session
Students may work full-time during summer and other breaks (as long as the student will return to school after the break)
Student may work full-time after completion of all coursework, if a thesis or dissertation is still required and student is making normal progress towards the degree
OPT after completing a degree:
After completion of your degree, OPT work must be full time (40 hours/week)
All OPT must be completed within 14 months after completion of your degree
Applications for post-completion OPT must be received by USCIS before the completion of the degree
24-Month Extension for STEM Students:
If qualified, eligible for an additional 24 months of OPT (total of 36 months)
Only available for STEM students in the subjects of actuarial science, computer science applications, engineering, engineering technologies, life sciences, mathematics, military technologies and physical sciences Must be employed by a company enrolled in the E-Verify program and provide that E-Verify information on Form I-765
Curricular Practical Training (CPT)
When practical training is an integral part of the established curriculum or academic program for F-1 students, Curricular Practical Training (CPT) is an off-campus employment option. CPT employment is defined as “alternative work/study, internship, cooperative education, or any other type of required internship or practicum that is offered by sponsoring employers through cooperative agreements with the school.” To be eligible for CPT employment:
You must have been enrolled in school full-time for one year on valid F-1 status (except for graduate students where the program requires immediate CPT)
The CPT employment must be an integral part of your degree program or requirement for a course for which you receive academic credit
You must have received a job offer that qualifies before you submit your CPT authorization request
Your job offer must be in your major or field of study
How to Get a Employment Authorization Based on CPT
STEP 1: Visit your school’s International Student Office to confirm your eligibility.
STEP 2: Locate an employment opportunity that fits your field of study.
STEP 3: Request CPT authorization from your school’s International Student Office and notify USCIS.
STEP 4: Begin working only for the specified employer that was approved for your CPT.
Once you receive CPT authorization, you can only work for the specific employer and for the specific dates authorized (unlike with OPT or severe economic hardship off-campus employment, where you can work anywhere in the US). Your CPT authorization will also specify whether you are approved for part-time (20 hours per week or less) or full-time (more than 20 hours per week) CPT employment. While in school, you can only be approved for part-time CPT.
Regardless of whether you are approved for full or part-time on CPT, there is no limit to how long you can work. However, if you work full-time on CPT for 12 months or more, you are not eligible for OPT. If you work part-time on CPT, or full-time on CPT for less than 12 months, you are still eligible for all of your allowable OPT. So make sure you watch the dates and hours closely – don’t jeopardize your OPT!
Severe Economic Hardship
Any F-1 student suffering “severe economic hardship” is eligible to work off-campus for up to 20 hours per week while school is in session, and full-time during breaks. Examples of severe economic hardship as defined by USCIS include: loss of financial aid or on-campus employment without fault on the part of the student; substantial fluctuations in the value of currency or exchange rate; inordinate increases in tuition and/or living costs; unexpected changes in the financial condition of the student’s source of support; or medical bills or other substantial and unexpected expenses. To be eligible under “severe economic hardship:”
You must be in valid F-1 status for at least one academic year (9 months)
You must be in good academic standing
You must provide evidence of economic hardship based on unforeseen circumstances beyond the student’s control
You must show that on-campus employment is neither available nor sufficient
You have made a good faith effort to locate employment on campus before applying
How to Get an EAD Based on Severe Economic Hardship?
STEP 1: Communicate with Your School
Contact your school’s International Student Office to ensure you meet the eligibility requirements above and have their support. They are there to assist you.
STEP 2: Complete Form I-765
Prepare Form I-765, Application for Employment Authorization. File Form I-765 with your Form I-20, Certificate of Eligibility of Nonimmigrant (F-1) Student Status, and any other documents specified in the filing instructions. You should also include evidence of your hardship such as affidavits that detail the unforeseen economic circumstances that caused your request and evidence that you have tried to find off-campus employment with an employer who has filed a labor and wage attestation. Commonly known as a work permit, an EAD can take over 90 days to acquire.
STEP 3: Begin Work
Once you have obtained your EAD (work permit), you may accept employment anywhere in the U.S.
Employment Authorization through a Qualifying International Organization
International F-1 students may also be employed by a “qualifying international organization.” To be recognized as “qualifying,” the organization must be on the official State Department list. However, only students with a job offer and sponsorship from one of the listed organizations are eligible. Requirements to work for an international organization include:
The student must have an internship/employment with a “qualifying international organization.” Click here for a list of “qualifying international organizations.” at https://www.ecfr.gov/cgi-bin/retrieveECFR?gp=&SID=edb9d252b0726531a7b4a652659a213b&r=SECTION&n=8y1.0.1.3.68.0.1.14.
The employment must be within the scope of the organization’s sponsorship and within the student’s field of study.
The student must have been in valid F-1 status for at least one full academic year.
The student must be in good academic standing.
How to Get an EAD Based on a Qualifying International Organization
STEP 1: Communicate with Your School
Contact your school’s International Student Office to ensure you meet the eligibility requirements above and have their support. They are there to assist you.
STEP 2: Complete Form I-765
Prepare Form I-765, Application for Employment Authorization. File Form I-765 with your Form I-20, Certificate of Eligibility of Nonimmigrant (F-1) Student Status, and any other documents specified in the filing instructions. Your Form I-20 must be endorsed by a Designated School Official within the past 30 days. Commonly known as a work permit, an EAD can take over 90 days to acquire.
STEP 3: Begin Work
Once you have obtained your EAD, you may work only for the employer approved in the EAD.
Unlike CPT and OPT, employment with an international organization does not have to be for-credit or count toward your degree program. Plus, regardless of how much or how long you work, this type of employment will not take away from your 12-month post-completion OPT.
Obtaining F-1 Student Employment Authorization
F-1 student employment I-765 EAD
After your school’s International Student Office has given you permission to seek employment, you also need to obtain an Employment Authorization Document (EAD) from USCIS. Also known as a work permit, the EAD is obtained by filing Form I-765, Application for Employment Authorization, with USCIS. Form I-765 can be downloaded from the USCIS website. In many cases your ISO will assist you with the preparation of the form.
How long can I stay in US after OPT expires? 60-day
You are allowed a 60-day grace period following your OPT expiration date to leave the United States, change your visa status, or transfer your F-1 record to a new school or program. In some cases, you may want to pursue these options before the end of your OPT.
Applying for U.S. citizenship gives U.S. immigration authorities a chance to review your entire immigration file and everything that has happened in your life since. Learn what particular risks this often poses for asylees.
For many people who obtained status in the U.S. as asylees, and who then became U.S. lawful permanent residents (with a green card), applying for naturalized U.S. citizenship is the obvious next step. Citizenship gives a person benefits not offered to permanent residents, including the right to vote, the ability to petition for additional family members abroad to immigrate, and the ability to reside abroad without losing U.S. immigration status..
But as discussed in this article, there are also risks to applying for U.S. citizenship, especially because it gives U.S. Immigration and Citizenship Services (USCIS) a chance to review your entire immigration file and everything that has happened in your life since. If you recently obtained U.S. asylum, it is a good idea to keep these issues in mind during the years before you apply for naturalization, to ensure that you do not do anything that could hurt your citizenship case down the road. And if you are ready to apply for naturalization now, you should carefully consider and address any of these issues that might apply to you.
When You Apply for Citizenship, USCIS Will Double-Check Whether Your Asylum Claim Was Bona Fide
When USCIS reviews a former asylee's application for naturalization, it wants to make sure that the person's underlying asylum claim was "bona fide," or real. This means that the agency might look closely at the person's N-400 naturalization application and history in the United States to make sure that it is consistent with the reasons the person requested asylum.
For example, if a man requested asylum because he feared persecution in his home country based on his homosexuality, and then he marries a woman in the United States, USCIS might wonder if he lied about his sexual orientation on his asylum application.
Or, if a Christian pastor fled his home country because the government was persecuting Christians, but now is a practicing Muslim, USCIS could believe that he lied about his religion to receive asylum.
In both of these cases, the underlying asylum claim might truly be bona fide, and the person's life might simply have changed significantly since the application for asylum. Nevertheless, USCIS will look closely at the application and could deny it if the applicant cannot offer a strong explanation for the discrepancies.
The best way to explain such changes is by providing corroborating documentation. For example, in the case of the homosexual man above, he might have realized after coming to the United States that he was actually bisexual. Some documentation he might use to prove this includes a report from any psychologists or counselors he has visited about his sexuality, a letter from his wife that explains her knowledge of his sexual preference, receipts from LGBTQ bars showing that he is still active in the LGBTQ community, and proof of any relationships he had with men in the United States before he met his wife.
Do not wait for USCIS to request this documentation from you. Instead, your best course of action is likely to include the documents, along with a letter explaining the situation, in your initial application. This will show USCIS that you are being completely honest with it and that you understand the likely concerns.
When You Apply for Citizenship, USCIS Will Examine Your Travel History
If a person travels back to their home country after receiving asylum, USCIS could suspect that they did not actually fear persecution when applying for asylum. And if the person travels to the home country frequently, USCIS will become especially suspicious.
The basis of an asylum application is that the applicant fears persecution in the home country, and when they regularly travel there, it appears that the fear and the risk of persecution were actually low. If you have traveled back to your home country at all since receiving asylum, you will need to explain to USCIS why you did so (perhaps for an urgent matter that outweighed the risks) and show that the underlying risk of persecution on your asylum application was real.
When trying to explain to USCIS why you traveled back to your home country, think about the reasons for your travel and the precautions you took while there. For example, let's say that a year or two (or more) after you received lawful permanent residence, the conditions in your home country changed and you no longer faced a risk of returning. Perhaps your government was in the middle of a civil war when you came to the United States, but now the war has ended and the different political parties are working together peacefully, making it safe for you to visit. If such a fact pattern applies to you, gather country-conditions reports and news articles showing the safer country conditions around the time you traveled (but not before you received your green card).
Or, maybe it is still dangerous for you to visit your home country, but you had to go for serious personal reasons, such as the grave illness of a close relative. In this case, you should explain to USCIS the precautions you took to protect yourself while there, such as remaining in hiding during your trip, using a different name, or wearing a disguise while out in public. Write a declaration that describes all your efforts, have friends or family members who were with you write letters on your behalf, or provide photos that show where you where you hid or your disguise.
If neither of the above examples apply to you, think about why you traveled to your home country, and prepare to show USCIS why that travel did not undercut your initial asylum eligibility. Provide copies of any documentation that further proves your explanation.
When You Apply for Citizenship, USCIS May Look for Your Name on the INTERPOL List of Criminals and Terrorists
Occasionally, someone receives asylum in the United States and later appears on the Interpol wanted-person list. The person might appear on the list due to having committed a crime in the home country, or due to mistaken identity, or because of involvement in a terrorist organization, even without having known it was a terrorist organization at the time.
USCIS takes the Interpol listings seriously. If your name is on it, even if the reason was a mistake, it could seriously impact your naturalization case. If you believe that you could be on the Interpol's list, contact an immigration attorney immediately to discuss your options.
When You Apply for Citizenship, USCIS Will Want to See That You Registered for the U.S. Selective Service
Every male U.S. citizen or immigrant between the ages of 18 and 25 is required to register for the Selective Service. That literally means filling out a form that provides your name and address in case the United States ever needs to rapidly expand the armed forces in an emergency. Unfortunately, many immigrants do not know about this requirement and fail to register. This failure can affect a person's application for naturalization.
When You Apply for Citizenship, USCIS Will Look for Inconsistencies Between Your Application for Naturalization and for Asylum
A big problem for many former asylees applying for naturalization is that they make statements on their N-400 Application for Naturalization that are different from either the information they gave on their I-589 Application for Asylum or in their testimony when applying for asylum. Some of the most common types of inconsistencies are:
Of course, your first step is to accurately fill out your Form N-400. If, however, any such inconsistencies reflect actual facts in your case, you will need to explain to the USCIS officer what happened. Certain inconsistencies could result in a bar to naturalization or cast doubt on the statements you made in your underlying asylum application.
In all of the scenarios above, it is important to address the issues and bring them up proactively with USCIS, both in the application for naturalization and in the interview. Often, upfront honesty about a mistake or inconsistency can be the deciding factor between the approval or denial of an application. It is also a good idea to talk to an immigration attorney if any of these common mistakes apply to you. Though they seem small, they could have a big impact on your case.
Shrestha Law Firm, PLLC,
(212) 625-3394,
fax: (212) 431-4460,
info@shresthalaw.com
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