COVID-19: USCIS Extends Response Time for Agency Request

On March 30, 2022, U.S. Citizenship and Immigration Services (USCIS) extended until July 25, 2022, for COVID-19 reasons, the response time for certain Requests for Evidence (RFEs) and other similar response-based notices and requests, and also filing date requirements for the Type I-290B form.

In this article, we provide the specifics of this Biden Administration decision.

Summary of the Decision

Due to the COVID-19 pandemic, U.S. Citizenship and Immigration Services (USCIS) is extending the response time for certain applications, notices, and agency decisions until July 25, 2022 to assist applicants, petitioners. We anticipate that this could be the last extension of these flexibilities. USCIS will consider a response given within 60 calendar days after the due date indicated in the following requests or notices before taking any action, if the issue date listed on the request or notice is between March 1, 2020 and July 25, 2022.

What are the basic points of the decision?

The administration’s decision to extend the response time for certain requests, notices, and agency decisions revolves around 4 basic points. These points are:

1. USCIS is again extending the time to respond to certain requests, notices, and decisions due to COVID-19 until July 25, 2022.
2. USCIS first announced COVID-19 flexible measures on March 20, 2020 
3. This applies to the response time allowed for certain applications, notices, and decisions issued from March 1, 2020 through January 15, 2022.
4. USCIS will receive responses to eligible requests, notices, and decisions within 60 calendar days of the response deadline before taking any action.

What documents are affected by this decision? 

Flexible action applies to the following documents: 

• Requests for Evidence ; 
• Suite to Request Evidence (N-14); 
• Notice of Intent to Deny ; 
• Notice of Intent to Revoke ; 
• Notice of Intent to Cancel ; 
• Notice to terminate regional centers ; 
• Motions to reopen an N-400 in accordance with 8 CFR 335.5, Receipt of waiver information after grant. 

In addition, USCIS will review a Form N-336, Request for Hearing on a Decision in a Naturalization Proceeding, or a Form I-290B, Notice of Appeal or Petition, provided that a decision was made between March 1, 2020, and January 15. 2022, and the form was filed within 60 days of the date the agency issued its decision.

What do employers and applicants need to know? 

Before taking any action, USCIS will review responses to the above requests and notices received within 60 calendar days of the response deadline specified in the request or notice.

History of USCIS notices on this flexibility since March 2020.

USCIS is extending its flexibility to respond to agency requests on December 30, 2021

USCIS extends flexibility to meet agency requests September 24, 2021

USCIS extends flexibility to meet agency requests June 24, 2021

USCIS expands flexibility to meet agency demands March 24, 2021

USCIS expands flexibility to meet agency demands January 28, 2021

USCIS expands flexibility to meet agency demands September 11, 2020

USCIS expands flexibility to meet agency demands July 1, 2020

USCIS expands flexibility to meet agency demands May 1, 2020

USCIS expands flexibility to meet USCIS requests March 30, 2020

USCIS announces flexibility in requests for evidence and notices of intent to deny March 27, 2020.

Do you need help?

Do you need help navigating the complex immigration laws and procedures?  We can help.

Simply schedule a consultation with one of Herman Legal Group‘s experienced immigration attorneys by calling 1-216-696-6170, or by booking online.  Consultations can be conducted via zoom, skype, whatsapp, facetime, or in office.

What is an Alien Registration Number? Simple A-Number Guide

The Ultimate Guide To The N 600 Application For Certificate Of Citizenship

If you were born outside of the United States to a U.S. citizen parent, or if your parents were permanent residents (green card holders) who became U.S. citizens, you may have become a U.S. citizen automatically, but you might not have any documents that show this.

At some point though, you may need to be able to prove your U.S. citizenship, perhaps to obtain Social Security benefits, financial aid, or a driver’s license. A Certificate of Citizenship can serve as that proof and allow you to access these other government services and benefits.

Form N 600 allows you to request a Certificate of Citizenship from the U.S. Citizenship and Immigration Services (USCIS) if you find yourself in this situation and meet certain eligibility criteria.

You may also complete this application on behalf of your minor child. This guide will outline important information about Form N 600, including who is eligible, the application process and associated costs, and some frequently asked questions.

Eligibility for N 600 Application

To apply for a Citizenship Certificate using Form N 600, you must have been born outside of the United States but be present in the United States at the time of application, and you must have automatically become a U.S. citizen before you turned 18 years old.

To submit Form N 600 for yourself, you must be at least 18 years old. If the applicant is under 18, a parent or legal guardian must complete and submit the application on their behalf.

Automatic Citizenship

Whether you automatically became a citizen is determined based on the laws that were in effect when you were born. Since the laws governing automatic citizenship have changed over the years, you probably will want to consult with an attorney to make sure you are accurately assessing your eligibility.

Generally, though, there are a few ways in which you could automatically become a citizen of the United States. These are:

1. You were born abroad to at least one U.S. citizen parent. This is called citizenship by acquisition.
2. You were born abroad and then adopted by a U.S. citizen. This is called derivative citizenship.
3. You were born abroad, and your parents were U.S. permanent residents (green card holders) who naturalized to become U.S. citizens. This is also a form of derivative citizenship.

Typically, your U.S. citizen parent must have been physically present in the United States or its territories for at least five years, at least two of which were after your parent turned 14 years old, for you to be considered a U.S. citizen at birth when born abroad.

However, if your parent does not satisfy these physical presence requirements, you may use the physical presence of a U.S. citizen grandparent to establish U.S. citizenship at birth.

Derivative citizenship based on adoption or a parent’s naturalization can be complicated to determine because the laws have changed many times over the years, so it is best to consult with an attorney who is familiar with immigration laws and who can give you legal advice on how to proceed. Typically, the law that was in effect when you were born will govern your eligibility.

Potential Issue: Birth Out Of Wedlock

If you are basing your U.S. citizenship on your father, and your parents were not married when you were born, the rules can be complicated. USCIS has specific requirements for claiming that you automatically gained citizenship at birth through your father. These requirements include:

• You can establish, by clear and convincing evidence, that there is a blood relationship between you and your father.
• Your father was a U.S. citizen at the time of your birth.
• There is evidence, from before you turned 18 years old, that your father accepted the legal obligation to support you financially until the age of 18. If you are a parent applying on behalf of your minor child, the father will need to submit a written statement agreeing to support the child financially until they are 18 years of age. This requirement is waived if the father was deceased before the child turned 18 years old.
• Before you turned 18 years old, one of the following occurred:
  • You were legitimated under the law of wherever you were living.
  • Your father provided written acknowledgment, under oath, of paternity.
  • Paternity was established by court order.

If you are basing citizenship on a U.S. citizen mother, and you were born out of wedlock, it is also possible that you did not automatically acquire U.S. citizenship. If you were 18 or older on February 27, 2001, you probably could only have acquired citizenship through your mother sometime after your birth, and only if paternity had not been established.

If you were under 18 or were born after February 27, 2001, that restriction on citizenship acquired from a U.S. citizen mother does not apply to you. Even if you were born out of wedlock, you could acquire citizenship through your mother, so long as your mother was a U.S. citizen before you turned 18, and you were in the United States as a legal permanent resident (green card holder) as the legal and physical custody of your mother.

Who Cannot Apply Using The N 600?

You cannot use this form if any of the following apply to you:

• You are not a U.S. citizen.
• You were born in the United States.
• You have been naturalized to become a U.S. citizen.
• You are currently living in a different country.

Being ineligible to file Form N 600 does not mean that you do not qualify for any type of immigration relief. You should consult with an attorney if you want to explore your options.

Stages of the Process

Once you and your attorney determine that you are eligible to apply for a Certificate of Citizenship using Form N 600, you can begin the application process. First, you may want to have an idea of how the process will go. Below are the basic stages, from preparing the application to receiving a decision from U.S. Citizenship and Immigration Services (USCIS).

Preparing The N 600 Application For Certificate Of Citizenship

Readying your application for filing will involve completing the N 600 Form according to the instructions and gathering all required documents. You can submit photocopies of all of the documents unless USCIS says otherwise. Some of the documents you must provide are:

• Two U.S. passport-style photographs of yourself;
• Your birth certificate;
• Your U.S. citizen parent’s birth certificate and marriage certificate, if applicable;
• Proof of your U.S. citizenship; and
• Proof of your U.S. citizen parent’s presence in the United States.

Depending on your specific situation, there may be other documents that you will have to provide. For example, if your U.S. citizen parent was born abroad and does not have proof of their U.S. citizenship, you may need to obtain documents to show your grandparents’ U.S. citizenship. If you were adopted, you must provide the full, final adoption decree.

If you acquired citizenship through a parent’s naturalizing, you would need to provide evidence of your status as a permanent resident (green card holder). You or your attorney will need to consult the N 600 instructions for the full list of required documentation to determine exactly which documents you should submit.

You may only file Form N 600 one time, so you mustn’t make any mistakes that could affect the success of your application. You probably will want to enlist the help of an immigration attorney who is familiar with the process to ensure that the form gets filled incorrectly and that you have all of the documents that you need to submit.

Filing The Application

You can submit your application, documentation, and filing fee in paper form via mail, or you can create a USCIS online account and file your application online. The USCIS website provides all of the information that you need to know to file either way.

Passing The Initial Processing Stage

At this stage, USCIS may reject your application if it is incomplete. USCIS does not consider the N 600 to be “filed” until they accept the application at this stage, so you might be allowed to correct whatever initial evidence they say that your application is lacking and to refile the N 600.

Receiving Additional Requests From USCIS

You may receive a request for additional evidence or information to support your Form N 600, or you might be required to provide an original of one of the document copies that you submitted. If you receive a request like this, you should send the information to USCIS as soon as possible. USCIS could close your case if you fail to send in what they have requested.

USCIS might also send a notice giving you a date and time to go to a USCIS office for an interview or for another reason, such as being fingerprinted to prove your identity. They will also inform you of any additional fees for the appointment. Not everyone is required to go for an appointment, so you should not be concerned if you do not receive this request from USCIS.

Not receiving this request suggests that you provided USCIS with enough information with your application to decide whether you are eligible for a Certificate of Citizenship.

Attending An Interview Or Biometrics Appointment

When you go for an interview, you should take with you the originals of the documents that you filed with your application. If any of the documents have changed since you filed them, you should also bring these updated documents.

While you are there, USCIS might ask you to do more than what was mentioned in the letter. They might take your photograph or your fingerprints, or they could have you sign additional documents. You do not need to be alarmed by this. This may just be to verify your identity or to obtain updated background checks.

Receiving A Decision On Your Application For a Certificate Of Citizenship

After USCIS is satisfied that they have enough information to make a decision, they will review your application and decide whether you are eligible for a Certificate of Citizenship based on the information you provided in your Form N 600. They will send you their decision in writing.

If your application is approved, USCIS will issue your Certificate of Citizenship and schedule you to appear for an Oath of Allegiance ceremony. If you are a parent who applied on behalf of your child, then your child may not have to attend the ceremony as long as they are under 14 years of age.

As discussed above, if your application is denied, you cannot file another N 600 application to try again. However, you will have 30 days from the date of the decision to file an appeal.

If you miss this deadline but still want to appeal the denial, you will have to file a motion asking the court to reopen your case and reconsider the decision. This is especially useful if your application was denied because you were missing some evidence of citizenship that you now have and can provide to USCIS.

Costs

Filing Fee

The filing fee for Form N 600 is $1,170, which must be paid by check, money order, or cashier’s check to the U.S. Department of Homeland Security. There are a few exceptions:

• If you are a veteran or member of the U.S. Armed Forces, you do not have to pay a filing fee (U.S. Armed Forces includes Army, Marine Corp., Air Force, Navy, Coast Guard, and Space Force).
• You may be eligible to apply for a fee waiver if you are experiencing financial hardship or are receiving certain government benefits, or if your total household income falls at or below 150 percent of the Federal Poverty Guidelines.

Costs From Preparing Your Application

You will likely encounter expenses, in addition to possible attorney’s fees, while preparing your application and gathering the documents that you are required to submit.

One expense that you will almost certainly have is for the U.S. passport-style photographs of yourself, which must be taken no more than 30 days before filing your application. Many drug stores with photography centers will take and print these for you.

There will also probably be some documents that you will need to request from various government agencies. For example, you might not have a copy of your own birth certificate, much less your parent’s birth certificate or marriage certificate.

Luckily, you typically can get replacements from the agencies that issued the documents, but you usually have to pay for these copies.

Biometrics Fee

If you have to go to a USCIS office for fingerprinting or to provide other requested information, you will have to pay for the appointment and services. USCIS will include the fee amount in the letter notifying you of your appointment.

Processing Times

The amount of time that it takes for U.S. Citizenship and Immigration Services to process your application will vary by USCIS office and their caseloads at that time. In the Ohio offices, applications have recently taken between 7.5 months and 16 months to process, from the date that they were filed to the date that USCIS issued a decision.

Frequently Asked Questions

• My mother was a U.S. citizen, but she passed away a few years ago. Does this mean I cannot apply for a Certificate of Citizenship?

No. If you automatically acquired citizenship at or after birth based on your mother’s citizenship and before she passed away, you can still file Form N 600 even though she is deceased.

However, if you did not acquire citizenship before she died, you may not be able to use Form N 600, but you might qualify to naturalize to become a U.S. citizen under the Immigration and Nationality Act. You should consult with an attorney for more information on your options.

• My stepparent is a U.S. citizen, but my biological parent is not. Can I use the N 600 application to apply for a certificate of citizenship based on my stepparent?

No, you cannot apply for citizenship using the N 600 based on a stepparent’s U.S. citizenship unless the stepparent legally adopted you.

• I conceived my child using a donated egg and sperm. I am a U.S. citizen but I gave birth outside of the United States. Can I apply for a Certificate of Citizenship for my child?

If you are recognized as the legal mother at the time of your child’s birth and you meet all of the other parental requirements for your child’s eligibility, you may be able to file a Form N 600 for your child.

• My parents got a divorce when we were lawful permanent residents, and then my dad naturalized to become a U.S. citizen. Can I apply for a Certificate of Citizenship?

Maybe. If you were in the lawful and physical custody of your father after he became a citizen and before you turned 18, you may have automatically acquired citizenship when he naturalized and now be eligible to apply for a Certificate of Citizenship. If you were in your mother’s legal and physical custody and she was not a citizen, then you may not be able to apply because you likely did not automatically acquire citizenship based on your father’s naturalization.

• What if I am not able to get copies of all of the documents that the application requires?

If a document is not available to you, you can submit an explanation of why you cannot get the document and provide additional documents to support your eligibility. Such documents may include baptismal certificates, school records, or census records.

If none of those documents are available either, affidavits of people with personal knowledge of the event that made you a U.S. citizen (your adoption, your parents’ naturalization, etc.) can be submitted.

• I am 16 years old and received a notice to appear for an interview. Can I go alone?

Unless USCIS specifically waived the requirement for you, you must bring your U.S. citizen parent with you for the interview if you are under 18 years of age.

• I filed a Form N 600 about eight months ago but I have not heard from USCIS. Is there any way to check the status of my application?

Yes, you can check your case status on the USCIS website using the receipt number that they sent to you in your confirmation letter. If you did not receive any confirmation from USCIS that they received your application, and several months have passed since you filed, it might be a good idea to contact USCIS to confirm that they received it, get your receipt number, and make sure they have your correct address for future correspondence.

• I filed the N 600, and my application was denied. Can I file another to try again?

No. Unfortunately, once you receive a decision from USCIS on a Form N 600, USCIS will immediately reject any Form N 600 that you attempt to file in the future.

• I am not a U.S. citizen, but I want to apply to try to become one. Can I file Form N 600?

No. Form N 600 is only for people who are already U.S. citizens to obtain a Certificate of Citizenship. It is not a way to apply for citizenship. An attorney can help you to determine whether you are eligible to apply for citizenship using a different USCIS application.

• What is the difference between N 600 and N 400?

Both N 600 and N 400 concern U.S. citizenship. However, N 600 is meant for those who derive or acquire citizenship from their parents and who are in need of a U.S. Citizenship Certificate. N 400 is for lawful permanent residents of the U.S. who aim to procure U.S. citizenship. So, if you are an immigrant who wants to become a naturalized U.S. citizen, you must file an N 400, not an N 600.

We Can Help

If you think that you or your child might qualify for Form N 600, Herman Legal Group can help you to determine whether the N 600 is right for you and assist you through the process of applying.

Remember, you only get one chance to apply for a Certificate of Citizenship using the N 600, and we are here to ensure that your application is the best that it can be to establish eligibility for the Certificate.

Even if you are not eligible to use Form N 600 but want to explore other immigration options that may be available to you, we can help. Reach out to Herman Legal Group by calling +1-216-696-6170 or by contacting us online.

TN Visa for Economists – Application Process

ATN visa is designed to allow certain professionals from Canada and Mexico – NAFTA professionals, to work in the United States.

This article will explain how Economists from Canada and Mexico can apply for TN nonimmigrant visa.

The complete list of NAFTA professions you can find here.

Under the North American Free Trade Agreement (NAFTA), qualified Canadian and Mexican citizens can temporarily stay and engage professionally in various jobs in the United States. The economist is one of the available occupations listed in the NAFTA list since 1994.

There are no special TN Visa regulations about Economist occupations so that the guidance can be found in the Occupational Outlook Handbook (OOH) created by the Department of Labors. According to the OOH, economists work on collecting and analyzing data. They also follow and analyze trends and solve economic problems related to resources, goods, and services.

What are the Duties of Economists?

General duties that are in the OOH:

1. Address economic problems
2. Research and gather data
3. Analyze that data by using different techniques
4. Share research results within reports and various types of graphics
5. Explain and predict market trends
6. Advisory work
7. Design solutions for economic issues
8. Prepare academic and media articles

What are the TN visa educational requirements?

The computer systems analyst has to obtain one of the following:

• Bachelor’s (Baccalaureate) degree or Licenciatura Degree.

Additional requirements for TN visa eligibility refer to:

1. Proof of Mexican or Canadian citizenship;
2. A proof of the job offer written as the employers` letter of support, with all job details;
3. A proof that a nonimmigrant does not have intentions to stay in the U.S. permanently.

How to Seek Admission as a TN Nonimmigrant?

The application with all required documentation can be filed to the U.S. Customs and Border Protection (CBP) officer at the U.S. Port of Entry for the Canadian citizens since they are not required to obtain a visa first. It is also possible to apply at pre-flight clearance or an airport after arriving in the United States.

On the other hand, Mexican citizens should apply at the U.S. embassy or consulate in Mexico. After the TN visa is approved, they can seek admission at the U.S. Port of Entry.

Both Canadian and Mexican citizens can file an online I-129 petition with USCIS.

What are the possible issues?

Term economist is excluded from NAFTA, which can cause complications and inconsistency in the decision-making process of defining if some occupations fall under the economists TN status.

It used to be common to obtain TN status as economists based solely on the financial analyst role, which usually focuses on investment programs. Although it may seem similar, it is essential to mention that financial analysts, marketing analysts, and marketing specialists are not included under the economist category. This restriction was stated in the USCIS policy memorandum in 2017.

However, USCIS states in the memorandum that economists operate in two main areas:

1. Microeconomics – analyzing “the behavior of individuals and firms to understand the relationships between supply and demand.”
2. Macroeconomics – analyzing “aggregated indicators to determine how different sectors of the economy relate to each other”

This categorization opens a possibility for some financial analysts to qualify as an economist under NAFTA, as long as they run activities consistent with the economist profession. Job duties that they have to perform are related to researching, gathering, analyzing economic and statistical data, and reporting and designing solutions for financial issues.

TN Visa for Management Consultants

A TN visa is designed to allow certain professionals from Canada and Mexico – NAFTA professionals, to work in the United States.

This article will explain how Management Consultants from Canada and Mexico can apply for a TN nonimmigrant visa.

The complete list of NAFTA professions you can find here.

A TN visa provides temporary stay and employment opportunities for Canadian and Mexican citizens of various professions, including management consultant professionals. This category is one of the few occupations that do not require a degree, which led to its popularity and, at the same time, numerous misuses. Consequently, USCIS stated that the management consultant TN visa category is the hardest to obtain under The North American Free Trade Agreement (NAFTA).

What are the Job Duties of a Management Consultant?

The TN visa policies do not regulate allowed job duties. Therefore the guideline directions can be found in the Occupational Outlook Handbook, published by the U.S. Department of Labor.

Management consultants work as outside consultants on improving private and public entities ‘ managerial, operating, and economic outputs, focusing on particular problems and resolving them through analysis. The petitioner has to present how the services will improve administration, objective, and operations overall.

Management consultants can be independent consultants or employed in a consulting company hired by a U.S. entity. He or she can not apply for a new permanent position; neither can he or she be hired as a replacement, except if the role in question is a supernumerary temporary position. It is common that their services fall under short-term projects and have a temporary character rather than full-time.

In some cases, if the job description covers implementation together instead of just advice services, the petition will be denied, which depends on the officer`s will in a particular case.

To be qualified to obtain a TN visa as a management consultant, the nonimmigrant has to earn one of the following educational requirements:

1. Bachelor’s degree; or
2. Licenciatura Degree.

Although most of the TN occupations requires a bachelor degree, management consultant is one of the rare professions where a petitioner can possess equivalent professional experience instead:

1. Five years of experience as a management consultant; or
2. Five years of experience in a specialty field close to the consulting agreement.

Non-degree petitioners have to prove equivalent professional experience through a previous employer statement or a professional credential evaluation. A resume can be helpful to indicate job-related skills and knowledge.

The supporting required documents include a valid identification document, copied educational or experience evidence, copied and signed agreement, and a cover letter with a detailed consulting job description.

How to Seek Admission as a TN Nonimmigrant?

Canadian citizens can apply with all required documentation to the U.S. Customs and Border Protection (CBP) officer at the U.S. Port of Entry since they are not required to obtain a visa first. It is also possible to apply at a pre-flight inspection or an airport after arriving in the United States.

On the other hand, Mexican citizens should apply at the U.S. embassy or consulate in Mexico. After the TN visa is approved, they can seek admission at the U.S. Port of Entry.

Both Canadian and Mexican citizens can file the online I-129 petition with USCIS.

Management consultant TN visa is usually granted only for one year, which can be avoided by solid argumentation why the job duties will take more time to perform.

Due to the high rate of the denied petitions, it is recommended to pay special attention and prepare all the required documentation to address the application’s specifics and details.

Abandonment of Lawful Permanent Residence – Part Two

Whether the LPR does intend to reside permanently in the US, even though he/she spends time outside the country, is an important abandonment factor.

Intent to live in the US includes the intent to work in the US (through employment or a business) or to have an actual home in the US. The intent factor applies not just when the LPR wants to return – but the entire time the LPR is in a foreign country.

A timely LPR visit (generally less than one year from the departure) or the possession of a reentry permit is not evidence of intent to reside in the US permanently. In the same way, failure to obtain a reentry permit doesn’t mean the LPR didn’t want to stay in the US permanently.

The continual US ties factor

Multiples ties to the United States, while abroad, help to confirm that the LPR did not abandon his/her LPR status. Examples of these ties, according to the State Department, include:

• Filing the US and state income tax returns – as a US resident
• Keeping a home/property in the US while abroad
• Keeping business affiliations in the US while abroad
• Possession of driver’s license with a US address
• “Immediate family members residing in the United States who are U.S. citizens, LPRs, or are seeking citizenship or LPR status.”

The USCIS will also consider the LPR’s connections with people outside the US including:

• “Immediate family members residing outside of the United States
• Property and business ties in a foreign country
• Employment by a foreign employer or foreign government
• Voting in foreign elections
• Running for political office in a foreign country
• Frequent and extended trips outside of the United States.”

The USCIS considers it a rebuttable presumption that a person has abandoned his/her LPR status if that person:

• “Voluntarily claims alien status to qualify for special exemptions from income tax liability”
• Doesn’t file federal or state income tax returns – on the basis the persons consider themselves to be nonresident aliens.

The presumption can be rebutted with sufficient evidence.

Additional evidence to help show a person intended to keep their permanent US residence includes:

• Keeping up the family ties – such as children or other relatives who reside lawfully in the US – attending school
• Owning or renting real or personal property in the US

“Current or recent employment or education in the United States”

When considering the abandonment issues in a naturalization application, USCIS will consider the available documentation. They may also issue a Request for Evidence for more information.

Preserving your US residence

Applicants may want to protect their naturalization application if they leave the US for a year or more by preserving their US residence – through a formal application process.

There may be occasions when an LPR does want to record the abandonment of their LPR status. This process can be achieved through the filing of a Record of Abandonment of Lawful Permanent Resident Status (Form I-407). There is no requirement for an LPR to file this form.

What factors should you consider before you leave the US?

If you anticipate leaving the US for a substantial period of time, you should review your right to obtain a re-entry permit. That permit should give you two years to reenter instead of just one. You should also review your obligations with an experienced immigration lawyer – especially since you may need to take important supporting documentation with you.

For help obtaining a returning resident visa,, call Herman Legal Group at 1 (216) 696 6170 or complete our contact form to speak with us.

K-1: Meeting In-Person Rule

If you are a U.S. citizen who decided to move forward with filing a K-1 fiancé(e) visa for your loved one, there are some eligibility requirements for a fiancé(e) K-1 visa that you have to meet. Here we will talk about the “two-year rule.”

A K-1 fiancé(e) visa will allow the person you plan to marry to come to the United States so you can organize your wedding there.

To apply for a fiancé(e) visa, you must be a U.S. citizen, you both fiancé(e) have to be legally eligible to marry, and you must intend to marry your fiancé(e) within 90 days of upon arrival in the United States.

But, if, for example, you met online, there is the part of the requirements that can cause particular problems. I.N.A. 214(d) imposes the rule that the United States Citizenship and Immigration Services enforces. rule states as the U.S. citizen (the “petitioner”) and your overseas fiancé(e) (the “beneficiary”), you need to have met in person sometime within the last two years. Keep a close eye on the calendar.

This waiver will be available only in limited circumstances.

Where Can You Meet?

Many couples may choose to visit the beneficiary’s home country, but this is not necessary. You and your fiancé(e) can meet at any place you want, no matter if this is the home country, or you went traveling together anywhere in the world.

However, it would be best if you were careful suggesting your foreign fiancé(e) to visit you in the United States. This visit bears the potential risk of denying their entry or alleging fraud without proof for lack of nonimmigrant intent.

How To Prove That You Met In Person?

To show that you and your fiancé(e) really met, you must include certain evidence. This usually includes:

• passport stamps- to show that you entered and exited the country where you met
• boarding passes copies, travel itineraries, receipts for plane tickets
• photographs of you and your fiancé(e) together from the trip or the meeting.
  This list is not exhaustive, so be free to include as much of such documentation as you can provide, but bear in mind, that passport stamps carry the most weight so make sure to include it.

If you cannot demonstrate that you two met in person within the appropriate time period, USCIS will deny your application for a fiance K-1 visa at the very beginning of the process. Sometimes, petitioners can get to the interview stage at the U.S. embassy or consulate and after it receives a denial or an administrative processing notice, which will likewise ultimately lead to a denial.

When the Waiver of Meeting Requirement is Available?

Couples are able to get a waiver of the two-year meeting requirement in limited and rare situations.

Under 8 C.F.R. § 214.2(k)(2), waivers are available in cases where complying with the meeting requirement would either:

• result in extreme hardship to the petitioner: Typically, the only time the USCIS will approve an extreme hardship waiver is where the petitioner was absolutely unable to travel anywhere. The reason must be firm such as severe illness or permanent physical disability, so to prove this, you should submit substantial medical documentation.
• violate strict and long-established customs of the foreign culture or social practice (traditionally arranged marriages): since most cultures do allow some level of an in-person meeting between the potential bride and groom, this requirement is also hard to meet.

Besides, hard-to-get characteristics, seeking the waiver will also take much time. The process is long, and even if you have a strong case, USCIS may deny your application, forcing you to appeal and making the process even longer.

What Does Cross-Chargeability Mean?

Cross-Chargeability is the term used for when an applicant charges their visa to the country of birth of a spouse or a parent – instead of their own country.

According to the USCIS, for practical reasons, cross-chargeability is used where the preference quota category is backlogged for one spouse’s country of chargeability but is current for the other spouse’s country of chargeability.

The ability to cross-charge a visa applies:

• When the principal applicant cross-charges to the country of the “derivative” spouse. The derivative spouse may also cross-charge the country of the principal spouse.
• “Derivative children may cross-charge to either parent’s country as necessary.” Be careful though. Parents CANNOT cross-charge to a child’s country.

The aim of cross-charging is to preserve the family unit and permit “family members to immigrate together.”

Eligibility to Use Cross-Charging

To use cross-charging, both applicants (the two spouses or a child and parent) must be eligible to adjust their status. “A derivative using the principal’s country of chargeability may adjust status with the principal or at any time thereafter.”

“When a principal uses the derivative spouse’s country of chargeability, both applicants are considered principal applicants: one for the purpose of conferring immigrant status and the other for the purpose of conferring a more favorable chargeability.” This means, the USCIS officer “should approve both adjustment applications at the same time.”

A few Examples of When Cross-Chargeability is Acceptable

• If the visa application is available for the principal applicant, but not available for the derivative spouse, the derivate spouse’s visa can use/be charged to the principal applicant’s country of chargeability.

• If the visa application is not available for the principal applicant but is available for the derivative spouse, then the principal applicant’s visa can be charged to the derivative spouse’s country of chargeability.

• If the visa is available for the principal applicant and the derivative spouse but is not available for the child, then the derivative child’s visa can be charged to either parent’s country of chargeability.

Processing Requests For Cross-Chargeability

“If a principal applicant is filing along with a derivative spouse or child and a visa appears unavailable at first glance, the officer should check the A-files for possible cross-chargeability eligibility.”

“Often, an applicant will affirmatively request use of cross-chargeability when filing the application. In all cases where cross-chargeability provisions apply, the files should be forwarded to the adjudicating officer with a notation that indicates possible cross-chargeability. The files should be kept together in a family pack.”

To learn if chargeability can improve your eligibility and place you in line for a green card, call Legal Group at +1-216-696-6170 or use our contact form to speak with us.

What Are Priority Dates?

The priority date determines your place in line/the queue. The priority date, according to the USCIS, is normally that date when the relative or employer of the applicant files the immigrant’s visa petition with the USCIS. You should be able to locate the priority date on the Notice of Action (Form I-797) which was filed on behalf of the applicant. The USCIS officer should verify the priority date “by reviewing the actual immigrant petition or permanent labor certification application.”

Priority dates for family-sponsored preference cases

“For family-sponsored immigrants, the priority date is the date that the Petition for Alien Relative (Form I-130), or in certain instances the Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360), is properly filed with USCIS.”

Priority dates for employment-based preference cases

Immigrants seeking visas and green cards based on employment have their priority date set on the earliest of the:

• The date the petition is properly filed with the USCIS
• Date “the permanent labor certification application was accepted for processing by the Department of Labor (DOL), when a labor certification is required.”

Other factors may determine the priority date as well.

What is Classification Conversion?

In some cases, the USCIS officer must consider the visa classification and the special priority date – when reviewing the availability of visas. Sometimes, the classification of the petition may shift automatically based on circumstances subsequent to the filing. While this shift doesn’t affect the applicant’s priority date – it can affect the availability of the visa.

For some family-based applications, the “applicant can elect to opt-out of the classification conversion when it is advantageous to do so” – provided they are eligible.

Use of earlier Priority Dates

Sometimes, applicants have multiple applications pending – each with different priority dates. In this case, the applicant may opt to use an earlier priority date instead of the later date on the most recent petition. In this scenario, the applicant should inform the USCIS officer of his/her intent to use the earlier priority date – “by including an approval notice for the previous petition in the adjustment application packet.” This situation can occur for both family-based petitions and for employment-based petitions.

“Specifically, in the event that an applicant is the beneficiary of multiple approved employment-based petitions filed under 1st, 2nd, or 3rd preference, the applicant is entitled to the earliest priority date.”

Similarly, an applicant with an approved Form I-526 filed on or after November 21, 2019, is generally entitled to the priority date of a previously approved 5th preference immigrant investor petition.”

When earlier Priority Dates may not be used?

The option to use an earlier priority date normally doesn’t apply for Adjustment of Status petitions in the following situations:

• If the application was denied or ended due to misconduct – such as “fraud, willful misrepresentation, or material error”
• “The beneficiary is no longer eligible for the classification for which the petition was filed and does not qualify for automatic conversion”
• The “DOS terminated the registration of an applicant who failed to timely file for an immigrant visa, thereby automatically revoking the petition”
• The applicant already used the earlier petition to immigrate

The priority date of an earlier approved petition (in cases of employment-based 1st, 2nd, and 3rd preference categories) can’t be used for a later petition if the approval of the earlier petition was revoked by the USICS due to:

• “The petition was approved in error
• Department of Labor revoked the labor certification associated with the petition,
• USCIS or DOS invalidated the labor certification associated with the petition
• Due to fraud or the willful misrepresentation of a material fact.”

Employment-based 5th preference cases

There are special considerations, regarding using an earlier priority date, for 5th preference employment immigration petitions. The earlier priority date can’t be used:

• “If the alien was lawfully admitted to the United States for permanent residence using the priority date of the earlier approved petition”
• “If USCIS revoked the approval of that petition based on a material error”

The inability to use the earlier priority date if the earlier approved petition involved fraud or misrepresentation of a material fact only applies if the prior misconduct includes “fraud or willful misrepresentation – of that material fact.

To discuss your priority date and cut-off date, your place in the green card line, call Herman Legal Group at +1-216-696-6170 or complete our contact form to speak with you.

How to Apply to Adjust Status After You Enter the U.S. on K-1 Visa?

When a foreign fiancé enters the United States based on a K1 nonimmigrant visa, there is a time frame of 90 days to get married to the U.S. citizen who filed a petition for an Alien fiancé. The couple should marry as soon as possible, given that breaking the deadline can lead to the deportation proceedings to the home country of the visa holder.

To get a lawful permanent residence, it is necessary to apply for the adjustment of status. This process includes several stages:

1. Filling out USCIS forms that can be found and downloaded at the website. Usually, the required Forms are:

• I-485, Application to Register Permanent Residence or Adjust Status: During the process of getting a green card, this form is primarily for the fiancé to fill. The fee is 1,225$ and covers the biometric fee too, but it is recommended to check the paying information before the payment. It is possible to pay with a U.S. credit card by using the G-1450, Authorization for Credit Card Transactions form.
• I-864, Affidavit of Support Under Section 213A of the INA or the I-864EZ, Affidavit of Support Under Section 213A of the Act: These forms are used to check if the income criteria are met.
• I-693, Report of Medical Examination and Vaccination Record: If the medical exam done for a K-1 visa is older than one year, it is necessary to check again if the applicant is admissible to the U.S. based on public health standards.
• I-944, Declaration of Self-Sufficiency: The form is used to predict the possibility that the applicant will become a “public charge” after getting permanent residence.
• I-765, Application for Employment Authorization: The form provides the authorization to work in the United States.
• I-131, Application for Travel Document: If the foreign fiancé leaves the U.S. before the interview, the adjustment of status application will get canceled by USCIS. That is why it is necessary to file Form I-131 and receive the “Advance parole”.

2. Preparing and sending additional documents to support the adjustment of status application. These documents include the following:

• Marriage certificate copy, along with other evidence of spouses life together, which is substantial as proof of the bona fide marriage
• Approval notice of K1 fiancé visa petition copy, issued by USCIS
• Passport-style photographs – the number of needed photos is usually two, but some USCIS forms can demand two more
• Copy of birth certificate, with a fully translated English version of the original
• Copy of biographical information from the passport, including I-94 and travel history connected to foreign fiancé entrance to the United States from abroad

After collecting all required documents, and making copies of them, the overall Adjustment of status application should be sent to USCIS at a certain address, under the category “K-1 fiancé(e) (and K-2 dependents)“.

3. Biometrics appointment is usually scheduled before the USCIS adjustment interview, and it involves taking the fingerprints and collecting other data necessary for identification.

4. The next step in the process of getting a permanent residence is the interview at the local USCIS office. The interview is being held by the immigration officer, and both spouses should attend it. The purpose of this interview is to assure the immigration officer based on the filled adjustment of the status package and answers to the interview questions that the marriage is not fraudulent.

If the interview goes well, the conditional permanent residence will be approved. It can be expected to get a green card in the next few weeks, with an expiration date of two years. The conditional permanent residency can be converted to a permanent residence by filing an I-751, Petition to Remove Conditions on Residence form, within 90 days before the green card expires.