1. You can apply for green card without any wait.
2. Yes, but EB-1 is a gazillion times faster for Indian-born people.
3. Degree is not a requirement for international managers/execs.
4. Your employer needs to apply.
1. You can apply for green card without any wait.
2. Yes, but EB-1 is a gazillion times faster for Indian-born people.
3. Degree is not a requirement for international managers/execs.
4. Your employer needs to apply.
This section of the FAQ applies to continuing F-1 students who travel outside the United States for five months or less.
Students should consult their Designated School Official (DSO) prior to traveling. Your DSO generally works in the International Student Office. You must have a current SEVIS Form I-20 endorsed for travel and your DSO needs to be able to verify that your SEVIS record is accurate and up-to-date.
1. What are the basic requirements for an F-1 to reenter the United States after traveling abroad on pleasure or personal business?
If you are from a visa exempt country, you do not need a visa to reenter the United States from the western hemisphere, but make sure that you present your I-20 to be admitted as an F-1 student and not a visitor.
2. What if my F-1 student visa has expired?
You can stay in the United States on an expired F-1 visa as long as you maintain your student status. However, if you are returning home or traveling to a country where automatic revalidation does not apply, you must have a valid visa to return to the United States.
Ensure that you have all the documentation you need for your visa application and allow sufficient time for processing a new visa. The documentation you may need for a new visa includes, but is not limited to the following:
The Department of State recommends that you apply for a visa in your home country. For more information about visa applications visit the Department of State (DoS) website at http://travel.state.gov/.
You can apply in a third country for a visa, but you will not be able to return to the United States until DoS issues your visa. In some cases, this could take several weeks if DoS requires a background check. If DoS denies your visa, you will not be able to return to the United States. Be sure to check the DoS website for specific information pertaining to each embassy or consulate.
If you have an expired visa and a terminated record, we strongly advise that you do not travel outside the United States until your SEVIS record shows that you are in active status. If you do travel, you may not be able to renew your visa or return to the United States.
3. As a continuing student, will I need to pay the I-901 SEVIS fee if I travel outside the United States?
No. See the I-901 FAQ for detailed information on the I-901 SEVIS fee.
4. I wish to travel to Canada, Mexico, or one of the islands (other than Cuba) adjacent to the United States. Can I return if my visa is expired?
Yes, in most cases. You can usually revalidate an expired visa automatically when returning from a visit of less than thirty days to Canada, Mexico, or one of the islands adjacent to the United States (other than Cuba) provided that you have a valid Form I-20 and a valid unexpired Form I-94. This process is known as automatic visa revalidation.
However, if you meet any one of following criteria, you will not be able to automatically revalidate your visa.
5. Which islands are defined as “adjacent islands”?
The adjacent islands are:
( INA, Section 101(b)(5))
6. How do I know if I have a terminated record in SEVIS?
Your DSO can tell you your SEVIS record status and give you appropriate travel related advice.
7. I want to travel outside the United States, but my SEVIS record is in terminated status. Can I return if I travel?
If you need to travel on a terminated record, you must first visit your DSO. If your school has requested a data fix, the DSO will put your help desk ticket number on your Form I-20 and report your pending travel to SEVP.
There is no guarantee that Customs and Border Protection (CBP) will readmit you to the United States if you travel on a terminated record. In most cases, CBP inspectors will allow you to reenter the United States if you are otherwise admissible and your DSO has properly annotated your Form I-20. It is likely, however, that the CBP officer at the port of entry will send you to secondary inspection while they determine whether you are eligible to return to the United States.
8. Can I travel outside the United States if I have a Form I-485 adjustment of status application pending?
No, not without advance permission. If you depart the United States with a pending Form I-485, you have abandoned your application unless you receive permission in advance from USCIS to return to the United States. We call this Advance Parole. Additionally, CBP may also consider you ineligible to return to the United States as an F-1 student because your application to change status to that of a permanent resident is evidence of intent to immigrate, which is inconsistent with nonimmigrant student status.
9. Can I reestablish F-1 student status by obtaining a new initial Form I-20 and reentering the United States?
Yes. However, you will be considered an initial student for SEVIS purposes. You will have to pay the I-901 SEVIS fee again and you will lose any time that you have accrued toward qualification for training (OPT) or employment.
You must have the new Form I-20 showing that you are entering on a new SEVIS ID number.
You should be aware that the CBP inspecting officer will determine whether or not to admit you to the United States with the new Form I-20. If you did not comply with the terms of your status during a prior stay in the United States, the CBP officer may decide that you are not eligible to reenter.
10. Can I reenter during the 60-day period after finishing my program or OPT?
No. The 60-day “grace” period is only to prepare to leave the country.
11. Can I reenter if my request for OPT is pending?
Yes, but traveling during this time should be undertaken with caution. USCIS may send you a request for evidence while you are away, however, so you would want to make sure you have provided a correct U.S. address both to your DSO and on the application and would be able to send in requested documents. Also, if USCIS approves your OPT application, you will be expected to have your EAD in hand to re-enter the United States. Like a request for further information, USCIS can only send the EAD to your U.S. address.
12. Can I reenter if I left while on OPT?
If USCIS has approved your OPT you will be expected to have your EAD in hand to re-enter the United States, in addition to your Form I-20, valid passport and visa, and a letter of employment if you have one. If you exceed the limits on unemployment while outside the United States, you will not be eligible to re-enter the United States in F-1 status.
13. Are there any other requirements for travel outside the United States?
The questions above outline the general requirements for reentry for F-1 students. However, because individual circumstances vary, consult your DSO, embassy, or legal advisor before traveling. Planning for your trip early ensures that you have enough time to get all of your travel documents in order.
If you are not returning to your home country, you should check the requirements of the country you are visiting. Some countries require a visa. You may also need a transit visa for countries where you are making a connecting flight. Be sure to check before you travel. Most countries have immigration websites that provide visa information. If you have additional questions, please contact SEVP atSEVP@ice.dhs.gov or call us at 703-603-3400.
For more information please visit this link: http://www.ice.gov/sevis/travel/faq_f2.htm
When your application for H-1 is filed within 60 days ofexpiring and within the time for the H-1 quota, you are protected by cap gaprules. See: http://www.uscis.gov/working-united-states/temporary-workers/h-1b-specia...
Expeditious naturalization is available to individuals who are seeking to naturalize as the spouse of a U.S. citizen who is regularly stationed abroad. The eligibility requirements for this category of naturalization applicants are outlined in section 319(b) of the Immigration and Nationality Act (INA) and section 319.2, Title 8, Code of Federal Regulations. Although U.S. Citizenship and Immigration Services (USCIS) gives priority to and provides special handling for these types of naturalization applications, an interview, which is a mandatory part of the application process, cannot be scheduled until your background checks have been completed.
Where can I obtain forms and information about Naturalization Requirements?
You may obtain the N-400 application form and a copy of A Guide to Naturalization from our website at www.uscis.gov.
What requirements must I meet for naturalization under section 319 (b) of the INA?
• You must be a lawful permanent resident at the time of your interview.
• You must meet the applicable naturalization requirements outlined in sections 3 1 2 and 3 16 of the INA and Title 8, Code of Federal Regulations (physical presence is not required),
• You must be married to a U.S. citizen and living together in a valid marital union.
• Your U.S. citizen spouse must be "regularly stationed abroad" as:
o A member of the U.S. Armed Forces;
o An employee or an individual under contract to the U.S. government;
o An employee of an American institution of research recognized as such by the Attorney General;
o An employee of an American-owned firm or corporation engaged in the development of foreign trade and commerce for the United States;
o An employee of a public international organization of which the United States is a member by law or treaty; or
o A person who performs ministerial or priestly functions for a religious denomination or an interdenominational organization with a valid presence in the United States.
• You must show evidence that you will depart to join your U.S. citizen spouse within 45 days of your naturalization.
What does the term "regularly stationed abroad" mean regarding my spouse's employment?
The term "regularly stationed abroad" means that the overseas employment contract for your spouse clearly shows that your spouse's employment will continue abroad for at least one year after the date that you will be naturalized. When possible, you should file your application prior to your departure overseas. If you are already overseas, you should file your application only if the end date of your spouse's employment contract will allow you to meet the eligibility criterion of having at least one year remaining overseas at the time of naturalization.
Where can the interview and naturalization take place?
As an applicant for naturalization under section 319(b), you may be interviewed at any USCIS office of your choice in the United States, including Guam, Puerto Rico, and the U.S. Virgin Islands. If you choose to be interviewed at our office, you will be naturalized the same day as your interview, in most cases. Please note that, if you want to change your name, you cannot be naturalized by our office. You will be required to attend your oath ceremony at a Federal Court. Court ceremonies are held only one day each month and, depending upon when in the month you are interviewed, it may take at least two months to be scheduled for a ceremony. As stated previously, although U.S. Citizenship and Immigration Services (USCIS) gives priority to and provides special handling for these types of naturalization applications, an interview, which is a mandatory part of the application process, cannot be scheduled until your background checks have been completed.
May I file my naturalization application if I am a conditional resident? What should I do?
If you are a conditional resident, you may file for naturalization. If you are within the 90 days of the two-year anniversary (the expiration date on your green card) or if your naturalization application will not be processed prior to your two-year anniversary, you must filed a Form 1-751, Petition to Remove Conditions on Residence, according to the instructions on the form. If you have already filed your 1-751 Petition, please notify our office so that the Form 1-751 may be considered and adjudicated at the time of your naturalization interview.
What documents should I submit with the Form N-400, Application for Naturalization?
• A cover letter directed to USCIS advising that you are applying for naturalization under section 319(b) of the INA. You must state on your cover letter where you wish to be interviewed.
• Application fee. Please visit our website at www.uscis.gov for a listing of the current fee.
• Fingerprint fee OR two(s) sets of FD-258 fingerprint cards.
o If you are living overseas at the time of filing your application, you must go to a U.S. Embassy/Consulate or U.S. installation to have your fingerprints taken. You do not
need to pay a fingerprinting fee to USCIS (you must check with the entity taking your fingerprints to find out if there is an associated fee).
o If you are living in the United States at the time of filing your application, you must submit a fingerprinting fee so that you can be printed at an Application Support
Center. Please visit our website at www.uscis.gov for a listing of the current fee.
• Documentation to establish that your U.S. citizen spouse's employer is a qualifying employer and the length of your spouse's overseas assignment.
• Form DD-1278 issued no earlier than 90 days prior to the scheduled date of overseas travel, if you are authorized concurrent travel. If you cannot submit this form, the letter
from your spouse's Commanding Officer that is described below must also include permission for you to reside abroad with your spouse after naturalization.
• A letter from your spouse's Commanding Officer on official letterhead certifying that he or she is your spouse's Commanding Officer and the official date of rotation (DEROS) of your
spouse from the overseas assignment.
U.S. GOVERNMENT AGENCY (NON-MILITARY)
• A letter on official agency/department letterhead that states the facts of your spouse's employment, the basis of your spouse's hire (contract, permanent employee, etc.), and the
length of your spouse's overseas employment.
ALL OTHER EMPLOYERS (an American institution of research recognized as such by the Attorney General, an American-owned firm or corporation engaged in the development of
foreign trade and commerce for the United States, a public international organization of which the United States is a member by law or treaty, or a religious denomination or an
interdenominational organization with a valid presence in the United States).
• A letter on official letterhead which states:
o The title of the official attesting to the facts in the letter;
o The name of the institution, firm or corporation and whether the official has access to the company's records;
o The nature of the business that the employer conducts;
o The name of the State under the laws of which the employer was organized and the date of incorporation, etc.;
o The ownership structure of the enterprise; and
o The facts of your spouse's employment, the basis of your spouse's hire (contract, permanent employee, etc.), and the length of your spouse's overseas employment.
• A copy of your 1-5 51 permanent resident card (green card)
• Proof of your spouse's U.S. citizenship (copy)
• Your birth certificate (copy)
• Your marriage certificate (copy)
• Proof of termination of all prior marriages for you and your spouse (copies)
Fore more information please visit this page http://www.uscis.gov/sites/default/files/USCIS/About%20Us/Find%20A%20US…
USCIS has provided the following clarification:
Background: A Form I-485, Application to Register Permanent Residence or Adjust Status, seeks to accord Lawful Permanent Resident (LPR) status to an alien who is the beneficiary of an approved employment-based (EB) or other immigrant visa petition, such as Form I-140, Immigrant Petition for Alien Worker. Section 245 of the Immigration and Nationality Act (the Act), as amended, is the statutory basis for adjustment, which is discretionary and regulated by U.S. Citizenship and Immigration Services (USCIS).
To adjust, an alien in the U.S. must apply, have an immigrant visa immediately available to them, and be admissible. They must also undergo a medical examination, security checks and, in some instances, an interview. An alien is not entitled to adjustment and a denied Form I-485 may not be appealed; however motions may be filed. Common grounds for the denial of an EB Form I-485 include failure to maintain a lawful status and/or engaging in unauthorized employment after admission. Much less common, yet noteworthy due to the lengthy statutory bars entailed, are denials due to unlawful presence.
This clarification will address maintenance of lawful status, unauthorized employment, and unlawful presence as applied to adjustment under section 245 of the Act. (The information provided herein does not supersede existing USCIS statute, regulation, or existing policy. For additional information on the topics herein, readers should refer to official USCIS statute, regulation, field manuals, and binding policy.) Since lawful status and employment authorization are not required for adjustment under section 245(i) of the Act, emphasis will be given to sections 245(a) and (k) of the Act, under which the majority of EB applicants presently adjust.
Section 245 Overview: Sections 245(a), (k) and (i) of the Act provide the three main “avenues” to adjustment. Eligibility under a specific section is contingent largely on the applicant’s means of entry to the U.S., maintenance of status, employment authorization (if applicable), admissibility under section 212 of the Act, and submission of required initial evidence. Section 245(c) of the Act describes the classes of aliens who are restricted from adjustment. These provisions are further applied by Title 8, Code of Federal Regulations, part 245, and Chapter 23.5 of the Adjudicator’s Field Manual. EB adjustments are also subject to a number of binding Service policy memoranda and precedent decisions.
Section 245(a) of the Act applies to an alien who:
Is not restricted under sections 245(c), (d), (e), or (f) of the Act, or Title 8 CFR Part 245.1(c) (includes alien crewmen, transit without visa aliens, K-1 fiancées, conditional permanent residents, aliens in removal proceedings, inadmissible aliens without waivers and other classes), and
Is present in the U.S. pursuant to a lawful entry (admission), and
Has maintained, continuously, a lawful status from the time of their last admission until filing for adjustment, and
Is in a lawful status upon filing for adjustment, and
Has not, at any time since their last admission, engaged in unauthorized employment.
A number of otherwise eligible aliens fail to maintain lawful status or engage in unauthorized employment after their admission, or they may not be in a lawful status upon filing for adjustment. This renders them subject to the restrictions under sections 245(c)(2), (7) and (8) of the Act and therefore ineligible to adjust under section 245(a).
Section 245(k) of the Act provides certain preference aliens with limited relief from the aforementioned restrictions. The full section is as follows:
(k) An alien who is eligible to receive an immigrant visa under paragraph (1), (2), or (3) of section 203(b) (or, in the case of an alien who is an immigrant described in section 101(a)(27)
(C), under section 203(b)(4)) may adjust status pursuant to subsection (a) and notwithstanding subsection (c)(2), (c)(7), and (c)(8), if--
(1) the alien, on the date of filing an application for adjustment of status, is present in the United States pursuant to a lawful admission;
(2) the alien, subsequent to such lawful admission has not, for an aggregate period exceeding 180 days--
(A) failed to maintain, continuously, a lawful status;
(B) engaged in unauthorized employment; or
(C) otherwise violated the terms and conditions of the alien's admission.
Section 245(i) of the Act, which was created and extended, respectively, by Public Laws 105-119 and 106-554, permits certain aliens who are further restricted under section 245(c) of the Act [and generally ineligible to adjust under sections 245(a) or (k)], to overcome those restrictions.
Examples include applicants who failed to maintain a lawful status or engaged in unauthorized employment for more than 180 days; aliens who entered without inspection; crewmen and transit without visa (TWOV) aliens. The sunset of this provision was on April 30, 2001. However, section 245(i) remains available to an adjustment applicant who:
Is the beneficiary of an immigrant visa petition or labor certification filed on or before April 30, 2001 (or is a grandfathered alien), and
Has failed to maintain, continuously, a lawful status and/or engaged in unauthorized employment for more than 180 days since their last entry, or is otherwise restricted from adjustment under certain sections of 245(c) of the Act, and
Was physically present in the U.S. on December 20, 2000 (applies only to principal applicants whose visa petition or labor certification was filed between 1/14/1998 and 4/30/2001), and
Completes a Supplement A to Form I-485, and
Pays a penalty fee of $1,000 (if aged 17 or older at filing).
Under section 245(i) of the Act, an alien remains eligible to adjust regardless of unlawful entry, failure to maintain status or unauthorized employment. However, such aliens may be subject to the accrual of unlawful presence, which shall be discussed in that section.
FAILURE TO MAINTAIN STATUS
Title 8, CFR Part 245.1(d)(1) defines “lawful immigration status” to include nonimmigrant status (e.g. B2, F1, H1B, J1, L1A), refugee status and asylum. Temporary protected status (TPS) granted under section 244 of the Act and F-1 student occupational practical training (OPT) are also considered lawful status for adjustment purposes. Examples of persons not in lawful status include aliens who entered without inspection, aliens whose nonimmigrant status has expired, and parolees who were not inspected and admitted.
In terms of Form I-485 adjudication, lawful status is counted from the date of the alien’s last admission until the Form I-485 is filed. Any gaps or violations that occurred prior to the alien’s last admission or after Form I-485 was filed are not counted. (These limitations do not, in any way, bar USCIS from scrutinizing an applicant’s full immigration and employment history within the record of proceeding to otherwise determine admissibility or eligibility.) Lapses or violations totaling 180 days or less are permissible under section 245(k) of the Act.
An alien fails to maintain lawful status when their status has expired, has been revoked, or has been terminated. In particular, an alien admitted as a nonimmigrant fails to maintain lawful status upon overstaying his or her authorized period of admission, as specified by the expiration date on the alien’s Form I-94 (Arrival/Departure Record) or Form I-797 (Notice of Action). Applicants also fail to maintain lawful status by violating the terms and conditions of their admission. This means that although the alien held (or was granted) a lawful status, he or she engaged in activities which violated the terms and conditions of that status.
Example 1: Marie, who is the beneficiary of an approved Form I-140 immigrant visa petition, was last admitted to the U.S. as a B-2 nonimmigrant visitor on April 15, 2006, valid until October 15, 2006. She was not granted any other status and filed her Form I-485 on January 15, 2007.
Marie was out of status from October 16, 2006, until filing for adjustment on January 15, 2007, a period of 91 days. She was also not in a lawful status at the time of filing her Form I-485. Consequently, she is a restricted alien as per sections 245(c)(2) and (7) of the Act and ineligible to adjust under section 245(a). However, Marie remains eligible to adjust under section 245(k) of the Act, because (k) does not require a lawful status upon filing and the aggregate period in which she failed to maintain a lawful status did not exceed 180 days.
Example 2: Lee, who is the beneficiary of an approved Form I-360 special immigrant (religious worker) visa petition, was last admitted as an R-1 nonimmigrant religious worker on April 10, 2005, valid until April 10, 2007. Lee worked for the petitioning religious organization until July 4, 2006, then quit to pursue a nursing degree. Lee was not granted any other status. Lee files a Form I-485 on April 1, 2007, with the intention of returning to his Form I-360 employer once approved.
By leaving the position that was the basis for his R-1 nonimmigrant status and attending school, Lee violated the terms and conditions of his admission from July 5, 2006, until filing for adjustment April 1, 2007, a period of 270 days. Consequently, Lee is a restricted alien as per sections 245(c)(2) and (8) of the Act and ineligible to adjust under section 245(a). Lee is also ineligible to adjust under section 245(k) of the Act, because the aggregate period in which he failed to maintain, continuously, a lawful status exceeded 180 days. Assuming Lee is further ineligible for section 245(i) relief, his Form I-485 would be denied.
• Adjustment applicants who have been in the U.S. for extended periods may have multiple extensions of status (EOS) or changes of status (COS). If an EOS/COS is filed timely, but not approved until after the prior status has expired, the applicant will still be considered to have maintained a lawful status from the date the EOS/ COS was filed. The gap created by the period the EOS/COS request was pending with CIS should not be held against the applicant.
• If an alien’s EOS/COS request is denied, his or her lawful status is considered to have ended as of the original expiration date. A denied EOS/COS does not confer a “lawful status” for adjustment purposes or have the effect of such status.
• A previously filed Form I-485 that has been denied does not confer a “lawful status” for the purposes of re-filing for adjustment or have the effect of such status.
• As set forth in Title 8 CFR part 245.1(d)(2), an alien’s failure to maintain lawful status may be forgiven for a particular period, provided such failure was through no fault of their own or for technical reasons. However, the burden of proof remains with the alien.
The term “employment,” for adjustment purposes, means any service or labor performed by an employee for an employer within the U.S. Employment after admission must generally be authorized by USCIS. EB adjustment applicants are most often authorized by being admitted in (or granted) an employment-authorized nonimmigrant status (e.g. H1B, L1, R-1, TN). It is important to recognize that such nonimmigrant classifications confer both lawful status and authorization to work, specifically for the petitioning employer.
Certain aliens are authorized to work incidentally to their status, such as an F-1 nonimmigrant student who works on-campus as part of their study program. As per Title 8 CFR Part 274a.12, many classes of aliens, including asylees, refugees, certain nonimmigrant dependents and pending adjustment applicants, may also apply for an Employment Authorization Document (EAD). An EAD is generally not employer-specific.
Section 245(c)(2) of the Act bars from adjustment an alien who “continues in or accepts unauthorized employment prior to the filing of an application for adjustment of status…” Section 245(c)(8) further bars “any alien who was employed while the alien was an unauthorized alien, as defined in section 274A(h)(3), or who has otherwise violated the terms of a nonimmigrant visa.”
Section 274A(h)(3) of the Act, as amended, states:
(3) Definition of unauthorized alien. As used in this section, the term “unauthorized alien” means, with respect to the employment of an alien at a particular time, that the alien is not at that time either (A) an alien lawfully admitted for permanent residence, or (B) authorized to be so employed by this Act or by the Attorney General.
Title 8, Code of Federal Regulations, Part 274a.12(c)(9) states:
An alien who has filed an application for adjustment of status to lawful permanent resident pursuant to part 245 of this chapter. For purposes of section 245(c)(8) of the Act, an alien will not be deemed to be an “unauthorized alien” as defined in section 274A(h)(3) of the Act while his or her properly filed Form I-485 application is pending final adjudication, if the alien has otherwise obtained permission from the Service pursuant to 8 CRF 274a.12 to engage in employment….
Additionally, Title 8, Code of Federal Regulations, Part 245.1(b) states, in pertinent part:
(10) Any alien who was ever employed in the United States without authorization of the Service….For purposes of this paragraph an alien who meets the requirements of § 274a.12(c)(9) of this chapter shall not be deemed to have engaged in unauthorized employment during the pendency of his or her adjustment application…
Unlike lawful status, which is counted from the time of the alien’s last admission until the Form I-485 is filed, unauthorized employment is counted from the time of admission until the Form I-485 is approved. The filing of an adjustment application does not “stop the clock” for the purpose of assessing unauthorized employment.
Unauthorized employment begins when an alien accepts employment without Service authorization or continues to work after their existing authorization expires. Unauthorized employment ends upon the alien being granted authorization or the employment is terminated. For any periods in which USCIS determines the alien engaged in unauthorized employment, the alien bears the burden of establishing that such periods were authorized, or that he or she did not, in fact, engage in unauthorized employment. Again, as per section 245(k) of the Act, periods of unauthorized employment totaling 180 days or less may be forgiven.
Important: Any overlapping days of unauthorized employment and unlawful status count only once against the 180 day aggregate of section 245(k), in favor of the alien.
• Routine absences from work, such as weekends, vacations, or sick leave do not interrupt unauthorized employment. The “aggregate” of section 245(k) refers to the sum of all such periods and not simply the actual workdays within a given period.
• Unauthorized employment is not stopped by departing the U.S. and reentering with a valid advance parole document (Form I-512). In accordance with section 245(k) of the Act, an alien can begin to accrue time against the 180-day period for violations that occurred on or after the alien’s last lawful admission. An alien who enters the U.S. pursuant to an advance parole is not “lawfully admitted” and, therefore, cannot benefit from a new 180- day period.
• Religious workers engaging in their qualifying occupation or vocation are considered to be “employed” for adjustment purposes and need authorization, even if their compensation is not monetary (room and board, stipends, health insurance, etc. are considered compensation).
The unlawful presence statute was created by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Public Law 104-208 (“IIRAIRA”). Unlawful presence is defined as an alien present in the U.S. after their “period of stay authorized by the Attorney General” expires, or present in the U.S. without having been admitted or paroled. Aliens who have been unlawfully present in the U.S. for more than 180 days may be inadmissible if they depart.
Unlawful presence, which is an inadmissibility under section 212(a) of the Act, is not the same as failure to maintain lawful status or unauthorized employment. It is an entirely separate concept, both legally and in terms of determining adjustment eligibility. Unlawful presence is pertinent to adjustment because an alien must be admissible in order to be eligible to adjust.
Section 212(a) of the Act states, in pertinent part:
(a) Classes of aliens ineligible for visas or admission. Except as otherwise provided in this Act, aliens who are inadmissible under the following paragraphs are ineligible to receive visas and ineligible to be admitted to the United States:
(9)…(B) Aliens unlawfully present.
(i) In general. Any alien (other than an alien lawfully admitted for permanent residence) who—
(I) was unlawfully present in the United States for a period of more than 180 days but less than 1 year, voluntarily departed the United States (whether or not pursuant to section 244(e)) prior to the commencement of proceedings under section 235(b)(1) or section 240, and again seeks admission within 3 years of the date of such alien's departure or removal, … is inadmissible.
(II) has been unlawfully present in the United States for one year or more, and who again seeks admission within 10 years of the date of such alien’s departure or removal from the United States, is inadmissible.
(ii) Construction of unlawful presence. For the purposes of this paragraph, an alien is deemed to be unlawfully present in the United States if the alien is present in the United States after the expiration of the period of stay authorized by the Attorney General or is present in the United States without being admitted or paroled…
Unlawful presence accrues when an alien in the U.S. is not in a “period of stay authorized by the Attorney General.” “Authorized” stay includes lawful status, such as nonimmigrant status, refugee status, TPS, and asylum. However, several additional periods qualify as “authorized” stays, including:
• Grants of voluntary departure;
• Grants of withholding or deferral of removal under the United Nations Convention Against Torture;
• Legalization and special agricultural worker applications for lawful temporary residence that are pending through an administrative appeal;
• Grants of withholding or suspension of deportation, or cancellation of removal;
• Applications for temporary and permanent residence by Cuban-Haitian entrants under section 202(b) of PL 99-603 through administrative appeal;
• Grants of Temporary Protected Status and Deferred Enforced Departure; and
• Applications for adjustment of status under section 245 of the Act (including section 245(i)).
Additionally, there are several important statutory exemptions to unlawful presence:
• Aliens under age 18 do not accrue unlawful presence;
• Unlawful presence before April 1, 1997 (the enactment date of IIRAIA) is not counted;
• Accrual of unlawful presence stops upon filing of Form I-485 (unless the Form I-485 was filed solely to prevent removal);
• Aliens with timely filed pending EOS/COS applications do not accrue unlawful presence while their request is pending. If the EOS/COS is denied, unlawful presence resumes upon denial;
• An alien admitted as a nonimmigrant for duration of status “D/S,” particularly F-1 students and J-1 exchange visitors, do not accrue unlawful presence until CIS finds such a violation while adjudicating a benefit and notifies the alien in writing;
• Additional exemptions exist, including battered women and children described under section 212(a)(6)(A)(ii) of the Act and family unity beneficiaries.
The above exceptions aside, an alien who departs the U.S. after being unlawfully present for a period of more than 180 days (but less than one year) is inadmissible under section 212(a)(9)(B)(i)(I) of the Act and triggers the three-year bar. An alien who departs the U.S. after being unlawfully present for more than one year is inadmissible under section 212(a)(9)(B)(i)(II) of the Act and triggers the ten-year bar. Unlawful presence is counted as continuous, not aggregate, time in the U.S. (Exception: Unlawful presence is counted in the aggregate for aliens subject to the permanent bar under section 212(a)(9)(C) of the Act. Specifically, an alien who accrues an aggregate of more than one year of unlawful presence in the U.S., then departs and re-enters without inspection, is barred permanently. The illegal entry must have occurred on or after April 1, 1997.) It is critical to note that the alien must depart in order to trigger the unlawful presence bars. In the absence of a departure, the accrual of unlawful presence is moot.
Section 212(a)(9)(B)(v) of the Act provides the (legacy) Attorney General with the sole discretion to waive the three- or ten-year unlawful presence bars, if the alien is the spouse or son or daughter of a U.S. Citizen (USC) or LPR. The alien must demonstrate that the refusal of their admission would result in extreme hardship to the USC or LPR spouse or parent. The dispensation of this waiver is rare and the burden of proof lies with the alien.
Example 1: John is admitted to the U.S. as a B-2 nonimmigrant visitor on October 30, 2001, with permission to remain until April 29, 2002. He files a timely request to extend his B-2 status on April 15, 2002. This request is denied on June 1, 2002. John does not have any other status and subsequently departs the U.S on February 10, 2003. On August 12, 2004, he is admitted as an H1B nonimmigrant specialty worker. A Form I-140 is later filed and approved on his behalf. John files his Form I-485 on March 10, 2007.
John was unlawfully present in the U.S. from June 1, 2002—the date his timely filed EOS was denied—until his departure February 10, 2003, a continuous period of 254 days. His departure, after being unlawfully present for more than 180 days, but less than one year, renders him inadmissible under section 212(a)(9)(B)(i)(I) of the Act and triggers the three year bar. Provided John does not qualify for the waiver, his Form I-485 would be denied.
Example 2: Rita enters the U.S. as an F-1 nonimmigrant student on August 20, 2003, with permission to remain for the duration of her status (“D/S”). After attending school full time for one semester, Rita changes to part time, then drops out entirely. She spends the next sixteen months visiting friends across the U.S. and working as a house sitter. She then departs on July 1, 2005. After completing her degree abroad, Rita is admitted to the U.S. on July 30, 2007, as J-1 nonimmigrant exchange visitor. Shortly thereafter, a Form I-140 is approved on her behalf and she files for adjustment.
Although Rita violated her F-1 nonimmigrant status and engaged in unauthorized employment for over a year prior to her departure, she did not accrue unlawful presence because she was admitted for “duration of status” and CIS did not find the violation while adjudicating a benefit or notify her in writing. Her departure therefore did not render her inadmissible under section 212(a)(9)(B)(i)(II) of the Act and did not trigger the ten-year bar.
Further, her violation of status and unauthorized employment occurred prior to her most recent admission as a J-1 nonimmigrant. Provided she is otherwise eligible, her Form I-485 is approvable.
Other important unlawful presence considerations:
• The statutory unlawful presence bars under sections 212(a)(9)(B)(i) of the Act are not overcome by section 245(k) or (i) relief. Such an alien would still have to establish eligibility for the waiver;
• Departing the U.S. with a valid advance parole document (Form I-512) is considered a departure for unlawful presence purposes. Advance parole does not relieve the alien from being subject to unlawful presence.
For additional Service clarifications and policy regarding unlawful presence:
• AFM Chapter 30.1(d)
• March 27, 2003 memorandum by the CIS Chief, Inspections Law Division, Office of General Counsel:
“Interpretation of ‘Period of Stay Authorized by the Attorney General’ in determining ‘unlawful presence’ under INA section 212(a)(9)(B)(ii).”
• June 12, 2002 memorandum by the CIS Executive Associate Commissioner, Office of Field Operations: “Unlawful Presence.”
If you are a quota applicant, you can apply through as many unrelated companies as you like. Do not be a party to any misrepresentation.
If the Master's degree is accredited, you do not need post-Master's experience for EB-2. There can be some issue about the 3+2 pattern of education, but an accredited Master's should fix it.
When is a foreign person considered an employee?
A foreign person is considered an employee when the foreign person is a full time regular employee, directly paid, insured, hired/fired and/or promoted exclusively by the U.S. person. The employee, however, need not LIVE in the U.S. to be employed by the U.S. person. The U.S. person is liable to ensure all foreign person employees are compliant with U.S. export laws regardless of residence.
If residing overseas, is the foreign person employee considered a broker?
If truly employed by the U.S. person, the foreign person is NOT considered a broker when performing the U.S. person’s business (must be within the scope of the employment authorization) since he/she is a company employee.
Should current authorizations be replaced or amended to be consistent with current guidance?
Currently approved authorizations are still valid. As expiration dates are reached, industry will be expected to submit the appropriate authorization as delineated in the current guidance.
Can multiple employees be covered under one authorization?
Yes. Multiple foreign person employees can be covered under one authorization so long as they are all of the same nationality working on the same program/commodity, i.e., all French nationals working on the same radar program.
How is an employee providing marketing services overseas identified in a license application?
If the U.S. person desires for the foreign person employee to market their products to other countries and the product is within the scope of the DSP-5, the U.S. person should obtain a license to market a particular technology to a particular country identifying the foreign person employee as a foreign consignee. Once the marketing license is approved the foreign employee may perform his/her job duties. The case number of the employment DSP-5 should be identified in the marketing license application.
What if the foreign person’s place of birth is different from the country he/she now resides in and holds citizenship from?
This would bring into question the issue of dual nationality and whether the individual had ties to his country of birth which would indicate a degree of loyalty and allegiance to that country. The license would be considered on the basis that it could be an export to both countries. Normally, this does not present a problem unless the country of birth is proscribed under 22 CFR 126.1 in which case we have to secure additional information to confirm lack of significant ties to the country of birth.
Wha value should be entered on the license application?
DDTC suggests identifying the foreign person employee’s annual salary and/or value of the technical data/defense services transferred/received.
How should the foreign person employee of a U.S. person be identified in the TAA or MLA?
The agreement holder must amend the agreement to specifically identify the foreign person employees of all U.S. signatories. The statement should be made in 22 CFR 124.7(4) with other statements regarding transfer territory. If the foreign person employees are not already identified, this statement should be included in the next amendment submitted to DDTC for approval.
Who should sign the DSP-83 for the transfer of U.S. classified information?
The U.S. person and the foreign person employee must execute the DSP-83 when the transfer of U.S. classified information is required. DDTC may require the foreign government to execute the DSP-83 on a case-by-case basis.
For more information visit these links: http://www.pmddtc.state.gov/faqs/license_foreignpersons.html#1
Reasonable maternity leave should be considered "in status" period, so pay stubs should not be needed.