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Immigrant visas

Immigrant visas can lead to permanent residence in the US, but they require being sponsored by either a family member or employer.

Carl Michael Shusterman | Sep 29, 2019

How to Become a U.S. Citizen

How to Become a US Citizen through Naturalization To be eligible to become a US citizen through naturalization, you must: 1. Be a lawful permanent resident of the United States for 5 years, or 3 years if married to a U.S. citizen for a minimum of the 3 years (although there are certain exceptions to this requirement for persons who have honorable service in the U.S. Armed Forces); 2. Be physically present in the United States for over 50% of the required residency period; 3. Be a person of good moral character; 4. Take an oath of loyalty to the United States; 5. Be able to speak, read and write simple words and phrases in the English language (although there are certain exceptions to this rule); and 6 Pass a test in US history and government. In general, the naturalization process includes the following steps: 1. Determine if you are already a U.S. citizen. 2. Determine your eligibility to become a U.S. citizen. 3. Prepare Form N-400, Application for Naturalization. 4. Submit Form N-400, Application for Naturalization. 5. Go to the biometrics (fingerprinting) appointment. 6. Complete the interview. 7. Receive a decision from USCIS on your Form N-400, Application for Naturalization. 8. Receive a notice to take the Oath of Allegiance. 9. Take the Oath of Allegiance to the United States. 10. Understand your rights and responsibilities as a U.S. citizen. Once you become a citizen of the United States, you may sponsor your spouse, parents, sons and daughters as well as your brothers and sisters for lawful permanent residence in the U.S. How to Acquire US Citizenship through Your Parents and Grandparents If you were born outside of the U.S., how can your acquire US citizenship through your parents or grandparents? What if you were born abroad to U.S. citizen parents? You probably are a U.S. citizen, but you need to get some paperwork to prove this. Or what if you were born abroad and only one of your parents was a U.S. citizen at the time? That’s a little trickier. How do you determine if you “acquired” U.S. citizenship at birth through a parent, or if you obtained derivative citizenship as a minor through your parent(s)? We simplify the complex laws regarding acquisition and derivation of US citizenship through parents and grandparents so that they are understandable to non-lawyers. There are 4 Nationality Charts that attorneys use to assist them in such cases. These charts are difficult to find on the USCIS website so we replicate them here so that you can use them to begin your research. Derivative citizenship laws are one of the most complex areas of immigration law, and Congress has amended these laws multiple times. Fortunately, Attorney Shusterman spent several years as an INS Citizenship Attorney in the 1970s adjudicating N-600 derivative citizenship applications. This experience proved invaluable. Since he entered private practice in 1982, he has helped hundreds of clients obtain U.S. citizenship through their parents and grandparents.

Carl Michael Shusterman | Jul 25, 2019

VISA BULLETIN PREDICTIONS U.S. DEPARTMENT OF STATE

VISA BULLETIN PREDICTIONS Check-In with DOS’s Charlie Oppenheim (6-21-19) Family-Based Preference Categories The across the board advancement to “current” of the F-2A category is perhaps the most noteworthy update on the family-based side of the July 2019 Visa Bulletin. This advancement is attributable to a failure of applicants to respond to the NVC Agent of Choice letters. Interestingly, although the Final Action Date for this category is current, the Date for Filing is March 8, 2019. This was done to avoid completely opening the floodgates to consular filings in this category. Charlie noted that moving the Final Action Dates to current is intended to spur responses to the NVC letters but is not expected to have any impact on number usage for the current fiscal year (FY2019). Movements in the Final Action Dates are often made slowly and carefully for some time in order to test demand before making any dramatic movements. To better understand why these movements are made, Charlie provides a “Party Invitation Analogy.” Moving the Final Action Date is like planning for a party. You may prepare a certain amount of food for your guests. However, when only a few people respond that they are coming to the party, you keep inviting more and more guests. Then, at the last minute, everyone you invited decides to attend the party and you don’t have enough food for everyone. That is analogous to a gradual and then rapid advancement in Final Action Dates followed by a flood of demand that requires a retrogression. This is what Charlie believes could potentially happen at some point after making this category current. Employment-Based Preference Categories General Trends and Observations: In the July 2019 Visa Bulletin, Charlie modifies previous projections for EB-1, EB-2 and EB-3 Worldwide, based on new data received from USCIS. This data reflects a rapid increase in actual demand across these categories that has materialized over the past 2.5 weeks, and projections of continued higher levels of demand during the summer than had been experienced through mid-May. EB-1: The Final Action Date for EB-1 Worldwide (including EB-1 El Salvador, Guatemala and Honduras, EB-1 Mexico, EB-1 Philippines, and EB-1 Vietnam) remains the same at April 22, 2018. Furthermore, Charlie predicts that there will be retrogression in this category as early as August 2019. If demand trends allow, the goal is that the Final Action Date in this category will return to the current level (i.e., April 22, 2018) in October 2019. The Final Action Date for EB-1 India remains the same at January 1, 2015. No further forward movement will occur in this category during FY2019. If possible, Charlie’s goal is for EB-1 India to return to a Final Action Date of February 22, 2017 in October 2019. EB-1 China will advance approximately two months to May 8, 2017 in July. No additional forward movement is expected in this category for the remainder of FY2019. This preference may also become subject to the corrective action that Charlie mentions above for EB-1 Worldwide. The reason why EB-1 China was able to advance in July is that, unlike India, China has otherwise unused numbers in the EB-4 category that “fall up” to EB-1 to allow additional number usage. In contrast, there is sufficient EB-4 India number usage which restricts the ability to have unused numbers “fall up” to EB-1 India. Charlie expects that going forward EB-1 Worldwide, EB-1 China, and EB-1 India will have distinct Final Action Dates. He also expects that the Final Action Dates for EB-1 China and EB-1 India will differ, with both lagging behind the Final Action Date for EB-1 Worldwide. EB-2: The week prior to Memorial Day, Charlie started receiving a different demand pattern from USCIS than what he had received in recent months. During this time, the demand in the employment-based categories began to pick up, with the daily totals increasing quickly. For example, through May 21, 2019, approximately 1,800 visa numbers were used in the EB-2 category, and between May 22, 2019 and May 31, 2019, another 1,300 numbers were used. The June 2019 pace of demand continues to be higher than earlier in FY2019. This is in combination with USCIS’s projected high summer usage. Based on this data, whereas Charlie previously believed EB-2 Worldwide might remain current through FY2019, this no longer remains the case. Charlie now anticipates that this category will have a Final Action Date imposed during FY19, and possibly as early as August 2019. At this time, he is unable to predict how far back the date imposed might be. As Charlie knows how many numbers remain available and how many USCIS predicts will materialize, he will continue to watch the demand in this category very closely. While it is possible that the Final Action Date for EB-2 Worldwide will hold in August 2019 and be

Carl Michael Shusterman | Jul 25, 2019

VISA BULLETIN PREDICTIONS U.S. DEPARTMENT OF STATE

Check-In with DOS’s Charlie Oppenheim (7-18-19) Question: We have heard rumblings from local USCIS field officers that the July 2019 Visa Bulletin is “no longer in effect” and the August 2019 Visa Bulletin is now applicable. I know there’s not a simple answer, but is that correct? If so, do you know whether USCIS will still accept adjustment of status (AOS) filings based on the July 2019 Visa Bulletin? Answer: Beginning during the last two weeks of May 2019, the actual use of numbers by USCIS began to increase significantly in most employment-based categories. The most recent USCIS report of future demand for visa numbers (i.e., July through September 2019) indicated totals which could not be accommodated under the FY2019 annual limits. What you heard is partially correct for the Employment Third (EB-3) and EB-3 Other Workers (EW) preference categories (only), where it was necessary to impose the August 2019 Final Action Dates on future requests for numbers to control number use within the annual limits for those countries. Prior to this happening, USCIS had already received July visa authorizations for all requests which had been subsequently submitted to my office, and for applicants with priority dates within the August dates. Additional corrective action will be required to control number use in particular preference categories on a Worldwide or individual country basis prior to the end of September 2019. In fact, it has just become necessary to make the India EB-1 preference “unavailable” for the remainder of the fiscal year. USCIS will be able to continue processing such cases at their discretion and submit requests for visa authorization as they normally would. The difference is that cases which are not within the August Final Action Date will be held in my database pending future availability of numbers, most likely effective October 1, 2019. If the return of unused EB-3/EW numbers which have already been provided for July use (primarily overseas cases) were to permit such action, it is (remotely) possible that we could make some numbers available in September by slightly advancing the EB-3 Final Action Date. Language in Section 1. of the August 2019 Visa Bulletin covers the possible need to take such corrective action: Procedures for determining dates. Consular officers are required to report to the Department of State documentarily qualified applicants for numerically limited visas; USCIS reports applicants for adjustment of status. Allocations in the charts below were made, to the extent possible, in chronological order of reported priority dates, for demand received by July 5th. If not all demand could be satisfied, the category or foreign state in which demand was excessive was deemed oversubscribed. The final action date for an oversubscribed category is the priority date of the first applicant who could not be reached within the numerical limits. If it becomes necessary during the monthly allocation process to retrogress a final action date, supplemental requests for numbers will be honored only if the priority date falls within the new final action date announced in this bulletin. If at any time an annual limit were reached, it would be necessary to immediately make the preference category “unavailable”, and no further requests for numbers would be honored. Question: Has there been an official announcement or notice about the August 2019 Visa Bulletin being put into effect on July 11, 2019? Does this apply to the Employment Fifth (EB-5) preference category? Answer: As mentioned above, the August 2019 Final Action Dates have been imposed on the EB-3 and EB-3 Other Workers preference categories. This has been required to control number use within those annual limits. There is no update to the Department of State web site when such action occurs as numbers have already been provided for use by applicants whose cases have been deemed qualified when the July 2019 Final Action Dates were announced. Subsequent applications were acted upon until the need for corrective action, as described in Section 1. of the August 2019 Visa Bulletin, became necessary. Comment: USCIS’s inability to continue to issue immigrant visas in categories which would otherwise be current per the July 2019 Visa Bulletin but for the annual visa limit being reached does not necessarily prevent scheduled interviews from being conducted by USCIS. USCIS interviews that were already scheduled may continue in USCIS’s discretion. Family-Based Preference Categories Similar to last month, the August F-2A Final Action Date will remain current across categories, and the Dates for Filing for F-2A applications has been advanced. Charlie expects that, absent an unanticipated surge in demand, the F-2A Final Action Date will continue to remain current across categories through September 2019. Nonetheless, one should not expect this category to remain current for long. When the expected surge in demand materializes, it will prompt the imposition of a Final Action Date. This date will likely be sometime in 2017 or 2018. The family-based (FB) Mexico preference categories continue to receive fairly sizeable demand for numbers from USCIS, impacting movement in those categories. In contrast, very low levels of overseas demand continue in many of the FB Philippines categories. Employment-Based Preference Categories - General Predictions: Employment based demand has increased steadily since late May 2019 in the EB-1, EB-2, EB-3 and EB-3 Other Worker categories. Whereas in past years, Charlie often predicted that employment-based preference categories which retrogressed towards the end of the fiscal year “would have a full recovery” in October (the beginning of the next fiscal year), his prediction in the August 2019 Visa Bulletin is much more guarded. Charlie merely indicates in Section D. of the August 2019 Visa Bulletin that “every effort will be made to return these final action dates to those which applied for July.” This means that while Charlie hopes that he will be able to bring these dates back to where they were in July, demand levels are so high and unpredictable, that one should not automatically count on a return to the July Final Action Date levels at the start of FY2020. Charlie cautions that an immediate cut-off in visa usage, similar to that for EB-3 and EB-3 Other Workers, could very well occur in the EB-1 and EB-2 categories at any time before the end of the fiscal year if demand continues to remain high for these categories. No forward movement in these Final Action Dates should be expected before October for certain employment-based visa categories. Any potential movement in these preferences would be subject to a change in the current USCIS demand pattern, and a larger than expected return of unused July numbers by overseas posts. EB-1: As predicted last month, the Final Action Date for EB-1 Worldwide (including EB-1 El Salvador, Guatemala and Honduras, EB-1 Mexico, EB-1 Philippines, and EB-1 Vietnam) retrogresses in August 2019 almost two years to July 1, 2016. The Final Action Date for EB-1 China, which was May 8, 2017 in July, joins the rest of world countries in retrogressing to July 1, 2016 in August 2019. The Final Action Date for EB-1 India holds at January 1, 2015. EB-2: The week prior to Memorial Day, Charlie started receiving data from USCIS that was different than what he had received in the past. This data showed that demand in the employment-based categories started picking up, with the daily totals increasing quickly. For example, through May 21, 2019, 1,800 numbers were used in the EB-2 category. Between May 22nd and May 31st, another 1,300 numbers were used, with this high pace continuing into June. Not only is the actual demand high, but as mentioned earlier, USCIS’s projected future usage also remains high relative to the monthly demand targets for number use. As a result of this high demand, all countries are subject to a Final Action Date in August. EB-2 Worldwide (including EB-2 China and EB-2 for all countries except for India) will have a Final Action Date of January 1, 2017, while EB-2 India advances one week to May 2, 2009. EB-3: EB-3 China Other Workers holds at November 22, 2007 The August 2019 Final Action Date for EB-3 Worldwide, EB-3 El Salvador, Guatemala and Honduras, EB-3 Mexico, EB-3 Philippines, and EB-3 Vietnam remains at July 1, 2016. Charlie indicated that it is very difficult to say at this time whether these categories will become current again in October 2019. EB-3 India, which already had a Final Action Date, retrogresses further to January 1, 2006 in August. Between April and May 2019, EB-3 demand increased over 25%. From May to June, the overall demand increased by more than 45%. During the first week of July 2019, EB-3 had already used 36% of the total numbers used during the entire month of June. This in turn necessitated immediate action to limit future number use by applicants with priority dates later than the Final Action Dates imposed for each country in the August 2019 Visa Bulletin. This is happening because number use is approaching the worldwide annual limit, and some countries have reached or are very close to reaching, their annual limits. USCIS interviews that were already scheduled may continue in USCIS’s discretion. If the application is approvable, rather than receiving a visa number, USCIS’s request for a visa number will be placed in Charlie’s pending demand file and will be authorized for use once the applicant’s priority date is once again “current”. Having cases in the pending demand file provides Charlie with much needed visibility to demand which allows him to move the Final Action Dates in a more calculated manner. Charlie cautions that an immediate cut-off in visa usage could very well occur in the EB-1 and EB-2 categories at any time before the end of the fiscal year if demand continues to remain high. The fact that demand has increased so dramatically is not a surprise to Charlie. What is unexpected is that it is happening much sooner than expected. Prior to FY2018, if such corrective action was required, it normally occurred in September. In addition, the issues that arose in FY2018 were attributed to the changes in USCIS processing of employment cases. At a macro level, the fact that it may be necessary to limit/cut-off future use of numbers means that all of the numbers available under the applicable annual limits will have been used. However, for applicants for which the ability to immediately file an I-485 adjustment of status application is critical to remaining in the U.S., the retrogression may have significant negative impact. EB-4: The Final Action Date for EB-4 El Salvador, Guatemala and Honduras and EB-4 Mexico remains at July 1, 2016 for August 2019, with all other countries remaining current. While it is possible that there may be slight movement in these categories in September, it is unlikely. At present it is expected that EB-4 India will remain current through the end of FY2019. EB-5: In August, the Final Action Dates for EB-5 India and EB-5 Vietnam retrogress to October 15, 2014. Contrary to expectations which may have been set in blog posts, one should not expect EB-5 India or Vietnam to return to current status in October 2019. As with the retrogressions in the EB-1 category, going forward, EB-5 India and EB-5 Vietnam should be expected to have a Final Action Date imposed. Charlie unequivocally stated that EB-5 India and EB-5 Vietnam will not return to current status in October, and that both will be subject to Final Action Dates for the foreseeable future. Diversity Visa Lottery: The August Visa Bulletin posts results of the Diversity Visa (DV) Lottery for this fiscal year. All categories will be current for both August and September 2019. To the extent that the winners are eligible and promptly submitted their documentation and timely responded to any inquiries from the Kentucky Consular Center (KCC) and/or the consular post in order to be scheduled for interview, they should be able to receive their immigrant visas by the end of September 2019. Any such cases not finalized and approved by close of business (COB) September 30, 2019 will no longer be entitled to status or eligible to receive DV immigrant visas. Since 1999, 5,000 DV numbers were offset to support the NACARA program. As there are very few remaining NACARA matters, going into 2020, the vast majority of these previously diverted 5,000 numbers will once again be available for usage under the DV program.

Carl Michael Shusterman | Jul 25, 2019

New EB-5 Rule Published By USCIS Higher Investment Amounts Required

New developments under the final EB-5 rule include: * Raising the minimum investment amounts; * Revising the standards for certain targeted employment area (TEA) designations; * Giving the agency responsibility for directly managing TEA designations; * Clarifying USCIS procedures for the removal of conditions on permanent residence; and * Allowing EB-5 petitioners to retain their priority date under certain circumstances. Under the EB-5 program, individuals are eligible to apply for conditional lawful permanent residence in the United States if they make the necessary investment in a commercial enterprise in the United States and create or, in certain circumstances, preserve 10 permanent full-time jobs for qualified U.S. workers. “Nearly 30 years ago, Congress created the EB-5 program to benefit U.S. workers, boost the economy, and aid distressed communities by providing an incentive for foreign capital investment in the United States,” said USCIS Acting Director Ken Cuccinelli. “Since its inception, the EB-5 program has drifted away from Congress’s intent. Our reforms increase the investment level to account for inflation over the past three decades and substantially restrict the possibility of gerrymandering to ensure that the reduced investment amount is reserved for rural and high-unemployment areas most in need. This final rule strengthens the EB-5 program by returning it to its Congressional intent.” Major changes in the new EB-5 rule include: * Raising minimum investment amounts: As of the effective date of the final rule, the standard minimum investment level will increase from $1 million to $1.8 million, the first increase since 1990, to account for inflation. The rule also keeps the 50% minimum investment differential between a TEA and a non-TEA, thereby increasing the minimum investment amount in a TEA from $500,000 to $900,000. The final rule also provides that the minimum investment amounts will automatically adjust for inflation every five years. * TEA designation reforms: The final EB-5 rule outlines changes to the EB-5 program to address gerrymandering of high-unemployment areas (which means deliberately manipulating the boundaries of an electoral constituency). Gerrymandering of such areas was typically accomplished by combining a series of census tracts to link a prosperous project location to a distressed community to obtain the qualifying average unemployment rate. As of the effective date of the final rule, DHS will eliminate a state’s ability to designate certain geographic and political subdivisions as high-unemployment areas; instead, DHS would make such designations directly based on revised requirements in the regulation limiting the composition of census tract-based TEAs. These revisions will help ensure TEA designations are done fairly and consistently, and more closely adhere to congressional intent to direct investment to areas most in need. * Clarifying USCIS procedures for removing conditions on permanent residence: The new EB-5 rule revises regulations to make clear that certain derivative family members who are lawful permanent residents must independently file to remove conditions on their permanent residence. The requirement would not apply to those family members who were included in a principal investor’s petition to remove conditions. The rule improves the adjudication process for removing conditions by providing flexibility in interview locations and to adopt the current USCIS process for issuing Green Cards. * Allowing EB-5 petitioners to keep their priority date: The final EB-5 rule also offers greater flexibility to immigrant investors who have a previously approved EB-5 immigrant petition. When they need to file a new EB-5 petition, they generally now will be able to retain the priority date of the previously approved petition, subject to certain exceptions.

Giselle Carson | Jul 17, 2019

FAQ: Non-Immigrant Consular Processing

What should I do before the interview?  Obtain one (1) 2×2 passport-style photograph.  Complete the online Nonimmigrant Visa Electronic Application, Form DS-160, which can be accessed at https://ceac.state.gov/genniv/ and print the confirmation page with barcode.  Pay the visa application fee and print the payment receipt.  Schedule your interview and print the interview appointment confirmation. What should I do to prepare for the interview?  Review all paperwork for accuracy and to ensure that you have all documents required.  Do not staple documents together. Please use binder clips as necessary.  Submit clear and legible photocopies of all documents required.  In each category, place documents in reverse chronological order. Place oldest documents at the bottom and newest documents at the top.  Do not submit oversized documents, as all documents must be 8.5 x 11. What should I wear for the interview? Dress neatly and professionally. Do not overdo it, like wearing an American flag tie or red, white and blue attire. Who can attend the appointment?  Only visa applicants may attend the appointment.  Applicants under age 18 may be accompanied by a parent or guardian, if desired.  Children under age 14 do not need to appear in person to apply for a visa. If you are also applying for a visa, you may carry your child’s application documents with you, along with one photograph of the child on a white background (2 x 2 inches or 51 x 51 mm in size). When should I arrive? Arrive no more than 15 minutes prior to your appointment time and be prepared to stand outside in line with other interviewees. What items can I bring? Bring only the required documents in an unsealed transparent plastic bag or folder. Mobile phones and most purses/bags are not permitted. Many other items are not permitted. For a full list of items that are not permitted, please check the Consulate’s website. Most Embassies or Consulates do not have storage capabilities. What is the interview like?  The interview with the consular officer is short and typically last 5-10 minutes.  Answer truthfully and consistently throughout and you will maximize your chances of success. A successful interview will result in the issuance of a visa.  Do not try to engage in unnecessary conversation with the officer, as that might cause more questions and possible some problems. What is a visa?  A citizen of a foreign country who seeks to enter the United States generally must first obtain a U.S. visa, which is placed in the traveler’s passport.  It is an endorsement within the passport indicating that the holder is allowed apply for admission into the U.S. Is there a guarantee that my visa will be approved?  No guarantees can be given in advance that a visa will be issued.  A consular officer can make a decision only after all of your visa application and all documents have been reviewed, and you have been personally interviewed.  Applications are rarely denied on the spot.  If there are problems, kindly ask the officer to put any requests for more documents in writing, stating exactly what you need and why. The consular office should give you a document listing the documents required. What kind of questions will the officer ask me? For an employment-based interview, you may be asked questions about your job title, job description, your employer and immigration history. What should I look for when I receive my visa stamp? Your new visa will have several notations. If you see a mistake, please contact the post as soon as possible. The end of this PDF has an outline of the notations to help you review your visa and ensure there are no mistakes: http://www.marksgray.com/wp-content/uploads/1970/01/FAQ_Non_Immigrant_Consular_Processing.pdf.