MurthyBulletin
VOL. XV, no. 32; Aug 2009, week 1
Posted : Aug 07, 2009
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We know your immigration matters! SM
The MurthyBulletin is the eNewsletter on immigration from the Murthy Law Firm. The information provided is of a general nature and may not apply to any particular set of facts or circumstances. It should not be construed as legal advice and does not constitute an engagement of the Murthy Law Firm. Full Disclaimer available.
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TOPICS in this Edition of the MurthyBulletin :
1. More Options for Conditional Permanent Residents with Marital Problems
2. New Nonimmigrant Visa Form DS-160
3. Premium Processing Service Resumes for R-1s
4. Announcement : Murthy's Corporate Teleconference - Wed, Sep 02, 2009
5. MurthyDotCom : Did You Know about our Consulate Page?
6. Important Processing Times and Dates
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Engaging the Murthy Law Firm : Our office can conveniently and efficiently represent clients located anywhere in the United States or abroad on U.S. immigration matters.
Consultations with attorneys at the Murthy Law Firm : You may contact our office to schedule a one-time paid consultation with no further obligation. A scheduled consultation with an attorney at the Murthy Law Firm provides you with details and recommendations based on the specific facts of your case. This will help you with making the right decisions based on the legal options and strategies available.
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1. More Options for Conditional Permanent Residents with Marital Problems
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The USCIS recently issued a memorandum providing more options for the filing of the required I-751 form requesting removal of the conditions on residency. Conditional permanent resident status is given to individuals who receive permanent residence (green card) status via a recent marriage to a U.S. citizen. The change in procedures involves situations in which a divorce is in process or in which a divorce is finalized after the I-751 filing. The change addresses some long-standing problems and provides more options for conditional permanent residents who are in troubled marriages.
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Background of Conditional Residency
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If a marriage has been less than two years in duration at the time permanent residence is granted, the status of the foreign national spouse then is "conditional." The condition is that it expires within two years, unless the Form I-751 is filed, at the appropriate time, to request that the conditions be removed. If the I-751 is granted, the foreign national spouse becomes a permanent resident without any conditions.
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The conditional status is an anti-fraud measure and is necessary to provide updated proof of a bona fide marriage in support of the I-751 form. This form can be filed jointly, with both husband and wife signing. Alternatively, it is possible to request a waiver of the joint filing requirement, if the marriage was entered into in good faith, but was subsequently terminated. It is also possible to obtain a waiver if the marriage was entered into in good faith, but there was abuse and, separately, it is possible to request a waiver if removal of the foreign national spouse would result in extreme hardship.
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Prior Conditions in Order to File I-751
For many years, to satisfy conditions for filing the I-751, it was necessary to either file jointly OR to qualify for a waiver request at the time of filing. This created a serious problem for individuals whose marriages were troubled. If the U.S. citizen spouse was unwilling to sign the I-751, but the couple was still legally married, there often was no way to properly file the I-751 when needed. Absent the joint filing, it was necessary to have a basis for a waiver request. As explained above, waivers require marriage termination (divorce), abuse, or extreme hardship. This long-standing policy was clarified in a 2003 memo (PDF 104KB).
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This is a common problem since the I-751 must be filed before the two years of conditional residency expires. Generally, it can be filed up to 90 days in advance of that point. If a marriage encounters problems, it is often not possible to divorce without the couple first being separated for an extended period. (Legal requirements for separation prior to being granted a divorce vary from state to state, with common timeframes ranging from six months to two years.) Couples sometimes separate and go through a period of months when they decide whether they can resolve their problems, or if divorce is to be pursued. Thus, many individuals find themselves in marital limbo when the I-751 is due to be filed. In the past, unless the couple was still amicable, so that the U.S. citizen spouse would sign the form, the foreign national could not file, and then the conditional status would terminate.
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Flexibility of New Procedures
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Waiver Requests Filed Prior to Marriage Termination :
The recent memo, issued by Donald Neufeld, Acting Associate Director, and dated April 3, 2009 (released in July 2009), addresses the lack of a category for those who married in good faith, but are separated or in the process of divorce. The memo instructs USCIS officers who review these cases to issue requests for evidence (RFEs) if they encounter I-751s requesting waiver of the joint requirement, if the couple was still legally married at the time of the filing. The RFE has an 87-day period for response and requests proof of termination of the marriage.
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If the foreign national can respond to the RFE within the allowed timeframe, providing proof of the termination of the marriage in the form of a divorce decree or annulment, then the case can be approved. This is a significant variation from the general immigration requirements that an individual must be eligible for the benefit requested at the time of filing. This is one situation in which a slow processing time may work to the advantage of the foreign national, as it may provide enough time to finalize a divorce.
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Joint Filings with Troubled Marriages :
Another variation with I-751 filings involves couples who file jointly, but are legally separated or in the process of divorce. The USCIS reviews these cases carefully, as they view this as a potential indication that the marriage may not have been bona fide at its inception. In these cases, the USCIS will issue RFEs with 87-days for response. This RFE will request a copy of documentation proving termination of the marriage, and a request to have the joint petition treated as a request for a waiver of the joint filing. This allows the foreign national to obtain the waiver, if the marriage has been terminated, without having to re-file the I-751. Previously, a new filing would have been required.
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If there is no response to the RFE, or the response does not establish that the marriage is terminated, the USCIS will adjudicate it as a joint petition. The result will depend on the evidence of bona fide marriage. The case may be forwarded to a USCIS field office for an in-person interview to determine if it was bona fide at the time when the parties entered into the marriage.
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Conclusion
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The changes in the I-751 procedures are a substantial improvement. It is often the case that a marriage is genuine at the outset, but ultimately does not survive. The new procedures avoid the need to speedily obtain a divorce before the I-751 filing deadline, if the marriage is not working for the parties. It also relieves some of the pressure to make a decision regarding whether to attempt reconciliation or move forward with a divorce within a tight, imposed timeframe. We at the Murthy Law Firm appreciate the clarification and the additional options to file the I-751 that will prove helpful to foreign nationals married to a U.S. citizens or lawful permanent residents who find themselves the difficult situation of failing marriages.
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2. New Nonimmigrant Visa Form DS-160
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The U.S. Department of State (DOS) is transitioning to a fully web-based nonimmigrant visa form. This form, DS-160, eventually will replace the forms currently used to apply for nonimmigrant visas at the U.S. consulates. As of this writing, the form is being used at twelve consular posts around the world.
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Consulates Using the DS-160
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The new form is being implemented gradually. At this initial stage, it is used at the following consulates: Australia (Melbourne, Perth, Sydney); Bermuda (Hamilton); Canada (Montreal, Vancouver); Hong Kong; Ireland (Dublin); Libya (Tripoli); Mexico (Ciudad Juarez, Hermosillo, Matamoros, Monterrey, Nogales, and Nuevo Laredo), and Montenegro (Podgorica). Updated information on any expanded use of this form will be available on the DOS WebSite. According to the DOS, these consular posts process approximately ten percent of all nonimmigrant visa applications. The goal is to have the form available worldwide by the end of the 2009 calendar year. Expansion is currently limited, in part, by server capacity.
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Benefits of Using DS-160
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More information and FAQs for applicants is available on the DOS WebSite. This includes information on how to save the application and how to file as a family group. The DOS intends to add access to information in advance of the interview. This includes checking existing data bases, including the Petition Information Management Service (PIMS), Student and Exchange Visitor Information System (SEVIS), and fraud-detection systems.
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Conclusion
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Each visa applicant should always check the website of the consulate where s/he will apply for a visa. These websites carry the most recent instructions regarding forms, procedures, and documents that must be presented at an interview. Using the correct forms and accessing the latest information is likely to save time, money, effort, and energy, as well as to increase the chance for a successful outcome in obtaining the visa.
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3. Premium Processing Service Resumes for R-1s
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The U.S. Citizenship and Immigration Services (USCIS) reinstated premium processing for Nonimmigrant Religious Workers (R-1s), effective July 20, 2009. The premium, expedited processing option was suspended since November 28, 2006, based on concerns of fraud. The premium processing service for R-1 petitions will be limited to petitioning religious organizations that have successfully completed onsite inspections.
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Background of R-1 Processing
The USCIS completed a study of fraud in R-1 petitions in August 2005. Based upon the findings of that study, a site-visit requirement was added to the R-1 process. These site reviews are intended to establish the legitimacy of the sponsoring religious organization. This, in turn, made it necessary to suspend premium processing service for R-1 petitions. The USCIS extended this suspension several times, as explained to MurthyDotCom and MurthyBulletin readers in our January 18, 2008 article, Suspension of Premium Processing for R-1 Religious Workers Extended.
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Premium Processing Available after Onsite Visit
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For religious organizations that have undergone USCIS site visits, and have been favorably reviewed, it is possible once again to file R-1 petitions under the premium processing service. This results in a review of the petition within 15 days, in exchange for an additional $1000 premium processing fee. The USCIS searches its system for the site review information, but suggests that it is helpful to submit a copy of an approved R-1 petition for a case in which a site visit has been completed.
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Conclusion
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Many R-1 religious workers are legitimate and their work is often beneficial to society as a whole. It is encouraging that the USCIS is comfortable resuming the premium processing service for R-1s in bona fide cases.
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4. Announcement : Murthy's Corporate Teleconference - Wed, Sep 02, 2009
Topic : When USCIS Comes Knocking - the USCIS Office of Fraud Detection and National Security (FDNS)
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The topic of our September 2, 2009 session in this teleconference series is visits by officers from the USCIS Fraud Detection and National Security (FDNS) Office. In this overview, attorneys from the Murthy Law Firm will discuss the increasing frequency of such visits to H1B employers, employers’ options in responding to such visits, what to do if the officers want to speak with employees, the authority of the FDNS officers, and the potential consequences of such visits, among other issues.
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This teleconference series is designed to specifically address the concerns of employers, enabling them to better help their employees throughout the immigration process. Employers and their representatives should register for Sep 02, 2009 here.
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5. MurthyDotCom : Did You Know about our Consulate Page?
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At MurthyDotCom we provide visitors with a centralized location for all the news from or about U.S. consulates abroad. While the consulates fall under the auspices of the U.S. Department of State, we know that many of you need information specific to the consulates, themselves. Our Consulate Page also provides links to the sites for U.S. Consulates in India, Canada, Mexico, and a list of all consulates worldwide, as well as the Indian Embassies in the United States.
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MurthyChat : The next MurthyChat session will be Monday, Aug 17, 2009, 9:00pm Eastern Time (U.S.), because Attorney Murthy was not available on the 3rd Monday in March. The chat generally occurs on the 1st and 3rd Mondays of each month. Please check the chat page for any necessary changes to the schedule. Meanwhile, search the chat transcripts for answers to your questions.
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MurthyForum : Consider joining those who have discovered the value of this service. Our message / discussion board is visited daily by one of our attorneys.
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MurthyDotCom - MurthyBulletin - MurthyChat - and MurthyForum - Your ultimate U.S. immigration resources on the Internet all start with MURTHY!
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6. Important Processing Times and Dates
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Processing Times : For links to processing times for the USCIS Service Centers, district (or local) processing times, the Administrative Appeals Office, Department of State visa bulletin, and Department of Labor dates for the processing of labor certification applications.
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Copyright © 2009, MURTHY LAW FIRM. All Rights Reserved
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