Start the New Year Right - Immigration Style Posted Jan 07, 2005 ©MurthyDotCom With New Year 2005 already upon us, it is time to remind MurthyDotCom and MurthyBulletin readers to double check important immigration-related expiration dates. Much in immigration revolves around dates, grace periods, penalties after a certain number of days, and so forth. A single day can make a difference, as anyone knows who missed this fiscal year's H1B cap cut-off. The key is to be aware of your own expiration dates, to arrange for timely departure or, if eligible, additional filings to maintain status. Advance planning is essential, as is keeping oneself informed of changes and developments affecting immigration options. What follows is not a comprehensive list, but includes many of the most common problems that we at The Law Office of Sheela Murthy, P.C. try to help our clients avoid. ©MurthyDotCom Nonimmigrants Must Check Dates on I-94 Cards ©MurthyDotCom A nonimmigrant, present in the U.S. in a temporary status, should check the expiration date of the I-94 arrival / departure card. The I-94 is a small card that should be affixed to one's passport. It is obtained in one of two ways. It is issued by Customs & Border Protection (CBP) to an individual upon that person’s entry to the United States, or it can be issued by the USCIS upon approval of a request for an extension or change of status within the U.S. In the latter case, the I-94 arrives attached at the bottom of the Form I-797, Approval Notice. This card reflects the period that the individual is permitted to remain in the United States, provided that the individual complies with the terms of his/her status. We note that, on occasion, the USCIS will issue an I-94 approval with a longer period of stay than is permitted in the particular category. Individuals should not rely upon a USCIS error and should seek competent legal advice as to what to do in this situation. ©MurthyDotCom People often confuse the expiration date on the visa "stamp" in the passport with the expiration date on the I-94 card. The visa is an entry document, issued by the consulate. A valid visa does not equate to valid status in the U.S. For example, a person may have a 10-year multiple entry B-2 visa. That person is not, however, allowed to remain in the U.S. for the time remaining on the visa. The individual is only allowed to remain in the United States for the time period granted by CBP on the I-94 card at the Port of Entry. This is usually six months, but it could be less. ©MurthyDotCom Each Dependent Family Member Must File Extension or Change-of-Status ©MurthyDotCom Each family member should check his or her personal I-94 to make sure it has not expired. Each person must maintain his/her own separate status. This status may be dependent upon another family member, but it is necessary to make sure that the date on the I-94 has not expired. Even dependent family members must file extension requests separate from the primary status holder's extension requests, in order to maintain status in the U.S. ©MurthyDotCom Common Mistake ©MurthyDotCom One of the most common mistakes that we see among those who contact our Office involves a spouse with a derivative status, such as an H-4, who assumes that the status is valid simply because the principal spouse's H1B status is valid. This is not the case. The filing of the H1B extension (or any principal status extension) does not extend the status of the dependent spouse and/or children. ©MurthyDotCom The confusion seems to arise from the fact that the derivative spouse usually first enters the U.S. based upon an approved H-4 visa received at the consulate. This visa is based upon the H1B approval of the principal spouse. There is no separate petition filed for the dependant spouse. The procedure changes, however, when the H-4 enters the United States. Once in the U.S., the status is dependent upon the date on the I-94 card. The person will fall out of status unless the dependent spouse files his/her own request to extend or change status beyond the I-94 date. The primary spouse's extension or change request is not enough to take care of the family. The family members need separate filings, with different forms and separate filing fees, referencing the primary spouse's filing. ©MurthyDotCom Serious Problems ©MurthyDotCom A lack of awareness of the need to extend status and the resulting expiration of the I-94 card can result in the spouse's failure to maintain status. This can have serious consequences. If one falls out of status, that person generally cannot extend the status in the U.S. Thus, under the normal procedures, if the I-94 has expired, one would be unable to regain a nonimmigrant status in the U.S. S/he would have to leave the United States, obtain a visa at the consulate, and reenter. The problem with this solution, in addition to the cost and inconvenience, is that a person who has accrued more than 180 days of unlawful presence will be barred from reentering the U.S. for three years following departure. This bar on reentry increases to ten years for a violation of one year or longer. Thus, the dependant spouse may be unable to get back into status in the U.S. and also be unable to return if s/he goes abroad for a visa. ©MurthyDotCom The potential solutions for spouses in the situation described above are entirely discretionary. One option is to try to get a backdated, or nunc pro tunc, approval of their dependant status. While we at The Law Office of Sheela Murthy have recently received some approvals in nunc pro tunc H-4 cases, the approvals can certainly not be taken for granted. They are not routine and are solely at USCIS discretion. The other option requires travel abroad and a request to waive the three- or ten-year bar. This is also a discretionary action, now on the part of the CBP. While we have been successful in obtaining waivers of this type, they too cannot be taken for granted. The waiver also does not put an end to the problems an individual could face as the result of the violation. For example, a nonimmigrant waiver does not allow one to adjust status to lawful permanent residence. A separate waiver must be sought under a harsher standard. Persons who notice that they have made this mistake should seek qualified legal advice immediately. ©MurthyDotCom Travel Documents ©MurthyDotCom Visa : Visa expiration dates (as stamped in the passport) should be checked if there is a possibility of travel outside the U.S. Plans should be made in case there is some sort of an emergency that could require unexpected travel. As explained above, the expiration date on the visa "stamp" in the passport does not affect status or permission to remain in the U.S. A valid visa, however, is generally required for reentry to the U.S. It is no longer possible to revalidate visas from within the United States through the Department of State (DOS). ©MurthyDotCom Advance Parole : One who has a pending I-485, Application for Adjustment of Status, may also request issuance of an Advance Parole document. This Advance Parole is essentially advance permission to return to the U.S. to continue with the I-485. For such persons who do not also hold H or L status, the Advance Parole is a necessity. ©MurthyDotCom We generally recommend that a person who files the I-485 should obtain advance parole. Even if one is in H or L status, the Advance Parole can be a useful backup document. It is usually issued for one year, with multiple entries. The expiration date should be clearly stamped on the document. It is absolutely necessary to return to the U.S. prior to the expiration date, if one is relying on Advance Parole. If the Advance Parole is approaching expiration, an extension should be requested while in the U.S. We recommend allowing at least a few months to avoid any problems due to delays in processing. ©MurthyDotCom Employment Authorization ©MurthyDotCom For those who have filed the Adjustment of Status applications, the employment authorization documents (EADs) are issued in one-year increments. The expiration date is stated clearly on the card. EADs need to be renewed in order to maintain employment eligibility. Therefore, a renewal request should be filed early enough (generally about 4 months prior to the expiration date) to allow the USCIS at least 90 days to process the case. ©MurthyDotCom Priority Dates ©MurthyDotCom As regular MurthyDotCom and MurthyBulletin readers know, the EB3 priority dates retrogressed, or rolled back, as of January 1, 2005. This is a complex issue and those unfamiliar with this significant development should review our articles on the subject including Employment Visa Numbers Retrogress, available on MurthyDotCom. People with EB3 cases should apprise themselves of this issue, know their priority dates, and know how to determine whether these dates are current. This is particularly important for those who were unable to file their EB3 Adjustment of Status cases before the end of December 2004. An Adjustment of Status case can only be filed if the priority date is current. Thus, for persons waiting to file, it is important to know right away when the date becomes current. This will allow such individuals to file and avoid further delays should the dates retrogress yet again. For one with an I-485 pending in the EB3 preference category, watching the priority dates will give a sense of whether the case is eligible for approval, as an immigrant visa number must be available for the case to be approved. ©MurthyDotCom Conditional Permanent Residents ©MurthyDotCom An individual who is a conditional permanent resident needs to note the expiration date of her/his conditional permanent resident status. Conditional permanent residence is granted in marriage-based immigration cases when the marriage has been less than two years in duration at the time of the case approval. Such an individual is given permanent residence that is "conditional," meaning that it expires after two years and needs to make a separate filing to remove the conditions. The expiration date should be clearly marked on the green card. Failure to file to remove the conditions by the expiration means that the individual is no longer a permanent resident and, in all likelihood, is out of status. Conditional permanent residents who have missed the deadline need to obtain qualified immigration advice. It is sometimes possible to overcome the problem, but this should not be relied upon and the expiration date should be taken seriously. ©MurthyDotCom Verify “Green Card” Expiration Dates Green cards expire. This does not mean that the status expires. It means that it is necessary to file the Form I-90 and renew the document. It is important to have proper evidence of status where one may need to establish lawful presence in the U.S. for work, travel, and general purposes. ©MurthyDotCom Understand Regular Changes in Laws or Procedures ©MurthyDotCom Laws, procedures, and situations change regularly. People who are "in the know" are in a better position to avoid missing deadlines and missing out on opportunities. Those who were informed about the H1B cap problems in fiscal year 2005 knew to start filing their cases in April 2004. Enough people knew and were able to act so quickly that the H1B cap numbers ran out on the first day of the fiscal year, October 1, 2004. Those who learned too late faced serious problems. The same is true for people who learned early about the EB3 retrogression. Those who were eligible to file their I-485s scrambled to do so before the end of December. Others who may have learned too late will have to wait for their filings. This could be quite an extended wait. There are 20,000 new H1B cap exemptions that will be available to persons with U.S. Master's degrees or above, starting March 8, 2005. Some will know to file in time; others will not. This is why being informed is vital. The U.S. limits availability of many immigration benefits. Timing can be everything. This is why we seek to keep our MurthyDotCom and MurthyBulletin readers informed. ©MurthyDotCom Our recommendation to help you for the New Year and beyond is for you to make a New Year’s resolution to keep yourself informed about changes in laws and procedures on a regular basis. We at The Law Office of Sheela Murthy provide a simple mechanism for this through our weekly MurthyBulletin. You should take advantage of this wonderful free service to help yourself and your family! Best wishes for the New Year. © 2005 The Law Office of Sheela Murthy, P.C. All Rights Reserved
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