Rainbow Marriage; Green Card

by Jen Green, Burch Law

OK, so the federal government has finally recognized that love is love and a true marriage of souls is valid whatever may be the physical gender(s) of those uniting in matrimony. The U.S. federal government now recognizes the validity of same-sex marriages, even though some of the individual states of the United States do not. Fortunately for those whose marriage partner is of the same gender but of another nation, the marriage-based immigration process is a federal matter.

So, if you are a U.S. citizen, and your true love is from abroad and happens to be of the same gender as yourself (as gender is commonly defined – the full continuum of gender identity being beyond the scope of this particular blog entry), you now have the opportunity to sponsor them for legal permanent residence in the United States! Yes, your partner may now obtain a U.S. green card through marriage. For purposes of this blog, let’s call it the U.S. rainbow card!

The marriage itself is just the first step though in the green card process. If you are a U.S. citizen, a visa is immediately available for your spouse. If you are a U.S. permanent resident and your spouse is from abroad, they fall into the second preference category, and may have a lengthy wait (currently around two years) before a visa becomes available for them.

In either case, there are forms to fill, documents to gather, and a medical exam with a government-approved physician to undergo. If you married and live together in the USA, you may file everything by mail, and simply wait. There will be a biometrics appointment in your local community for photos and fingerprints of your spouse, and an interview at the local USCIS office.

The marriage-based interview can be notoriously difficult. The interview process is designed to weed out fraudulent applications. It isn’t infallible, clearly, but it does have some success here and there. People might fail even with a genuine marriage if they don’t pay attention to their spouse’s habits or preferences (does anyone else know people who don’t pay close attention to their spouse’s habits or preferences?), or if they guess at the answer to a question where they don’t know. There are other challenges if your chosen life mate has criminal convictions or has associations with groups the government is not fond of. Basically, there is a long list of questions about your spouse’s background and activities in the permanent residence application, and even if they choose to answer untruthfully, the truth is out there and may well be found during the background check phase. And falsifying information on an application can make your spouse permanently ineligible for permanent residence.

Alternatively, if you were married abroad, you may have to travel back to the U.S without your spouse and wait for a time until they receive their immigrant visa and can rejoin you in the U.S. You will need to file a marriage-based petition, and they will need to fill out the immigrant visa application and submit it to the U.S. Consulate in their home country (or sometimes in a nearby country, depending on the status of diplomatic relations). When their application is reviewed and approved, they will schedule an interview at the Consulate, take their original biographical documents with them, and with luck, receive their passport back with an immigrant visa stamp allowing them to enter the U.S. as a permanent resident. The actual “green card” or permanent resident card is received in the mail afterwards.

The initial green card received by someone sponsored through marriage is a conditional one however, good for two years only. Slightly before the end of that two years, you will file a petition to remove the conditions on your spouse’s permanent residency. Timing of the filing is critical; if you miss the deadline, you may find your spouse in removal proceedings. An interview at the local USCIS office may be required with this petition also. If all goes well, and the conditions on your spouse’s permanent residence are removed, your spouse receives a non-conditional green card, and is eligible top apply for naturalization as a U.S. citizen in another 3 years. And you could live happily ever after. (Or not. But that’s marriage.)

If you are ready to undertake the well-papered path of the marriage-based green card process, or if you already have and now need to apply for your citizenship, contact us. We can help. We have been down those paths with many people before. Your success is our goal.

2B or not 2B: The H2B Visa Solution for Employers seeking Temporary, Nonagricultural Workers

by Jen Green, Burch Law

The H2B visa option is an increasingly popular, yet still often overlooked, solution for employers needing to fill temporary labor needs. Often used in the construction or hospitality industries, this visa classification allows an employer to bring over several workers at once via a streamlined process (relative to most other employment-based visas).

The H2B, like other visa classifications, has its particular restrictions, which an experienced immigration attorney could guide you through. For example, the H2B can only be used for workers from designated countries, but the list of designated countries is quite long. Another key thing to remember about the H2B visa is that it is for temporary employment, and only for nonagricultural workers. Employers may use the visa to fill seasonal, peak load, intermittent, or one-time needs. A “season” can be surprisingly long for H2B purposes and is not clearly defined under the regulations. Basically, the employer needs to be able to show that the period where he doesn’t need the workers is predictable (for instance, during the dead of winter when work can’t be done). An experienced immigration attorney could help you understand how your work requirements fit into the H2B framework.

H2B visas can be extended in increments of one year, for a maximum stay of 3 years for a worker. But at the end of that period, the worker only must leave the USA for an uninterrupted period of 3 months before seeking readmission in H2B status. So, although the H2B visa does not provide a path to the green card, like some other “temporary” visa classifications it does allow for a basically indefinite stay in working status, with minor interruptions of mandated stays abroad. And the worker’s spouse and unmarried children under age 21 may come too – in H4 status; they just cannot work in the U.S.

The H2B classification currently has 66,000 visa numbers available each year, which are allotted in two groups of 33,000 each – the first 33,000 for the first half of the USCIS fiscal year, and the other 33,000 in the second half of that fiscal year. The 33,000 available visa numbers for the first half of fiscal year 2018 are already all taken. The H2B visa category, like most other U.S. visa categories, is oversubscribed, so employers should prepare to gather their worker and job information efficiently and be able submit it as soon as a new petition period opens. This involves careful timing and planning; the employer must submit a temporary labor certification application to the Department of Labor and obtain its certification before the employer can submit the H2B petition to the USCIS with the required documentation.

As you may perceive just from this brief overview, obtaining H2B visas for your temporary workers takes careful coordination of paperwork and timing; so employers could benefit from the help of an experienced immigration attorney to navigate the requirements and steps. If the H2B visa might help you solve your labor needs and you need help with the petition process, contact us. We’re here to help.

Chain Migration and the Priority Date

by Jen Green, Burch Law

For any of you who have already immigrated to the United States and petitioned for relatives to join you here, you know that the wait for a priority date to become current can be exceedingly long. And the levels of paperwork and effort involved are strenuous, especially if you try to navigate the process on your own without an experienced immigration attorney.

For applicants from certain countries with high levels of immigration to the U.S., and for certain employment- or family-based categories of potential immigrants, those waits can be half a lifetime or more. And priority dates backlog and become current in a rather arbitrary pattern. Some years ago, there was a specific category where if someone had petitioned for a young relative, by the time their priority date became current, the person would have already been dead for 50 years (based upon then-average government processing times in that category and an average lifespan). Fortunately, that category later became somewhat more current.

Somewhat. Let’s look at some of the current wait times for family-based immigrant petitions. Current “final action” priority dates for married sons and daughters of U.S. citizens, and for brothers and sisters of adult U.S. citizens are in the 10/01/1994 – 11/08/1997 range for people from the Philippines and from Mexico, for example. By the time some U.S. citizen petitioners hear from the government that visa numbers are available for their relatives, both they and their relatives may well have forgotten that the petitions were ever filed. In effective, the chain of migration builds up a lot of rust during the interim between filing and actual immigration to the U.S.

Another snag in the process is that there are limited numbers of visa numbers available in any given year for each category. The two categories mentioned in the paragraph above have 23,400 and 65,000 visa numbers available respectively, and those numbers are not specific to any one country, but to all of them together.

You may have been hearing more about chain migration in the news lately. The administration wants to curtail chain migration. The argument actually makes a certain amount of sense, as no country can sustain unlimited immigration. It’s an argument based on numbers, very similar actually to the argument I run across quite often in dealing with cat rescue: pet advocates recommend neutering your cat or dog because one female cat, for example, left unchecked to reproduce, could produce 100 kittens in her reproductive life, and a single pair of cats and their kittens could produce more than 420,000 kittens in just 7 years. (Fayette Humane Society: http://fayettehumane.org/fun-facts/) That’s way more cat litter than anyone really wants to deal with. Even at the lower end of the spectrum of estimates, you still get nearly 3,000 cats. (Unspayed Cat to Kitten Calculator: http://calculate-this.com/420000-kittens-unspayed-cat-kitten-calculator.) Still a lot of cat litter.

So, migration is basically a numbers game. In a numbers game where the chain might be cut off at any time, it is very important to get into the queue while you still can. If you are a legal permanent resident or a U.S. citizen with close relatives abroad whom you would like to bring over, file those petitions for them now. Get a priority date while you still can. We can help. The wait may be long, but at least you and your family members would be on the list.