By Attorneys Robert L. Reeves and Elsie Arias
The U.S. State Department’s May 2007 visa bulletin brought welcoming news to thousands of immigrants as the priority date in the employment-based third-preference (EB-3) skilled worker/professional category for Philippine nationals and nationals from countries other than Mexico, China, and India, advanced one year from April’s visa bulletin. This means that beneficiaries of EB-3 visa petitions with priority dates of August 1, 2003, or earlier will be able to file for adjustment of status to permanent resident or immigrate to the U.S. via consular processing. As these individuals and their families prepare for the final step towards permanent resident status, we address in this article concerns that may arise during this process.
Immigrating through an employment petition presents issues different from family-based petitions, in which petitioner-beneficiary relationships are generally permanent. For example, the petitioning employer may be acquired by or merge with a new company. Alternatively, the foreign national may decide to port (move) to a new employer before he is approved for permanent residency. In these respective situations, the new employer will need to demonstrate that it is a “successor-in-interest” to the original petitioner or that its job offer qualifies for porting purposes under the American Competitiveness in the 21st Century Act (AC21). The Department of Homeland Security – U.S. Citizenship and Immigration Services (USCIS) or State Department (for consular processing cases) will assess the bona fides of the employer’s job offer on which the visa petition is based before approving an individual for resident status.
The USCIS or State Department will also closely examine the foreign national’s general eligibility to be admitted to the U.S. as a permanent resident. Issues the USCIS or State Department will consider include whether the foreign national has previously violated U.S. immigration laws (e.g. overstaying a nonimmigrant visa, misrepresenting a material fact in order to obtain an immigration benefit, or working without authorization). Individuals who have engaged in unlawful employment may still be able to adjust status if they meet the requirements enumerated in § 245(i) or § 245(k) of the Immigration and Nationality Act (INA). Individuals who misrepresented a material fact for immigration purposes, such as entering the U.S. under a different name, are deemed inadmissible under INA § 212(a)(6)(C) but can adjust status if they can obtain a waiver from the government.
The USCIS and State Department will also conduct a thorough investigation of an individual’s background for any arrests, convictions, or ties to terrorism. An arrest or conviction will not automatically render a foreign national ineligible as statutory waivers are available for some offenses, but any arrest or conviction must be disclosed. Individuals with prior orders of deportation or removal will also need to obtain a waiver to be re-admitted as a permanent resident or reopen a court case in order to adjust status before an immigration judge.
Foreign nationals with children who will immigrate as derivative beneficiaries through their employment petitions should not delay the processing for their children, especially if they are close to “aging-out,” i.e., turning 21 years old. The Child Status Protection Act (CSPA), which was enacted by Congress in August 2002, will allow children who have turned 21 years old during the adjustment stage or immigrant visa processing to still immigrate as derivatives, but only if they meet certain requirements within one year of the visa becoming available to the principal beneficiary (parent).
Employment-based immigration can entail complex issues for a foreign national seeking resident status, especially where there is a change in the employment situation or the applicant has previously violated U.S. immigration law. Individuals seeking legal representation in these matters should consult experienced immigration counsel.