By Attorneys Robert L. Reeves and Elsie Arias
Thousands of employment-based immigrants will finally be able to adjust their status or immigrate to the U.S. beginning next month, as the U.S. State Department’s July 2007 visa bulletin indicates that visa numbers for most employment-based categories will be available to all foreign nationals. With the advent of a substantial increase in filing fees on July 30, 2007, it is advisable that foreign nationals eligible to adjust status file their requests with the USCIS before that date.
The immediate availability of visas to skilled workers in the employment-based third-preference (EB-3) will also bring welcome news to health care providers and immigrants to whom they have offered employment in a Schedule A occupation (registered nurse or physical therapist). As we have previously discussed in this column, the Department of Labor (DOL) has pre-certified RNs and PTs as “shortage occupations” and therefore, employers may bypass the complex labor certification requirement and proceed immediately with the immigrant visa petition for these prospective employees. Visas for Schedule A occupations have not been immediately available for all RNs and PTs since October 2006.
Unfortunately, the July 2007 visa bulletin also indicates that visas will become unavailable to all foreign nationals in the EB-3 “other worker” category. Individuals fall in this category if their job offer required less than two years’ experience or education, such as caregiver, housekeeper, or nanny. Individuals in this category with a priority date of October 1, 2001, or earlier (the date the DOL received the labor certification) should file for adjustment of status before June 30.
Applicants for adjustment of status or consular processing of their employment-based immigrant visa should be aware that the USCIS or State Department will closely examine the individual’s general eligibility to be admitted to the U.S. as a permanent resident. The USCIS or State Department will consider 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). § 245(k) allows individuals in the United States who are out of status for less than 180 days to file for permanent residency. Individuals who misrepresented a material fact for immigration purposes, such as entering the U.S. under a different name, are deemed inadmissible, but can adjust status or immigrate if they qualify for a waiver.
The USCIS and State Department will 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 their court case in order to adjust status before an immigration judge.
Foreign nationals with children who will immigrate as derivative beneficiaries 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 entails complex issues for a foreign national seeking resident status, especially where there is a change in the employment circumstances or the applicant has previously violated U.S. immigration law. Individuals seeking legal representation in these matters should consult an experienced immigration lawyer.