U.S. Citizenship and Immigration
Your Complete Guide, 4th Edition


~ Update ~


January 27, 2007


New Affidavit Support Rules - Amends rules regarding proving that a family-based permanent residence applicant will not become a public charge - Page 56

The United States Citizenship and Immigration Services (CIS) has issued new regulations for affidavits of support. The law requires these affidavits in most family immigration cases. These are the affidavits that create a legal obligation for the sponsor to support a permanent residence (green card) applicant.

Here are some highlights of the new regulations.

- - The new rule provides for two new forms, EZ Affidavit of Support (Form I-864EZ) and Intending Immigrant's I-864 Exemption (Form I-864W). Form I-864EZ is a simpler version of the current affidavit of support form. You use the new form in cases where the sponsor (the person signing the affidavit) is relying only upon his or her employment to prove sufficient income to support the green card applicant.

You use form I-864W in cases where the permanent residence applicant is exempt from the requirement to provide an affidavit. An example is someone self-petitioning as an abused spouse. You use form I-864W also in cases where the Social Security Administration has credited you the green card applicant with 40 quarters (ten years) work. These applicants are exempt also from presenting an affidavit of support.

If you have already submitted the old I-864 form, you need not submit a new one. If you want to use the old forms, you can do so until 90 days after July 21, 2006. That's the date the new rule takes effect. My recommendation is to start using the new forms now. You can get the forms by calling 1-800- 870-3676 or online at http://www.uscis.gov/graphics/formsfee/forms/.

- - Under the new rule, you need submit only one year's tax returns only to prove income in support of an affidavit. This rule confirms a change in policy reported in this column in December. Under the new rule, you need not submit pay stubs and an employer letter to support the affidavit. Still, if you can easily get this items, I recommend you submit them.

- - The new rule eliminates the need for the sponsor to notarize his or her signature on the affidavit.

- - If you are applying for permanent residence as the spouse or child of a U.S. citizen or an alien orphan who will be admitted as an IR-4 immigrant and you are using your sponsor's assets to substitute for income, you now need only prove assets at three times the missing amount of income. This rule applies where the sponsor's income is less than the amount needed to support the applicant. You take the difference between the required amount and the amount of available income, then multiply this amount by three. If the sponsor has assets of that amount, the CIS (or a U.S. consul abroad) should consider the sponsor qualified to support the applicant.

Premium Processing of I-140 Petitions

The USCIS now allows premium processing in the following employment-based cases:

EB-1, outstanding professors and researchers,

EB-2, members of professions with advanced degrees or exceptional ability not seeking a National Interest Waiver, and

EB-3, workers other than skilled workers and professionals (i.e., unskilled labor requiring less than two years of training or experience.

For an additional $1000 filing fee, the USCIS will adjudicate the I-140 petition in 15 calendar days. For more on employment-based immigration, see Chapter 3.

Permanent Residence for Afghan and Iraqi Translators

Congress established a special program to allow up to 50 Afghan and Iraqi nationals, who have worked directly with the U.S. military as a translator, to immigrate to the United States each year. The visas available under this category are not longer available for this fiscal year ending September 30, 2007. Fifty more visas will be come available October 1, 2007.

Adjustment of Status for Victim of Domestic Violence

Applicants for permanent residence under the Violence Against Women Act (VAWA) can interview for permanent residence (the process called "adjustment of status") regardless if they have entered the United States legally. They need not pay the $1000 filing penalty required of some other applicants for permanent residence who entered illegally. For more on adjustment of status, see Chapter 6.

New Rules for Fiancé and Spouse Nonimmigrant Visa Processing

A new law provides that a petitioner for a K nonimmigrant visa for an alien Fiancé(e) (K-1) or alien spouse (K-3) must submit with his or her Form I-129F information on any criminal convictions of the petitioner for any of the following "specified crimes":

The new law also imposes limitations on the number of petitions a petitioner for a K nonimmigrant visa for an alien Fiancé(e) (K-1) may file or have approved without seeking a waiver of the application of those limitations. If the petitioner has filed two or more K-1 visa petitions at any time in the past, or previously had a K-1 visa petition approved within two years prior to the filing of the current petition, the petitioner must request a waiver. These limitations do not apply to petitioners for a K nonimmigrant visa for an alien spouse (K-3).

Who is an Orphan?

To get permanent residence for a child who is an orphan, the child's parents must either be deceased or have abandoned the child, or BOTH parents must be incapable of caring for the child. This is a clarification of how the rule for "incapable of caring" as stated in U.S. Citizenship and Immigration - Your Complete Guide, 4th edition at page 29.

New Law for Minor League Athletes

Public Law 109-463, Creating Opportunities for Minor League Professional, Entertainers, and Teams through Legal Entry Act of 2006 (COMPETE Act of 2006) expands the P-1 nonimmigrant visa classification to include certain athletes who were formerly admitted as H-2B nonimmigrants.

The following types of athletes and performers who seek admission for the purpose of performing in a competition or theatrical ice skating production fall under the P-1 nonimmigrant visa classification:

.... An individual who performs as an athlete, individually or as part of a group, at an internationally recognized level of performance.

.... A professional athlete employed by: (1) a team that is a member of an association of 6 or more professional sports teams whose total combined revenues exceed $10,000,000 per year, if the association governs the conduct of its members and regulates the contests and exhibitions in

which its member teams regularly engage, or (2) any minor league team that is affiliated with

such an association.

.... Individual coaches or athletes performing with teams or franchises located in the United States that are part of an international league or association of 15 or more amateur sports teams if: 1) the foreign league is operating at the highest level of amateur performance in the relevant foreign country, 2) participation in that foreign league renders the players ineligible, whether on

temporary or permanent basis, to earn a scholarship or participate in the sport at a college or

university in the United States under the rules of the National Collegiate Athletic Association;

and 3) where a significant number of players who play in the foreign leagues are drafted by major league or minor league affiliates of such sports leagues in the United States.

.... Amateur or professional ice skaters who perform, individually or as part of a group, in theatrical ice skating productions or tours.

The COMPETE Act of 2006 excludes any alien athlete professional or amateur, or coach, from countries deemed state sponsors of international terrorism. Such countries are determined by the Secretary of State and applicable alien athletes or coaches will be subject of clearance procedures developed by the Department of State in conjunction with the Department of Homeland Security and other appropriate U.S.agencies.

Clarification on whether Divorce Terminates a Marriage - Page 20

Nothing in the law mandates that the USCIS consider a marriage terminated merely upon filing of a divorce action. The law considers the couple married until the divorce becomes final. Still, if the USCIS or a U.S. consul abroad becomes aware that a divorce action has been filed, you'll likely need to make an extra to get the case approved.


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