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
- - 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":
. Domestic
violence, sexual assault, child abuse and neglect, dating violence,
elder abuse, and stalking.
. Homicide,
murder, manslaughter, rape, abusive sexual contact, sexual exploitation,
incest, torture, trafficking, peonage, holding hostage, involuntary
servitude, slave trade, kidnaping, abduction, unlawful criminal restraint,
false imprisonment, or an attempt to commit any of these crimes.
. Crimes
relating to a controlled substance or alcohol where the petitioner has
been convicted on at least three occasions and where such crimes did
not arise from a single act.
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.
