************************************************************** IFCSS Headquarters News Release No. 5032 July 27, 1993 ************************************************************** Independent Federation of Chinese Students and Scholars (IFCSS) 733 15th Street, N.W., Suite 440, Washington, D.C.20005 Tel. (202)347-0017 Fax: (202)347-0018 Email: ifcss@wam.umd.edu The IFCSS News Release for the CSPA Late-Arriving Dependents ============================================================= This is the entire package of information concerning the CSPA late- arriving dependents. It has been proof-read and endorsed by Ms. Rita Boie, Senior Immigration Examiner of the INS, and E.B. Duarte, Director of INS Exams Operations Facilitation Program. Before you go on to individual questions, we suggest you note the following: 1. Read the ENTIRE package CAREFULLY and THOROUGHLY. 2. We are only responsible for passing the information for the INS HQ, and we are unable to give legal advice on the matter. For further information, you may need to consult an immigration lawyer. The IFCSS HQ will therefore decline to answer further questions in this regard. LATE-ARRIVING FAMILY MEMBERS (ARRIVED IN U.S. AFTER 4/11/90) (1) Are late-arriving family members (who arrived in the U.S. after April 11, 1990) eligible for applying for permanent residency? If they are, then under which category shall the late-arriving dependents apply for permanent residency, 2nd preference or 3rd preference or both? According to the INS interim rule implementing the CSPA, late- arriving (after 4/11/90) spouses and unmarried children under the age of 21 years cannot adjust directly under the CSPA. However, they may (under INA) file for an immigrant visa or regular adjustment of status as "accompanying" or "following to join" the principal of the CSPA, assuming that (i) the late-arriving dependents meet all the normal visa requirements; and (ii) an immigrant visa number is immediately available to them. According to INA, they may seek lawful permanent resident status based upon their relationship to the CSPA principal alien under either the second family sponsored preference category or the third employment-based skilled worker preference category or both. (Note: the preference categories are dividing into a family or an employment preference. There are four family-sponsored preference categories and five employment-based preference categories.) (2) When can late-arriving dependents apply for the Permanent residency? Late-arriving derivative spouses and unmarried children who are under the age of 21 years should present a copy of the CSPA principal's receipt notice when they file the derivative adjustment of status application. Derivative family members may not apply for derivative adjustment of status until the principal's priority date is current and an immigration visa number is immediately available under the relevant category. The Department of State, which keeps track of the immigrant visa numbers, has informed us that the third employment-based skilled worker classification will be current (or immediately available) for all persons born in China or any other country except the Philippines during the month of August 1993. Section 203(d) of the Immigration and Nationality Act (Act) contains a provision allowing spouses and unmarried children under the age of 21 years to derivatively acquire a principal applicant's priority date and classification. This is discussed in the CSPA interim rule. If the CSPA principal becomes a permanent resident and files a Form I-130, Relative Petition for late-arriving family members, the family members could also be given a priority date under the second family sponsored preference classification. The second family sponsored preference priority date would be the date the Form I-130 is filed. (one person may have two different priority dates under two different categories.) For the month of August 1993, the "cut- off" date in this category is April 1, 1991. That means that immigrant visa applications are not being processed and adjustment of status applications not being accepted based upon the second family sponsored preference category if the person's priority date is after April 1, 1991. (3) Where shall the late-arriving dependents file their applications? Derivative spouses and children should file the usual adjustment of status application at their local INS offices. (4) What are the additional documents that the late-arriving dependents must prepare for applying for permanent residency? In addition to completing the usual application forms (which will be discussed later), they would also need to present a copy of the principal CSPA applicant's receipt notice (or approval notice if the CSPA application has already been approved) and evidence of the relationship to the principal CSPA applicant. (5) What is the situation for the late-arriving dependents with H- 4, L and F-1 visas? If the principal has H-1 or L nonimmigrant status, the law allows for "dual intent" (meaning the person can maintain a nonimmigrant classification while also intending to remain permanently in the United States if conditions allow). A late-arriving dependent who is himself or herself a principal nonimmigrant (whose nonimmigrant status is not based on a spouse or parent's qualifications), such as F-1, J-1, H-1, etc., would not automatically lose status because of a spouse's CSPA application. For example, an F-1 late-arriving wife, could continue to be maintaining lawful F-1 status if she continues to attend school etc., even after her husband becomes a permanent resident. In this case the H-4 or L dependents would not be considered to lose legal status until the principal's adjustment application is approved. To qualify under the employment-based category, either (1) the family member files the form I-485 when a visa number is available under the employment-based skilled worker category and adjusts status or (2) the principal files the I-824 which will allow the family member to obtain an immigrant visa abroad when a visa number is available under the employment-based skilled worker category. (It is not necessary to follow both procedures, although there would be no penalty for filing a Form I-824 which is not needed.) To qualify under the family sponsored category the principal may only file the I-130 after he or she becomes a permanent resident. When a visa number is available under the family sponsored second preference category, the family member may file a Form I-485 and adjust status or the family member may obtain an immigrant visa abroad. One person may have two different priority dates under two different classifications. Therefore, a spouse may be entitled to use the principal's CSPA priority date under the third employment- based skilled worker classification and may also be entitled to use a different priority date under the second family sponsored classification. The person may use whichever priority date and classification is more favorable for him or her. (6) What is the situation for those late-arriving dependents who currently hold J-1 or J-2 visas? Can they be waived two-year home residence requirement when they apply for permanent residency? There is no provision of law which would allow a blanket waiver of the two-year home country residence requirement for all late- arriving dependents. Unless the dependent is eligible for the waiver provided under Executive Order 12711, the dependent would be required to show that the waiver had already been approved when the adjustment of status application was filed. Some late-arriving J-2 dependents may be able to benefit from the Executive Order 12711 waiver granted to the CSPA principal. The Service previously stated that if the J-1 exercised the one-time irrevocable waiver of the two-year foreign residency requirement under the Executive Order, and the J-2 spouse or child was subject only because the principal was subject (the J-2 had never been a J- 1), the Executive Order waiver would also be extended to the J-2 spouse. There are several other possible ways in which to obtain a waiver of the two-year home country residence requirement: (1) A waiver may be granted based upon the receipt of a "no- objection" letter from the applicant's home country; (2) A waiver may be granted based upon the applicant's claim that compliance with the two-year foreign residence requirement would cause exceptional hardship to the applicant's lawful permanent resident or United States citizen spouse or child; (3) A waiver may be granted based upon the applicant's claim that he or she would be subject to persecution on account of race, religion, or political persecution, if he or she were to return to his or her country of nationality of last residence; and (4) A waiver may be granted based upon the request of an interested United States Government agency. Form I-612, "Application for Waiver of the Foreign Residence Requirement of section 212(e) of the Immigration and Nationality Act, as amended" may be requested from the local Service office. Instructions are provided with the form. (7) What is the situation for the late-arriving dependents who now hold F-2 or J-2 visas? What are their legal status since their principals have filed under the CSPA? Nonimmigrant classifications, such as F-1 and J-1, require the alien to have a residence in a foreign country which he or she has no intention of abandoning. Filing an application for lawful permanent residence in the United States shows an intention of abandoning the foreign residence. In these cases, the F-2 or J-2 would be considered to lose legal status when the principal's adjustment application under CSPA is filed. A person who is applying for adjustment of status based on classification under the third employment-based skilled worker preference category or the second family sponsored preference category is subject to the requirements of section 245(c) of the Immigration and Nationality Act. Section 245(c) includes a requirement that adjustment of status applicants shows that they have continuously maintained lawful immigration status in the United States. Voluntary departure is not considered "lawful immigration status" for the purpose of section 245(c). (8) How can these late-arriving dependents (who, as discussed in the section above, have lost their visa status of F-2 and J-2) regain their appropriate visa status? What procedures do they have to go through in order to file for permanent residency? There are two ways to regain their appropriate legal status to continue to stay in the U.S., or to regain "lawful immigration status" to apply for permanent residency. First, failure to continuously maintain lawful immigration status may be forgiven and the applicant allowed to adjust status if the applicant can show that the failure to maintain was due to no fault of the applicant's own or for technical reasons. Secondly, a person who is not eligible to adjust status may be eligible to obtain lawful permanent resident status by reentering the United States with an immigrant visa issued at a United States consulate or embassy abroad. Voluntary departure allows the late- arriving dependents to stay in the U.S. until they qualify for immigrant visas. Then they need to go to a U.S. embassy or consulate overseas to have their applications processed. An person who is in the United States and is unable to maintain a legal status may apply for voluntary departure at any time at his local INS office. It does not matter how long the person has been out of status. There is no limit on the number of times voluntary departure may be extended, nor is there a limit on the total number of years of voluntary departure which may be granted. A person who is under voluntary departure may request advance parole. (9) What are the procedures and forms for the late-arriving dependents to apply for Voluntary Departure? There is no application form or fee for an application for Voluntary Departure. A request for voluntary departure may be made in writing to the District Director having jurisdiction over the person's place of residence. (10) If the late-arriving dependents have obtained the Voluntary Departure, how should they file for permanent residency and what forms they must use for the purpose? Are they allowed to go to U.S. Consulates in Mexico and Canada? If they are, then which consulates they should go to? Please give your advice on how to handle this matter. A person who has been granted voluntary departure is not generally considered to have continuously maintained a lawful nonimmigrant status and would be prohibited by Section 245(c) of the Act from adjusting status in the U.S. However, this same person may be eligible to become a permanent resident by reentering the U.S. with an immigrant visa issued by a United States consulate or embassy abroad. The first step towards obtaining an immigrant visa abroad would be for the principal CSPA applicant to file the Form I-824. After INS sends the Form I-824 to the department of the State (which is in charge of the U.S. consulates and embassies abroad), the Department of State would send the family member information about immigrant visa issuance and the appropriate application forms. The Department of State determines which consulates and embassies may process which immigrant visa applications. The Department of State may make exceptions to the usual requirement that applications for immigrant visas be processed in the person's home country, but INS cannot say whether or not processing in Mexico or Canada would be allowed. (11) When and how can the principals file applications for permanent residency for their dependents in China or other countries? Under what category shall they apply? How long will it normally take for the visa number to become current under the relevant category? The procedure outline above (Question # 10) would also apply in cases where the family member has remained in the PRC. The principal should file Form I-824 for the spouse and unmarried children who are less than 21 years old. The principal may file forms I-130 for unmarried sons and unmarried daughters who are 21 years old or older, but only after the principal becomes a permanent resident. If the principal wishes, the principal (after the principal becomes a permanent resident) may also file forms I-130 for the same family members for whom he filed the Form I-824. This is not required; but it gives the family member a second chance for early visa issuance. When an immigrant visa number becomes available the Department of State will notify the family member. The Department of State will also send the family member the necessary application forms and instructions for immigrant visa issuance. We cannot say now how long it will take for an immigrant visa number to become current. For July 1993, immigrant visa numbers under both the third employment-based category and the second family sponsored category had "cut-off" dates in 1991 and 1989 for persons born in China. In august, the employment-based category is current or immediately available (no cut-off date) and the family sponsored category continues to have 1991 and 1989 cut-off dates. We would suspect that the employment-based category will again have a cut-off date in October 1993, but we do not know what it will be. Note: Filling the Form I-130 will not affect a family members possible eligibility for a "following to join" immigrant visa. A CSPA applicant may file the Form I-824 and the Form I-130 and wait to see which category becomes current first. (12) Some of the late-arriving dependents did not exceed 21 years old on April 11, 1990, but have exceeded 21 years old now or by the time of application for permanent residency. Can they still apply for permanent residency as late-arriving dependents under CSPA? No. A family member who arrived in the United States after April 11, 1990, is not eligible for adjustment of status under the CSPA. Derivative family members who are not eligible for CSPA adjustment may apply for permanent residence based on "following to join" classification. However, only spouses and unmarried children under the age of 21 years (at the time of filing application) may be eligible for "following to join" classification. An adult son or daughter who is married or who is 21 years old or older is not eligible for "following to join" classification. Any lawful permanent resident may file a relative visa petition (Form I-130) for an unmarried son or daughter, regardless of the son's or daughter's age. After the CSPA principal's application for CSPA adjustment has been approved, he or she could file the relative visa petition for any unmarried adult sons or daughters. If the petition is approved, the adult son or daughter would be classified under the Family sponsored 2B category. The son or daughter's priority date would be the date the Form I-130 was properly filed with the Service. (13) If the late-arriving applicant is a F-1 visa holder who has not applied for work permit before and already filed application for permanent residency under CSPA, can he/she accept a job offer and work legally before his/her application is approved? What document(s) can he/she show to his/her employer to verify his eligibility to work? Any adjustment of status applicant may file a request for employment authorization on Form I-765. The Form I-765 may be filed with the adjustment of status application or any time before the adjustment of status application is approved. The CSPA applicant should not work until he or she gets the Employment Authorization Document (EAD card) which shows that the Service has given him or her work permission. He or she should show the employer the Employment Authorization Documents (EAD card). (14) If the late-arriving applicant is a F-1 visa holder, can he/she apply for practical training after he/she has filed his/her application for permanent residency under CSPA? No. In order to maintain F-1 nonimmigrant status, a person must have a residence in a foreign country which he or she has no intention of abandoning. Filing an application for adjustment of status is evidence of an intention to remain in the United States and abandoning the foreign residence. Therefore, the person would no longer be maintaining F-1 status and would not be eligible for practical training after filing the CSPA adjustment of status application. However, the person may still engage in a practical training program if he or she obtains employment authorization from the Service based on the person having filed the CSPA application. ********************************************************************* * IFCSS Headquarters Office * *-------------------------------------------------------------------* * President: Lin Changsheng Vice President: Shi Heping * *-------------------------------------------------------------------* * PBS-L is IFCSS's news distribution list for individuals. To sign * * on or off from the list, please send email to listserv@ifcss.org * * leave the subject line open and put in the mail body: * * (For signing on) sub PBS-L last name first name * * (For signing off) unsub PBS-L last name first name * * For more information about IFCSS, write to ifcss-info@ifcss.org * *********************************************************************