Immigration Law Answers Blog : Texas Immigration Lawyer & Attorney : Kraft & Associates Law Firm : Visas, Green Card, Citizenship, Deportation : Dallas, Texas

The U.S Department of State (DOS) has advised that there are no more employment-based visa numbers available for fiscal year 2009, which concludes September 30, 2009. This affects all employment based categories, but particularly applicants in the employment-based non-ministerial fourth category (EB-4). The EB-4 non-ministerial category includes religious occupation, vocation and professional categories (but not the ministerial category).

The non-ministerial EB-4 category is set to expire September 30, 2009 and individuals in this category must have their adjustment of status applications approved or if they applied via consular processing, they must be admitted into the United States by midnight by September 30, 2009. Unless Congress extends the sunset provision, individuals in the EB-4 non-ministerial category are unable to file Form I-485 Adjustment of Status Applications or consular processing applications after September 30, 2009.

While the I-360 religious worker petitions (ministerial and non-ministerial categories) may still be filed before September 30, 2009, given the unavailability of visas in the EB-4 category the month of September, the Applications to Adjust Status (Form I-485) or applications for consular processing will not be accepted this month. Thus, adjustment of status applications that remained pending will not be approved unless a visa number had already been captured.
 
Individuals in the EB-4 ministerial category are eligible to file Adjustment of Status applications until October 1, 2009, when visas in the EB-4 category become available. Please visit the visa bulletin available at the DOS’s Web site.
 

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Surviving spouses and their qualifying children, whose U.S. citizen spouses died before the second anniversary of marriage, are eligible to request deferred action. Deferred action is filed with U.S. Citizenship and Immigration Services (USCIS) and once granted it allows surviving spouses and children to remain in the United States for a temporary authorized period of time (two years for this program) without being removed from the United States during that authorized time. Once granted deferred action, the applicant is also eligible to apply for employment authorization (filed on Form I-765) and travel authorization (filed on Form I-131).
 
Deferred action does not eliminate any period of unlawful presence that accrued before it was granted; it does not convey or imply any waivers of inadmissibility that may exist; and it does not confer or alter any immigration status. However, deferred action does allow the applicant to remain in the United States for two years under this program. During the two years that deferred action is in effect, no additional unlawful presence accrues.
 
In order to qualify for this program, the surviving spouse must:

• have been married less than two years to the U.S. citizen at the time of the U.S. spouses’ death;
• did not remarry; and
• be currently residing in the United States.

 
The qualifying children of the surviving spouses that qualify under the program must be:

• younger than 21 years old (at the time the request for deferred action was submitted or Form I-130 was filed on their behalf as an immediate relative);
• unmarried; and
• residing in the United States.

 
Deferred action is filed on Form I-360 at the Vermont Service Center. It is important to file Form I-360 with the appropriate filing fee of $375 and the supporting documentation.
 
If the U.S. citizen spouse died after being married for two years at the time of the U.S. citizen’s death, then the widow(er) of a U.S. citizen is not covered by the deferred action program. However, the widow(er) is eligible to self-petition as an immediate relative as long as Form I-360 is filed within two years after the date of death.
 
For more information on Deferred Action for surviving spouses and qualifying children of deceased U.S. citizens, please call us at 214-999-9999

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The U.S. Department of State has released its September 2009 Visa Bulletin.
 
For the month of September 2009, the visa bulletin displays unavailable visas for the employment-based category – third preference category, other workers, fourth preference category, and certain religious workers. Special Immigrant Religious Workers would be categorized under the employment-based fourth preference category. Recently, U.S. Citizenship and Immigration Service (USCIS) began accepting concurrent filing of Form I-360 Religious Worker Petition and Form I-485 Adjustment of Status Application pursuant to the district court’s final order under Ruiz-Diaz v. United States. Pursuant to the order, individuals who file Form I-485 based on a pending Special Immigrant Religious Worker Petitions (Form I-360) or file concurrent I-360 and Form I-485 on or before September 9, 2009 would receive protection from the accrual of any unlawful presence and unauthorized employment that began, up until September 9, 2009.
 
Under the September 2009 visa bulletin, beginning September 1, 2009, there will be no visas available for the special immigrant religious worker category - employment-based 4th preference category. It is vital that all pending or approved special immigrant religious worker petitions file their adjustment of status applications before August 31, 2009. USCIS will reject any adjustment of status applications based on a pending or approved Form I-360 seeking special immigrant religious worker classification filed on or after September 1, 2009. More information is available at www.uscis.gov.
 
Call Kraft & Associates at 214-999-9999 and we will answer your questions regarding adjustment of status to permanent residence based on a Special Immigrant Religious Workers Petition.

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Do you have a pending Form I-360 Special Immigrant Religious Worker Petition? If so, you are now eligible to file an application to adjust your status to permanent resident. On June 25, 2009, in response the district court’s order in Ruiz-Diaz v. United States, No. CO7-1881RSL (W.D. Wash. June 11, 2009), U.S. Citizenship and Immigration Services (USCIS) is now accepting concurrently filed Form I-360 and Form I-485 Applications to Adjustment. Applicants who filed Form I-360 religious worker petitions and are currently pending with USCIS are immediately eligible to file Form I-485 Application to Adjust Status and Form I-765 Application for Employment Authorization. USCIS has posted this notice on their website and is available at http://www.uscis.gov/files/article/dkt_127-2_notice.pdf.
 
Under the district court's order, if you have a Form I-360 religious worker petition that is pending with USCIS as of June 11, 2009, then you are eligible to file Form I-485 and/or Form I-765. Also, applicants filing after June 11, 2009, are eligible to concurrently file Form I-360/I-485. The order protects foreign nationals from the accrual of unlawful presence and unauthorized work since any period of unlawful presence and unlawful employment will be tolled until will be tolled until September 9, 2009.
 
For additional information please see the USCIS Web site.
 

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A spouse, child or parent who has been subject to extreme cruelty or battery by a U.S. citizen or lawful permanent resident (LPR) spouse or parent may file a Violence Against Women Act (VAWA) self-petition. VAWA petitions are available to the victims of domestic violence and may be either male or female victims. In order to qualify, a victim of domestic violence has to meet several requirements. The self-petitioner must establish that he or she is the spouse of a U.S. citizen or LPR; resides in the United States when the self-petition is filed; resided with the abuser in the United States in the past; has been battered or subject to extreme cruelty by the Citizen or LPR spouse during the marriage; is a person of good moral character; is a person whose deportation would result in extreme hardship to himself, herself, or his or her child; and the victim entered into a good faith marriage with the Citizen or LPR.

Before filing a VAWA case, evidence must be gathered to establish the above-mentioned requirements. For example, the petition must be accompanied by evidence of the marriage relationship, such as a marriage certificate. To satisfy the requirement that the abusive spouse or parent is a U.S. Citizen or LPR, a copy of their birth certificate or resident card should be provided. With respect to providing evidence of the abuse, the victim may include police reports, temporary restraining orders, affidavits from police and judges, medical reports, and letters from doctors. To satisfy a good faith marriage requirement and the requirement that the self-petitioner resided with the abuser, the self-petitioner must submit documentary proof which includes, but is not limited to, joint accounts, credit card bills evidencing both names, apartment leases, driver's licenses showing the same address of both, insurance records held in both names, federal tax returns filed jointly, and birth certificates of children.  In order to show that the victim is a person of good moral character, the self-petition should provide an affidavit from the self-petitioner, accompanied by a local police clearance, and letters from individuals. Evidence of extreme hardship includes affidavits, birth certificates of children, etc.

Once the VAWA petition is approved, the next step will be to proceed with obtaining permanent resident status based on the approved self-petition. Please contact us if you have been or are subject to abuse by a U.S. citizen or LPR spouse, or parent.

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