Many immigration lawyers and/or paralegals pretending to be lawyers either don't know the law that they are purportedly "advising" you about or simply don't care enough about you to tell you the real deal. We are different! So, this article is a basic primary on common issues in immigration law as they affect our community: the Filipino community. After reading this article, you will know just about enough to be dangerous. This article is not meant to be construed as legal advice. Instead, it is educational only. For ease of read, it is divided with specific headings on the common areas that pertain to you.
245(i) pertains to an expired section of the Immigration and Nationality Act ("INA"). The INA is the statutory law which governs all immigration cases.
In order to be eligible to apply for a green card (aside from having a basis to do so), you need to provide proof of lawful entry into the United States and be in status at the time of filing the green card application. Contrary to popular opinion, TNT IS NOT STATUS. Nor is 245i.
245i means that even if you entered the U.S. illegally (crossed the border without inspection) or entered legally but went out of status, you still can apply for a green card so long as you have a current family or employment based petition. Entering under a fake or assumed name is not the same as illegal entry.
To be protected ("grandfathered") under 245i you must've had a family petition or labor certification filed for you on or before April 30, 2001. Different 245i eligibility requirements apply if the petition was filed for you after December of 2000. If you are under the later category, you must provide proof of residence in the United States.
PERM is the new labor certification process. There is no more RIR or traditional labor certifications unless you filed under the old system. Meaning, unless you (your employer) filed before the March 2005 deadline. Any and all filings after that, whether you're a nanny or a nurse or something else, are filed according to PERM. PERM, as I've written before, is a blessing in disguise, unless you are an advanced degree professional, meaning a Master's Degree or higher.
Priority Dates and Retrogression
PERM is a blessing in disguise because of priority dates. If you are being sponsored by your U.S. Citizen spouse, a 21 year old United States citizen child or are under 21 and being sponsored by your US Citizen parent, there is always a visa available to you.
If you fall into any other category, be it family or employment based, you will be subject to visa quotas. And, only a finite number of visas are available to each country per year. Moreover, each country is allotted a finite number of visas per category within which you fall. Visa quotas are issued by the United States Department of State and whether or not a visa is available to you depends upon when the application was filed on your behalf. The date that it was filed is normally your priority date.
Priority dates don't change every day or every month. Instead, for every year we move forward, the priority dates advance approximately 6 months. Put differently, every year we move forward, the government falls behind 6 months. So, to determine when you're priority date will become current, calculate how long it would normally take for your number to become current and then double it. Sometimes, in fact, priority dates move backwards. This is known as retrogression. And, the worst retrogression consequences of any country in the world pertains to the Philippines. It is simply a matter of more people in each category applying for visas then there are visas to go around.
So, your PERM filing may result in the issuance of a labor certification that you cannot benefit from for a number of years because your priority date is not current.
Nurses: 50,000 More Visas Available
On May 11, 2005, President Bush signed the "Emergency Supplemental Appropriations Act for Defense, the Global War on Terror and Tsunami Relief Act." The Act makes 50,000 more visas available to RN's (PT's and OT's) whose applications were already filed, but could not apply for permanent residence on account of a retrogressed priority dates. The wording of the Act is specific in that it applies to petitions filed up to 2004. Visa numbers beyond that remain at issue.
H1-B Visas or Change of Status to H1-B-Extending Tourist Visas
H1-B visas are also subject to quotas. 65,000 per fiscal year unless you have a master's degree or higher from a United States school. Visas are given on the fiscal year which begins on October 1 and ends on September 30. Even if in status now and otherwise eligible to apply for an H, you must be in status until October 1, 2005 in order to be able to change status to H. Otherwise, you must consular process your case. Meaning, leave the United States.
Extending your "tourist" or business visitor's visa so you can apply for H1-B status is illegal and otherwise ill-advised. Lawyers who are willing to extend your visa for you for this purpose, don't care about you. They care about your money.
H1-B's are for professional positions only. Professional positions, as defined by the government, mean positions that require a bachelor's degree or higher. That you are a dentist in the Philippines and have a dentist office here that is willing to sponsor you does not make you a dental research assistant. It makes you a soon to be out of status dentist.
Las Vegas Divorces
In order to be legally entitled to marry someone other than your first spouse, you must be divorced. Some people, contrary to our advice, choose to file for divorce in Nevada because its quicker than California or your state of residence.
In order to file for a divorce in Nevada, you must be a resident of Nevada. That your California lawyer says its okay to file in "Vegas" and refers you to a Vegas lawyer does not make you a resident. Nor does a liar who will go to court with you as a "resident witness" and testify on your behalf.
Look at your driver's license (if you have one). This is normally a good gauge as to where you're a resident. If you're a California resident, file in California.
We could go on and on, but will save more topics for upcoming articles. If you know a little bit about the law that applies to you, it helps you; it helps you to understand that the only way to do things, the only way we will do things, is the honest way.