Biometrics Fee Exempt for ALL I-539 Applications

 

Yes, that's right -- USCIS just announced today that it will exempt the biometric services fee for all Form I-539s.  Form I-539 is used by foreign nationals to change and/or extend their non-immigrant visa status in the United States. Typically, the I-539 is used to change status to H-4, F-1, B-2, etc.  

As of Oct 1st, the $85 biometric fee will be exempt for all I-539 applications.  The exemption will apply to all I-539 applications post-marked on or after Oct.1st.   Additionally, most applicants who file their I-539 on or after Oct. 1st will not be scheduled for a biometric appointment.

Previously, USCIS has exempt biometric fees and appointments for I-539s requesting an extension of stay in or change of status to H-4, L-2, or E nonimmigrant status through 09/30/2023.  Today's excemption covers all I-539 applications.

Applicants who has filed their Form I-539 prior to Oct. 1st may still be scheduled for an ASC appointment and should still attend that appointment as scheduled. 

It is important to pay the correct filing fees.  Starting Oct. 1st, applications submitted with one check for both the I-539 application fee and the biometric fee will be rejected.  However, applications with a combined credit card payment will not be rejected. In this case, USCIS will only charge the application fee to the credit card.

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule a legal consultation.)  

E-2 Visa for Taiwanese Starting a Business in the U.S.

 

Photo by Belle Co 

Taiwanese citizens who wish to live and work in the United States should consider applying for an E-2 visa.  There are many advantages to holding an E-2 visa. It allows the visa holder to live and work in the U.S. indefinitely.  Their family members can also work and study here. They can apply for driver's licenses and social security numbers.  Hence, an E-2 visa functions more or less like a green card in many respects.  

Who is eligible to apply for an E-2 visa?

The E-2 Treaty Investor visa is for citizens of countries with which the U.S. maintains treaties of commerce and navigation.  Taiwan is one of the countries with such a treaty with America.  The investor must be a Taiwanese citizen.  Certain employees with supervisor responsibilities or specialized skills of a Taiwanese company may also be eligible, if at least 50 percent of the business is owned by Taiwanese citizens.  The E-2 visa is essentially a visa to start and operate a business in the U.S. 

Basic requirements for an E-2 visa?

The precise legal requirements for E-2 visa are rather technical. But generally speaking, there are several major requirements.  First, the investment must be substantial, and the funds have to be real and irrevocable.  A substantial investment here does not mean millions of dollars of funding.  It merely means that the investment is reasonable for the type of business to get started, and is sufficient to ensure successful operation of the business. However, the investor must be in the process of investing the funds or ready to invest once the E-2 visa is approved. 

The business at issue must be a real operating enterprise.  Speculative or empty business ideas do not qualify. A comprehensive, detailed business plan that can be implemented immediately must be provided to support an E-2 visa application.  

Further, the investment may not be marginal, meaning that it must be not be a business that can only financially support the investor and his family. The business enterprise must have the capacity to make a significant economic contribution. For example, the business will branch out to multiple locations or employ several U.S. workers in the near future. 

Finally, it is important to note that the E-2 visa is not for passive investment. The investor or its employees must be coming to the United States to develop and direct the enterprise. 

How to obtain an E-2 Visa?

The preferred way to apply for an E-2 visa in Taiwan is through the American Institute in Taiwan (AIT).  One would have to complete several comprehensive application forms with substantial supporting documentation regarding the treaty investment enterprise, source of funding, proof of irrevocable investment, visa applicant's professional and personal information, etc.  As mentioned, a detailed and concrete business plan must also be provided to the visa officer.  The applicant must attend a visa interview before an E-2 visa can be issued.

How long does an E-2 visa last? 

The initial visa approval is usually good for five years.  As long as the applicant and the business continue to meet the legal requirements, extension of status can be granted from 2 to 5 years with no limits.  Applicants and their family members may travel internationally with the E-2 visa without restrictions.

Conclusion

The E-2 visa is an excellent tool for foreign nationals to work and live in the U.S.  The investments required are substantially less than the EB-5 investment visa, and so are the risks involved.  Investors are free to choose a variety of business to invest in including professional services, personal services, retail business, franchise business, etc.  Not all countries are eligible for the E-2 visa. Unlike mainland Chinese citizens, Taiwanese are eligible for the E-2 visa and should take advantage of it.

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule a legal consultation.)  

Extension and Redesignation of Venezuela for TPS Status

DHS today announced extension and redesignation of Venezuela for Temporary Protected Status (TPS) for another 18 months.  Eligible Venezuelans will be allowed to stay legally in the U.S. and granted Employment Authorization Document (EAD).

Only those Venezuelan nationals who have arrived in the U.S. on or before July 31, 2023 are eligible for TPS.  Those who arrived after July 31, 2023 will be subject to deportation. 

One major benefit of TPS status is employment authorization.  Applicants must submit the I-821 and I-765 applications for these benefits.  Applicants who have pending applications do not need to resubmit their applications.  USCIS will automatically extend their status under the new policy. 

According to USCIS, there are currently approximately 242,700 TPS beneficiaries from Venezuela. Approximately additional 472,000 nationals of Venezuela may be eligible under the redesignation of Venezuela. Details of the application process will be released later on.

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule a legal consultation.)  

 

Breaking News: India has suspended all visa services in Canada

 

India announced today that all consulate visa services have been suspended in Canada until further notice. The suspension applies to all consulate posts in Canada.  It means that foreign nationals would not be able to apply for Indian visas in Canada for the time being. They must make alternative arrangements in order to enter India. 

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule a legal consultation.)  

October 2023 Visa Bulletin: Significant Advancement for Employment Categories

 

As the first bulletin of a new fiscal year, the October Visa Bulletin brings some major movements for employment-based cases. 

For the EB-1 category, India advances by 5 years to 1/1/2017 while China advances by 14 days, and visa numbers become available again for all other countries. 

EB-2 China advances by 3 months while India advances by 1 year. 

EB-3 India advances by almost 3.5 years. Mexico and the Philippines advance by 19 months. 

For family-based cases, Mexico F2A advances by 2.5 years. 

USCIS has announced that they are using the Dates for Filing chart in October for both family-based and employment-based adjustment of status applications (I-485). Applicants with a priority date that will be current in October should start the application process soon. 

EB-2 applicants may also consider filing a "downgrade" I-140 petition to be able to submit the I-485 application concurrently. 

AD: Dates for Final Action (Green Card Approval)  

FD: Dates for Filing Applications Only

Family-based		Other Countries	China	India	Mexico	Philippines
F1	AD	01/01/2015	01/01/2015	01/01/2015	04/22/2001	03/01/2012
	FD	09/01/2017	09/01/2017	09/01/2017	04/01/2005	04/22/2015
F2A	AD	02/08/2019	02/08/2019	02/08/2019	02/01/2019	02/08/2019
	FD	09/01/2023	09/01/2023	09/01/2023	09/01/2023	09/01/2023
F2B	AD	09/22/2015	09/22/2015	09/22/2015	01/01/2002	10/22/2011
	FD	01/01/2017	01/01/2017	01/01/2017	08/01/2004	10/01/2013
F3	AD	01/08/2009	01/08/2009	01/08/2009	03/08/1998	06/08/2002
	FD	03/01/2010	03/01/2010	03/01/2010	06/15/2001	11/08/2003
F4	AD	04/22/2007	04/22/2007	10/08/2005	08/01/2000	08/22/2002
	FD	03/01/2008	03/01/2008	02/22/2006	04/15/2001	04/22/2004

1st: Unmarried Sons and Daughters of Citizens (about 23,400 per year).
2A: The 2 “A” preference is for Spouses and Children (under 21 & unmarried) of LPR's.
2B: The 2 “B” Preference is for Unmarried Sons and Daughters (21 or older) of LPR's.
3rd: Married Sons and Daughters of Citizens (about 23,400 per year)
4th: Brothers and Sisters of Adult Citizens. (about 65,000 per year)

Employment		Other Countries	China	India	Mexico	Philippines
EB1	AD	C	02/15/2022	01/01/2017	C	C
	FD	C	08/01/2022	07/01/2019	C	C
EB2	AD	07/08/2022	10/01/2019	01/01/2012	07/08/2022	07/08/2022
	FD	01/01/2023	01/01/2020	05/01/2012	01/01/2023	01/01/2023
EB3	AD	12/01/2021	01/01/2020	05/01/2012	12/01/2021	12/01/2021
	FD	02/01/2023	09/01/2020	08/01/2012	02/01/2023	01/01/2023
Other Workers	AD	08/01/2020	01/01/2016	05/01/2012	08/01/2020	05/01/2020
	FD	12/15/2020	06/01/2017	08/01/2012	12/15/2020	05/15/2020
EB4*	AD	01/01/2019	09/01/2018	09/01/2018	09/01/2018	09/01/2018
	FD	03/01/2019	03/01/2019	03/01/2019	03/01/2019	03/01/2019
EB5	AD	C	10/01/2015*	12/15/2018*	C	C
	FD	C	01/01/2017	04/01/2022	C	C

1st: Priority Workers (Extraordinary ability aliens, multinational companies' executives/managers, outstanding prof./researchers)
2nd: Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability.
3rd: Skilled Workers, Professionals, and Other Workers (Unskilled.)
4th: “Special Immigrants” (Religious & others)
5th: Employment Creation (Investors)

*Visa numbers for Certain Religious Workers are unavailable for all countries in October 2023. 

*China and India EB-5 visa numbers for rural, high unemployment & infrastructure areas/projects are current.

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule a legal consultation.)  

Affirmative Asylum Applicants Must Bring Interpreters to Inteview

Starting 9/13/2023, affirmative asylum applicants must bring their own interpreters to asylum interviews, if they are not fluent in English or prefer to conduct the interview in a language other than English.

Since 2020 and throughout the COVID-19 pandemic, USCIS has required asylum applicants to use contract telephonic interpreters arranged by USCIS for health and safety reasons. This policy has ended today, and an asylum applicant must bring their own interpreters if they need to use one.

USCIS warns that failure to bring one's interpreter may result in denial of the asylum application, as the USCIS would not be able to proceed with the interview.

Asylum applicants are allowed to bring an adult friend or family member to act as the interpreter. However, the following individuals cannot server as an interpreter:

• The attorney or accredited representative of the case;
• A witness testifying on your behalf of the applicant;
• A representative or employee of the government of your country of nationality (or, if you are stateless, your country of last habitual residence); or
• An individual with a pending asylum application who has not yet been interviewed.

Further, asylum applicants must make sure that interpreters that they use are competent.  Oftentimes, friends and family members may know English but are not qualified to act as interpreters.  A competent interpreter must be fluent in both English and the language to be translated. USCIS may consider incompetent interpretation as failure to appear for the interview, which may result in the denial of the asylum application.

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule a legal consultation.) 

USCIS Issued Favorable Policy Guidance for EB-1 Extraordinary Ability Petition

 

Photo by Chris Barbalis on Unsplash

By Paul Szeto, Esq.

On 09/12/023, USCIS updated its Policy Manuel regarding the Employment First Preference EB-1A adjudication standard.  The updates include clarifications of the eligibility and evidentiary requirements for extraordinary ability petitions.  These updates are mostly favorable to the petitioners, especially those in STEM fields.

The current adjudication process of an EB-1A extraordinary ability petition involves two steps.  First, the petitioner must first prove that they have received a one-time achievement (i.e., a major, internationally recognized award) or meet at least three of the ten regulatory criteria.  

Second, the adjudicator must, based on all evidence in the record, make a “final merits determination” to determine if the petitioner has sustained national or international acclaim; and also that their extraordinary ability has been recognized in the field of expertise, indicating that the person has risen to the very top of his profession.  Against this legal framework, USCIS provided the recent update, with the following highlights:

• Awards from well-known national institutions (e.g., R1 and R2) and professional associations may be accepted as “lesser recognized” awards.
• Certain doctoral dissertation awards are also acceptable (Such academic awards were discounted by USCIS before.)
• Certain higher level of professional memberships such as “fellow” are acceptable.
• Serving as a member of a Ph.D. dissertation committee or peer reviewer for government research funding programs is acceptable evidence (provided, the person must actually serve in these roles.)
• A high number of citations can be used to prove the significance of a person's original contributions, and a high h-index may serve as evidence that the person is among the small percentage at the top of the field.
• Senior faculty or senior research position for a distinguished academic department or program can be evidence of "leading or critical role".
• A supporting role of a program or department may be considered “critical” if the person's performance itself is critical. 
• Whether the petitioner's salary or compensation is high is evaluated based on the local living standards (e.g., China or India), rather than a direct conversion to U.S. dollars. 
• Comparable evidence can be used if a certain criterion does not apply to the person's profession. An adjudicator cannot limit the kind of evidence used to prove the EB-1 petition, if the evidence meets the regulatory requirements. 
• Employment or research experience with highly ranked universities (e.g., based on QS World University Rankings) can be evidence of extraordinary ability. 
• Invitations to speak or present research at national or international conferences can be evidence of extraordinary ability. 
• If Requests for Evidence are issued for a certain type of evidence which has been submitted, the adjudicator should explain what the deficiencies are.
• In denial decisions, if a petitioner has an approved O-1 petition previously, an adjudicator should explain the reasons why the petitioner is not approved for EB-1 classification.

The new policy guidance clarifies some long-standing legal issues regarding EB-1A petitions.  However, it is important to understand that the bar for EB-1A petitions is still very high.  When presenting a particular type of evidence (e.g., an award), background information (nature of award, selection criteria, number of awards, etc.) must be presented to provide sufficient context for the adjudicator to consider. Overall, these changes should make it easier for petitioners to prove their extraordinary ability. 

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule a legal consultation.) 

Aging-Out Children Given Additional Time to Obtain CSPA Benefits

 

USCIS recently implemented another policy change to accord additional time for aging-out children to submit their I-485 adjustment of application based on the Child Status Protection Act (CSPA).

CSPA or the "Child Status Protection Act" was a law passed by Congress in 2002 to alleviate the negative impact of long waiting times for U.S. immigrant visas.  If a child has reached the age of 21 when visa numbers become available for her immigrant visa category, she will normally not be allowed to immigrate as a “child”.  But if this person's CSPA age is under 21, then she may still be eligible to immigrate.  CSPA "freezes" the age of a child while his or her immigrant petition was pending for processing, thereby reducing her legal age for immigration purposes.  Hence, an otherwise over-aged child may be able to immigrate based on her CSPA age.

In order to benefit from CSPA, immigrant children must do something to acquire their immigrant status within one year after visa numbers become available for their particular visa category.   If they are in the United States, they can fulfil this "sought to acquire" requirement by submitting their I-485 application for adjustment of status within one year.  

The question arises as to when this one-year period starts.  Most immigrants know that visa numbers are controlled by the monthly Visa Bulletin published by the U.S. Department of State.  However, since there are two sets of dates in the Visa Bulletin, i.e., Final Action Dates and Filing Dates, there was confusion as to which set of dates should be used to determine when visa numbers are available for a particular case.

Remember the policy announced by USCIS in February of this year regarding the use of Filing Dates to calculate CSPA age?   The February policy change confirms that immigrants may use the Filing Dates to determine if visa numbers are available or current for their particular visa petition. Because of this change, some immigrants might have missed the one-year deadline to submit their I-485 applications.  As such, USCIS made another change in their Policy Manual to confirm that such a failure can be excused, by designating the February policy change as an “extraordinary circumstance” under the law.  As a result, applicants now have additional time to submit their adjustment applications based on CSPA.

Although this additional policy change issued by USCIS applies only to applicants filing for I-485 adjustment in the U.S., the rationale should also be applied to overseas petitions.  Overseas immigrants generally "seek to acquire" their immigrant status through the National Visa Center (NVC) processing. It involves submission of an immigrant visa petition, civil documents such as birth and marriage certificates, payment of fees, submission of Affidavits of Support, etc.  Applicants whose cases were rejected on account of this one-year "sought to acquire" requirement should request for a review based on this new USCIS policy.  

As a reminder, most immigration petitions are time-sensitive.  Readers are reminded to submit their immigration applications and petitions as soon as possible to avoid denial or loss of eligibility.

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule a legal consultation.) 

How much money is required to sponsor somebody for U.S. immigration?

 

The U.S. immigration system allocates about 480,000 visa numbers for family-based immigration every year. The number seems high, but it is hardly enough to meet the need for family unification. To sponsor a family member to come to the United States, one must also provide proof of financial support and execute a document called Affidavit of Support (Form I-864). This document is an agreement between the sponsor and the U.S. government certifying that the sponsor agrees to provide financial support for the immigrant beneficiaries and also that the sponsor has sufficient resources to do so.

So, how much money is required to sponsor somebody for U.S. immigration? Every year, the U.S. Department of Health and Human Services (HHS) publishes the poverty guidelines for mainland America and also Alaska and Hawaii. For U.S. immigration purposes, the sponsor's household income must generally be at or above 125% of the U.S. poverty line for their particular household size.

For example, as shown by the 2023 guidelines below, for a household size of 3, the sponsor's annual income must be at least US$31,075 in most states and U.S. territories except Alaska and Hawaii, which have higher income requirements. The household size includes the total number of immigrants being sponsored and also the sponsor and his/her dependents.

Size of Household	48 Contiguous States,D.C., U.S. Virgin Islands,Guam & CNMI	Alaska	Hawaii
125% of Poverty Line (U.S. dollars)
2	24,650	30,800	28,350
3	31,075	38,838	35,738
4	37,500	46,875	43,125
5	43,925	54,913	50,513
6	50,350	62,950	57,900
7	56,775	70.988	65,288
8	63,200	79,025	72,675
	Add $6,425 for each additional person	Add $8,038 for each additional person	Add $7,387 for each additional person

Normally, the petitioner must act as the sponsor in the I-864 form.  If the petitioner's income level is insufficient, a joint sponsor may provide additional financial support.  Both the petitioner and beneficiary may also use their assets such as real estate, stocks, bonds, cash, etc., to meet the I-864 requirements. 

The financial sponsor must be either a U.S. citizen or legal resident. Another lesser-known requirement is that the sponsor must be domiciled in the United States. It basically means that the sponsor must regard the United States as his or her permanent home.  

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule a legal consultation.)