A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration lawyer. We serve clients in all U.S. states and overseas countries. (All information is not legal advice and is subject to change without prior notice.)

Contact: 732-632-9888, http://www.1visa1.com/

Monday, September 30, 2024

The 2026 Diversity Visa Program Opens October 2, 2024

 



The Diversity Visa Program is an American immigrant visa program created by Section 203(c) of the Immigration and Nationality Act to promote diversity.  It is also known as the "Green Card Lottery." It is an annual program which opens to all individuals worldwide, with approximately 55,000 visas available. The DV-2026 program opens on October 2, 2024. 


What are the costs?

The lottery is free of charge to enter. It is an official U.S. government immigration program supervised by the U.S. Department of State. The department has set up an official website where all applications have to be submitted. 


Who is eligible to apply?

For DV-2026, natives of the following countries are not eligible to apply because there were more than 50,000 people immigrated to the United States from these countries in the previous five years:

Bangladesh, Brazil, Canada, The People’s Republic of China (including mainland and Hong Kong born), Colombia, Cuba, Dominican Republic, El Salvador, Haiti, Honduras, India, Jamaica, Mexico, Nigeria, Pakistan, Philippines, Republic of Korea (South Korea), Venezuela, and Vietnam.   

Despite the fact that people born in mainland China and Hong Kong are not eligible for DV-2026, those who were born in Macau SAR and Taiwan are eligible to apply.  United Kingdom and its dependent territories are eligible countries for DV-2026.

If one was not born in an eligible country, there are two other ways that the person may quality to apply:

(1) If the person's spouse was born in an eligible country, then the person can claim the spouse's country of birth as their birth country to apply.   

(2) If an applicant was born in an ineligible country, he may claim one of his parents' eligible country of birth if two requirements are met:  a) Neither of the applicant's parents were born in applicant's country of birth, and b) Both parents were not legal residents of applicant's country of birth at the time when the applicant was born.  For example, if an applicant was born in mainland China, but her parents were born in Malaysia (an eligible country).  As long as both parents were not legal residents of
 China when applicant was born, the applicant may claim Malaysia as her birth country for DV-2026.


What are the education and work experience requirements?

An applicant must either have a high school education or its equivalent, defined as successful completion of a 12-year course of elementary and secondary education; or two years of work experience within the past five years in an occupation requiring at least two years of training or experience to perform.


When and how to submit an entry?

Entries for the DV-2026 program must be submitted electronically. Applicants may access the electronic DV Entry Form (E-DV) at dvprogram.state.gov during the registration period. Paper entries will not be accepted. DV-2026 registration began at 12:00 pm (EST) on October 2, 2024, and will continue until 12:00 pm (EST) on November 5, 2024.  A unique confirmation number will be issued after an application has been successfully submitted.


What information is required?

Principal entrants are required to provide their biographic information including: their name, date of birth, city and country of birth, mailing address, email address, country of residence, marital status, country of eligibility, spouse and children's information, the highest level of education, information about their passport, etc.  They must also submit a digital photo that meets the program technical requirements.

How to find out the results of the lottery?

The U.S. State Department will use a computerized random selection process to select winners from among qualified entries.  All entrants must go to the Entrant Status Check using the unique confirmation number saved from their DV-2026 online entry registration to find out whether their entry has been selected in the DV program.   Entrant Status Check will be available on the E-DV website at dvprogram.state.gov from May 3, 2025, through at least September 30, 2026.  Selectees will be directed to a confirmation page with further instructions to proceed.

 How to improve the odds for selection?

The DV program has very strict technical requirements for submission. Entries not following the official instructions and requirements will be rejected and disqualified. Furthermore, fraudulent or multiple entries will be rejected. To legally improve the odds for selection, all eligible family members should enter the lottery.  Do not wait until the last week of the registration period to enter. Heavy demand may result in website issues and delays. When in doubt, don't hesitate to seek advice from a qualified immigration attorney.

New Reporting Requirements for Small and Family Businesses

 


Small and family businesses must comply with the requirements of a new law called the Corporate Transparency Act (CTA), which went into effect on January 1, 2024.  Aimed at combating money laundering, terrorism financing, tax evasion, and other illegal activities, the CTA requires certain companies, including small and family-owned businesses, to disclose detailed ownership information to the U.S. Department of the Treasury.  Here's what you need to know for compliance:

Who Must File Under the CTA?

The CTA applies to a wide range of businesses, particularly smaller companies that may not be accustomed to such regulations. Any corporation, limited liability company (LLC), or similar entity created in the U.S. or registered to do business in the U.S. is generally required to file.

However, some exemptions exist, which we’ll cover below. The primary businesses affected are smaller and family-owned companies that are often structured as LLCs or S-Corps. If your business employs fewer than 20 full-time employees, has less than $5 million in gross receipts, and does not operate in a highly regulated industry, you are generally required to file.

Basic Filing Requirements and Information Needed

Companies required to file must submit a Beneficial Ownership Information (BOI) report to FinCEN. This report must include, full legal name, date of birth, current residential or business address, and a unique identifying number from an acceptable identification document, such as a passport or driver's license.

The beneficial owner is defined as any individual who either owns or controls at least 25% of the company, or exercises substantial control over the company’s operations.  In smaller or family businesses, this could mean family members, shareholders, or partners who hold significant influence over the company.

Filing Deadlines

Businesses that were already in existence before January 1, 2024, have until January 1, 2025, to file their initial BOI report.  Any business formed on or after January 1, 2024, must file their BOI report within 30 days of the date of formation or registration.

Penalties for Non-Compliance

Failing to comply with the CTA's filing requirements can lead to severe penalties including civil penalties of up to $500 per day for each day the violation continues, and criminal penalties of fines up to $10,000 and imprisonment for up to two years for willfully providing false information or failing to report beneficial ownership details.

Exemptions to the CTA

While the CTA applies to a wide range of entities, certain organizations are exempt from its filing requirements. Exempt entities include: (1) Businesses with more than 20 full-time employees and more than $5 million in gross receipts; (2) Highly regulated entities such as banks, credit unions, insurance companies, and (3) publicly traded companies that already provide ownership information to other regulatory agencies are exempt.  Further, companies that have been inactive for over a year and no longer conduct business are also exempt.

Conclusion

The Corporate Transparency Act is a significant new regulation that small and family-owned businesses must understand to avoid penalties. While the purpose of the CTA is to increase transparency and prevent financial crimes, its scope means that even well-intentioned businesses must now meet new reporting requirements.  Stay informed and compliant is critical.  


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


Friday, September 27, 2024

TN Visa for Canadian and Mexican Nationals

 


The TN visa is a popular option for professionals from Canada and Mexico who want to work in the United States under the United States-Mexico-Canada Agreement (USMCA), which replaced NAFTA. This non-immigrant visa category allows eligible applicants to work in the U.S. in certain designated professional occupations, making it an attractive pathway for skilled workers.


Benefits of the TN Visa

No Visa Cap: Unlike other U.S. work visas, such as the H-1B, the TN visa has no annual limit, meaning more applicants have the opportunity to work in the U.S. without waiting for lottery results.   

Quick Processing: TN visas can be processed quickly, with many Canadian citizens able to apply directly at the U.S. border and receive immediate approval. Mexican citizens can apply through U.S. consulates, with generally fast processing times.

Multiple Renewals: A TN visa is initially valid for up to three years and can be renewed indefinitely, as long as the applicant continues to meet the visa's requirements. This offers long-term stability for professionals seeking to work in the U.S.

Expanded Job Opportunities: Positions that do not qualify for H-1B, such as graphic designer and hotel manager, also qualify. 

Dependent Visas: Dependent spouses and children can also live and study in the United States.


Requirements for the TN Visa

To be eligible for the TN visa, applicants must meet the following criteria:

Citizenship: The applicant must be a citizen of either Canada or Mexico. Permanent residents of these countries are not eligible.

Qualifying Profession: The job offer must be in one of the professions listed in the USMCA's designated categories. These include fields like engineering, accounting, law, science, and more. A full list of eligible professions can be found in the TN visa guidelines.

Job Offer: Applicants must have a valid, pre-arranged job offer from a U.S. employer for a full-time or part-time role in one of the qualifying professions. Self-employment is not allowed under TN visa rules.

Credentials: Applicants must have the necessary educational qualifications or credentials to meet the requirements for the specific professional occupation. Typically, this means having a degree or equivalent certification in the relevant field, except the position of a management consultant.

Temporary Intent: The TN visa is a non-immigrant visa, meaning the applicant must demonstrate an intent to return to their home country once the visa expires, though indefinite renewals are possible.


Application Process

For Canadian Citizens, they may apply directly at a U.S. Customs and Border Protection (CBP) point of entry, such as an airport or land border, with all required documents. There is no need for a visa to be issued beforehand.  The border officer will review the documents and decide on the spot. If approved, you can enter the U.S. and start working immediately.

Mexican citizens must apply for a TN visa at a U.S. consulate or embassy. This involves submitting the DS-160 form, scheduling an interview, and providing the required documentation, similar to Canadian applicants. After the TN visa is issued after the interview,  Mexican citizens can enter the U.S. and begin working for the employer listed in the application.

Tips for a Successful Application

It is important that the job offer letter from your U.S. employer clearly outlines your job duties, salary, and employment terms. The letter should also specify how the job fits into one of the qualifying TN professions, and how the applicant qualifies for it.  Although TN visas can be renewed indefinitely, they are still temporary. Be prepared to show ties to your home country, such as property, family, or financial obligations, to demonstrate that you do not intend to permanently immigrate. 

Whether you're applying at a U.S. consulate or at the border, be ready for questions about your job offer, qualifications, and intent to return to your home country. Have all your documentation organized and easily accessible. Keep track of your visa expiration date and begin the renewal process well in advance to avoid any gaps in your work authorization.


Monday, September 23, 2024

New Guidance for F/M Student Visa Classification



On August 27, 2024, the U.S. Citizenship and Immigration Services (USCIS) issued updates to its guidance on F and M nonimmigrant student classifications. This update focuses on various aspects of student eligibility for Optional Practical Training (OPT), particularly for students in Science, Technology, Engineering, and Mathematics (STEM) fields. It also provides important clarifications on online study, school transfers, the grace period, and study abroad, making it easier for foreign students and educational institutions to comply with the legal requirements.


Online Classes

The updated guidance confirms that F and M nonimmigrant students may count one class or three credits (or their equivalent) per academic session toward a full course of study if taken online or through distance learning. This flexibility applies as long as the course does not require physical attendance for any part of its completion. This update is particularly beneficial for students juggling online and in-person coursework and reflects the increasing prevalence of online education​. 


School Transfers and Grace Period Adjustments

The new guidance clarifies the process for transferring between schools. Students can transfer between SEVP-certified schools at the same educational level or move between different educational levels.  Additionally, during the 60-day grace period following the completion of OPT, students may change their educational level, transfer to another SEVP-certified school, or file applications with USCIS to change to a different nonimmigrant or immigrant status. This grace period provides much-needed flexibility for students transitioning between educational programs or immigration statuses​. 


STEM OPT Extensions and Application Periods

For students in STEM fields, the USCIS made technical corrections regarding STEM OPT extensions, updating the period during which students may apply. This ensures that students have clear and accurate timelines for applying, making the process more streamlined. Additionally, the update reinforces that students may be eligible for post-completion OPT after completing an associate’s, bachelor’s, master’s, or doctoral degree, broadening opportunities for students at all educational levels​.  

USCIS guidance attempts to correct the time period during which the application for STEM OPT extension may be submitted.  It is clear that F-1 students may submit a Form I-765 EAD application up to 90 days before the expiration of the F-1 student’s current post-completion OPT EAD.  However, as of 09/23/2024, there is inconsistent information regarding the number of days during which the STEM-based I-765 must be submitted after the DSO enters the STEM OPT recommendation into SEVIS.  While USCIS Policy Manual is showing 30 days, the I-765 form instructions and DHS "StudyInTheStates" website are showing 60 days.  We recommend clients to follow the more restrictive 30-days filing window.


Study Abroad Programs

For students participating in study abroad programs, the guidance offers clarity on maintaining SEVIS  status. Students enrolled in SEVP-certified schools can remain active in SEVIS during study abroad programs lasting less than five months. However, if the program exceeds five months, a new Form I-20 will be required, ensuring students maintain their legal status during extended periods abroad​. 


Conclusion

The August 2024 updates to USCIS guidance for F and M nonimmigrant students provide additional clarity and flexibility of rules surrounding OPT, online education, school transfers, and study abroad. The rules for F and M international students are generally complicated and unforgiving.  It is critical that foreign students pay close attention to all the rules and regulations, and keep in close contact with their school Designated Student Officer (DSO).  When in doubt, do not hesitate to contact an experienced immigration attorney for further guidance.


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


Wednesday, September 18, 2024

Green Card Renewal Extension Valid for 36 Months

 



USCIS has updated its policy regarding green card renewals.  Starting Sept. 10, 2024, USCIS has automatically extended the validity of a permanent resident's green card to 36 months, upon filing of the Form I-90, Application to Replace Permanent Resident Card.    The extension is reflected in the filing receipt notice, which can be used as temporary proof of lawful permanent resident status for employment, travel and other purposes.


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

Friday, September 13, 2024

October 2024 Visa Bulletin: EB-3 (Except China & India) Advances by Two Years




October marks the beginning of the new fiscal year, with the new annual allotment of immigrant visas.  EB-3 for all countries (except China and India) advances by almost two years to November 15, 2022. While India EB-3 advances by only 8 days, China EB-3 actually retrogresses by 5 months to April 1, 2020. 

For family-based cases, F2A worldwide shows a mild advancement, and most of the categories hold steady. 

USCIS to honor dates for filing for both family-based and employment-based cases. 

AD: Dates for Final Action (Green Card Approval)  

FD: Dates for Filing Applications Only

Family-based   

Other Countries

China

India

Mexico

Philippines

F1

AD

10/22/2015

10/22/2015  

10/22/2015

01/01/2003

03/01/2012

FD

09/01/2017

09/01/2017

09/01/2017

10/01/2005

04/22/2015

F2A

AD

11/22/2021

11/22/2021

11/22/2021

03/08/2021

11/22/2021

FD

07/15/2024

07/15/2024

07/15/2024

07/15/2024

07/15/2024

F2B

AD

05/01/2016

05/01/2016

05/01/2016

01/15/2005

 10/22/2011

FD

01/01/2017

01/01/2017

01/01/2017

08/01/2005

10/01/2013

F3

AD

 04/01/2010 

04/01/2010

04/01/2010

08/22/2000

09/08/2002

FD

07/01/2011

07/01/2011

07/01/2011

06/15/2001

05/08/2004

F4

AD

08/01/2007

08/01/2007

03/01/2006

02/22/2001

02/01/2004

FD

03/01/2008

03/01/2008

06/15/2006

04/30/2001

08/01/2006


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-based

Other Countries

China

India

Mexico

Philippines

EB-1

AD

C

11/08/2022

 02/01/2022

C

C

FD

C

01/01/2023

04/15/2022

C

C

EB-2

AD

03/15/2023

03/22/2020

07/15/2012

03/15/2023

03/15/2023

FD

08/01/2023

10/01/2020

01/01/2013

08/01/2023

08/01/2023

EB-3

AD

11/15/2022

04/01/2020

11/01/2012

11/15/2022

11/15/2022

FD

03/01/2023

11/15/2020

06/08/2013

03/01/2023

03/01/2023

Other Workers

AD

12/01/2020

01/01/2017

11/01/2012

12/01/2020

12/01/2020

FD

05/22/2021

01/01/2018

06/01/2013

05/22/2021

05/22/2021

EB-4*

AD

01/01/2021

01/01/2021

01/01/2021

01/01/2021

01/01/2021

FD

02/01/2021

02/01/2021

02/01/2021

  02/01/2021

02/01/2021

EB-5

AD

C

07/15/2016*

01/01/2022*

C

C

FD

C

10/01/2016

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)
*Visa numbers for Certain Religious Workers will be "Unavailable" in October.
5th: Employment Creation (Investors)
*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.)  

Monday, September 9, 2024

Remote H-1B Workers Should take Precautions When Moving

 


The COVID-19 pandemic brought about a paradigm shift in the professional landscape, with remote work and telecommuting becoming widespread. As businesses adapted to social distancing protocols and technology rapidly advanced, many employers embraced remote work as a permanent option. This shift was not limited to U.S. citizens or permanent residents but also impacted professionals on non-immigrant visas, such as those holding H-1B status.

H-1B Workers and the Rise of Remote Work

Among the professional workforce, H-1B visa holders, who are often employed in fields like IT, engineering, and finance, found themselves working remotely, sometimes from home. While the ability to work from home offered flexibility and safety during the pandemic, it also introduced new considerations related to compliance with immigration laws, especially concerning the "Place of Employment" listed on their H-1B petitions and associated Labor Condition Applications (LCA).

"Place of Employment" in H-1B Petitions and the LCA

In an H-1B petition, the "Place of Employment" refers to the physical location where the employee will perform their work. The U.S. Department of Labor (DOL) requires that the employer file an LCA specifying the intended worksite, which determines the prevailing wage for the position in that geographic area. The "Place of Employment" is a critical element in the petition, as it helps ensure that H-1B workers are being paid in accordance with local wage standards and that they are working in conditions consistent with U.S. labor laws.

The Requirement to Report Changes to USCIS

When an H-1B worker's place of employment changes, including switching to a new physical location for remote work, it is crucial that this change be reported to U.S. Citizenship and Immigration Services (USCIS) through an amendment. A failure to do so may result in the employee being out of status. An H-1B amendment is needed when there is a "material change" to the terms and conditions of the employment, and moving to a new worksite or home office in a different metropolitan statistical area (MSA) constitutes such a change. Although there are some exceptions, a remote H-1B worker who moves permanently to a location not listed in the original petition should have the employer file an amendment to reflect the new worksite before the move. 

USCIS Site Visits and Fraud Investigations

Another critical aspect of H-1B compliance is USCIS' ongoing efforts to monitor and investigate potential fraud or abuse within the H-1B program. USCIS fraud investigators frequently conduct unannounced visits to the worksites of H-1B employees to ensure that the employee is working in the location and under the conditions specified in the LCA and the H-1B petition. These visits often involve interviews with the employer and employee and can include a review of employment records.

Instances of H-1B visa holders working from an unreported location, whether from home or another remote office, have drawn increased scrutiny. A failure to update the "Place of Employment" can lead to a finding that the employee is in violation of their visa status, which can result in severe consequences, including visa revocation and potential removal from the U.S.

Precautionary Steps for H-1B Remote Workers

In light of these considerations, H-1B visa holders who work remotely must take proactive steps to ensure they remain in compliance with immigration laws. Specifically, they should:

  • Confirm that their current place of employment is listed in the LCA and the H-1B petition.
  • Promptly notify their employer and attorney of any plans to relocate, even temporarily.
  • Ensure that the employer files an amendment with USCIS before moving to a new location, particularly if the new location is outside the MSA listed on the petition.
  • Keep detailed records of communications with their employer regarding any location changes.
  • Failure to follow these steps could risk the employee's legal status, which could disrupt both their employment and ability to remain in the U.S.

Conclusion

The rise of remote work offers flexibility and convenience, but for H-1B visa holders, it also requires heightened attention to compliance with immigration rules. By understanding the importance of the "Place of Employment" and the need to report changes through an amendment, H-1B workers can avoid unintentional violations of their visa status. In the current environment of increased USCIS oversight and fraud investigations, it is more important than ever for H-1B visa holders to ensure they are following all regulatory requirements related to their worksite.

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


Wednesday, September 4, 2024

H-1B Workers Taking Unpaid Leave?

 


For H-1B visa holders, understanding the legal implications of unpaid leave is crucial. The H-1B visa, which allows U.S. employers to hire foreign workers in specialty occupations, comes with stringent requirements to maintain lawful status. Taking unpaid leave can be particularly risky if not managed correctly, as it may lead to a violation of legal status. 

1. Understanding the Legal Requirements

 According to the regulation outlined in 20 CFR 20 CFR 655.731(c)(7)(ii) , H-1B workers must be in a "productive work" status while employed. However, certain situations allow for unpaid leave without violating this requirement:

Voluntary Non-Productive Status: If an H-1B employee requests and is granted unpaid leave for personal reasons, such as medical or family-related issues, they can maintain their legal status. The leave must be voluntary, meaning it is initiated by the employee and not due to a lack of work from the employer.

Employer-Authorized Leave: The employer must authorize the leave, and it must comply with the company’s leave policies and applicable federal laws. This means the employer must document the leave appropriately and maintain the employee’s status as an active, albeit unpaid, employee.

Equal Treatment:  H-1B workers must be treated in the same manner and enjoy the same leave benefits as other U.S. workers. 

2. Permissible Reasons for Unpaid Leave

Medical Leave: If an H-1B worker needs to take time off for a medical condition, they may do so without violating their status. This includes leave under the Family and Medical Leave Act (FMLA), which allows eligible employees to take up to 12 weeks of unpaid leave for certain family and medical reasons.

Maternity/Paternity Leave: H-1B visa holders are entitled to unpaid leave for maternity or paternity reasons, in line with company policy and federal law. The leave must be voluntary and properly documented by the employer.

Personal or Family Emergencies: Unpaid leave for personal reasons, such as a serious car accident, attending to a family emergency or dealing with personal matters in the home country, is allowed as long as it is requested by the employee and authorized by the employer.

3. Maintaining Legal Status During Unpaid Leave

To ensure that unpaid leave does not result in a violation of legal status, several key conditions must be met.  First, during unpaid leave, the employer-employee relationship must remain intact. The employer should continue to consider the individual as an employee, even if they are not receiving a paycheck. This includes keeping the position open for the employee’s return and documenting the leave appropriately.

Second, proper documentation is required. This includes a formal leave request from the employee, approval from the employer, and records showing the legitimate reason for the leave. This documentation can serve as evidence in case of any inquiries from the USCIS.

Temporary Nature of Leave: The leave must be temporary, with a clear intention for the employee to return to work after the leave period. There should be an expected return date, even if it is subject to change depending on circumstances.

4. Risks of Non-Compliance

Failing to comply with the regulations governing unpaid leave can lead to significant consequences for H-1B visa holders including, loss of H-1B status and denial of future U.S. visa applications.  There are also legal repercussions for employers too.  Employers who fail to comply with the documentation and authorization requirements may also face legal repercussions, including penalties under labor laws such as repayment of back wages.

5. Steps to Follow Before H-1B Workers Considering Unpaid Leave

Before taking unpaid leave, it is advisable to consult with an immigration attorney. Legal counsel can provide guidance on how to document the leave and ensure compliance with USCIS and Department of Labor (DOL) regulations.  Also communicate with employer early on to ensure that your employer is fully aware of your situation and willing to authorize the leave. Obtain written approval and keep a copy of all relevant documents for your records.  Familiarize yourself with your employer’s leave policy and the applicable laws, such as the FMLA, that may protect your right to take unpaid leave.


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




Tuesday, August 27, 2024

Federal Court Temporarily Halted PIP Approvals for Spouses and Step-Children of US Citizens

 


Biden Administration's Parole-in-Place (PIP) or "Keeping Families Together" program became effective on August 19, 2024. However, 16 States, led by Texas, filed a lawsuit to stop the implementation of the program.  On August 26, 2024, a federal judge in Texas issued an order to temporarily stop the program for 14 days, which can be extended. During this time, applicants may still submit PIP applications to USCIS, but USCIS may not grant parole in place.  The following are some additional clarification of the program: 

What are the basic requirements for the PIP program?

The applicant must be physically present in the United States and entered without having been admitted or paroled by immigration officers.  Both spouses of U.S. citizens and stepchildren of U.S. citizens may apply.  Spouse must be continuously present in the U.S. since June 17, 2014. Stepchildren must be continuously present in the U.S. since June 17, 2024. Spouse applicants must have a legally valid marriage to a U.S. citizen as of June 17, 2024.  Stepchildren must have a parent who was legally married to a U.S. citizen by June 17, 2024, and before the child’s 18th birthday. Also, stepchildren must be under the age of 21 as of June 17, 2024.  Applicants must not have a disqualifying criminal history, and must not pose a threat to national security or public safety.

Can an applicant who is in removal proceedings apply for PIP?

Applicants in removal proceedings may apply for PIP under this program if they are otherwise qualified. However, a pending PIP request does not prevent an undocumented applicant from being placed into removal proceedings by CBP or ICE. 

How can an applicant obtain an employment authorization document?

There is no automatic EAD associated with the PIP application.  However, after an applicant's PIP application has been approved, the applicant may apply for an EAD from USCIS based on the C11 category.  

How can an applicant with approved PIP apply for a green card?

Applicants with approved PIP would be considered in a period of authorized stay, which means they may apply for a green card through adjustment of status based on petitions submitted by their family members. However, they must still meet other requirements for adjustment of status.

What happens if a spouse applicant's U.S. citizen spouse passed away?

If the death occurred after June 17, 2024, the applicant will still be eligible.  USCIS allows widows and widowers to apply for parole status.  However, this applicant may or may not be eligible for adjustment of status (green card) later on. 

What happens if a spouse applicant and her U.S. citizen spouse divorce?

To be eligible for PIP, the applicant must be married to a U.S. citizen as of June 17, 2024, and stays married to the U.S. citizen until the time of filing the PIP petition.  

If I am granted PIP parole status as a stepchild of a U.S. citizen, what will happen to me if my parent and U.S. citizen stepparent divorce before I am able to apply to adjust my status (before my parole period ends)?

If your noncitizen parent and U.S. citizen stepparent divorce, you may continue to be eligible as an immigrant petition beneficiary and for adjustment of status if your stepparent demonstrates an ongoing bona fide parent-child relationship to you. This might include evidence that you and your stepparent reside together or that your stepparent provides financial and emotional support for your care.

If I am granted PIP status as a spouse of a U.S. citizen, what will happen to me if my spouse and I divorce before I am able to apply to adjust my status (before my parole period ends)?

Generally, you will be ineligible to adjust status as the spouse of a U.S. citizen if you and your spouse divorce before you apply to adjust status. To be eligible for immigrant petition approval or to adjust status as the spouse of a U.S. citizen, you must still be married to your spouse at the time of application and final adjudication, unless you qualify for exceptions.

In light of the recent lawsuit blocking the PIP program, should I still file an application now?

It is ultimately your decision.  Currently, USCIS is still accepting applications but may not approve them.  The final result of the lawsuit is unclear now.  Generally, applicants have a pending application are entitled to more legal rights than those who do not.  In fact, USCIS has already approved some applicants' parole status who submitted their applications early on before the lawsuit was filed.


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