I am oftentimes asked by people who are ineligble to get Lawful Permanent Residency (LPR/greencard) in the United States about going overseas to complete a waiver process, known commonly as an I-601.

The risk and fear is that it will take too long and may get denied. Both are reasonable concerns and many people feel that if they leave it will take years. While this is true in a few cases, generally, if after consulting with my office we decide to proceed with an overseas petition process, the wait times can be as short as a few months or generally in the 6-12 month range. Below are the latest processing times.

As you can see the majority of cases are completed within 6 months, except for El Salvador which takes just less than a year for 100% completion, Honduras which takes over year, and England where the Consulate clearly takes their time.

Ricky Malik, Esq.

Ricky Malik, Esq.

www.rmlegal.com

In the Federal Register on Monday, January 9, 2011 a new proposed provision will be publshed allowing many undocumented immigrants to process their waivers while inside the United States. For many years, certain immigrants were afraid to leave the United States to process their "greencards" because they feared their waivers (pardons) would be denied thereby barring re-entry into the United States for 10 years.

Now the Obama administration is changing the law to allow immigrants to process the waivers inside the United States taking away the risk of going overseas and getting denied. However, the immigrant will still have to leave the U.S. to pick up his/her immigrant visa but will not wait for months or years while the waiver is being processed. This concept of still having to leave will please the Republican oppostion as they have been proponents of legalization only if ther person goes overseas to get their visas. This seems like a good compromise on its face that should please all sides.

Below is the release from USCIS:

Ricky Malik, Esq.

www.rmlegal.com

The Board of Immigration Appeals in Matter of Cruz De Ortiz issued a decision overturning the long held belief by many that your greencard (LPR) status cannot be taken away once five (5) years passes. The BIA held that INA 246(a) rescission of LPR status is available beyond 5 years for those who obtained Immigrant Visa from Consulate.

That is good news for those who adjusted status inside the United States (usually through form I-485), but those who entered on an Immigrant Visa from their embassies are not protected by the five year statue of limiations rule. Case below.

Cruz De Ortiz

Ricky Malik, Esq.

www.rmlegal.com

B-1 in Lieu of H-1B or H-3

Foreign nationals who would ordinarily be granted H-1B or H-3 (training) status may be admitted with B-1 visas provided that they are paid from abroad. For a B-1 in lieu of H-1B visa, the foreign national must present proof that he or she will remain employed by his or her overseas firm. A person in B-1 in lieu of H-1B status may provide local services for a limited time.

Note, it is essential that the remuneration or source of income for services performed in the United States continue to be provided by the business entity located abroad


Ricky Malik, Esq.
Attorney at Law

B-1 Business
Visa permits a person to come to the United States temporarily for attending business meetings or trade shows, buying goods, conducting research, or other commercial activities.

To qualify you must demonstrate:
-The purpose of your trip is for business
-You plan to stay for a specific, limited period of time
-You have social and economic ties outside the United States and you will return at the end of your visit

Examples of B-1 activities . The FAM sets forth many examples of permissible B-1 activities.  (See also INS Office of Business Liaison, Employment Information Bulletin 99-03, "Permissible Activities for a B-1 Business Visitor" (June 2000).

§     Professional athletes playing in tournaments, events, and competitions;
§     Members of boards of directors attending meetings;
§     Installing equipment purchased from overseas pursuant to a contract, or service or repair of commercial or industrial machinery;
§     Religious activities;
§     Attending conferences or seminars;
§     Setting up an E-2 enterprise-but not running it;
§     Consulting and meeting with clients;
§     Observing and conducting business;
§     Crew joining a vessel.
§     Engaging in commercial transactions (i.e., buying or selling) which do not involve gainful employment in the United States;
§     Negotiating contracts;
§     Consulting with business associates, including attending meetings at a U.S. corporation;
§     Litigating;
§     Participating in scientific, educational, professional, or business conventions, conferences or seminars;
§     Undertaking research.
§Professors on Honorarium only.
§Certain Chefs and Cooks, Religious Workers, Ministers, Personal Domestic Servants, Professional athlete, airline employee, elective clerkship students, commercial truck drivers, attending executive/professional seminars, race track personnel, etc.
§    Installation, service, or repair of commercial or industrial equipment.[1]

Key questions (if any one is answered YES, then visa will NOT be issued):

1.     Will the individual be compensated (i.e., beyond reimbursement for expenses or per diem) from a U.S. source?

2.     Will the individual, even if uncompensated, perform services for which a U.S. worker would have to be hired or are the services inherently part of the U.S. labor market?

3.     Are the services primarily benefiting the U.S. entity as local work or hire (as contrasted with benefiting the alien him or herself or the foreign employer in furtherance of international trade)?

This case tries to close the door on K-1 entrants adjusting through subsequent marriages to US Citizens.

Nonetheless the case does help clarify one issue that we have run into before, namely that "A fiancé(e) visa holder may be granted adjustment of status ... even if the marriage to the fiancé(e) visa petitioner does not exist at the time that the adjustment application is adjudicated, if the applicant can demonstrate that he or she entered into a bona fide marriage within the 90-day period to the fiancé(e) visa petitioner."

This is good news for those K-1 entrants who did marry in good faith within the 90 days but whose relationships may have unfortunately failed. Matter of Sesay.

Sesay K-1
Ricky Malik, Esq.
www.rmlegal.com

U.S. Citizenship and Immigration Services (USCIS) announced that it is now issuing employment and travel authorization on a single card for certain applicants filing an Application to Register Permanent Residence or Adjust Status, Form I-485. This new card represents a significant improvement from the current practice of issuing paper Advance Parole documents.

The card looks similar to the current Employment Authorization Document (EAD) but will include text that reads, “Serves as I-512 Advance Parole.” A card with this text will serve as both an employment authorization and Advance Parole document. The new card is also more secure and more durable than the current paper Advance Parole document.