Non-immigrant Visas, R-1 visa

H-1B vs R-1 for M-ssionaries

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I have mostly been writing about coming to the US as a m-ssionary in R-1 status.   There is another option.  However, I think that it is a difficult option to work with.   That option is the H-1b.   The H-1b is a temporary option for professional employees to come to the US — usually this would be positions that require a college education.  The advantage of the H-1b is that it usually doesn’t have as much paperwork involved.  You don’t need to prove two-years membership in a denomination.   You usually don’t need to provide all the information that is required for an R-1 about the employing m-nistry and the nature of the employment and all the information about the job.  You don’t have to submit as much evidence showing that the employer really needs the R-1 employee and you don’t have to prove that it is a “r-ligious” job.  Therefore, the H-1b would be available for m-ssionary jobs that are not so “r-ligious” but can still very much be “m-ssionary” service — such as accountants or computer IT workers.  I have obtained R-1s for many people in widely varying (not obviously r-ligious) areas of service — but I have drawn the line at accountants.  I have not been able to come up with a realistic argument for how being an accountant is a “r-ligious” occupation.

However, there are a number of reasons why an H-1b is often not the best fit for most people who would normally be applying for R-1 status or an R-1 visa.  The first is the money.   There are a number of significant filing fees that must be paid by the employing entityand the attorney must be hired by the employing entity.  Also, the wages that must be paid are, to a certain degree, set by the government.   The Department of Labor has decided what the minimum levels of income are that can be paid to an H-1b employee, and these tend to be significantly higher than what would be paid to most m-ssionaries — sometimes as much as twice as high or more.  Another disadvantage of H-1bs is that there is a limited number of them (and usually there are more people who want them than can have them).  This results in a high proportion of H-1b applications being returned unaccepted.  Finally, due to the way the H-1b process works, most new H-1b employees must start after September 30 of the year they are approved.   This could cause delay for people who otherwise would not need to wait that long.

The other major issue is the college degree.   The H-1b is only available if the position requires a bachelor’s degree and if the job applicant has a bachelor’s degree.   In other words, if the church requires a pastor who has a college degree then an H-1b could work.  But if your ministry needs a receptionist, you can’t use the H-1b because the USCIS will say that most receptionists don’t need college degrees.

Sometimes an H-1b would work.   Your ministry needs an accountant or a director or a college professor or an agricultural engineer for your ministry’s ranch or farm and you pay a reasonably high amount and you want to bring one from abroad — you can use the H-1b.   But, for most other types of positions, the R-1 will probably work better.  Some churches pay their pastors well enough to qualify for the H-1b, but even there it might be easier to bring a pastor through the R-1 program.   The R-1 requires more documentation, but it is more flexible and you can probably bring the pastor sooner —- and you don’t have to worry about being rejected simply because there are too many applicants for the visa.

I hope this is interesting and helpful.   Remember that this is not legal advice.  It is just a summary of certain aspects of immigration law which may or may not apply to your situation.   I encourage you to consult an attorney if you think any of this may apply to your situation.

Gunnar Armstrong

 

Citizenship

Applying for Citizenship before becoming a Permanent Resident

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Did you know that in certain limited circumstances, you may be able to apply for U.S. citizenship before you become a permanent resident?   Normally, before you can apply for citizenship, you need to be a US permanent resident (green card) for three to five years (three if you are married to a US citizen and five if not).   However, as many of you know, there is a special provision for people who are married to US citizens who are full-time m-ssionaries outside the US.   In cases like this, the spouse of the US citizen is allowed to apply for US citizenship without any required residence in the US.

Normally, I tell people who qualify for this that it means that they can apply for US citizenship the day that they enter the US and receive US Lawful Permanent Resident status.    They do not need to wait any longer before applying.

However, if their time is tight and they need US citizenship as soon as possible, there is another option.   If you qualify to file for US citizenship as the spouse of a US citizen who is a full-time m-ssionary, then you might be able to file for citizenship even before you land in the US with your immigrant visa.   You need to file first for the immigrant visa and then you file for citizenship while you are waiting.  It might also be possible if you are currently in the US to file for citizenship while you are waiting for approval of your adjustment of status application.  I have helped one client file for citizenship before they entered the US.   I have never done it with someone applying for adjustment of status but it might be possible.

However, before you jump at this, you need to know the caveats.  The first is that you need to qualify for this m-ssionary-based citizenship process.  There are a number of requirements for this process.  The most important is that within 45 days after becoming a US citizen, both spouses need to leave the US for a year-long commitment as m-ssionaries overseas.  The second caveat is that it is somewhat risky.   You may wind up getting someone at the USCIS who doesn’t realize that this is possible and deny you (meaning that you lose the money you spent) — I know of no “official” rule saying that this can be done — it just has been something that they allowed — and they probably still do, but I can’t guarantee it.  The other problem is the fingerprints.   It used to be easy — you just got fingerprints on a fingerprint card and submitted them with the application.   However, it is more difficult to get fingerprints anymore.  There are very few places overseas which will do fingerprints that the USCIS will accept — usually only USCIS offices overseas and they have been closing and consolidating.  Finally, I have never done this for an Adjustment of Status.  I think it might work and it is easier to get fingerprinted for the USCIS in the States.  I think this would work, but you would need to want it enough to be the guinea pig!

If you think this might interest you, feel free to contact me for further information.

I hope this is interesting and helpful.   Remember that this is not legal advice.  It is just a summary of certain aspects of immigration law which may or may not apply to your situation.   I encourage you to consult an attorney if you think any of this may apply to your situation.

Gunnar Armstrong

 

Applying for a Visa, R-1 visa

Preparing to apply for an R-1 Visa at a Consulate

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So you have your R-1 petition approval?  What is next?  If you are outside of the U.S., you need to apply for an R-1 visa at your nearest U.S. Embassy or Consulate.   If you are in the U.S., and you want to travel, you will need to go to an U.S. Embassy or Consulate to get an R-1 visa before you return to the U.S.

In January I wrote about applying for a visa at a Consulate.   Now we will discuss the particular considerations that you need to have if you are applying for an R visa.  But first I want to discuss whether or not you should apply for an R visa.

Of course, if you were out of the US when your sponsoring/employing organization filed the petition, you need an R-1 visa in order to come to the U.S.  You don’t have a choice.    However, if you changed status to R-1, or extended your R-1 status, then you need to decide if you want to take the risk of filing for an R visa — the same considerations apply whether you are the primary R-1 applicant or an R-2 dependent.

What I am talking about is that it is becoming increasingly risky to leave the US to apply for an R visa.    I am not sure exactly why.  I think that there has been increased pressure for the consulates to “vet” the visa applications.   It used to be that an R visa denial was very rare.  Now, it is not uncommon.   A number of the denials, in fact were based on improper reasons, and I would get conflicting answers when I requested explanations.  And now, the US Department of State has even changed the rules for approving R visas.  It used to be that they were supposed to treat the USCIS Approval as binding unless they find something that the USCIS didn’t know about — but now they have more freedom to question the approval itself.   And I have been seeing an increased amount of questions that reflect what the consulate staff wants to see and not what the statute requires.   For example, the position may not require a theological education, but the consulate officer may ask the visa applicant why they don’t have a theological education.

The other problem is that the consulates seem to be increasingly strict about making sure that the position pays enough to cover the visa applicant’s needs.  The R statute and regulations are quite flexible on income — it doesn’t have a minimum, it just requires compensation.   I deal with a lot of m-ssionaries who have quite low incomes, and I have been always able to get approvals for them.   However, lately, some consulates have been more demanding in this regard to income as well.

I am not saying that you should not apply for an R visa.   Most of my clients still get their visa applications approved.   What I am saying is that it is more risky than it used to be, and I recommend only applying for a visa if absolutely necessary.    It would be sad to spend all that effort and money to get an approval from the USCIS only to lose it all because of a denial at the consulate.   Once the consulate denies you, you will not be able to come back to the US in  R status unless you can convince them to change their mind — which is very difficult.

Now, back to what you need to do.   Last week I discussed the general outline of applying for a visa.   Now, I will briefly discuss what you need for an R visa.  In general, it is the same as what I wrote last week.   The additions are that you need a letter from your R-1 employer confirming that the terms of the R-1 petition are still in effect and that you will begin working with the R-1 employer as soon as you enter the US in R status.   If you have already been working for the R-1 employer, you should bring proof that you have been paid.

You also need to be ready to discuss you’re the nature of your R-1 employment — what the job requirements are (education, work experience, etc.), and the religious nature of the employment.   If there are educational or experience requirements you will need to have proof that you completed these requirements.  It is very important that you are able to explain the r-ligious nature of the position if it is not a typical m-nister or m-ssionary position.   I have been able to get R-1s for a variety of positions that are not what you would necessarily think of being “r-ligious” positions.   These are positions that are typically “secular”, but in this case have a strong “r-ligious” emphasis.  Too often, my clients just want to say, I will be a teacher or mechanic or a video editor or a camp director.   You cannot get an R visa for being a teacher or mechanic or a video editor or a camp director.  You can only get an R visa for being a r-ligious worker.   You need to explain how your position is r-ligious — how you will be teaching r-ligious subjects or teaching them in a way that emphasizes G-d’s truths, or, as a mechanic or camp director, working with students or young people to mentor them sp-ritually as they work with you or attend the programs at your camp or how you will use your editing skills to produce videos that communicate the truths of the B-ble.

You also need to be able to explain what the compensation is that you will be receiving.   Sometimes this is simple — if you will be receiving a regular paycheck.   But if it is food and housing that your employer will be providing to you, you need to be able to explain that to them.  Many times, people come to the US as m-ssionaries on a B visa and they are given room and food to allow them to stay here and serve.   That is not compensation.   But, when a person is here on an R visa, that becomes compensation.   That can be confusing, but it is an important distinction.

In summary, most people with R approvals from the USCIS will get their R visas.   However, you need to be prepared.   The R Visa interview can be difficult and you need to be ready to discuss the most common issues that may come up.

I hope this is interesting and helpful.   Remember that this is not legal advice.  It is just a summary of certain aspects of immigration law which may or may not apply to your situation.   I encourage you to consult an attorney if you think any of this may apply to your situation.

Gunnar Armstrong

757 Appleton Road, Elkton, MD 21921

Gunnar.L.Armstrong@gmail.com

 

Uncategorized

SUNSET DATE COMING UP — PRAY FOR EXTENSION OF RELIGIOUS WORKER GREEN CARD LAW.

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PLEASE NOTE: The following discussion only applies to Non-M-nisterial R-ligious Worker Immigrants. This does not apply to people who are applying for R-ligious Worker Immigrant status as m-nisters. AND this does NOT apply to R-1 (or R-2 for spouses/dependent) visas. If you are applying for an R visa or R status, or are here in R status, this Sunset date and the following discussion will have no affect on you. This also does not apply to people who are spouses of US citizens who are coming on a spousal immigrant visa — even though they may be m-ssionaries and might be doing R-ligious work, they are not coming on a R-ligious Worker visa. Also if you now have your R-ligious Worker green card, this discussion will have no effect on you. They will not take it away if it is already approved.

There is a special immigration program that allows m-ssinaries to come to the U.S. permanently. However, it is based on a statute that has a Sunset Date — meaning that on that date, the immigration program will end. The statute actually has two parts — one for m-nisters and one for R-ligious workers. The immigration program for the m-nisters does not expire. But they put a Sunset Date in the part of the statute governing R-ligious workers.

That Sunset date used to come every three years, and for quite a while, they extended the program every three years. However, since 2015, the “non-m-nister” Green Card law has only been extended for one year — so it is now expiring every September 30.

There is every reason to expect it to be extended again this year. It has been extended every time it has expired. However, you never know for sure, and that is why I encourage people to pray.

Also, part of the problem is that it is extended as part of the budget extension. And, because the Republicans and Democrats fight over the budget every year, sometimes the budget doesn’t get approved by September 30. Sometimes they put in a stop gap measure that extends the current spending (and the R-ligious Worker Green Card law) for a couple of weeks or months (once it was only extended for about 9 days), and then they may extend it again for a couple of months, or they may approve it until the next September 30 again.
In addition, sometimes there is a gap — they might not approve the extension of the budget (and the R-ligious Worker Green Card Law) for a week or two after the Sunset date. And, in those cases, all of my clients with pending R-ligious Worker green card cases are left in limbo. If the law is never extended they will never get their green cards. After September 30, if the law is not extended, they will be here illegally unless they have some other basis to be here (like their R-1 status is still valid). Likewise, after September 30, if the law is not extended, they are not allowed to continue to use their Employment or Travel documents.

But there is no real reason to be concerned or to stop working or leave the country. The law has always, so far, been extended. And when it is extended, it will retroactively cover the gap — the time period after September 30, until when the extension is approved.

If, at some point, Congress should approve the budget and not extend the R-ligious Worker Green Card law, then we will need to deal with that. Most of the people who have filed for a R-ligious Worker Green Card will have to stop working and leave the country unless have another basis for being here, and they will not get a green card. Similarly, people who are out of the US hoping to apply, or in the process of applying for an immigrant visa will not be able to get one — probably even if they are a wife and/children of someone in the US who has a R-ligious Worker Green card. But as I said, that has never happened before and hopefully will not happen now.

IMPORTANT REMINDER: As I said above, this only applies to Non-M-nisterial R-ligious Worker Immigrants. People who are applying for R-ligious Worker Immigrant status as m-nisters will continue to be eligible to receive green cards because their program does not have a sunset date. AND this does not apply to R-1 (or R-2 for spouses/dependent) visas. If you are applying for an R visa or R status, or are here in R status, this Sunset date will have no affect on you. This also does not apply to people who are spouses of US citizens who are coming on a spousal immigrant visa — even though they may be m-ssionaries and might be doing R-ligious work, they are not coming on a R-ligious Worker visa. Also if you now have your R-ligious Worker green card, this discussion will have no effect on you. They will not take it away if it is already approved.

I hope this is interesting and helpful. Remember that this is not legal advice. It is just a summary of certain aspects of immigration law which may or may not apply to your situation. I encourage you to consulate an attorney if you think any of this may apply to your situation.

Gunnar Armstrong
757 Appleton Road, Elkton, MD 21921
Gunnar.L.Armstrong@gmail.com

Public Charge- Financial Requirements

NEW FINANCIAL REGULATIONS FOR IMMIGRANTS AND NON-IMMIGRANTS – PUBLIC CHARGE ISSUE

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On February 24, 2020, new Regulations suddenly came into force which may have serious impact on people’s ability to immigrate or extend their current non-immigrant status in the United States.   These regulations were to come into force in October 2019, but were stopped by court challenges.    The Supreme court then allowed the regulations to be put into effect, and the U.S. government started enforcing them on February 24, 2020.

In one way, this could be a major change.  In another way, it might not be a major change—we will need to see how the change will be implemented.

Immigration law has never allowed a person to immigrate or enter the US, even on a non-immigrant visa such as a tourist, student or r-ligious worker, if they will not be able to provide for themselves.  This has always been true, but it is now becoming even more important.

There are two reasons for this requirement.   The first reason, which related to most nonimmigrants, was the concern that if the visitor did not have enough money, they may try to work illegally while they are here.  This has been the main issue in regard to most non-immigrants.   It was not an issue for most immigrants because they are allowed to work.  However, some immigrants, like r-ligious worker immigrants, may have had trouble in this regard if their missionary income was so low that there was a danger that they would need to pick up non-r-ligious work to pay their bills.

The other reason why finances have been important is the public charge issue.   A person who entered the US and was unable to pay his bills could become a public charge.  A public charge would be a person who depends on the government or society to support him.  That is why both immigrants and non-immigrants were not supposed to be able to access welfare, especially cash assistance.

It was because of this public charge issue that the government developed the special Affidavit of Support for immigrants who come to the US through a family member.  The family member has to fill out this Affidavit of Support to guarantee that the immigrant will not go on welfare.    Other immigrants and long-term non-immigrants (like R-1 r-ligious workers or H-1b professionally workers) do not need an Affidavit of Support, but instead need to show that they have a job that will provide for their needs.

Up until now, these two financial issues have been important, but they were not overly strictly applied.   Non-immigrants had to show that they had money to pay their way, but it was usually not overly difficult to show that.   R-ligious workers often could get approval as long as they could show that they would be provided with room and food.   Family-based immigrants needed to have the Affidavit of Support filled out, but as long as the sponsor met the basic minimum income level — 125% of the poverty level, there usually was no problem.

It looks like things may be changing under the new regulation.   President Trump has been putting much more emphasis on requiring immigrants and non-immigrants to show that they will not be a public charge.   I expect that this could also result in more scrutiny regarding the first issue — whether or not a non-immigrant has enough money to pay his own way — because the basic financial questions are very similar.  An alien who can’t pay his way may become a public charge unless he engages in illegal work.   I have seen evidence that both the USCIS and the Consulates were becoming more strict in their requirements that people coming to or staying in the United States demonstrate that they will not become a public charge and that they will be able to pay their own way.  Now that there is a new regulation in force, we may see a whole new level of scrutiny regarding these issues.

THE NEW PUBLIC CHARGE RULES:

As I stated above, these new rules don’t really change things much.  The USCIS has always had discretion to make their own decision regarding the Public Charge Rule and they still have the same discretion.   What has changed is that the new rules send a message that they are to be stricter in their review of financial issues, and the new rules give a number of new criteria that they are specifically told to consider.    What the USCIS and the Consulates will do with these new directives we will have to see.  However, it is important to be as prepared as you can.

The first thing to know is that the new rules emphasize that if you are a nonimmigrant or a person hoping to become an immigrant, after February 24, 2020, using welfare as an adult — Medicaid, cash assistance, food stamps (SNAP), subsidized or public housing, or SSI (Cash assistance for disabled or older people) will be viewed negatively, and too much use of welfare will be heavily weighted against you.   If a person is under 21 and unmarried, the use of Medicaid will not be held against him.  If an adult uses Medicaid due to an emergency medical condition, this is also allowed.  If you are over 21, or are married, and have been using any of these forms of welfare, you should immediately disenroll from the welfare benefit and get proof that you have disenrolled.  

It should not be a problem that this is shortly after February 24.   It appears that use of welfare for a short period will not be viewed too negatively.   But continued use will be viewed very negatively.   Continued use would mean using welfare for twelve months in any 36 month period.  It is also important to understand that using two benefits in one month will count as using two months-worth of benefits.  In other words, if you have SNAP and Medicaid together for six months, you will have reached the 12-month mark and it will be weighted heavily against you in the Public Charge determination.   Therefore, if you are in non-immigrant status and hope to extend your status or to get a green card, or if you are in the United States illegally or in some status such as parole or DACA or TPS and hope to obtain a green card, and you are using welfare at the current time, you should immediately disenroll from all forms of welfare.

Remember that these restrictions do not apply to a child who is receiving Medicaid.  Also, it does not apply to US citizens who are receiving welfare.   It is not supposed to be a problem at all for children to receive medicaid or for US citizen family members to receive any type or welfare — but I think it is best that you avoid it if you can.  Immigration is not supposed to hold this against you, but I can’t guarantee that the fact that your family members qualify for welfare won’t be considered in some way.

Also remember that this discussion does not relate to persons holding green cards — people holding green cards are not supposed to be receiving welfare at all.

Another significant change is that the new regulation specifically states that the Affidavit of Support (required only for family-based immigrants) is now clearly not sufficient on its own — and the immigration officer is directed to determine how likely he thinks it is that the Sponsor will actually carry through on his promise.  This is different from past practice, but the officers always had the authorization to not solely rely on what is written in the Affidavit of Support.

The other changes are that the new rule lists various factors that the USCIS and the Consulates should consider.   Please remember that most people may have some positive and some negative factors.   The presence of some negative factors should not be a problem.  The USCIS and the Consulates are supposed to look at all the factors together and reach an overall decision.  The factors are as follows:

  • Is the immigrant between 18 and retirement age (This is a positive factor. Apparently, the presence of children or older persons is a negative factor because they are less likely to be able to support themselves).
  • The alien’s health. Is he able to work?  If not, or if he has a serious medical condition, does he have a way to pay for the medical bills?
  • The Alien’s household size. Apparently, a larger family will be viewed as a negative because they will require more money to keep them off welfare.
  • The alien’s income and assets. Whether or not he has enough income and assets to keep him off welfare without anyone’s help.   They would like to see enough income an assets to equal 125% of the US poverty level for the size of the alien’s family.   For one person, 125% of the poverty level in 2020 is $16,000; for two people, $21,550; for three people, $27,150; for four people $32,750, and so forth.   They will also look at the alien’s debts and their most recent Tax Return and credit history.
  • The alien’s education and skills. Is he qualified to get a job in the US?
  • The Affidavit of Support. As I stated above, this is now just one aspect of the consideration.   However, I think that it will continue to be a major consideration.  I am advising my clients, especially if they do not have good income or assets, to try to get a Joint Sponsor who makes as much money, or who has a lot of assets/savings.   I think that the days of having a Joint Sponsor who just barely qualifies are now in the past.   The government also wants evidence of the ties between the immigrant and the Joint Sponsor.  They want evidence that the Joint Sponsor really is committed to upholding their responsibilities under the Affidavit of Support.

Heavily Weighted Factors.   The rule sets out some guidelines that are supposed to be especially important in the decision making.   Again, the presence of just one heavily weighted negative factor should not be enough, by itself, to cause the government to deny your application.

Heavily weighted Negative Factors:

  • The alien is not a full time student and does not have a recent employment history, is not employed or cannot demonstrate a reasonable prospect of future employment.
  • The alien has used welfare for 12 out of the 36 months immediately preceding his application for admission. (the USCIS has stated that it will not consider any use of welfare before February 24, 2020).
  • The alien has a major medical condition that will require extensive treatment or interfere with his ability to work and the alien is uninsured and cannot get private health insurance and does not have the resources to pay for medical care.
  • The alien was previously found inadmissible or deportable on public charge grounds by an immigration judge or the Board of Immigration Appeals.

Heavily Weighted Positive Factors:

  • The alien’s household has income at 250% of the poverty level.
  • The alien is legally working and earning over 250% of the poverty level.
  • Health Insurance — not including Obamacare with its tax credits.

The USCIS or the Consulate is supposed to look at all of these factors and make a decision.    I think that a strong Affidavit of Support will still be very helpful, especially for people who do not have any of the Heavily Weighted Positive Factors.  And most people will not have more than one, if any, of the Heavily Weighted Negative Factors.

Important observations:

  • As I stated above, if you need a Joint Sponsor, you want to get as strong an Affidavit of Support as you can. I think it will still play a significant role in the decision making.
  • If you can get insurance, that is a strong positive. I think that the Chr-stian Healthcare Sharing M-nistries are probably helpful in this regard, but I don’t know if they will satisfy the requirement for a “Heavily Weighted Positive Factor”. But, they should, at least, provide evidence that you have the resources to care for any health problems that will come up.

In short — in one way nothing has really changed except the clear negative impact of continued use of welfare.   The USCIS and the Consulates were always supposed to look at the “big picture”.   The real difference now is that they are explicitly told to look at all these different factors.   I do not know how much difference there really will be under these new factors — we will have to wait and see.

SO HOW WILL THIS AFFECT YOU?

  • R-1 R-ligious workers:
    1. The income standards so far have been very lax for R-1s. I have historically had no problem getting approval for R-1 workers who make less than the poverty level.    This may continue — but it may not.  I have already had one person recently get an R-1 visa denied for financial reasons, and I am certain that a year or so earlier, the approval would have been easily granted.
    2. The upshot is that the stronger you can make the financial situation in your R-1 applications, the better.
    3. Under the statute, room and food is sufficient as “compensation” for R-1 status — but it may not be enough for the consulates, and it is possible that even the USCIS may start to require proof that the total value of the “compensation” is over the poverty level or, perhaps, even over 125% of the poverty level.
  • Special Immigrant R-ligious Workers (R-ligious Worker Green Cards) (whether going through a consulate/embassy or an Applicant for Adjustment of Status):
    1. The income standards so far have been very lax for Special Immigrant R-ligious Workers.   I have historically had no problem getting Green Cards for workers who make less than the poverty level.    This may continue — but it may not.
    2. The upshot is that the stronger you can make the financial situation in your petitions, the better.
    3. Under the statute, room and food is sufficient as “compensation” for a Green Card — but it may not be enough for the consulates, and it is possible that even the USCIS may start to require proof that the total value of the “compensation” is over 125% of the poverty level.
    4. Be prepared for more inquiry regarding your ability to stay off welfare when you enter the US/Adjust Status. Be prepared to provide additional evidence regarding your ability to work, educational and credit history.
    5. Insurance, or at least a Healthcare Sharing M-nistry is probably much more important.
  • Family-based Immigrants (whether going through a consulate/embassy or an Applicant for Adjustment of Status):
    1. Be prepared for more inquiry regarding your ability to stay off welfare when you enter the US/Adjust Status. Be prepared to provide additional evidence regarding your ability to work, educational and credit history.
    2. Up until now, as long as you could get an Affidavit of Support where the income totaled 125% of the poverty level, that was enough. That possibly will remain true.  However, now, I don’t think you can be completely confident with such an Affidavit of Support.  If there is any way that you can get an Affidavit of Support from someone with a higher level of income, that will be preferable.  This is especially important for spouses of m-ssionaries who often have lower incomes and are not looking to get “regular” work here in the US.
    3. If there is any way that you or your spouse can arrange to get a job offer in the US with enough income to provide for your family at 125% of the poverty level, you should try to do that before your interview at the embassy or for Adjustment of Status.
    4. Insurance, or at least a Healthcare Sharing M-nistry is probably much more important.

How things will change in practice, I can’t say for sure.   But get off and stay off welfare, get insurance or at least membership in a health care sharing m-nistry, get as strong an affidavit of support as you can, and be prepared to show how you and your family will not need to go on welfare.

I hope this is interesting and helpful.   Remember that this is not legal advice.  It is just a summary of certain aspects of immigration law which may or may not apply to your situation.   I encourage you to consulate an attorney if you think any of this may apply to your situation.

Gunnar Armstrong

Non-immigrant Visas

Applying for a Non Immigrant Visa at a Consulate

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What follows is general information about how to apply for a non-immigrant visa at a consulate.   Each consulate will have different details, but what I have here is fairly representative of what you will need.  At the end I have a list of documents that you will need.  Again, this will vary depending on they type of visa, but it is a fairly representative list.

The first thing that you need to do is to go to this website to fill out an on-line visa application — form DS-160:  https://ceac.state.gov/genniv/.    After you have completed and submitted the on-line visa applications, you should print out the confirmation page which you will bring to the Consulate.

After completing and submitting the on-line visa application, you must then go to an on-line visa interview processing webpage, run by one of several organizations (which are contracted by the US Department of State to provide visa application support services).   The link to this website will be found at your consulate’s non-immigrant visa webpage.  There, you will register and login and they will guide you through the process of paying your non-immigrant visa fee, scheduling your interview, making arrangements for delivery of your passport and visa after the interview and, probably, arranging to go get your fingerprints taken at the ASC (Application  Support Center) (not every embassy/consulate requires that fingerprints be taken beforehand).

If you can’t figure out how the on-line web portal works — it can be very confusing, you can usually also find a phone number which you can use to talk to the organization that runs the webpage.  They will usually be willing to do everything over the phone instead of on-line.

The visa fee can often be paid on-line.   They may offer you the option of paying at a bank or at the Consulate.   Or, sometimes, they will require you to pay at a bank or at the Consulate.

This is a list of the most important things that you should take with you to the Embassy/Consulate.   Review the information that you have from the Embassy/Consulate and any information on the scheduling notice.

  1. Your valid passport. Usually it needs to be valid for six months after your expected entry to the US.
  2. A 2 x 2 passport style photograph (you will also need to have uploaded this photo into your I-160 application). You probably do not need this, but a number of Embassy/Consulate websites say that you do need it.
  3. The Confirmation letter from your DS-160 visa application form.
  4. Your appointment Confirmation Notice.
  5. A receipt for the payment of your visa fees.
  6. Proof that you have made arrangements for the delivery of your visa (not required everywhere).
  7. You will need documents showing that you qualify for the visa type that you are requesting.
  8. Evidence of ties to your home country. This is becoming increasingly important.    They are starting to ask for this type of evidence more and more often.   Remember that any documents that are not in the language of the home country of the Embassy/Consulate will need to be translated into English.  Types of possible evidence:
    1. Household registers listing your name (Japan, China, Korea, and others)
    2. Evidence of bank accounts or other assets in your home country.
    3. Evidence that you own property or have a lease on an apartment in your home country.
    4. If your home address is the address of family or friends, a letter from them stating that this is your permanent residence and that you will be returning to live there when you leave the United States. This letter should have the address of the person signing it, be dated, printed out and signed, and then scanned and e-mailed to you.
    5. A letter from your parents or other relative in your home country listing your close relatives in your home country and their relationship to you. This letter should have the address of the person signing it, be dated, printed out and signed, and then scanned and e-mailed to you.
  9. If you are a family member/dependent of the main applicant you will need your original marriage/birth certificates to show your relationship.
  10. You will need proof that you will be able to support yourself and pay your way while you are here in the US. If you are coming on an employment visa, proof of your wages should suffice.

After the interview, if they approve you, they will take your passport and put the visa in it.  They will then return it to you by whatever manner you chose in the on-line web portal.

Sometimes, they hold your visa for Administrative Processing.  That means that they don’t like something and they want to look at it.  Usually Administrative Processing doesn’t take too long, but it can easily take several weeks or longer.  Often they request additional documents.  Many times after Administrative Processing they approve the request, but they also often deny the visa.

When you get the visa, it will have a validity period and a number of entries.   The validity period says how long the visa is valid for.   That means, you can enter the US until the last day of the validity period of the visa.  When you enter the US, the Customs officer will decide how long you can stay — which may be the same time as the validity of the visa or less than the validity of the visa, or it may be longer than the validity of the visa.

The number of entries will indicate how many times you can use the visa to enter the US — 1 time or 2 times or more or “M”, which means “multiple” times, or in other words, as often as you like — as long as Customs will also agree to let you in.

I hope this is interesting and helpful.   Remember that this is not legal advice.  It is just a summary of certain aspects of immigration law which may or may not apply to your situation.   I encourage you to consulate an attorney if you think any of this may apply to your situation.

Gunnar Armstrong

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No greater gift has ever been given.

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18 Now the birth of J-sus Chr-st was as follows: when His mother Mary had been betrothed to Joseph, before they came together she was found to be with child by the H-ly Sp-rit. 19 And Joseph her husband, being a righteous man and not wanting to disgrace her, planned to send her away secretly. 20 But when he had considered this, behold, an ang-l of the L-rd appeared to him in a dream, saying, “Joseph, son of David, do not be afraid to take Mary as your wife; for the Child who has been conceived in her is of the H-ly Sp-rit. 21 She will bear a Son; and you shall call His name J-sus, for He will save His people from their s-ns.” 22 Now all this took place to fulfill what was spoken by the L-rd through the pr-phet: 23 “Behold, the virgin shall be with child and shall bear a Son, and they shall call His name Imm-nuel,” which translated means, “G-d with us.” 24 And Joseph awoke from his sleep and did as the angel of the Lord commanded him, and took Mary as his wife, 25 but kept her a virgin until she gave birth to a Son; and he called His name J-sus.

Matthew 1:18 – 25  NASB

Why we do what we do.

R-1 visa

Timing Considerations for R-1 petitions.

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When should you file for R-1 status?  That is a major question to be considered when you are looking at an R-1 petition.  Two weeks ago, 11/29/2019, I wrote that it usually takes about five months to get an R petition approved unless you qualify for, and can afford and can obtain, Premium Processing — which takes 15 days.   See last week, 12/6/2019, for further discussion regarding Premium Processing.  Knowing that, when should you file?

There are a number of factors that affect this decision.   Whether or not you are in the U.S.  When you want to start?  If you are in the US, the most important question is, are you in status?   You want to file before you are out of status if at all possible.  If you are still here in status when you file, you will normally be allowed to stay here while the application is processed (but see below).   If you are out of status, they will normally not allow you to stay here while it is being processed.

If you are currently working, you will want to consider whether or not you need to be working while the petition is in process.  If you expect to need to travel, that will also affect when you file.   Finally, if you are hoping to file for a green card, that will affect your decisions regarding timing as well.

Before we go any further, I want to remind you that the processing timing is not certain.   You should expect at least four to five months, and it can take longer — and that is just for the petition.   It will take two to four weeks to prepare a well-drafted petition.  If you are out of the country, and not in Canada, you need to plan on two to four additional weeks for your interview at the consulate in order to get your visa and come to the US.   If you are Canadian, you can simply come to the border with your petition approval notice, so there is no extra delay for Canadians.

The most important issue is that if you are in the US, you need to file while you are still here legally.   You can file up to the last day that you are in status.   As long as the USCIS receives the petition while you are still here legally, then, the generally accepted rule is that you can stay here until the petition is approved or denied.   This rule is not found in any regulation as far as I can tell, I believe it goes back to a letter written by a USCIS Commissioner decades ago.   However, it has been generally accepted by the USCIS as the rule governing whether or not you can stay here while you are waiting for a petition or application to be approved.

The reason I say “generally accepted” is that there is a regulation which has been interpreted by the USCIS to say the opposite — that if your status ends before the new petition/application is approved, they will not grant you a change or extension of status, they will require you to leave the US and apply for a  visa before you can come back in that status.   I have only seen the USCIS use this regulation a few times, and only with people who were in F status when the petition was filed and whose F status then ran out.   So, I tell people that they can reasonably expect to be able to stay here until the new petition is approved, but, if the USCIS should choose to enforce their interpretation of the regulation on you, they will pretend that the rule allowing you to stay doesn’t exist.

So, you can, normally, file up to the last day that you are here legally.  If you are in F status, and want to change to R status, you should be able to file up to the last day of your sixty-day grace period.   However, to minimize trouble with the USCIS, I recommend that you file, if you can, while you are still in school — before the start of the sixty-day grace period.

I suggest that you file about four months before your current status ends.  This reduces the time that you will be “between” statuses and reduces the likelihood of the USCIS deciding to apply their restrictive interpretation of the regulation instead of the more general and less restrictive rule.  Also, if you are already an R-1, and are applying for an extension, you are allowed to work for 240 days (8 months) after your current R-1 ends.   Filing four months early will give you plenty of time to continue working even if your R-1 should take eight or nine months to process, which is unlikely, but possible.

If you are filing to change status to R-1, and you want to start working as soon as the new R-1 petition is approved, then you should probably file about five months before your current status runs out.   I haven’t found any rule that states this, but the USCIS seems to disfavor filing more than six months before your current status runs out.   And, I know that the Premium Processing unit will reject a request for Premium Processing if you file more than six months before your current status runs out.

Another consideration to keep in mind is that if you have recently arrived in the US in something other than R status, you don’t want to file to change status to R until at least 90 days have passed after you have entered the US.   There is a new rule that if you file to change status within the first 90 days, they could decide that you committed visa fraud when you entered the US requesting one status but, apparently, intending to switch to another.

If you are out of the US, the factors are simpler.  You will want to file about five months before you want to come to the US.   It would be good to file before that, but I don’t recommend filing more than six months before you want to come to the US.

If you need to travel, you need to keep several things in mind.   If you need to travel on your current visa before you switch to R status, you need to wait until after you get back before you file the request to change status to R.  If you file the change of status request before you leave the US, it will be denied.   Also, if you file the change of status request within 90 days after your come back you run the risk of being charged with immigration fraud.   Once the petition is filed requesting R status, you cannot leave the US until you receive R status.   At that point, you can leave, but you will need to get an R visa before you can come back (unless you are a Canadian — who do not need visas).    So, you should file a petition to change status 90 days after you enter the US, and at least five months before you will need to travel because it will probably take that long to get R status unless you can successfully request Premium Processing.

Finally, if you are hoping to file for a Green Card.  I strongly suggest that, unless you have at least a year remaining on your R-1, you wait to file for a Green Card until after you have requested and received your R-1 extension.   I would recommend filing for your R-1 extension four or five months before your current R-1 runs out and then, after it is approved, wait 90 days if possible before filing for a Green Card.   This 90-day wait is not so important when you have R status and want to apply for a Green Card, but I would do it if you can.

I hope this is interesting and helpful.   Remember that this is not legal advice.  It is just a summary of certain aspects of immigration law which may or may not apply to your situation.   I encourage you to consulate an attorney if you think any of this may apply to your situation.

Gunnar Armstrong

 

 

R-1 visa

Premium Processing

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The USCIS offers a Premium Processing Service for those willing to pay $1,410 extra (this may be slightly increasing in the next several months) in regard to certain I-129 and I-140 petitions.   This Premium Processing Service is quite useful if you can afford it.  If you pay the $1,410 extra filing fee, the USCIS will give you a money back guarantee to process your petition in 15 days.   Within that 15 days, they will either approve it, deny it, or issue a request for further evidence.    The Request for Evidence, will, of course, delay things until you can provide the remainder of the evidence, but, once you return it to the USCIS, they will then have 15 days to either approve or deny.   So, in that case, the 15 days turns into 30 days (plus however long you take to gather and submit the requested additional evidence), but it is still much faster than waiting five to ten months for an approval.

Premium Processing is not available for all services provided by the USCIS.  Unfortunately, it is quite limited.  It is only available for certain I-129 and I-140 employer-filed petitions.   It will cover R-1 petitions, but only if there had previously been a successful USCIS site inspection at the location where the work will be performed.    It will not cover Religious Worker Green Card petitions (which are filed on form I-360).   Premium processing does not cover family-based immigrant petitions or any naturalization applications.

Important Note:  The fifteen-day processing fee only covers the work done by USCIS.   If you need to then apply for a visa at an Embassy, that process at the Embassy or Consulate is completely outside of the 15-day guarantee from the USCIS.

Is it worth it?  If you qualify for it, and have the money, I have generally strongly recommended getting Premium Processing.   The reason is quite simple.   The workers at USCIS are under pressure to be picky.   And, regardless of how well you document a petition, they can always find a reason to send out a time-consuming Request for Evidence.    However, the workers in the Premium Processing division are also under pressure to get these approved in fifteen days.  They don’t have time to be picky — to look for potential problems just to demonstrate that they are earning their pay.   They don’t want to send out a Request for Evidence unless it is clearly necessary, because that doubles their workload.   So the result is that if you pay the extra money for Premium Processing, you not only get a quick answer, but you usually get spared the aggravation of an unnecessary Request for Evidence.

However, lately, like everything else, Premium Processing has been becoming less reliable.   I have experienced them improperly rejecting Requests for Premium Processing of many R-1 petitions (this does not deny the petition — it is just that they refuse to do the petition in 15 days).   They will say that they do not have a successful site visit, when, in fact they have done a successful site visit.  But even when we point that out, they send back the same answer.  As far as I can tell, they are probably too busy and this is an easy way to lighten their load because we have no way to force them to admit that they are wrong.   This doesn’t mean that you shouldn’t request Premium Processing, but you should not build your plans around assuming that you will receive it.

I hope this is interesting and helpful.   Remember that this is not legal advice.  It is just a summary of certain aspects of immigration law which may or may not apply to your situation.   I encourage you to consulate an attorney if you think any of this may apply to your situation.

Gunnar Armstrong

 

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BREAKING NEWS – IMPORTANT UPDATE FOR IMMMIGRANTS — INSURANCE REQUIREMENT TEMPORARILY BLOCKED — INJUNCTION EXTENDED

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President Trump’s new requirement that immigrant must have health insurance was temporarily enjoined (blocked) in early November 2019 by the courts.   I had written about this on November 7, 2019.  There was a hearing scheduled for November 22 to determine if President Trump’s requirement of health insurance will be allowed.

Apparently the hearing was held on November 22.   As a result of the hearing, the court has issued a “Preliminary Injunction” continuing to block the President’s new health insurance order.   Apparently the court case will continue until the court makes a final decision on whether or not to allow the law suit.  But, until then the President can’t require immigrants to have health insurance.

n November 7, this injunction, of course, somewhat changes what I had written earlier on October 25.   But it doesn’t remove the fact that the Embassies and Consulates, and maybe USCIS, seem to be taking a closer look at a visa applicant’s ability to pay their own way in the United States — and having insurance coverage is one thing they may look at even if they can’t “require” it.

I hope this is interesting and helpful.   Remember that this is not legal advice.  It is just a summary of certain aspects of immigration law which may or may not apply to your situation.   I encourage you to consulate an attorney if you think any of this may apply to your situation.