When applying for a marriage-based Green Card, the length of your marriage plays an important role. If you were married for at least 2 years before receiving permanent resident status, you will receive a permanent Green Card and do not need to take any additional steps. (Note: Permanent Green Cards expire and require renewal every 10 years. However, this process is simple and USCIS does not reevaluate your petition.)

However, if you were married for less than 2 years at the time you received permanent resident status, you’ll be granted a conditional Green Card. This type expires in 2 years, and you must apply to remove the conditions up to 90 days before expiration. To receive a permanent Green Card, you and your spouse must file an I-751 form jointly. Along with this form, you must attach supporting evidence showing that your marriage is legitimate. Once the I-751 is processed and approved, you will receive a permanent Green Card .

Divorce

Marriages do not always work out and fortunately, USCIS has policies in place for people who divorce before their conditional Green Card expires. Divorced conditional Green Card holders can apply for a waiver of the joint-filing requirement for the I-751. When filing alone, the burden of proof is on you to prove you and your ex-spouse entered into marriage legitimately. You need to submit convincing evidence that you did not solely marry for a Green Card. This evidence is similar to the documents you provided with your original marriage-based Green Card petition. Examples include birth certificates of children born during the marriage, joint leases/mortgages, and joint bank accounts and tax returns.

Separation/In the Process of Divorce or Annulment

Those who are separated or in the process of divorce/annulment are still considered married for legal purposes. Accordingly, if you submitted Form I-751 jointly or by yourself, USCIS will send you a Request for Evidence (RFE) asking for the final divorce decree or annulment. If you previously filed the I-751 together and have since separated or pursued divorce proceedings, you must also include a statement confirming that you want your joint filing treated as a single filing. Once USCIS receives the final divorce decree or annulment, they will waive the joint-filing requirement and process your I-751.

Death of the Petitioning Spouse

The passing of a spouse is one of the most painful and traumatic events that can happen in someone’s life. This can be especially stressful for an immigrant whose status is based on their marriage. Thankfully, you can file the I-751 on your own by requesting a waiver of the joint-filing requirement. You must include a copy of your spouse’s death certificate along with evidence that you both entered the marriage in good-faith.

Effect of Divorce or Death on the Citizenship Process

Immigrants who obtain a Green Card through marriage can usually apply for citizenship after holding their Green Card for 3 years. Unfortunately, in the event of divorce or death of the petitioning spouse, you do not get the same privilege. Like all other Green Card holders, you must maintain permanent resident status for at least 5 years before being eligible to apply for citizenship.

If you are experiencing any of the above situations and need help, reach out to mike@shermanimmigration.com or contact us here. At Sherman Immigration, we offer personalized assistance and support for every client’s needs.

December 9, 2024 brought us an updated Exchange Visitor Skills List for the first time since 2009. The list, published by the U.S. Secretary of State, determines whether a J visa holder is subject to INA 212(e), or the two-year return home requirement. This document includes a numbered list of fields of work/skills and a list of countries. Each of the designated countries has a list of numbers that denotes what fields/skills that country needs. When choosing which countries and skills to designate, the Secretary of State considers each country’s economy and migration rates. They then determine whether or not the country needs certain skilled professionals in their workforce. To check if you’re subject to this requirement, take a look at the 2024 Exchange Visitor Skills List. If you see your country of last permanent residence is on the list and your field/skill is needed in that country, you are subject to INA 212(e).

INA 212(e): Foreign Residence Requirement

J visa holders subject to INA 212(e) must leave the USA after their program is complete and return to their home country for a period of 2 years. You cannot fulfill this by living in any country other than the one listed as the country of last permanent residence on your DS-2019 forms. Requesting a waiver of the requirement is an option, but the process can be time-consuming and some waivers are difficult to obtain.

How does this affect J visa holders currently in the United States?

Most notably, the Secretary of State removed China and India from the skills list. According to the Department of State website, any J visa holders admitted to the United States before December 9 whose country is not on the 2024 Skills List are not subject to the two-year return home requirement. Consequently, Chinese and Indian J visa holders previously subject to INA 212(e) are no longer required to leave the USA for two years. This also allows them to apply for and receive an H-1B visa or a Green Card, which you cannot do if you are subject to INA 212(e).

Important Note for Certain J Visa Holders

This update does not affect J-1 visa holders in the United States for graduate medical education. People in this category are unfortunately always subject to the return-home requirement, despite their country of last permanent residence. However, there are significantly more opportunities to apply for and receive a J-1 waiver as a physician. J visa holders in certain government-funded programs are also always subject to INA 212(e) regardless of their country and skills. Our J-1 Waivers page has more information for those subject to INA 212(e) and want to request a waiver.

If you’d like to discuss how the new skills list affects you, please reach out to mike@shermanimmigration.com for a consultation. Or, fill out our website’s convenient contact form.

No Deference to Prior USCIS Approvals

The USCIS Policy Manual is the document that instructs USCIS officers how to adjudicate cases. 2004 Policy guidance directed officers to generally defer to prior determinations when considering petitions to extend nonimmigrant status if the petition involved the same parties and facts as the initial request. This means when an employer was filing to simply extend the nonimmigrant status of an employee, and if there had been no material changes or new facts, USCIS would defer to the prior approval and, in most cases, approve the extension petition without excessive scrutiny.

In 2017, we saw this policy rescinded and replaced with a “no deference” policy. The guidance directed officers to consider each petition as if it were entirely new, without regard to any prior USCIS approvals. This new policy resulted in significantly increased processing times, countless Requests for Evidence, and oftentimes irrational petition denials, despite the fact that there had been no changes in the offered position, the beneficiary’s credentials, or the legal requirements since USCIS had issued the previous approval. USCIS reinstated the 2004 policy in 2021 and now requires supervisory endorsement if an officer deviates from a prior approval.

Denial of Petitions Without Issuing a Request for Evidence (RFE) or Notice of Intent to Deny (NOID)

In 2018, USCIS again changed their policy guidance to be stricter on the adjudication of applications and petitions. The 2013 Policy Manual made it clear that officers were not to deny cases without issuing an RFE or NOID unless there was “no possibility” of approval. However, the 2018 policy gave USCIS officers complete discretion to deny an application without issuing an RFE or NOID if it was missing any evidence whatsoever. A small mistake could thus result in an outright denial with no prior warning.

2019 Public Charge Final Rule

When considering most applications for Green Cards, USCIS must take into account whether or not a person is likely to become a “public charge,” or someone who primarily relies on the government for support. Until 2019, noncitizens could be identified as a public charge only if they were primarily dependent on the government because they received cash assistance for income maintenance programs such as Temporary Assistance for Needy Families (TANF) or long-term institutional care such as in a nursing home or mental health institution at government expense.

The Public Charge Final Rule published during Trump’s presidency broadened the definition of public charge. Accordingly, certain recipients of Medicaid, Supplemental Nutrition Assistance Program (SNAP), housing assistance, energy assistance, child-care subsidies, and other benefits for more than 12 months within any 36-month period could be considered a public charge. They also introduced Form I-944 Declaration of Self-Sufficiency, an 18-page form that required applicants to provide very detailed information on every part of their finances.  This included an inventory of all assets, including bank accounts, investments, home, and vehicles; plus a credit history, proof of health insurance, and more. If an applicant was not applying for an employment-based Green Card, they also had to provide evidence of their education, occupational licenses or certificates, proof of language skills, and any other information that could prove that they would be employable in the United States.

90 Day Rule for Adjustment of Status Applicants

When foreign individuals seek to obtain most temporary visas, they must have the sole intention of entering on a temporary basis, while maintaining a residence outside the USA of which they have no intention of abandoning.  This includes visas such as B-1 and B-2 visitors, F-1 students, J-1 exchange visitors, and TNs.  There have always been situations where a person does enter with the proper intent, but later changes that intent due to unforeseeable circumstances, such as marrying a US citizen. 

Prior to 2017, USCIS utilized the 30/60 day rule while adjudicating Green Card applications. If a person on a single-intent visa applied for adjustment of status within 30 days after entering the country, the USCIS presumed that the person had misrepresented their intentions when entering the USA. If a person applied for adjustment of status during days 31 to 60, there was a rebuttable presumption that the person had misrepresented their intentions, and the burden of proof would be on the applicant to prove that they had not made a misrepresentation. 

In 2017, the Trump administration issued a new 90-day rule that replaced the 30/60 day rule.  That rule presumed that the person had made a misrepresentation if they applied for adjustment of status within the first 90 days after entering the USA on a single-intent visa.  While the USCIS never officially adopted the 90-day rule (it was a US Department of State rule), many immigration lawyers and clients were cognizant of the 90-day rule and did include it in their Green Card process planning.     

Decoupling of I-129, I-539, and EAD Applications

In 2019, the USCIS officially decoupled the applications for initial grants or extensions of H-1B and L-1 work visa status from simultaneously filed applications for H-4 and L-2 dependent visa status and from applications for employment authorization (EAD).  In the past, if these applications were filed together, they were adjudicated together.  For example, simultaneously filing an H-1B, H-4 and EAD application resulted in all three being adjudicated and approved at the same time.  By decoupling the applications, the USCIS caused severe delays in the adjudication of I-539 and EAD applications, causing a tremendous level of stress and inconvenience for families. 

Mandatory Fingerprinting for All I-539 Applicants

In March of 2019, USCIS implemented mandatory biometrics (fingerprinting) for all I-539 applicants. USCIS charged $85 per person, and the requirement applied to all ages, even infants. Adding this requirement led to significant delays for all applicants, adding months or even years to the process. USCIS suspended the requirement temporarily during the COVID-19 pandemic, and the Biden administration eventually eliminated it in 2023.

While we aren’t sure what the upcoming Trump administration will do, the examples above indicate that we will likely see significant changes.  If you have questions or concerns about your visa or immigration status, now is the time to reach out. Email mike@shermanimmigration.com if you would like to arrange for a consultation.

A concurrent H-1B is exactly what it sounds like, an additional H-1B that is valid at the same time as another H-1B you hold.

H-1B visas are limited to a certain job, employer, job location(s), and rate of pay. Working for another employer without a concurrent H-1B is illegal and can have serious consequences. Instead, your second potential employer needs to apply for a concurrent H-1B for you.

The application process is the same as the normal H-1B process, meaning you must prove that the position requires at least a Bachelor’s degree/foreign equivalent and you have the required education, the employer must pay for the costs of the concurrent H-1B, and file the required forms.

There is no limit on how many employers you can work for using concurrent H-1Bs, however, USCIS may not approve your concurrent H-1B petition if you have a full-time job and are applying to work another full-time job. (Full-time = 35 hours or more).

For more information on how you can get a concurrent H-1B, please reach out to mike@shermanimmigration.com or call (248) 220-6619.