Waiving of the 2 Year Foreign Residence Requirement for J-1 Nonimmigrants

Waiving of the 2 Year Foreign Residence Requirement for J-1 Nonimmigrants

J-1 visas are nonimmigrant visas for individuals approved to participate in an exchange visitor program in the U.S. Due to their temporary nature, some J-1s must return to their home county for a cumulative period of at least two (2) years once their program is completed. This is commonly known as the “two-year home country physical presence requirement” (2-Year Requirement) and may be waived under special circumstances. Where the 2-Year Requirement is mandatory and after the two (2) years abroad are completed, the individual may return to the U.S. under a different visa category or may apply for permanent residency, if applicable. Who is subject to the 2-Year Requirement? According to INA § 212(e), the following J-1 visitors are subject to the 2-Year Requirement:

1. Those who entered the U.S. in order to receive graduate medical education or training;
2. Those whose exchange program was financed (percentage of finance is irrelevant) directly or indirectly by either the U.S. government or the government of the J Visitor’s home country; and
3. Those who possess a specialized skill or knowledge and whose home country or country where he/she is a permanent resident of has deemed this specialized skill or knowledge valuable to its development. (For a list of each country and what each deems to value as a specialized skill or knowledge, please visit http://travel.state.gov/visa/temp/types/types_4514.html. Please note, if your specialized skill or knowledge is listed under your home country, you ARE subject to the 2- Year Requirement)

All other J-1 visitors may not be subject to the 2-Year Requirement and should seek the counsel of an immigration attorney to verify this. Additionally, it should be noted spouses in J-2 status are subject to the 2-Year Requirement if their J-1 spouse is subject to it. What does the 2-Year Requirement mean? Prior to fulfilling the 2-Year Requirement, these individuals may not adjust status to either an immigrant status or lawful permanent residence, and/or receive an immigrant visa, a fiancé visa, a temporary worker visa, or an intracompany transferee visa. Who may get the 2-Year Requirement waived? Although the above listed J-1 visitors are required to abide by the 2-Year Requirement, there are some exceptions and a wavier may be obtained to change status in the U.S. and without having to reside in the home county. An individual is eligible for a wavier where:

1. Departure would result in exceptional hardship upon the individual’s spouse or child (the spouse and/or child must be a U.S. citizen or lawful permanent resident);
2. The individual would be subject to persecution on account of race, religion, or political opinion in his home county;
3. The home country issues a No Objection Statement through it’s Washington D.C. embassy waving the 2-Year Residence (this option may not be used by J-1 visitors who obtained graduate medical education or training);
4. A U.S. Federal Government Agency petitions for the individual on the basis that the 2-Year Requirement would be detrimental to its interest; or
5. A designated State Public Health Department or its equivalent requests a foreign medical graduate be part of its Conrad State 30 Program.

It is important to note that failure to fulfill programs with U.S. agencies or departments may place an individual back on the mandatory 2-Year Requirement. For example, an individual who does not fulfill the requirements of the Conrad State 30 Program will be required to complete the 2-Year Requirement even after receiving the waiver. Because an individual may be subject to the 2-Year Requirement after obtaining a waiver, it is imperative to seek the help of an immigration attorney.

As always, it is best to seek the help of an immigration attorney if you have any questions or doubts.  Do not risk losing potential benefits.

By: Elizabeth Oaxaca

Elizabeth Oaxaca is an Associate at Alimohammad & Zafar, PLLC. She specializes in immigration, family, probate, and guardianship law. She volunteers her immigration skills with several organizations in the Houston and surrounding areas, and has written on numerous immigration topics. She received her undergraduate degree from the University of St. Thomas in 2008 and her law degree from the University of Houston in 2011.

Beware of Recent Immigration Telephone Scams

Beware of recent Immigration Telephone Scams:

Recently scammers have been targeting individuals with matters before U.S. Citizenship and Immigration Services (“USCIS”). Telephone calls, bearing inaccurate information on the Caller ID, have been placed to USCIS applicants and petitioners. Scammers will pose as USCIS officials and ask for personal information. They will tell the USCIS applicant or petitioner that something is wrong with their records and in order to correct them payment will be necessary. Please do not give your personal information or payment to anyone claiming to be a USCIS official as USCIS does not ask for either over the phone.
Where you have been a victim of this, please report it to the Federal Trade Commission at https://www.ftccomplaintassistant.gov/, or report it to an appropriate state authority at www.uscis.gov/avoidscams for information on where to report scams in your state.

By: Elizabeth Oaxaca
Elizabeth Oaxaca is an Associate at Alimohammad & Zafar, PLLC. She specializes in immigration, family, probate, and guardianship law. She volunteers her immigration skills with several organizations in the Houston and surrounding areas, and has written on numerous immigration topics. She received her undergraduate degree from the University of St. Thomas in 2008 and her law degree from the University of Houston in 2011.

Child support presumption maximum is going up in Texas on September 1, 2013

Child support presumption maximum is going up in Texas on September 1, 2013:

According to the Texas Family Code (TFC) § 154.125(a-1), every 6 years the child support presumption maximum (currently $7,500) is adjusted to reflect inflation rates. Those 6 years will restart again on September 1, 2013 with the new child support presumption maximum increasing to $8,550 (this new amount will be used in this blog and referred to as “Presumption). Please note child support may differ where the parties have an agreement not using the typical child support calculations or where a child’s proven needs exceed the guidelines. 

HOW IS CHILD SUPPORT CALCULATED?
Child support is based on the obligor’s (the person paying the child support) monthly net resources, such as salary, royalty income, net rental income, self-employment income, and the like. Items not included in net resources includes return of principal/capital on a note not included in net resources, accounts receivable, benefits paid through Temporary Assistance for Needy Families, payments for foster care, and net resources of a new spouse. From an obligor’s monthly net resources a percentage is taken to produce the child support amount. Texas uses the following percentages to calculate child support:

1 children 20% of Obligor’s Net Resources
2 children 25% of Obligor’s Net Resources
3 children 30% of Obligor’s Net Resources
4 children 35% of Obligor’s Net Resources
5 children 40% of Obligor’s Net Resources
6+ children Not less than the amount for 5 children.

Please note these percentages differ where the obligor is paying child support to children from more than one
obligee (parent receiving the child support for the benefit of the child). For these percentages please refer to TFC § 154.129.

HOW MAY MY CHILD OBTAIN CHILD SUPPORT ABOVE THESE PERCENTAGES?
A child may obtain child support greater than the above percentages (including the Presumption) where it can be shown the child’s needs require more support. Typically these are in cases where the child needs greater child support for medical reasons, education, extracurricular activities, and the like. TFC § 154.123 includes a full list of things the court might consider in setting child support different from the above percentages. It is important to keep in mind that these percentages may also be reduced when looking at the list in this section of the TFC. 

WHAT DOES THE CHILD SUPPORT PRESUMPTION MAXIMUM MEAN?
The child support presumption maximum is the amount Texas has deemed to be the cap on a regular child support case (a case where the child’s proven needs are not greater than the presumption). Texas has determined where a parent makes the Presumption or more in monthly net resources, the parent is only liable to pay the percentage listed above against the Presumption. This means that an obligor who makes $8,550, the Presumption, in monthly net resources and an obligor who makes $10,000 in monthly net resources both pay $1,710 in monthly child support for 1 child as the Presumption is the cap (where the child’s proven needs are not greater). As noted earlier, the Presumption does not apply to those parties who have an agreement straying away from it. 

WHO IS AFFECTED?
This increase, to begin on September 1, 2013, affects parties with cases pending or filed after this date. It is suggested if you have a case that is to be finalized between now and this date to begin using the Presumption so you do not have to head to court again. Parties who have their case finalized and meet the Presumption are also affected, but action is typically necessary (the Attorney General’s Office reviews child support matters every couple of years and will automatically implement the Presumption once they review your case).
Parties who have an agreement different from the standard child support calculations are not affected by the increase unless the parties agree or a modification is begun. Additionally, obligor’s who make less than the Presumption are not affected. 

HOW MAY I OBTAIN MORE CHILD SUPPORT IF THIS APPLIES TO ME IF MY CASE IS FINALIZED?
Where a case has been finalized and the Presumption is met the parties may voluntarily agree to increase the child support or where an agreement cannot be made, the obligee must notify the Attorney General’s Office. Whichever route is taken, please note modification must be made in court.
As always, if you have any questions regarding the law it is best to seek the help of an attorney. 

By: Elizabeth Oaxaca
Elizabeth Oaxaca is an Associate at Alimohammad & Zafar, PLLC. She specializes in immigration, family, probate, and guardianship law. She volunteers her immigration skills with several organizations in the Houston and surrounding areas, and has written on numerous immigration topics. She received her undergraduate degree from the University of St. Thomas in 2008 and her law degree from the University of Houston in 2011.

E-Verify

E-Verify

The electronic employment-verification system (“E-Verify”) is a program used by employers to verify whether a new hire is authorized to work in the U.S. (this includes verifying U.S. citizens). E-Verify takes information provided on Form I-9 Employment Eligibility Verification (which must be fully completed by employers within an employees first 3 working days or 1 working day where the employment is shorter than 3 days) and verifies it against government records from agencies such as the Social Security Administration. Currently E-Verify is not mandatory in Texas, but it is mandatory in some states and some federal contractors must use it. As of now it seems promising that this system will be mandatory nationwide as both the House and Senate have similar provisions in bills. For those employers who use E-Verify, they must enroll at https://e-verify.uscis.gov/enroll/StartPage.aspx?JS=YES. 

After inputting the information of an employee, E-Verify will provide the employer with results in seconds. Where the information matches government records the employee is authorized to work in the U.S. and may continue the employment. On the other hand, where the information does not match government records the employer will receive a message of “Tentative Nonconfirmation” and may not terminate the employee where the employee seeks to contest this. If this is the case, the employer must print out a letter containing instructions for the employee to contest the mismatch. The employee is given 8 federal government working days to resolve this. Once resolved, E-Verify will inform the employer of the results. In some cases it takes longer than the 8 federal government working days to resolve and E-Verify will inform the employer of such. The employer may only terminate an employee after receiving a “Final Nonconfirmation.”

For more information on E-Verify please visit www.uscis.gov and search “e-verify.” As always, if you have any questions regarding the law it is best to seek the help of an attorney.

By: Elizabeth Oaxaca
Elizabeth Oaxaca is an Associate at Alimohammad & Zafar, PLLC. She specializes in immigration, family, probate, and guardianship law. She volunteers her immigration skills with several organizations in the Houston and surrounding areas, and has written on numerous immigration topics. She received her undergraduate degree from the University of St. Thomas in 2008 and her law degree from the University of Houston in 2011.

Same-Sex Marriages and Immigration

Same-Sex Marriages and Immigration:

Since the decision in United States v. Windsor (“Windsor”), where the U.S. Supreme Court held Section 3 of the Defense of Marriage Act is unconstitutional as a deprivation of the equal liberty of persons that is protected by the Fifth Amendment, the United States Citizenship and Immigration Services (“USCIS”) has been quick to act.
 
WHAT DOES THE WINDSOR DECISION MEAN FOR SAME-SEX MARRIAGES IN IMMIGRATION PROCEEDINGS?

For immigration purposes the Windsor decision means that same-sex couples will now be treated the same as opposite-sex couples. This includes those petitioning for a spouse or a fiancé/fiancée, those seeking to accompany or following to join a family-sponsored immigrant, and/or seeking any immigration benefit. For example, an alien who obtains permanent residency based on his marriage to a U.S. citizen (“USC”) will be eligible for citizenship three (3) years after acquiring permanent residency just like opposite-sex marriages.
For couples who are married the validity of the marriage depends on where the marriage took place and not where the couple lives. This means that as long as the couple got married in a place which recognizes same-sex marriages, the marriage is valid. For example, if the couple got married in Massachusetts (which recognizes same-sex marriages), but lives in Texas (which does not recognize same-sex marriages) the marriage is valid because it occurred in a place where the marriage was legitimate.
It should be noted those immigration benefits requiring the label of a “child,” a “son or daughter,” a “parent,” or a “brother or sister” of a USC or permanent resident may be affected by a same-sex marriage. Nonetheless, these cases will be treated the same as an opposite-sex marriage.

WHAT IF MY PREVIOUS PETITION WAS DENIED BASED ON A SAME-SEX MARRIAGE?

Due to USCIS’ preparation (they have kept track of all Form I-130 Petition for Alien Relative (“Form I-130″) which had been denied on the basis of same-sex marriages after February 23, 2011), USCIS has begun reopening these cases and making an effort to contact the petitioner of such. A reopened Form I-130 will be considered anew. Additionally, any concurrently filed forms, such as Form I-485 and Form I-765, will also be considered anew at the time of reopening. Any denials of Form I-130 prior to February 23, 2011 or denials of any other form (regardless of date and besides those forms concurrently filed with Form I-130 after the February date) must be brought to the attention of USCIS by March 31, 2014 via e-mail at USCIS-626@uscis.dhs.gov. Please note reopened matters will not require additional fees. Petitioners also have the option of e-mailing USCIS in those matters where the case was denied after the February date.
It should be noted as USCIS begins to reopen these matters the petitioner may be contacted for updated information to support the petition.
As always, if you have any questions regarding the law it is best to seek the help of an attorney.

By: Elizabeth Oaxaca
Elizabeth Oaxaca is an Associate at Alimohammad & Zafar, PLLC. She specializes in immigration, family, probate, and guardianship law. She volunteers her immigration skills with several organizations in the Houston and surrounding areas, and has written on numerous immigration topics. She received her undergraduate degree from the University of St. Thomas in 2008 and her law degree from the University of Houston in 2011.

H-1B Cap Gap and Travel

WHAT IS THE H-1B CAP GAP?
Cap Gap is an automatic extension of F-1 student status for certain foreign students who have a pending or approved H-1B petition, whose petition included a change of status, and whose petitions were timely filed on October 1 (the first date of the fiscal year and the earliest date an alien may begin employment). It should be noted H-1 B petitions (with extensions) may be filed as early as April 1 of the previous fiscal year (e.g., may file April 1, 2013 for the 2014 fiscal year). This automatic extension is valid until the start date of the alien’s employment (given on the H-1B Approval Notice).

PURPOSE OF THE CAP GAP
The Cap Gap is designed to give these students an extension of their F-1 student status so they may remain in the U.S. in lawful status. Otherwise these students would have to return to their country, apply for H-1B status at their consulate, and wait until their H-1B employment began to enter the U.S.

H-1B APPROVAL AND DENIAL
Where an H-1B petition is approved during the Cap Gap the student’s F-1 student status continues until September 30. On the other hand if it is denied, withdrawn, revoked, or not selected, the student has 60 days from the date of rejection or the end of their program (whichever is later) to depart the U.S.
H-1B

TRAVEL & THE CAP GAP
An alien whose F-1 student status was extended under Cap Gap may not travel during the Cap Gap period as they would not be able to return to the U.S. in valid F-1 student status if they travel abroad. According to the ICE policy guidance “Update to Optional Practical Training” dated April 23, 2013, USCIS considers an application for change of status as being “abandoned if the applicant leaves the country while the application remains pending.” Although this guidance does not speak to those aliens whose application has been approved, it is recommended the alien wait in the U.S. during the Cap Gap period (i.e., until October 1).

RECOMMENDATIONS FOR TRAVEL
It is suggested that if an alien desires to travel abroad that he do so in September so he may apply for H-1B status at a U.S. consulate. This would allow the alien to enter the U.S. on or after September 20 (which is 10 days before the date H-1B employment may begin). It should be noted that an alien may enter the U.S. 10 days prior to the start date of their H-1B status.
As always, if you have any questions regarding the law it is best to seek the help of an attorney. Do not risk being out of status or not being able to return to the U.S. as you plan.

By: Elizabeth Oaxaca
Elizabeth Oaxaca is an Associate at Alimohammad & Zafar, PLLC. She specializes in immigration, family, probate, and guardianship law. She volunteers her immigration skills with several organizations in the Houston and surrounding areas, and has written on numerous immigration topics. She received her undergraduate degree from the University of St. Thomas in 2008 and her law degree from the University of Houston in 2011.