2023 U.S. Immigration Law Updates: I-601A Waivers, EB-2 Visas, a simple guide.

Introduction

Immigration law in the United States is complex and constantly evolving. At its core, it governs the rights and responsibilities of foreign nationals in the country, including defining their legal status, eligibility to enter or remain in the U.S., and grounds for removal. This article provides an overview of key concepts and processes in U.S. immigration law.

Background of U.S. Immigration Law

The main body of law governing immigration in the U.S. is the Immigration and Nationality Act (INA). Originally passed in 1952, the INA has been amended many times over the decades, with major revisions in 1965 and 1996.

Some key principles underlying U.S. immigration law include:

• Family reunification – Allowing U.S. citizens and lawful permanent residents (LPRs) to sponsor certain family members
• Employment-based immigration – Allowing U.S. employers to hire foreign workers when qualified U.S. workers are unavailable
• Humanitarian protection – Granting refugee status or asylum to those fleeing persecution
• Diversity – Promoting immigration from underrepresented countries

Categories of Immigration Status

Two main categories of immigration status exist.

Nonimmigrant Visas

Nonimmigrant visas are for temporary stays in the U.S. for purposes such as tourism, business, medical treatment, and study. The most common types include:

• B-1/B-2: Business/tourist
• F-1: Academic student
• J-1: Exchange visitor
• H-1B: Specialty occupation worker
• L-1: Intracompany transferee

Immigrant Visas

Immigrant visas grant lawful permanent resident (LPR) status, allowing individuals to live and work permanently in the U.S. Major categories include:

• Family-sponsored: Based on relationship to a U.S. citizen or LPR
• Employment-based: Based on offer of permanent employment in the U.S.
• Diversity visa: Underrepresented countries
• Refugees/asylees: Humanitarian protection

LPRs receive a plastic card known informally as a “green card.”

I 601A Waivers: Provisional Unlawful Presence Waivers for Relatives of U.S. Citizens

The I-601A waiver helps some immigrants related to U.S. citizens. It lets them ask for a temporary waiver for being in the U.S. illegally while staying in the country. This waiver aims to reduce the time these people are away from their families during immigration.

Eligibility Criteria

To qualify for an I-601A waiver, the applicant must meet the following criteria:

1. Age requirement: The applicant must be at least 17 years old at the time of application.

2. Physical presence: The applicant must be physically present in the United States at the time of filing the waiver application.

3. Approved immigrant visa petition: The applicant must have an approved immigrant visa petition (Form I-130 or I-360) that classifies them as a relative of a U.S. citizen or lawful permanent resident (LPR).

4. Immigrant visa processing fee payment: The applicant must have paid the required immigrant visa processing fee to the Department of State.

5. Proof of extreme hardship: The applicant must be able to demonstrate that their U.S. citizen spouse or parent would experience extreme hardship if the applicant were to be denied admission to the United States.

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Application Process

The process for applying for an I 601A waiver involves several steps:

1. Filing the waiver application: The applicant must submit Form I-601A, Application for Provisional Unlawful Presence Waiver, along with supporting evidence that demonstrates their eligibility for the waiver.

2. Biometrics appointment: After applying, the applicant will be scheduled for a biometrics appointment, during which their fingerprints, photograph, and signature will be collected.

3. USCIS case review: The United States Citizenship and Immigration Services (USCIS) will review the applicant’s case, taking into consideration the evidence provided and the applicant’s eligibility for the waiver.

4. Decision notification: If the waiver application is approved, the applicant will be notified of the decision. If the application is denied, the applicant will also be informed of the reasons for the denial. 5. Departure for consular interview: Once the waiver is approved, the applicant must depart the United States to attend a consular interview in their home country. This interview is a crucial step in obtaining an immigrant visa.

The average processing time for an I 601A waiver application ranges from 6 to 12 months, although individual cases may vary.

Recent Changes

• As of March 2022, USCIS expanded I-601A eligibility to certain employment-based immigrants
• Previously, only family-based immigrants qualified

K-3 and K-4 Visas: An Overview

The K-3 visa is a nonimmigrant visa category specifically designed to allow spouses of U.S. citizens to enter the United States while they await the processing of their immigrant visa (green card) application. The K-4 visa, on the other hand, is intended for the unmarried children under the age of 21 of K-3 visa holders, granting them the same privilege of entering the U.S. during the green card application process.

Eligibility Criteria

To be eligible for a K-3 visa, the foreign spouse must meet the following requirements:

1. Be legally married to a U.S. citizen 2. Reside outside the United States 3. Have a pending Form I-130, Petition for Alien Relative, filed by the U.S. citizen spouse on their behalf

Application Process

The application process for K-3 and K-4 visas involves the following steps:

1. The U.S. citizen spouse files Form I-129F, Petition for Alien Fiancé(e), on behalf of their foreign spouse 2. If the Form I-129F is approved, the foreign spouse applies for the K-3 visa at a U.S. embassy or consulate in their home country 3. Upon receiving the K-3 visa, the foreign spouse enters the United States and subsequently applies for an adjustment of status to obtain a green card 4. K-4 visas become available for the eligible children of K-3 visa holders

Recent Changes and Trends

In recent years, the usage of K-3 visas has experienced a significant decline. This decrease can be attributed to the faster processing times for Form I-130, which has led most spouses of U.S. citizens to opt for consular processing instead of applying for a K-3 visa.

Furthermore, as of March 2022, the United States Citizenship and Immigration Services (USCIS) has expanded the eligibility for I-601A provisional unlawful presence waivers to include certain employment-based immigrants. Prior to this change, only family-based immigrants were eligible to apply for the I-601A waiver. It is worth noting that the average processing time for an I-601A waiver application typically ranges from 6 to 12 months, although individual cases may vary.

EB-2 Visas

The EB-2 visa is a highly sought-after employment-based immigration category that provides permanent residence to foreign professionals who possess advanced degrees or demonstrate exceptional ability in their field. This visa category is designed to attract and retain top talent from around the world, contributing to the United States’ economic growth and global competitiveness.

Understanding the EB-2 Visa Subcategories

1. EB-2A: Advanced Degree or Equivalent – This subcategory is reserved for individuals who hold an advanced degree (such as a master’s or doctorate) or its foreign equivalent, as well as those with a bachelor’s degree and at least five years of progressive work experience in their field.

2. EB-2B: Exceptional Ability in Business, Science, or Arts – This subcategory targets professionals who can demonstrate exceptional ability in the fields of business, science, or arts. To qualify, applicants must provide evidence of at least three of the regulatory criteria, such as academic records, professional licenses, or recognition for their achievements.

3. EB-2C: National Interest Waiver (NIW) – This subcategory allows individuals with exceptional ability or an advanced degree to bypass the labor certification process if they can demonstrate that their work is in the national interest of the United States. This waiver grants more flexibility as it permits self-petitioning without the need for an employer sponsor.

The EB-2 visa application process typically involves the following steps

1. Employer files labor certification and I-140 petition – The sponsoring employer must first obtain a labor certification from the Department of Labor (DOL) to confirm that there are no qualified U.S. workers available for the position. Once approved, the employer submits Form I-140, Immigrant Petition for Alien Worker, to the United States Citizenship and Immigration Services (USCIS).

2. Applicant files I-485 to adjust status or consular processing – After the I-140 petition is approved, the applicant can either file Form I-485, Application to Register Permanent Residence or Adjust Status, if they are already in the United States, or undergo consular processing at a U.S. embassy or consulate abroad.

3. For NIW, applicant self-petitions with I-140 – In the case of the National Interest Waiver, the applicant can self-petition by submitting Form I-140 without the need for a sponsoring employer.

Recent Changes

The demand for EB-2 visas remains consistently high, leading to significant backlogs for applicants from countries with high demand, such as India and China. To expedite the I-140 petition stage, applicants can opt for premium processing by paying a $2,500 fee, which guarantees a decision within 15 calendar days. However, it is important to note that premium processing does not guarantee visa approval or reduce the overall waiting time for visa availability.

Conclusion

Immigration law regulates the rights and responsibilities of foreign nationals in the United States. Although intricate, the system offers multiple pathways for individuals to enter the U.S. legally, either temporarily or permanently. Nevertheless, breaching immigration regulations may result in removal proceedings and deportation. It is recommended to consult with a knowledgeable immigration attorney when navigating this complex system.

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