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According to a recent policy announcement, USCIS will begin transferring some Naturalization (N-400) and Adjustment of Status (I-485) cases to different field offices for quicker processing. Due to long wait times for interview appointments at USCIS field offices in major cities, USCIS has announced that it will begin moving cases to the next-closest office for these appointments. For the Pacific Northwest, this means that many Seattle-based cases will be moved to Portland and Yakima, depending on the applicant’s address.
This change aims to reduce the backlog and long processing times at high-volume processing centers. Applicants should note that their biometric (fingerprinting) appointment will still take place at their local office, but their interview may be transferred to another office, sometimes several hours away. This is good news for those living in major metropolitan areas, but could mean longer wait times for individuals living in smaller cities who have, until now, been fortunate to experience shorter wait times and short lines in general when dealing with USCIS.
We predict that this new policy may be the first of many as USCIS aims to address the “crisis level” delays and growing backlog of 5.6 million cases that a group of Senators recently brought to the public’s attention. Senators and immigration attorneys alike are demanding action and transparency from USCIS to deal with the exceedingly long wait times and overall slow-down in processing of all types of cases over the past three years. While this change may reduce some of the burden at USCIS field offices in Seattle and other major cities, it does not necessarily address the deeper issues and suspected misallocation of resources at USCIS that are creating and perpetuating the backlog to begin with.
Naturalization and Adjustment of Status applicants should pay special attention to notices they receive to ensure they know where their appointments are taking place. While it may be inconvenient to travel many hours for an appointment at USCIS, it could mean shaving several weeks or months off of the processing time of your case.
This past weekend, attorneys and staff from Passage Immigration Law participated in Lutheran Community Service’s annual Citizenship Day. This event provides a free clinic and legal services for Lawful Permanent Residents who are hoping to file Naturalization applications to become US Citizens. This event is part of LCS’s free Citizenship Program which offers classes, resources, and legal services free of charge for immigrants and refugees in Oregon, Washington, and Idaho.
Many of the individuals who attended Citizenship Day and who attend LCS’s classes originally entered the US as refugees. Others entered the US as visitors, students, or workers and later became married to US citizens and started families or sought asylum in the US due to issues in their home country. Through all of these types of admission, individuals have the ability to adjust their status to become Lawful Permanent Residents after a certain amount of time and by meeting certain criteria. After five years (or three years if married to a US citizen), Lawful Permanent Residents become eligible to file for citizenship.
During the free clinic on Saturday, our staff helped families from all over the world and from different backgrounds complete their Naturalization applications, which included screening them for eligibility, asking detailed questions about their background and history, collecting and copying their official documents, and filling out their N-400 form to be submitted to USCIS.
Erick, Amanda, Ahmed, and Alison worked with families from Burma, Sudan, Uzbekistan, Mexico, Vietnam, Afghanistan, and Brazil. Among them, we met individuals who worked as reflexologists, ski instructors, and boot makers, as well as veterans of several different wars. We helped single individuals as well as families of seven or eight. Some individuals spoke only their native language, while others spoke up to five different languages, including English.
Portland is fortunate to have many non-profits doing great work for refugees and immigrants and it is always meaningful and rewarding to be involved in their programs. LCS is a great resource for immigrants and refugees, particularly those who are learning English and studying for their citizenship tests. We are honored to contribute to the mission of Lutheran Community Services, Catholic Charities, IRCO, and other great organizations in the Portland area.
As we enter the warm summer months, many families, couples, and individuals are taking off on summer trips and long holiday weekends. As the summer months are notoriously busy (and always go by too fast!), we commonly encounter scheduling issues for immigration-related appointments due to travel or vacation.
If you’re a couple who has been waiting for your Adjustment of Status interview for many months, or a permanent resident awaiting your Naturalization appointment, you will likely be disappointed if the appointment notice finally arrives and it is scheduled for a time that you are planning to be away. With such an important and highly anticipated appointment, it is hard to know what to do if the alternative is cancelling a long-planned trip or abandoning non-refundable tickets.
While it is generally recommended that applicants do everything possible to attend their scheduled appointments (including biometrics, interviews, and oath ceremonies) in order to avoid issues or delays, there are times when travel is essential or cannot be cancelled (this, of course, includes family or medical emergencies in addition to nonrefundable travel or important trips). As long as you have a genuine and compelling reason, it is an option to request to reschedule the appointment and it (usually) does not create any major issues.
The primary risk with rescheduling any immigration-related appointment is adding additional delays to the processing time. Unsurprisingly, USCIS (United States Citizenship and Immigration Services) can be quite slow to process scheduling requests. If the benefits of keeping your plans outweigh the cost of waiting longer for your case to be processed, and you have documentation showing you will be unable to attend, then you should proceed with requesting to reschedule with USCIS.
Here is an overview of how to reschedule a USCIS interview (Note this does not apply to consular interviews abroad — those are extremely important to keep!):
BPU Alexandria ASC, Suite 100
8850 Richmond Hwy
Alexandria, VA 22309-1586
Note: Please confirm current address as listed on your biometrics notice if following these steps, as this is subject to change.
If you’re applying for an immigration benefit for yourself or someone you know, you’ve likely noticed by now that there have been a lot of processing delays lately. Cases of all types are taking longer than ever to be adjudicated. I-751 petitions, on average, are taking a year and a half or longer to process. Employment Authorization Documents (“EAD”s) used to take 90 days and now show posted processing times of 5-7 months. I-130 processing times just jumped from 7-9 months up to 10-13 months for many applicants nationwide.
If you were wondering just how bad things have gotten, AILA (American Immigration Lawyers Association) has an alarming answer: we are now experiencing “crisis level” delays at USCIS.
According to this January 2019 AILA report, AILA liaisons and growing number of US senators (Democratic and Republican alike) have identified the severity of the issue and are now calling on USCIS for immediate action and transparency.
Earlier this month, a bipartisan group of 38 senators (19 Democrats and 19 Republicans) came together and drafted two letters to be sent to USCIS Director Francis Cissna and the CIS Ombudsman, Julie Kirchner, outlining their concerns and their demands. According to AILA, these letters “demand an assessment of how USCIS’s own policies contribute to this trend and call for concrete plans to eliminate the agency’s case backlog.” Before this, 82 Democratic senators requested a Government Accountability Office report of the delays, which asked such questions as:
The report aims to call out USCIS for how their own policy changes (under the Trump administration) have led to an extreme slowdown in processing and adjudication. USCIS’s own reports reveal a current backlog of 5.6 million cases — a number which continues to grow even as application rates have decreased and funding has increased over the past several years.
Through closer examination, it is revealed that USCIS has reported a significant decrease in “case completions per hour.” According to the reports, “case completions per hour decreased for 79 percent of immigration benefit types from FY2014 to FY2018 and for 81 percent of immigration benefit form types from FY2016 to FY2018.” This includes both family-based and employment-based petitions and indicates that nearly every type of immigration benefit and petition now takes more time and resources to process than ever before. One example shows that the case completion rate for temporary workers (Form I-129) decreased from .97 cases per hour to .64, marking a 34% drop between 2016 and 2018.
This slowdown in overall case completion time can be linked back to changes in USCIS’s own internal policies and procedures. The reports cite the following reasons for the slowdown and resulting backlog:
While historically in-person interviews (particularly for I-751 petitions) were reserved only for cases in which officers suspected fraud or a national security threat, they are now being scheduled almost at random and for a much higher percentage of cases. Similarly, RFEs (Requests for Evidence) are being issued at a much higher rate. These occurrences take up many resources and require a significant amount of “hands on” time from USCIS officers.
The group of senators calling for action argue that the delays at USCIS are leading to “dire” consequences: “Business operations are being stalled, family reunification takes far longer, and vulnerable individuals are living in fear because the agency cannot decide their cases in a timely fashion.” Other sources note that “[a]s a result of longer USCIS processing times, employers and high-skilled foreign nationals are less likely to view America as a great place for careers and innovation, while other foreign-born individuals wonder why treating people poorly has become official government policy.”
AILA invites individuals affected by these delays to join the Senators in Taking Action through their Advocacy Action Center.
With all the news about recent delays, problems, and new obstacles in the immigration process, we wanted to quickly share a more positive update: some Adjustment of Status cases are being processed very quickly in the Portland, OR, area.
This trend began a few months ago when we noticed applicants receiving interview appointment notices within 1-3 months of filing their case. The interview is generally the last step in the Adjustment of Status process, so this means that applicants can potentially receive their green cards within just a few months of filing their application. Rather than receiving conditional Employment Authorization Documents (EADs) and temporary travel authorization while the case is pending, some applicants are skipping this step altogether and being issued green cards in less time than it takes the temporary documents to be approved.
While this does not reflect an official USCIS timeline or even a posted processing time for these types of applications, we recently confirmed that some national processing centers (where all applications are initially submitted) have adjusted their procedures in order to avoid cases stacking up. We learned that the reason that some cases are moving so quickly to the interview is that they do not require additional evidence and are therefore put on a fast track for processing.
When a case is received by the national processing center, an officer will conduct an initial review the case to see if any additional evidence is needed. A Request for Evidence (or “RFE”) is issued when a submitted case does not include sufficient financial, identity, or relationship evidence. The case cannot move forward until the requested documents are received, and so it will remain at the national processing center (often for many months).
RFEs are very common, especially as policies and requirements are always changing. It is not always possible to avoid an RFE, but it helps to file your case with lots of strong evidence and to include extra documentation or sworn statements about anything that might be unclear to the officer reviewing the case.
In the past, cases that did not require additional evidence would often sit at the national processing center for weeks or months waiting for an initial review, and would therefore take about the same amount of time to process. Based on the new timelines we are seeing, some officers are now transferring the non-RFE cases straight to the local field office where the applicant resides. The field office then schedules the case for an interview, which, in some large cities, can still take many months. Luckily for us, the Portland Field Office currently has very little wait time for these interviews, so applicants are receiving appointment notices right away.
We cannot say for sure that this trend will continue, but for now, we are thankful to see some cases move forward so quickly. Since USCIS is such a large, bureaucratic agency, it is important to do everything possible to keep petitions from being buried or delayed at the various stages of processing. By submitting a very strong and complete case upfront, it is possible to avoid several months of “lost time” as cases sit untouched at high-volume processing centers.
Without much warning, the U.S. Department of State has introduced a new set of questions to all Consular Electronic Application forms pertaining to social media presence and usage. The online DS-160 and DS-260 forms, which must be completed by all individuals hoping to apply for a visa from a U.S. embassy or consular post abroad, will now ask applicants to provide identifying usernames or account information for several social media platforms that they use (see below for complete list). The online applications will also ask applicants to list out all email addresses and phone numbers used in the past five years, and to volunteer their username or identifier for any additional online presence, if they choose to.
These questions must be completed by all applicants hoping to work, study, or live permanently in the U.S. and they must be answered honestly and completely, otherwise applicants could face serious immigration consequences, sources say. Any misrepresentation on these forms has historically caused issues during visa interviews.
While we have previously seen this type of request for individuals who become subject to “extreme vetting” or additional background checks (often as part of the elusive “administrative processing”) following their visa interviews, this is the first time we are seeing it on such a large scale or as a blanket policy for applying for a visa. According to authorities, this policy will immediately affect nearly 14.7 million people annually who are hoping to enter the US on many different types of visas.
This new policy immediately raises questions about how we can protect individual privacy and freedom in situations where national security is paramount. The New York Times notes that this new policy could “dissuade visa applicants, who may see it as a psychological barrier to enter the United States.” News outlets and civil rights groups nationwide have begun commenting on the implications of such a policy, which essentially assumes every person hoping to enter the U.S. is a potential threat. Under this assumption, the government can more easily justify violating rights and privacy in a process that already puts individuals under a high level of scrutiny and vulnerability.
The State Department’s Consular Electronic Application forms (DS-160 and DS-260) will now require applicants to list their usernames or accounts for the following social media platforms:
In addition to the new social media section, applicants will notice that the forms now ask them to list out email address and phone number histories, and to disclose details about their international travel and deportation status (rather than just U.S. travel and deportation), and answer more security questions about their family members.
According to the Federal Register, the U.S. Department of State will use the collected information for “identity resolution and vetting purposes based on statutory visa eligibility standards.” The new policy itself stems from a previous executive order in which President Trump declared his intent to implement and enforce “extreme vetting” in the immigration process.
While we have not yet seen this new policy play out in application submission or the interview process, we expect it to introduce new challenges for applicants and to add additional nuance to the background and security checks. Applicants now run the risk of misrepresentation if they do not disclose all of their information, as well as the risk of having their social media posts or activity misinterpreted by government officials. This also opens the door to more violations of privacy as it becomes more commonplace to dig into people’s personal lives before letting them enter the country for any purpose or length of time.
If you’re a United States citizen and you would like to bring your non-citizen partner to the United States from another country, marriage is ultimately going to have be part of your plan. With the K-1 Visa process, you will be married after your partner enters the United States, whereas with the Spousal Visa process, you will already be married before you file anything. One of these processes is not objectively better than the other: it depends on the circumstances and preferences of you and your partner.
There are many considerations you should take into account when deciding what process is best for you. Below we outline some key factors to consider and overviews of both of the processes for you to review as a starting point in your decision process.
Key factors to consider when deciding between the two options:
Difference in government filing fees
The government filing and processing fees are different for each visa process and are paid at different times.
Currently, the fees for the K-1 process are $535 for Form I-129F (filed with USCIS), $265 to apply for the K-1 visa (generally paid to the U.S. consulate), and then once your partner is in the United States there is a fee $1,225 for Form I-485/adjustment of status packet filed with USCIS. The total government fees are $2,025.
For the spousal visa process, current filing fees are $535 to USCIS for Form I-130, $325 to the U.S. State Department to apply for the visa, and $120 to the State Department for affidavit of support processing. After everything is approved, there is an Immigrant Fee to USCIS of $220. The total government fees are $1,200.
Ability to Work and Travel
With the K-1 visa, there will be a period of approximately 5-7 months from the time of filing the adjustment of status application in the United States until your partner receives the card that serves both his/her employment authorization and travel document. During this 5-7 month period, your partner cannot legally work or travel outside of the United States. You should not rely on expediting the processing of the work authorization/travel document applications because it is increasingly difficult to receive expedited processing with USCIS.
If your partner enters on a spousal visa, he/she would enter the United States with the ability to work and travel, because he/she would already hold legal permanent resident status.
Ability to enter the United States as soon as possible
Although the timing can vary greatly for both processes based on the exact circumstances of each case, generally the K-1 visa process allows your partner to enter the United States approximately 1-4 months earlier than through the spousal visa process.
Difference in legal fees
The legal fees for obtaining the Legal Permanent Resident Card (“Green Card”) through the K-1 Visa process are usually higher than for obtaining legal permanent resident status through the Spousal Visa process. Because the K-1 visa involves consular processing before your partner enters the United States and a full adjustment of status application process after they enter the United States, the legal fees associated with the full K-1/adjustment of status processes are usually higher than with the Spousal Visa process.
Overview of the processes:
The K-1 “fiancé/ fiancée” visa process:
Step 1 – File Form I-129F with the Immigration Service here in the United States. (Usually takes ~ 5-9 months to receive a decision from USCIS)
Step 2 – Upon approval of the Form I-129F, the case is transferred to the National Visa Center (“NVC”) which notifies the U.S. Consulate in the appropriate country of the approval. (Usually takes approximately ~ 2-6 weeks)
Step 3 – Your partner applies for the K-1 visa and an interview is scheduled and conducted with the U.S. consulate. (Usually this step takes ~ 2-4 months, depending on the consulate)
Step 4 – After your partner enters the U.S. on the K-1 visa, you must marry within 90 days of entry. Thereafter your partner would apply for adjustment of status within the U.S.
Overview of the spousal visa petition process:
Please note to apply for the spousal visa, you need to be legally married before filing anything.
Step 1 – You file a Form I-130 instead of the Form I-129F. (Usually takes ~ 5-9 months to receive a decision from USCIS)
Step 2 – Once the I-130 is approved, the petition will be transferred to the National Visa Center (“NVC”). Once the NVC receives the case, it will issue visa fee bills and request documents. (Usually takes approximately ~ 2-6 weeks)
Step 3 – The interview is scheduled at the appropriate U.S. Consulate (Usually takes approximately 3-5 months for the interview to be scheduled)
In a recent study by J.D. Power regarding customer satisfaction with North American airports, Newark’s Liberty International Airport (EWR) was voted the worst “Mega Airport” in the country. This is not the first time the Newark Airport has received a very low score on such lists. This extremely low rating is largely due to the airport’s history of long lines, delayed flights, and less-than satisfactory facilities and amenities.
While we cannot necessarily expect an airport experience to be entirely without annoyance or frustration, we thought this was a good time to point out just how lucky we are to be able to travel in and out of an airport that has been voted best in the country six years in a row by Travel + Leisure magazine (2013-2018). Portland International Airport (PDX) also received a very high score in the “Large Airports” category by the 2018 J.D. Power study. If you were looking for reasons to visit Portland, you can add this to the list.
Although it is not as large as Newark or other “Mega Airports” and so cannot be directly compared, Portland International Airport (PDX) is frequently referred to as one of the country’s easiest and most enjoyable airports to travel in and out of. The reason for this designation is likely the fact that PDX has managed to eliminate many of the elements we know and hate about the airport experience: extremely overpriced goods, weird, packaged meals that rival the quality of actual airplane food, long lines, brusque employees, and old or run-down facilities and terminals.
At PDX, there is a policy in place which locks all restaurant food at “street prices.” This means that they require all food, drinks, and coffee served in the airport to be sold for the same price as they would be at the corresponding restaurant or cafe in the city. On that note, one of the best things about PDX is the huge selection of local favorites and exceptional, high-quality dining options that can be found. At PDX, you will not find only chain restaurants or be limited to an “airport-style” dining experience. Instead, you can enjoy a great cup of coffee from Stumptown Coffee Roasters, indulge in a famous Blue Star Donut, and try a flight of craft beers at Oregon’s own Deschutes Brewery while you wait to board your flight.
Even if you’re not a foodie, it is still likely that you’ll have a good experience at PDX thanks to the friendly TSA officers, efficient security checkpoints, and newly renovated concourses.
In addition to the high-quality dining, nice employees, and modern facilities, Travel + Leisure notes several other unique features at PDX: a light rail that drops you off at the front door, a spa, a barbershop, and a mini movie theater, which is a satellite location of a beloved and historical Portland theater, Hollywood Theatre. You can even shop for books at Powell’s if you didn’t make it to the local book superstore while visiting the city.
With so many great amenities, it is no surprise that PDX is scoring high on customer satisfaction lists and has gained a bit of a cult-following. Even the carpet at PDX seems to draw in visitors. Check out the hashtag #pdxcarpet on Instagram and Twitter if you don’t believe us.
This is also great news for new immigrants or visitors entering the U.S. for the first time who may be nervous about a potentially unpleasant customs experience at the airport. PDX is likely to offer a pleasant experience for domestic and international arrivals alike. And it is certainly a great place to embark on your new journey in the U.S.
With a national immigration system that is far from perfect and near-constant news stories telling us how broken it is, it may feel like we are already experiencing the worst case scenario, or that we are experiencing a full-on crisis in all areas of immigration.
This is, of course, not entirely the case — or at least, it doesn’t tell the whole story. While we as a country may be experiencing a critical moment in the trajectory of our immigration policy, it is worth noting that we have yet to see an extreme overhaul of current policies, and that the majority of this administration’s proposed legislation has not passed smoothly through Congress. Thousands of people from across the globe still have the opportunity to enter this country through a legal, though arduous, process. Those in the process of immigrating legally before President Trump took office are still in line, and, as things stand now, will still have a (generally) fair chance to complete the application process when it is their turn.
The proposed system
On May 16th, 2019, the President announced a plan that could change this reality. Trump’s plan, which senior White House adviser, Jared Kushner, spent many months formulating, introduces one of the most extreme changes to immigration policy yet. This plan is still far from becoming legislation, and even further from being enacted into law. Nevertheless, it is important to understand the details of Kushner and Trump’s proposed the merit-based “Build America visa” and what it could mean for the future and the very foundation of our national immigration policy.
The proposed policy, which is described as “Pro-American, Pro-Immigrant, and Pro-Worker” is multifaceted. As part of a complete policy reform, the administration proposes to:
The “Build America visa”, according to Trump, would completely replace the current Green Card application process with a merit- or point-based system for immigration. To understand what this could mean for immigrants and hopeful immigrations, it is important to understand how the current system works.
The current immigration system
Under the current legal immigration system, established largely by Immigration Acts in the second half of the twentieth century, United States citizens, naturalized citizens, and Legal Permanent Residents (LPRs) can each petition for four categories of immediate relatives: spouses, parents, unmarried children under 21, and adopted children, as well as various “family preference categories,” which include married and unmarried sons and daughters of U.S. citizens or LPRs and their minor children, as well as siblings, their spouses and their minor children. This process of “family-based immigration” may in some cases take a devastatingly long time, but it is not terribly restrictive. In general, it allows for families to be reunited (over time) and for the phenomenon often cited as “chain migration” — when immigrants gain legal status and continue to bring more and more family members to the U.S.
Under our current system, non-immigrant workers in the U.S. on employment-based visas also have the ability to bring their spouses to the U.S. and their spouses have the ability to gain work authorization in order to sustain a shared life in the U.S. where the employee has been recruited to work. Work-based visas are not easy to get, as they generally require a high level of skill and in many cases operate on a lottery-like system where very few qualified applicants actually make the cut. The current system allows for these skilled individuals to bring their family to the U.S. through a legal process, rather than forcing their separation.
The Immigration and Nationality Act of 1965, and later the Immigration Act of 1990, set limits for each visa category and put a cap on how many immigrants could enter the U.S. annually through each visa category. Each of these acts helped shaped the immigration system that we know today and had the beneficial outcomes of putting an end to racial and ethnic quotas in immigration and emphasizing family reunification in drafting the legislation. Components of these Acts have allowed Congress and the Supreme Court to challenge many of Trump’s executive orders, including Executive Order 13769, which pushed to specifically ban immigrants from seven Muslim countries.
Under the Immigration and Nationality Act (INA), U.S. Citizens and Legal Permanent Residents can petition for their family members as long as they have an eligible family relationship and as long as they can either financially sponsor the intending immigrant, or find someone else who can. Under this system, LPRs, or LPRs that have recently naturalized, can file a petition for their spouse, parent, sibling, or child to join them in the U.S. While this process can sometimes take many years (depending on the visa category and country of origin), it still allows for the hope of family unification at some point in the future.
What a new policy would mean
The proposed “Build America” visa would dismantle this entire system and replace it with a process that is based on level of education, English-language abilities, and other so-called “merits.” The new policy would also remove parents and siblings from the possible eligibility categories and would limit family-based visas to spouses and minor children only. It would also restrict workers’ abilities to bring their family members to the U.S. and potentially block their spouses from obtaining work authorization. Not only would this new policy drastically change the future of family-, employment-, and humanitarian-based immigration, it would also result in the complete dissolution of the current system, a system which thousands of foreigners have spent years, and in some cases decades, participating in. This could mean that nearly 4 million immigrants who have sought immigration through the legal process would lose their place in a very long line.
Rather than finding a solution to the large number of undocumented individuals and DACA recipients already in the country or creating better, more humanitarian system for asylum-seekers at the Southern border (two issues that seem to be creating the most political strain currently), this highly-calculated and “revolutionary” new policy would instead primarily punish those who have already been playing by the long-established rules and doing things the “correct” way. It would punish the skilled workers, who would not be able to bring their families to the U.S., and it would punish siblings and parents who have paid the high fees and waited years to join their sibling or child who has established a life in the U.S. This plan would also not reduce the number of immigrants entering the country, but would instead change their composition to be overall less diverse.
Per the new system, the U.S. would expect intending immigrants to already speak and read English, have a higher level of education for skilled labor (in a country currently facing a severe shortage of low-skilled workers), and be financially secure without need for a sponsor (or even have the ability to invest in American companies or create new jobs upon arriving). The newly proposed system actually shares many characteristics of Canada’s immigration policy, which also operates on a points-system and focuses on bringing in skilled and promising immigrants rather than family reunification. These types of nationalist immigration policies are common in other Western countries hoping to attract skilled workers and outstanding citizens, but it would be unprecedented for a country with such a rich history of humanitarian and family-based immigration to shift completely away from this.
For now, the “Build America visa” is just a proposition. It is not even legislation yet. And with a Democratic majority in Congress, it is highly likely to come up against a lot of opposition. Nevertheless, it will be crucial to keep an eye on this as the Trump administration pushes forward. It is also a bit of a wake-up call, as it reminds us that reduced visa approval rates and tougher visa interviews that we are currently seeing are not the worst case scenario. The worst case scenario is to lose the foundation of, as well as the legal basis for, our entire legal immigration system. This would require us to start from scratch, in a new system, with a new set of rules.
Those most affected by this proposed policy (should it move forward) will be the millions of “non-immediate” family members (primarily parents and siblings) who would no longer be able to come to the U.S. through a legal route. This movement away from family reunification would mark a fundamental change in U.S. immigration policy and would have the most immediate effects on family members who believed they had a path forward. With the new knowledge that the Trump administration aims to restructure the entire immigration system rather than simply work on the weakest parts, it is safe to say that now would be a good time to take advantage of the current system while we still have it.
The United States needs more physicians. This need is likely to worsen in the next decade: by 2030 the United States could see a shortage of up to 120,000 physicians according to the Association of American Medical Colleges. To address this shortage, the U.S. government has provided some unique options for foreign-born physicians to come to the United States and practice medicine.
In this article, we will discuss the various options for physicians to come to the United States, either as a nonimmigrant or as an immigrant, and the considerations that physicians should take into account when deciding whether to apply to enter the United States as a nonimmigrant or an immigrant.
Nonimmigrant Options for Physicians
H-1B Visas for Licensed Physicians
Do I need a U.S. Employer to petition for me?
Yes, but in some cases you can be an owner of the petitioning U.S. Employer company. Under the H-1B visa program, professionals must be sponsored by a U.S. employer. However, USCIS allows some professionals, including physicians, to apply for H-1B status with companies they own. The USCIS has stated that “entrepreneurs with an ownership stake in their companies, including sole employees, may be able to establish the necessary employer-employee relationship to obtain an H-1B visa, if they can demonstrate that the company has the independent right to control their employment”. The right to control includes the ability to hire, fire, pay, supervise or otherwise control the employment.
What are the qualifications?
Not all H-1B physicians are subject to these requirements. The following physicians are do not have to meet these qualifications:
How long can I remain in H-1B status?
A physician can hold H-1B status for a maximum of 6 consecutive years: 3 years for the initial petition and another possible 3 year extension.
Special Considerations for this Visa Type –
Most physicians’ H-1B petitions are counted against the H1B cap and are subject to the H1B lottery process, which historically has occurred only once per year in April. However, the following petitioning employers and physicians do not have to go through the lottery process:
O-1 Extraordinary Ability Visa for Physicians
Do I need a U.S. Employer to petition for me?
Yes. Under the O-1 visa program, the physician must be sponsored by a U.S. employer or agent. Staffing agencies can sponsor O-1 physicians as agents, rather than direct employers and place physicians in jobs as independent contractors. Alternatively, the physicians can form their own companies and self sponsor their O-1 visa in a similar manner to the situation discussed above for H-1B, where the right to control the physician must be proven.
What are the qualifications?
The physician must be the recipient of either (i) a major, internationally-recognized award or (ii) at least three of the following distinctions:
How long can I remain in O-1 status?
Initially you may receive 3 years in O-1 status. At the end of the 3 year period, the employer must file a 1 year extension request and they can continue to file a 1 year extension requests indefinitely for as long as the physician’s employment continues. Unlike the H-1B visa, there is no limit on how long a physician can hold O-1 status.
Additionally, each new employer is entitled to a new 3 year validity period. So while if you stay with the same employer for years beyond the first 3 years validity period that employer has to file for you every year, if you move to a new employer then you may receive 3 years of O-1 status.
Special considerations for this visa type –
E-2 Treaty Investor Visa for Physicians
Do I need a U.S. Employer to petition for me?
What are the qualifications?
How long can I remain in E-2 status?
Although the E-2 visa is a non-immigrant visa, these visas can usually be extended an unlimited amount of times in increments of 2 years.
Immigrant Options for Physicians
In some cases, it is more appropriate for the physician to apply for permanent resident status in the United states. In deciding whether to apply as a nonimmigrant or an immigrant, the physician should consider the following:
Labor Certification (“PERM”) Process for Physicians
A process called labor certification is the most common way to obtain a green card through employment-sponsorship. A U.S. employer must be the petition for the physician in this case. As part of the application, the petitioning employer must show that there are no U.S. workers ready, willing and able to fill the position and that the employer has the ability to pay the offered salary.
The recruiting process and the PERM application
In order to show that there are no U.S. workers ready, willing and able to fill the position, the petitioning employer needs to test the U.S. labor market by advertising the job and conducting a good faith recruitment to determine if there are “available and qualified” US workers to fill the position. The recruitment process must be handled according to very strict Department of Labor (“DOL”) guidelines that do not always align with what the petitioning employer normally does when they recruit for a position.
If anyone qualified applies for the position in response to these specific recruiting efforts, the petitioning employer needs to interview those applicants. The petitioning employer has no obligation to hire any of them but at that point the employer would be unable to file the PERM application on behalf of the physician.
If there are no qualified or available US workers found to fill the position, the employer will sign a recruitment report describing the recruitment process and its results, and a form called Form ETA 9089 will be filed electronically with the DOL. The DOL can adjudicate the application based simply on the electronic filing or it can audit the application. Processing times can range between one month and one year for unaudited cases, and up to two years for audited cases.
It’s important to note that the PERM regulations prohibit an employee from paying any costs related to the PERM process, including attorney fees and advertising costs.
Final Steps and Special Considerations for Physicians
Once the PERM is approved, the next step is to file the Form I-140 immigrant petition with USCIS. Some physicians can file their I-485 adjustment of status application concurrently with the I-140 petition, depending on what country they are from.
Physicians who are in the process of fulfilling the three years of J-1 service may not file an adjustment of status application based on a PERM until they have completed the service commitment.
Physicians who have backlogged priority dates, such as those from India and China, may not file an adjustment of status application unless they have a current priority date. For PERM cases, the priority date is the date on which the PERM application is filed, but that date does not lock in until the I-140 is approved.
An employee may not port a PERM-based green card petition to a subsequent employer unless he or she has an adjustment of status application that has been pending for 180 days. This means that physicians with backlogged priority dates who are unable to file adjustment of status applications often may not port a PERM-based petition to a subsequent employer. In this situation, physicians can port their priority date and obtain H-1B extensions beyond the six-year limit if they have an approved I-140.
National Interest Waivers for Physicians (PNIW)
Congress has created a special national interest waiver program for foreign physicians. For a NIW application, a physician does not need an employer to sponsor him or her. She or he can apply as an independent contractor so long as he commits for working for five years under special conditions.
To qualify, an applying physician must:
Extraordinary Ability Alien Petitions for Physicians
In addition to the national interest waiver for advanced degree or exceptional aliens, extraordinary ability aliens are also eligible for permanent resident status. Like the NIW, an employer sponsor is not required. However, an eligible physician must be extremely accomplished and prove that she has “a level of expertise indicating that [she] is one of the small percentage who has risen to the very top of the field of endeavor.” The O-1 visa qualifications listed above also apply to the extraordinary ability alien.
The TN visa category, created by the North American Free Trade Agreement (“NAFTA”), allows Canadian and Mexican professionals to enter the United States for temporary employment purposes. NAFTA lists 62 qualifying professions (contained in Appendix 1603.D.1 of NAFTA) that are able to enter on a TN visa.
A TN visa is a great option for Canadian and Mexican professionals that fall into one of the 62 categories. However, for professionals that do not easily fit into one of the categories or do not have a Bachelor’s Degree or some specific form of certification, training, or licensure, a TN visa can be quite difficult to obtain. 61 out of the 62 professions require either a Bachelor’s Degree or some form of certification, training, or licensure.
The only listed profession that does not have a stringent degree, licensure or certification requirement is the Management Consultant designation. This more relaxed requirement – coupled with the fact that the Management Consultant designation is really the only profession that involves general business administration, business management, business analysis or related fields – makes the Management Consultant designation a very popular and consequently a highly scrutinized professional category for TN visas. The requirements, examples of duties, advantages, and disadvantages of pursuing the Management Consultant designation are discussed below.
Requirements for the TN Management Consultant Category
Requirement #1: The TN Management Consultant must have a degree or five years of relevant experience
A Canadian or Mexican national may be eligible for the Management Consultant designation if he or she possesses at least one of the following: Baccalaureate or Licenciatura Degree; or equivalent professional experience as established by statement or professional credential attesting to five years experience as a management consultant, or five years experience in a field of specialty related to the consulting agreement.
Requirement #2: The TN Management Consultant cannot be filling a regular, full-time position
The TN management consultant guidance specifies that Management Consultant positions should generally not be for aliens filling regular, permanent positions. In effect, this makes it almost impossible for a TN application to be granted if the applicant will be employed as a W-2 employee. The guidance relating to TN management consultants acknowledges that petitioners will, at times, require a TN management consultant as a full-time employee; however in these cases the TN management consultant should be working for a consulting company, and should not be filling an existing position, replacing and employee in an existing position, or filling a newly-created permanent position.
Examples of Duties of a TN Management Consultant
The TN visa regulations do not specifically define the types of Management Consultant job duties that are permissible under this TN category. We can look to the U.S. Department of Labor’s Occupational Outlook Handbook (OOH) and the legacy INS’ NAFTA Handbook for guidance on the job duties for this occupation.
According to the OOH, Management Consultants (referred to also as Management Analysts in the OOH) generally advise managers on how to make organizations more profitable through reduced costs and increased revenues.
The legacy INS’ NAFTA Handbook describes the general duties of Management Consultants as providing services that are directed toward improving the managerial, operating, and economic performance of public and private entities by analyzing and resolving strategic and operating problems and thereby improving the entity’s goals, objectives, policies, strategies, administration, organization, and operation.
Some examples of specific duties of a TN Management Consultant are as follows:
The duties of the TN Management Consultant need to be tailored specifically to the situation and company’s needs, and the application should include the percentage of time to be spent on each duty.
Disadvantages of Applying for a TN Visa Under the Management Consultant Category
Additionally as with all TN visas, there are the following considerations:
Advantages of Applying for a TN under the Management Consultant Category
Notwithstanding the difficulties of obtaining a TN visa under the Management Consultant category, there are still factors that make it the best option for applicants that meet the specific criteria outlined above. The advantages of a TN visa under the Management Consultant are as follows:
In Austria, McDonald’s fries come with a US passport. Yes, you read that correctly: thanks to a partnership between the fast food chain and US Embassy in Vienna, Americans in Austria can receive consular assistance from within any of the country’s 194 McDonald’s. If you lose your passport or run into any other issues while in Austria, head for the golden arches.
For now, Austria is the only country partnered with Ambassador Ronald McDonald. So what do you do if you lose your passport elsewhere in the world?
Contact the nearest US embassy or consulate
Let the nearest US embassy or consulate know if you’ve lost your passport. You should also let them know how long you plan to remain in the country. It usually takes four to six weeks to receive a new passport, but if you’re in a hurry they can expedite the process and issue you an emergency travel document.
Take a new passport photo
The State Department has strict requirements about how your passport photo should look, so it’s a good idea to hire a professional photographer. You can read the official passport photo guidelines on the State Department’s website.
Pro tip: keeping a digital passport photo stored on your phone or in your email will save you time and money.
Fill out a new passport application
There are a few forms you’ll need to fill out in order to replace your passport. Fortunately, they’re short and straightforward! You can access a passport application on the State Department’s website.
Head to the nearest US embassy or consulate
Be sure to along the following:
You’ll also have to pay a $140 processing fee.
It can take four to six weeks for your new passport to be ready. However, if you’re in a hurry you can request an emergency travel document.