Adjusting to a new reality

As most of our readers are aware, much of our current law practice involves helping clients with immigration problem and issues. As such, we are on the front line of trends and changes in immigration law and the challenges that face employers and employees alike in navigating the shifting reality of immigration in the CNMI. We consider our columns as reports from the trenches. Now that the panic of November 2011 has subsided, many uncertainties remain. Many of the concerns involve questions about pending status of various sorts. We will try to address the most pressing ones in today’s column.

[B]What happens after my parole extension expires on Jan. 31, 2012?[/B]

As reported in the Saipan Tribune last Friday, USCIS has indicated that persons with pending CW applications who have paroles that were extended to Jan. 31, 2012 will be given an opportunity to further extend their parole. This category includes CW applicants who never had an umbrella permit but had CNMI work authorization that expired after Nov. 28, 2009 and who applied for and received parole. It also includes people with umbrella permits who traveled abroad on an advance parole and re-entered the CNMI, between Nov. 28, 2009 and Nov. 27, 2011. We suspect the Jan. 31, 2012 expiration date was chosen by USCIS as a target date to get all these applications adjudicated; it now appears that more time will be needed, hence the promise of further extensions.

Although USCIS has not yet issued any guidance on how these paroles will be extended, we anticipate that it will happen soon. We also hope that the extension will also be available to people who have employment or investment based applications pending, such as applicants for E-1, E-2, L-1, H-1, F-1, or R-1. These persons are also on a parole basis awaiting adjudication of their petitions. They also need to maintain lawful presence in order to obtain grant of status in the CNMI. If they do not maintain lawful presence in the CNMI, they will have to exit and go through consular processing, which can be a very uncertain process, especially in China.

Please note that persons with pending CW permits, who never left and re-entered the CNMI between Nov. 28, 2009 and Nov. 27, 2012, are not on a parole basis and do not need to extend. This category of people is authorized to remain and work in the CNMI, without taking any further action, until their petitions are either granted or denied.

[B]I have a pending green card application but I urgently need to visit my home country while I am waiting for adjudication—what can I do?[/B]

We have had a number of clients who have pending applications for adjustment of status to U.S. permanent resident (“green card”) and who either need to go to their home country for medical care or to visit an elderly, sick or dying relative. Our general advice is to try not to travel abroad while your application is pending. But if you must travel, especially for a medical or family emergency, it can be done so long as you are an immediate relative of a U.S. citizen (USC). You need to apply for advance parole. To qualify, you will need to show a Form I-797C receipt proving that you have filed your I-130 (or, for widows, widowers and abused immediate relatives of USCs, your I-360). If the parole is granted, you can return to the CNMI, even though you have no actual status other than a pending application. If USCIS issues you a notice for biometrics or an interview appointment while you are gone, you need to authorize someone to re-set the appointment. USCIS has been very accommodating about re-scheduling both biometrics appointments and interviews, but except for emergency situations, you should make your request as much in advance as possible.

The usual fee for filing Form I-131 to apply for advance parole, is $360 plus, in some cases, an $85 biometrics fee. There is no fee, however, if you file for advance parole at the same time you file your Form I-485 (Application for Adjustment of Status) or, if you have already filed the I-485, if you include your I-797C receipt with the later-filed I-131. (The same is true of the Form I-765 Employment Authorization Document application. For the past year, in most cases, USCIS has been issuing a “combo card” that acts as both EAD and advance parole.)

Unfortunately, it appears that the ability to get advance parole, then leave and return to the CNMI with no other status than a pending green card application, does not apply to green card applicants who are the immediate relatives of lawful permanent residents (LPRs), or to those whose petitioner is a USC but who do not qualify as immediate relatives. Those people must have some other status allowing them to return to the CNMI, once they have left.

[B]I have a nonimmigrant visa but close members of my household do not qualify as my derivative beneficiaries. Is there is anything I can do to keep my family together?[/B]

We talk to a lot of people who have—or expect to soon have—nonimmigrant status such as H-1B, E-1, E-2, or L-1 or L-2, and even CW-1. They are, typically, workers who originally came to the CNMI before federalization and have been established here for years, and, frequently, they have household members—most often, elderly parents or “common law” spouses—who may have had some kind of immediate relative status under CNMI law, but who do not qualify for that status under U.S. immigration law.

We always look for some form of status or parole, for example the parole USCIS announced at Thanksgiving for parents of USC children, but frequently we can only say “sorry, nothing we can do.” Now it appears that there is something that can be done, although we have to qualify it for now as “yes, maybe, if you successfully jump through enough hoops.” Like many new products, this one comes with an implied warning that results may vary and are not guaranteed.

USCIS often announces important changes to its policies, and clarifications of policy, in its policy memoranda, which can be viewed on the USCIS website at http://tinyurl.com/yhrw9z. Last week we found Policy Memorandum PM-602-0045, published last August 17, with a rather dry title that begins, “Changes to B-2 Status and Extensions of B-2 Status for Cohabiting Partners and Other Nonimmigrant Household Members,” available at http://tinyurl.com/3v3uss8.

[B]What’s that mean? The Policy Memorandum summarizes it succinctly:[/B]

In some circumstances, elderly parents, cohabitating nonimmigrant partners, and other household members of principal nonimmigrants may be ineligible for derivative status. For purposes of this memorandum, a “household member” of a principal nonimmigrant is an alien who regularly resides in the same dwelling as the principal nonimmigrant and with whom the principal nonimmigrant maintains the type of relationship and care as one normally would expect between nuclear family members. There are also circumstances when it may be inconvenient or impossible for spouses or children of principal nonimmigrant aliens to apply for the proper derivative status. These aliens may seek B-2 visas, or change their status to B-2, to allow them to reside with the principal nonimmigrant visa holder who is in the United States in another status (H-1B, F-1, etc.).

The Policy Memorandum notes that the Department of State’s Foreign Affairs Manual provides for issuance of B-2 visas to these household members, at 9 FAM 41.31 N14.4, available at http://tinyurl.com/7rue3h2, bottom of page 25. Here’s the entire Department of State guidance:

[B]9 FAM 41.31 N14.4 Cohabitating Partners, Extended Family Members, and Other Household Members not Eligible for Derivative Status [/B]

The B-2 classification is appropriate for aliens who are members of the household of another alien in long-term nonimmigrant status, but who are not eligible for derivative status under that alien’s visa classification. This is also an appropriate classification for aliens who are members of the household of a U.S. citizen who normally lives and works overseas, but is returning to the United States for a temporary time period. Such aliens include, but are not limited to the following: cohabitating partners or elderly parents of temporary workers, students, diplomats posted to the United States, accompanying parent(s) of minor F-1 child-student. B-2 classification may also be accorded to a spouse or child who qualifies for derivative status (other than derivative A or G status) but for whom it may be inconvenient or impossible to apply for the proper H-4, L-2, F-2, or other derivative visa. If such individuals plan to stay in the United States for more than six months, they should be advised to ask the Department of Homeland Security (DHS) for a one-year stay at the time they apply for admission. If needed, they may thereafter apply for extensions of stay, in increments of up to six months, for the duration of the principal alien’s nonimmigrant status in the United States.

This is a creative use of the B-2 visa, which is usually for tourists and similar visitors to the US. We believe that the use of B-2 status described in the memo will help people who otherwise have no options to hold their households together. It is applicable to a very broad range of family members who do not otherwise qualify for derivative status. The question is, what do you have to do to get this B-2 status?

It is clear that the process will work for an applicant who is outside the CNMI, who applies directly through the Department of State (DOS). But neither the Policy Memorandum nor the DOS guidance clarify whether qualifying household members already in the CNMI can apply through USCIS for an initial grant of status, or whether they must apply through DOS and go through consular processing in their home countries. Many of those we have seen who appear to qualify for this use of the B-2 may not be able to afford the travel expenses, or may be too anxious about taking their chances with the consulates. Given recent experiences of various clients in Manila, Chengdu, and Seoul, and anecdotes we are hearing from other CNMI attorneys, we cannot say that the anxiety is not justified. Current consular officer education about the CNMI seems spotty, at best. (One particular exception is the consulate at the U.S. Embassy in Tokyo, where our clients have had very positive experiences.)

We have for some time been able to apply to USCIS for initial grants of status for employment-based nonimmigrants. If successful, the grant of status allows the beneficiary to remain in the CNMI and work, although upon first exit from the CNMI the beneficiary must apply to the appropriate consulate for the actual visa, in order to return. That is, essentially, what the CW status applications accomplish: a grant of CW status, with a visa required to return from any foreign travel. We sent a query to USCIS, asking whether alien residents of the CNMI, who have only prior CNMI status but are admissible, can qualify for initial grants of status through USCIS rather than applying through DOS.

The answer, at least for now, is “no”—USCIS will not make an original B-2 grant of status. The Policy Memorandum only applies to extensions of the B-2 status for these extended family members who already have B-2 visas and are in the U.S… They will have to apply for B-2 status through the appropriate consulate, with all the attendant expense of travel and uncertainty of result. Still, if you are out of other options, this one is definitely worth exploring.

[I]The information contained in this column is intended as general information only, and not as individual legal advice. Readers should obtain professional legal advice before taking action with respect to their individual situations. Readers may submit questions regarding federalization or immigration issues to the authors by email to lexmarianas@pticom.com. Readers may also e-mail written questions through the Saipan Tribune at editor@saipantribune.com.[/I]