Immigration Planning for 2009 and Beyond
Posted Jan 02, 2009
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We at the Murthy Law Firm wish each of you a wonderful year ahead for 2009. We would like to take this opportunity to help you, our readers, with plans to care for your immigration status and that of your family members. At least once a year, it is wise to conduct a review of your immigration deadlines and expiration dates, and the start of each new calendar year is a good time to reexamine everything. This article highlights many common problems we encounter when guiding our clients in their immigration cases. Included is an explanation of the I-94 card expiration date, the visa stamp in the passport, and common mistakes regarding H-4 extensions. We offer some ideas to help MurthyDotCom and MurthyBulletin readers avoid or overcome some difficult situations.
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Check the Expiration of I-94 Card
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If a person is present in the U.S. in a temporary, nonimmigrant status, then s/he should check the expiration date on the I-94 arrival / departure card. The I-94 is a small card that should be affixed to the passport. It is obtained in one of two ways. It can be issued by the U.S. Customs and Border Protection (CBP) at the port of entry (POE) upon one's admission to the United States, or it may be issued by the U.S. Citizenship and Immigration Services (USCIS) based upon a request to change or extend status in the U.S. In the latter case, it initially is found at the bottom of the approval notice (Form I-797) only when the USCIS approves the extension or change of status. This card reflects the length of time one may legally remain in the U.S. Of course, it is necessary to comply with the terms of the particular status. On occasion, the USCIS will issue an I-94 for an incorrect timeframe; usually beyond the period permitted for the particular category and individual. If one finds such an error has been made, s/he should not to rely on these dates. It is best to seek proper legal advice. An attorney at the Murthy Law Firm can be consulted on this matter. Information is available on our Consultation Page on MurthyDotCom.
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People sometimes get confused between the visa "stamp" expiration date and the I-94 expiration date. The visa stamp is an entry document, only. It is issued by a U.S. consulate abroad. A valid visa does not grant status in the United States. It grants permission to request entry into the U.S. For example, one may have a 10-year, multiple entry B-2 visa. The period of time one may remain in the United States, however, is not determined by the visa. It is determined by the I-94 received at the port of entry (or any extension of the I-94 later granted by the USCIS). For most B-2 visa applicants, the timeframe usually is a maximum of six months, though shorter durations, like one or two months, sometimes may be issued.
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Family Members Need Valid I-94s to Maintain Status
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The warning above, to check the I-94, also applies to all nonimmigrant family members. Each family member must hold her/his own separate status. This can be a status that depends upon another family member, but each individual should have either an unexpired I-94 or a timely and properly-filed, pending request to change or extend status. Even dependant family members must file extension requests, separate from their spouses' extension requests, in order to maintain status in the United States.
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Not Extending H-4 Status - a Common Mistake
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One of the most common mistakes that we at the Murthy Law Firm see involves spouses and children with derivative statuses, such as the H-4, who assume that their statuses are valid simply because the principal beneficiaries in these cases have maintained valid status. This is not the case. The filing of an H1B extension (or any principal status extension) does not extend the status of the dependant spouse and/or children.
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The confusion seems to arise from the fact that the derivative spouse usually first enters the U.S. based upon an approved H-4 visa from a consulate abroad. This visa is based on the H1B approval of the principal spouse. There is no separate petition filed for the dependant spouse. However, the procedure changes once the H-4 enters the United States. Once in the U.S., the status is ruled by the date on the I-94 card. The dependent will fall out of status unless s/he files his/her own request to extend or change status beyond the I-94 date. The primary spouse's extension or change request does not take care of the family automatically. The family members need to file separately, with different forms and additional filing fees, referencing the primary beneficiary's filing.
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Failing to Extend Status - a Serious Problem
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The failure to extend status as a dependant can have serious immigration consequences. If one allows her/his status to lapse, it generally cannot be extended or changed in the United States. Thus, the individual may have to leave the U.S., with a possibility of regaining status by entering again through a POE. This solution is not always available, however, if the problem is not detected in time. Individuals who have accrued more than 180 days of unlawful presence after age 18 will be barred from reentering the U.S. for three years following departure. This bar to reentry increases to ten years for those who have accrued one year or more of unlawful presence. Thus, if the dependant spouse or child over 18 leaves the U.S., reentry may not be an option.
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Possible Solution - a Nunc Pro Tunc
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One potential solution for family members in the situation described is the request to late-file an extension of status and obtain a backdated, or nunc pro tunc, approval of the dependant status. More on this option can be found in our September 8, 2006 article, Nunc Pro Tunc H1B and H-4 Cases Approved. While we at the Murthy Law Firm have filed many such cases successfully, whether the USCIS chooses to grant the status change or extension is entirely a discretionary matter. The likelihood depends upon many factors, and the outcomes are sometimes inconsistent. These are not routine cases. MurthyDotCom and MurthyBulletin readers who believe that they may have this problem should arrange to discuss the matter with their attorneys, or may contact the Murthy Law Firm to consult with one of our lawyers.
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Travel Documents - Visas and Advance Parole
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When planning travel outside the U.S., it is necessary to check the expiration dates of one's travel documents. Visa stamp expiration dates should be double checked and, if needed, appointments for new visas made in advance via the appropriate consulate's website. As explained, the expiration date on the visa stamp in the passport does not affect status or permission to remain in the United States. However, many people will find that a valid visa is needed in order to return to the U.S. after foreign travel. Plans for visa applications must be made in advance, as they require appointments at the U.S. consulates abroad. During heavy travel seasons, appointments may become unavailable.
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Individuals who have pending Applications for Adjustment of Status (I-485s), are generally eligible to request Advance Parole (AP). AP is essentially advance permission to return to the U.S. to pursue one's I-485 case. AP is necessary for those who do not hold H or L status. However, it is a good idea to obtain advance parole even with H or L status, particularly if the H or L visa has expired. It is then available should the need for emergency travel arise, when trying to schedule a visa appointment may create additional stress, or may be impossible given time constraints.
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The AP generally is issued as a one-year, multiple entry document. The expiration date is clearly indicated on the document. The return travel must occur before the expiration date. AP requests must be filed from within the United States and one must be present in the U.S. at the time of approval in order to use that AP for reentry into the U.S. It is not possible to request an AP extension from abroad. Thus, the expiration date is very important.
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Employment Authorization Documents
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Employment Authorization Documents (EAD) may be requested by persons with I-485 cases pending. The EAD may be issued either for one or two years. More information on the two-year EAD is available in our July 25, 2008 MurthyBulletin article, 2-Year EADs and Reported Errors on EAD Cards. The EAD expiration date is marked clearly on the card. Those working based upon the EAD, must have approval in order to maintain employment eligibility. The renewal request therefore needs to be filed in advance to avoid a lapse in eligibility for employment. EAD renewals may be filed 120 days in advance, which we at the Murthy Law Firm recommend.
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Like the AP, it can be a good idea to have an EAD, just in case. Individuals working in nonimmigrant statuses, such as H-1 or L-1, who also have I-485 cases pending, may want to obtain the EAD. The reason is simply that it permits employment and may prove helpful if one tries to find a new job. Since it can take about 90 days for the EAD to be processed, it is better to request it before it actually is needed.
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Conditional Permanent Residents
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Conditional permanent residents have a status that expires if they do not take action. Conditional permanent residence is granted in marriage-based immigration cases in which the marriage has existed for less than two years at the time of the case approval. These individuals are given permanent residence that is conditional, meaning that it expires after two years. They need to make separate filings to remove the conditions. More on this topic, as well as filing requirements for any conditional permanent resident children, is available in our December 26, 2008 MurthyBulletin article, Dependent Children and Removal of Conditional Residence.
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The expiration date is clearly indicated on the lawful permanent resident card (or "green card"). Failure to file to remove the conditions by the expiration means that the individual is no longer a permanent resident. Conditional permanent residents who have missed the deadline should obtain qualified immigration advice. It is sometimes possible to overcome this problem, but the expiration date should be taken seriously and the problem avoided, if possible. Conditional permanent residents who are approaching the deadline, and are uncertain about procedures and eligibility to file to remove the conditions, should set up consultations with their respective immigration attorneys. If the Murthy Law Firm is not handling your immigration case, our attorneys are available to consult on matters as a second opinion.
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Green Cards - Verify Expiration Dates
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Most green cards have expiration dates. This does not mean that permanent resident status expires, but only the card itself. It means it is time to request a new card by filing Form I-90. It is important to have proper evidence of status for work, travel, and general purposes when one may need to prove lawful presence in the United States.
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Stay Informed
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Immigration laws and procedures are constantly changing. Informed individuals are better able to cope with these changes and avoid creating problems or missing opportunities. Many immigration benefits have limited availability under U.S. law. Timing is often critical. This New Year, resolve to be informed about your immigration matters. We at the Murthy Law Firm will continue to do our part by providing our free, weekly MurthyBulletin, the MurthyForum, the twice-monthly MurthyChat, and, of course, MurthyDotCom - all sources of valuable, timely, relevant information. It is our goal to keep you, our valued clients and readers, informed in 2009 and beyond, to help protect you and your families in your immigration matters.
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