Brian D. Lerner Immigration Attorney & Deportation Lawyer Blog

Question: What is a Travel Document and Who Needs One?

Answer: If you are not a U.S. citizen, you may need permission to return to the United States after traveling abroad. This permission is granted through a travel document. Travel documents are also given to people who want to travel, but cannot get a passport from their country of nationality.

Question: How do I file for a travel document?

Answer: You must file USCIS Form I-131, Application for a Travel Document, complete with supporting documentation, photos and applicable fees. If you are a permanent resident or conditional resident, you must attach a copy of the alien registration receipt card; or if you have not yet received your alien registration receipt card, a copy of the biographic page of your passport and the page of your passport indicating initial admission as a permanent resident, or other evidence that you are a permanent resident; or a copy of the approval notice of a separate application for replacement of the alien registration receipt card or temporary evidence of permanent resident status.

Question: How can I file for Advance Parole?

Answer: If you are in the United States, you must show a copy of any document issued to you by the Service showing your present status in the United States; An explanation or other evidence demonstrating the circumstances that warrant issuance of Advance Parole.

If you are basing your eligibility for Advance Parole on a separate application for adjustment of status or asylum, you must also attach a copy of the filing receipt for that application.

If you are traveling to Canada to apply for an immigrant visa, you must also attach a copy of the consular appointment.

Question: Where should I file?

Answer: Where to file the Form I-131 depends upon the benefit sought. Thus, there is not only one single place to file.

Question: When should I File?

Answer: You must apply for the travel document before leaving the United States. Failure to do so may cause you to lose permission to re-enter the country, and lead to the denial of any other applications.

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Question: I have a Perm Labor Certification that only took 3 months to get. However, now I am being told it will take years to actually get the Green Card. I am being told there is a “Quota Backlog” or “Retrogression“. What does this mean?

Answer: The Immigration and Nationality Act sets limits on how many green card visas may be issued each Fiscal Year (October 1 through September 30) in all visa categories. In addition, in the employment-based area where immigration is based on employment and not family relationships or investment, nationals of each country may obtain immigrant visas (i.e., a green card), in different preference categories (i.e., EB-1, EB-2, EB-3). The law further provides that no one country may have more than a specific percentage of the total number of visas available annually. If these limits are exceeded in a particular category, for a particular nationality, a waiting list is created and applicants are placed on the list according to the date of their case filing. This date is called a “Priority Date.” The priority date is the single, most important, factor in any immigration case.

Question: What are the EB categories of employment based visas?

Employment-Based First Preference (EB-1) includes: (1) Persons with extraordinary ability in the sciences, arts, education, business and athletics (persons who have risen to the top of their profession); (2) Outstanding professors and researchers; and (3) Multi-national executives and managers.

Employment-Based Second Preference (EB-2) includes: (1) Members of professions holding advanced degrees (Master’s or Ph.D.) (The position must be one that requires a Master’s or Ph.D. to perform the duties – the degree held by the individual does not determine whether or not it is an EB-2, rather it is the company’s job requirements. Additionally, the immigration regulations provide that a job which requires a minimum of a Bachelor’s degree PLUS a five years of progressively responsible experience will be considered equivalent to a Master’s level position and will qualify for EB-2.); and (2) Persons of exceptional ability in the sciences, art or business. Persons of exceptional ability are those who have a degree of expertise above that which is ordinarily expected.

Employment-Based Third Preference (EB-3) includes: (1) Professionals and skilled workers (bachelor’s degree or two years of training). The position must require a minimum of a bachelor degree or two years of training.

Other Workers includes positions that require less than two years of experience.

Question: What is the “Priority Date”?

Answer: If your category is employment-based and requires a labor certification, the priority date is established on the date a labor certification is filed with the State Workforce Agency. If your category is employment-based but does not require a labor certification, then the priority date is established on the date the CIS receives the I-140 Immigrant Visa Petition. However, the priority date does not attach to your case until the I-140 has been approved.

In order for an individual to obtain an immigrant visa, a visa number must be available to you. This is referred to as the priority date being “current.” The priority date is current if there is no backlog in the category, or if the priority date is on or before the date listed as current in the State Department’s monthly Visa Bulletin.

Question: Is there anyway I can expedite the process?

Answer: There is no way to get ahead on the list, other than filing an Immigrant Visa Petition in a higher preference category, provided that the individual and/or their position meet the criteria to do so. Otherwise, the individual must wait until eligible to apply along with others on the list before proceeding with filing the last step in the green card process. The last step is accomplished by filing an application to adjust status to that of a lawful permanent resident in the U.S., or by obtaining an immigrant visa at a U.S. Consulate abroad.

Question: What does it mean to be “current”?

Answer: If there is a “C” in your employment-based category on the Visa Bulletin, then there is no quota backlog and you may proceed with your I-485 adjustment application or immigrant visa application.

Question: my spouse was born in a different country than I as. Since the I-485 is based on my employment, does my spouse’s country of birth help me?

Answer: Your spouse’s country of birth may also be used to determine chargeability. For instance, if you were born in India, but your spouse was born in France and there is a quota backlog for India, but no quota backlog for France in your preference category, you and your spouse may proceed with your immigrant process based on your spouse’s country of birth.

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Question: I need to leave the U.S. and am wondering if there is anything I need to do. Can you help?

Answer: As the Holiday Season approaches, it is important for Permanent Residents to review the rules and regulations regarding travel outside of the United States and proper procedures for obtaining a Reentry Permit. A re-entry permit can help prevent two types of problems: (1) Your Permanent Resident Card becoming technically invalid for re-entry into the United States (U.S.), if you are absent from the U.S. for 1 year or more. (2) Your U.S. permanent residence being considered as abandoned for absences shorter than 1 year, if you take up residence in another country.

A re-entry permit establishes a presumption that you did not abandon status, and it allows you to apply for admission to the U.S. after traveling abroad for up to 2 years, without having to obtain a returning resident visa. Re-entry permits are normally valid for 2 years from the date of issuance.

You may also want to get a re-entry permit if you plan on traveling outside the U.S. and cannot, or do not wish to get a passport from your home country. Many countries throughout the world may allow you to use a re-entry permit much like you would use a passport–placing necessary visas, and entry and exit stamps in the permit–so you may use it as your main travel document. Be sure to check with the country(ies) you plan on visiting about their requirements before you travel.

Question: What will happen if I do not apply for a re-entry permit before I travel outside of the U.S.?

Answer: If you are a permanent resident who plans to travel outside of the U.S. for one year or more, it is important that you apply for a re-entry permit before you depart the U.S. If you stay outside of the U.S. for one year or more and did not apply for a re-entry permit before you left, then you may be considered to have abandoned your permanent resident status and may be refused entry into the U.S. if you try to return. If you are in this situation, you should try to apply for a returning resident visa.

Question: Can I apply for the re-entry permit and then leave, even though I don’t have the re-entry permit in my possession yet?

Answer: U.S. immigration law does not require that you have the re-entry document in your possession when you depart, but it does require that you apply for the permit before you leave the U.S. It is possible to send your re-entry permit to the U.S. Consulate or Embassy in the country you plan on visiting, but you’ll need to specifically request this when you file your I-131. If you choose this option, you should contact the U.S. Consulate or Embassy in the country you plan on visiting when you arrive, to let them know how to contact you while you are in that country. The U.S. Consulate or Embassy may then contact you if your application is approved and your permit has arrived there.

If you are planning to use the re-entry permit as a passport, then you will need to wait for it before leaving the U.S. If you cannot wait, you may want to contact the consulate of the country you are planning to visit to find out if you can use other documents to enter.

Question: How do I get a re-entry permit?

Application: If you want to get a re-entry permit, file Form I-131, Application for Travel Document. You should file this application well in advance of your planned trip.

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Question: I have been here for several months on a Visitor Visa and have found that I love the U.S. I do not want to return to my home country. I have a Visa that states it is a Multiple Entry Visitor Visa for the next ten years. However, when I entered the U.S., I was given a white card that states that I must leave by next month. Is there anything I can do?

Answer: First, while you get the Visa at the U.S. Consulate or Embassy, it is the INS who actually controls how long you will stay in the U.S. They are the organization that you must pass at any port of entry into the U.S. A port of entry can be by road (i.e., from Canada or Mexico), or by airport (anywhere in the world.) When you enter the U.S., the INS (Immigration and Naturalization Service) will issue what is known as an I-94. This is a white card that is stapled to your passport. It will state exactly when you are authorized to stay in the U.S. If the visa in your passport lasts longer than the I-94, that is irrelevant. Further, if your passport expires during your stay in the U.S. that is also irrelevant as long as the time on your I-94 is still available.

You can file for a change of status. What this means is that as long as the application to change your status is done PRIOR to the expiration of your current stay, you will be able to remain in the U.S. while that application for change of status is being ruled upon.

Question: I read somewhere that the INS wants these type of applications at least 45 days before the expiration of your status. Is that true?

Answer: Normally that is true. However, the law is very specific. As long as you are currently in status at the time the application is received by INS, it will be timely. As a matter of fact, there have been many occasion when my office gets someone in the day before expiration of their status. We prepare the application and actually have it hand delivered on the day of expiration. In that event, it is still timely.

Question: What are the possibilities for changing my status and what types of applications will work?

Answer: Actually, there is a variety of different applications you can do. There are many different kinds of work visas such as the H-1B, H-2B, O-1, P-1 and so on. You can also change to a Student Status such as F-1 or M-1. To change to a working status you would need an employer who would agree to sponsor you. To change to a Student Status, you would need to get the I-20 from a school and then have that submitted with the application for Change of Status.

Question: Once I file the application for Change of Status can I start working or going to school right away?

Answer: No. You must wait while INS rules on the matter. However, you are given an automatic extension of your current status while the Change of Status is pending. Therefore, if you want to stay in the U.S. and your current status is about to expire, there are many ways to change your status and you should take advantage of the appropriate one.

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Question: I understand that E-filing has begun. However, I am confused on what exactly it is, and what types of applications can be filed.

Answer: Each year the Bureau of Citizenship and Immigration Services (BCIS) receives approximately seven million applications for immigration benefits. BCIS has now developed the technology to accept electronic filing of certain applications for immigration benefits. This technology improves both customer service and BCIS’ ability to verify the identity of individuals in the future. E-filing – combined with the collection and storage of an applicant’s digital photograph, signature, and fingerprint – allows the BCIS to produce immigration documents with special security features. Applications that can be filed online are forms I-765 (Application for Employment Authorization) and I-90 (Application for Replacement of Green Card). These two forms represent approximately 30% of the total number of benefit applications filed with BCIS annually.

Question: What must the applicant do to apply for this?

Answer: E-filing is quick, easy and convenient for applicants because it allows them, or their representatives, to complete and submit applications at any time, from any computer with Internet access. Upon completion of the e-filing session, customers will receive instant electronic confirmation that the application was received. Customers can then schedule themselves for an appointment to visit an Application Support Center for collection of a digital photograph, signature, and fingerprint.

For those who file electronically, BCIS confirms the identity of the customer early in the application process. BCIS also electronically collects a photograph, signature, and fingerprint for the individual. These biometrics are stored and can be used later for verification of the person’s identity.

Question: Are there any other forms available for electronic filing?

Answer: Presently no. However, BCIS intends to add electronic filing capabilities for additional forms in the Fall of 2003. Additional forms include: Form I-129, Petition for Nonimmigrant Worker; Form I-131, Application for Travel Document; Form I-140, Immigrant Petition for Alien Worker; Form I-539, Application to Extend/Change Nonimmigrant Status; Form I-821, Application for Temporary Protected Status; and Form I-907, Request for Premium Processing.

E-filing

Online filing

E-filing meaning

Can I file online?

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Question: I have been here for several months on a Visitor Visa and have found that I love the U.S. I do not want to return to my home country. I have a Visa that states it is a Multiple Entry Visitor Visa for the next ten years. However, when I entered the U.S., I was given a white card that states that I must leave by next month. Is there anything I can do?

Answer: First, while you get the Visa at the U.S. Consulate or Embassy, it is the INS who actually controls how long you will stay in the U.S. They are the organization that you must pass at any port of entry into the U.S. A port of entry can be by road (i.e., from Canada or Mexico), or by airport (anywhere in the world.) When you enter the U.S., the INS (Immigration and Naturalization Service) will issue what is known as an I-94. This is a white card that is stapled to your passport. It will state exactly when you are authorized to stay in the U.S. If the visa in your passport lasts longer than the I-94, that is irrelevant. Further, if your passport expires during your stay in the U.S. that is also irrelevant as long as the time on your I-94 is still available.

You can file for a change of status. What this means is that as long as the application to change your status is done PRIOR to the expiration of your current stay, you will be able to remain in the U.S. while that application for change of status is being ruled upon.

Question: I read somewhere that the INS wants these type of applications at least 45 days before the expiration of your status. Is that true?

Answer: Normally that is true. However, the law is very specific. As long as you are currently in status at the time the application is received by INS, it will be timely. As a matter of fact, there have been many occasion when my office gets someone in the day before expiration of their status. We prepare the application and actually have it hand delivered on the day of expiration. In that event, it is still timely.

Question: What are the possibilities for changing my status and what types of applications will work?

Answer: Actually, there is a variety of different applications you can do. There are many different kinds of work visas such as the H-1B, H-2B, O-1, P-1 and so on. You can also change to a Student Status such as F-1 or M-1. To change to a working status you would need an employer who would agree to sponsor you. To change to a Student Status, you would need to get the I-20 from a school and then have that submitted with the application for Change of Status.

Question: Once I file the application for Change of Status can I start working or going to school right away?

Answer: No. You must wait while INS rules on the matter. However, you are given an automatic extension of your current status while the Change of Status is pending. Therefore, if you want to stay in the U.S. and your current status is about to expire, there are many ways to change your status and you should take advantage of the appropriate one.

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Question: I entered the United States on a Visitor Visa. I have been here for about 4 months and my status will expire in another two months. Can I simply extend my status without going back to my home country?

 Answer: Prior to September 11, 2001, it would not have been a problem. These types of extensions were quite easy and were usually approved without any problems. However, after September 11, 2001, new regulations have come out regarding the B1/B2 Visitor Visa. These regulations first were issued to make it clear that persons entering the United States do not automatically get a Visitor Visa for six months. Rather, they could get the Visitor Visa for only a month, or the time required for the stay in the United States. Thus, you might have been able to get a Visitor Visa at the U.S. Embassy or Consulate for six months, but when you entered the United States, the Immigration and Naturalization Service might have only given you a lawful stay of 30 days.

This has had the effect of decreasing the number of people who visit the United States. Realistically, when you are traveling from around the world or some distant country, it was not worth the risk for people to stay only a month (especially if this was a once or twice in lifetime type of vacation.) Also, the uncertainty of being issued a Visitor Visa at the Consulate for a certain period of time, only to have it reduced significantly at the border did not bode well with travelers.

 Now, the Immigration and the Naturalization Service has denied many extensions for Visitor Visas. Additionally, many of the ones that have been granted have been granted for only 15 to 45 days. While some extensions are being granted, a large number of extensions are getting what is known as a Request for Evidence. This is a document whereby the Immigration and Naturalization Service does not yet deny the extension, but rather, asks for more information before making a decision. Some Requests for Evidence are intensive consisting of many pages. In some cases, by time you get the response to the Request for Evidence, either the extension is denied, or it was approved for a very small time which has already passed.

 Question: What happens if the denial comes, or if your status is extended, but by time you get the approval notice, the approval date has already passed?

Answer: You will most likely be out of status. If this occurs, then you will not be able to change your status or adjust your status in the United States. You will have to leave the United States and go back to your home country in order to reapply for the Visitor Visa. Once they see that you have been out of status, it will be very difficult to get the Visitor Visa. Additionally, the Consulate or Embassy officers will see that you have just come back from the United States and may not believe you are intending on returning to your home country. Finally, depending on how long it has been since you were out of status, you might be barred from coming back into the United States for the next 10 years.

Question: Is there any other way to remain in the United States without having to go back to my home country?

Answer: Yes. Rather than an extension of your status, you would apply for a change of status to some other type of status. You can obtain a Student change of status. This will allow you after it is approved to go to a designated school. Alternatively, there are a myriad of different types of work visas to allow you to work legally and remain in the country. At this point, I would not recommend doing the extension of the Visitor Visa. Rather, I would recommend that you change your status to some other type of status such as student, exchange or work status.

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