Entering the U.S. Under the Visa Waiver Program

In the past, when a person entered the U.S. as a visitor under the Visa Waiver Program ("VWP"), a little green card called an I-94W was issued to the traveler. The I-94W would show when and where the person entered the U.S. It would also show when that person's visitor status would expire (90 days after entry).

Recently, however, the practice of issuing I-94W cards was eliminated. Now, the Immigration Inspector at the port of entry will stamp just the passport and only write either "WB" or "WT" (Waiver Business or Waiver Tourist). There is no policy or requirement to write at the bottom of the stamp the expiration date of the person's visitor status. The Immigration Inspector is also not required to advise the visitor when his or her status expires.

This could be very problematical and could cause people to overstay. Once a person overstays under the VWP, that person can never again legally enter the U.S. under the VWP. That person must always have a valid visa in order to enter the U.S.

Filing Joint Tax Return When Spouse is Unlawfully Present

If you are a U.S. citizen who is married to a foreign national and plan to file an I-130 petition on behalf of your spouse, you should file a joint income tax return. When you file the I-130 petition, the U.S. Citizenship and Immigration Services will want to see evidence that you and your spouse have a bona fide relationship. One of the key documents in showing a bona fide relationship is a joint income tax return. If your spouse is without legal immigration status in the United States, you can still file a joint return. Although your spouse may not have a valid Social Security Number, your spouse can request an Individual Taxpayer Identification Number ("ITIN") by filing a Form W-7 with the tax return. Foreign nationals who have federal tax reporting or filing requirements, but do not qualify for Social Security Numbers, can obtain ITINs. For more information, please see the Internal Revenue Service's website at http://www.irs.gov/individuals/article/0,,id=222209,00.html.

Change of Status vs. Adjustment of Status

The world of immigration law is full of jargon, and it is very important to use that jargon correctly. One of the most common mistakes I see is the misuse of the term "change of status". A change of status has nothing to with U.S. permanent residence or a "green card". The term refers to a change from one nonimmigrant status to another. For example, someone who enters the U.S. as a B-2 visitor may later decide to attend school in the U.S. That person would need to apply for a change of status from B-2 visitor to F-1 student.

The term "adjustment of status", on the other hand, refers to the process for obtaining U.S. permanent residence (i.e., a "green card") while in the U.S. The person applies to adjust his or her nonimmigrant status to U.S. permanent residence. For example, someone who enters the U.S. as a B-2 visitor may later marry a U.S. citizen and apply for adjustment of status based on that marriage.

Just Say "No"

Prior to the visa interview at the U.S. Consulate or Embassy for an immigrant visa or for a K-1, fiance visa, the applicant must undergo a medical examination with the consular post's panel physician. As part of that medical exam, the applicant will be asked about prior drug and alcohol use, and a blood sample will be taken to test for drugs in the system. If the drug test comes back positive, the visa will be denied, and the applicant will need to wait 3 years before applying again. Thus, it is very important that the applicant have a clean system at the time of the medical exam.

If, after 3 years, the applicant wishes to apply for the visa again, he or she will also need to apply for a waiver of inadmissibility. If the visa application is based on a relationship with a U.S. citizen, either as the spouse or the fiance, the applicant will need to show extreme hardship to the U.S. citizen if the U.S. citizen must (1) live in the applicant's home country in order to be with the applicant; and (2) live in the U.S. without the applicant.

President Obama Signs Bill and Extends Programs

On Wednesday, October 28, 2009, President Obama signed into law the FY10 Department of Homeland Security Appropriations bill (P.L. 111-83). The law extends through September 30, 2012 the following programs: "Conrad 30" for J-1 waivers for physicians, the EB-5 Pilot Program for Regional Centers and E-Verify. It also extends the ability of non-minister religious workers to file Special Immigrant Religious Worker Petitions in order to obtain U.S. permanent residence.

Green Card Lottery Starts Today!

The 2011 Diversity Immigrant Visa Program (DV-2011), better known as the green card lottery, starts today at noon Eastern Daylight Time. The program runs through noon Eastern Standard Time on November 30, 2009. The green card lottery is not available to individuals borth in Brazil, Canada, China (mainland-born), Colombia, Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, India, Jamaica, Mexico, Pakistan, Peru, Philippines, Poland, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam. Persons born in Hong Kong SAR, Macau SAR, and Taiwan are eligible. For more information or to apply, please see http://www.travel.state.gov/pdf/DV-2011instructions.pdf.

Importance of the End of the Immigration Fiscal Year

Today is the end of the fiscal year for immigration, which runs from October 1 to September 30. The start of a new fiscal year is a significant event. New visa numbers become available, including new H-1B numbers and likely some new immigrant visa numbers for certain preference categories. It also means that the various immigration agencies (USCIS, CBP, ICE, State Department, etc.) tally the many immigration statistics (e.g., number of entries, number of immigrant visas issued, etc.), which they have been keeping all year.

September 30 is often the date chosen by Congress to sunset certain provisions in the law. Today marks the end (i.e., the sunset date) for obtaining U.S. permanent residence as a non-minster religious worker and through investment in one of the EB-5 Regional Centers. Hopefully, Congress will extend both of these worthwhile programs.