Immigration and firm news

USCIS Offers Status Options for Japanese Nationals Affected by Earthquake and Tsunami

USCIS has posted a Q&A on its website covering several immigration scenarios that Japanese nationals in the U.S. and abroad may be facing as a result of the earthquake and tsunami devastation and nuclear radiation evacuations. There are materials on their website in both English and Japanese.

Tourists in the U.S.
There are two kinds of tourists in the U.S. The first group involves those who entered without a visa through the visa waiver program. By using this program, tourists typically give up rights to extensions, change of status, and defense in an immigration court. However, USCIS is allowing Japanese nationals on visa waivers to apply for a 30-day period of “satisfactory departure.” This has to be done at an airport by visiting a CBP office or in person at a local USCIS office (for example, in Tukwila serving the Western Washington area). I would expect the situation for visa waiver tourists to be fluid over the next few weeks as the situation in Japan develops, given that there are radiation evacuations underway, and supplies and recovery efforts for those stranded by the disaster have been slow to reach the victims. Stay tuned for further announcements.

Japanese nationals in the U.S. on a tourist or other nonimmigrant visa may apply for an extension of stay by filing form I539 and the $290 filing fee with USCIS. Up to six additional months may be given. Even if applications are filed late, they will be accepted up to May 11, 2011. However, the applicant has to show he or she is affected by the March 11 earthquake or related events. Tourists may not work in the U.S. Extension requests made after May 11, 2011 will be reviewed case by case.

Parole/Advance Parole
Parolees whose parole status expired on or after March 11, 2011 and up to May 11, 2011 may apply to have parole extended (or “re-parole” given) and seek work authorization. One must make an INFOPASS appointment to appear in person at a local USCIS office and must show how he or she is affected by the March 11 events. Work authorization requests are made on form I765.

Those in advance parole status (because of a pending adjustment of status or other application) who are currently outside the U.S. and cannot return (such as being stranded with family members in Japan or elsewhere), will automatically have their advance paroles extended until May 11, 2011. Be sure to present your I512 parole document at the airport when returning to the U.S.

Foreign Students on F-1

Foreign students whose families were funding their education in the U.S., whose family may now be in economically dire straits may seek work authorization if:
– they have been in F-1 status for at least a year – they have maintained a full course load and – demonstrate need for employment because of severe economic hardship (caused by unforeseen circumstances beyond their control, such as changes in the financial condition of their source of support).
Students should obtain a recommendation from their Designated Student Officer at their school on Form I20, update SEVIS, and apply for work authorization on Form I765. A waiver of the filing fee can also be sought on Form I912 for the same severe economic hardship reason.

Expedited Processing
USCIS will expedite processing of family based petitions (I130 forms) if the quota is current in the category or the family member is an immediate relative. USCIS will also expedite processing of advance parole applications for people with pending adjustment of status applications if the applicant needs to travel quickly. An explanation about circumstances stemming from the March 11 disasters in Japan should accompany the application or should be filed with the service center having jurisdiction over previously filed applications. Check the I797 fee receipt for the location of a particular application.

Other Humanitarian programs and Immigration Needs

There are other humanitarian programs available such as humanitarian parole, decided by USCIS headquarters in Washington, D.C.; deferred action, decided by ICE for people in removal proceedings and about to be deported; and prosecutorial discretion not to initiate removal proceedings, also decided by ICE. These are much more complicated applications with significant consequences that require careful preparation. They are also discretionary, meaning the good facts must outweigh the bad facts in a person’s case to justify approval. Seeking the advice of legal counsel is recommended for these types of requests.

Many people with some type of evidence of lawful status in the U.S. may have lost documents in the earthquake or tsunami. Replacement green cards can be sought using Form I90. Replacement I94s (to show a prior lawful stay) can be sought on form I102. Replacement naturalization certificates can be sought on form N565. Replacement I797 petition approvals can be sought using form I824. All of these forms can be found on the USCIS website under “forms.” It is recommended that they be sent in with a statement about being affected by the disasters and a request for expedite. If appropriate, fee waivers may be requested on form I912. In some cases, it might be necessary to order a copy of a government file through the Freedom of Information Act and Privacy Act. FOIA requests can take a long time but they may be needed if A numbers are not known or what the last action was in a case.

Other issues that may arise include abandonment of applications for failure to respond to a Request for Evidence. When USCIS requests further information, generally the applicant has a short time to respond, usually 30-45 days. If no response is received, USCIS will deny the application for abandonment. If because of circumstances related to the events in Japan such a case is denied, it can be reopened with evidence of the circumstances as to why the applicant was not able to respond.

Another type of abandonment issue to consider involves green card holders who may be stuck in Japan and could be stuck for six months or more before being able to return to the U.S. Abandonment of a green card can result in its loss or denial of citizenship. Again, the circumstances in Japan will need to be explained either at the airport upon re-entry to the U.S. or at the time of citizenship. Therefore, it will be important to explain and document as best as possible the circumstances of why the person was not able to return to the U.S. sooner. Consulting with an immigration lawyer on this particular issue is advisable to evaluate the circumstances and determine the best course of action and presentation.

For more information, see the USCIS website.