By: Thomas J. Joy, Esq.

This is the second in a series of articles that will focus on practical issues and problems that arise before and during processing of immigrant visas at U.S. embassies and consulates. The advice and suggestions contained herein are based on over 30 years of experience reviewing documents and preparing applicants for their immigrant visa interviews. The current topic is marriage and related issues.

The validity of a marriage is normally determined by the law of the place where the marriage is performed. However, there are certain types of relationships and marriages that are valid and recognized, where they are existing or performed, but may not be accepted for the purpose of immigration to the United States. Unless formally married, a "partner" is not entitled to immigration benefits as a dependant. Same-sex marriages are not recognized for immigration to the U.S. A certified copy of the marriage certificate from the appropriate government office is generally required.  

A person who is seeking to immigrate to the United States as the dependant spouse must be able to prove that all previous marriages of both spouses have been legally terminated by divorce, annulment or death. A divorce must not only be valid where it was obtained, but also must be recognized as valid where a subsequent marriage is performed. A certified copy of the government record of the divorce, annulment or death is generally required.  

Certain countries present unique issues regarding marriage and divorce and the proof thereof. In India, certain religious communities do not usually register marriages. However, marriages may be voluntarily registered pursuant to the appropriate Act and a marriage certificate can then be obtained from the appropriate government office. Marriages between Christians are usually obtainable from church records. If the marriage has not been officially registered, then two sworn affidavits may be substituted. In the Philippines, the courts have been empowered to grant legal separation but not divorce.   

In conclusion, to avoid unnecessary delays in processing your case, Immigration Compliance Group recommends that you consult with your respective immigration attorney to determine exactly what documentation will be required to evidence your marriage(s) and divorce(s). This should be determined well in advance of when the official documentation is needed.

If you have any questions regarding this topic, please feel free to drop us an email.

2. TN Solution for Canadian & Mexican Nurses & Physical Therapists

By: Thomas J. Joy, Esq.

With the immigrant visa (“green card”) annual quota being severely backlogged thereby resulting in a long and unpredictable waiting list and H-1B visas generally being unavailable for nurses, the search continues for nurses and physical therapists for faster ways to enter the United States to commence employment in their professions.  Fortunately, under the North American Free Trade Agreement (“NAFTA”), nurses and physical therapists who are citizens of Canada and Mexico have a possible solution.  The TN classification or visa pursuant to NAFTA is quicker and easier than the green card process, is not subject to annual quotas and is not subject to prevailing wage and other labor condition application (“LCA”) requirements.

A registered nurse requires a state/provincial license or Licenciatura Degree. A physical therapist requires a Baccalaureate or Licenciatura Degree or a state/provincial license. In addition to the above credentials, the applicant must present a Canadian or Mexican passport and a letter from the prospective employer in the U.S. that contains a job description and the anticipated length of stay and salary. A VisaScreen certificate is required in all cases. All TN non-immigrants are subject to the laws of the state of intended employment regarding professional licenses, but will not need to acquire the relevant license prior to admission to the U.S. However, the nurse or physical therapist must obtain the appropriate professional license from the state of intended employment prior to commencing employment.  

A Canadian citizen may present the application package, described above, directly to an immigration officer at a U.S. port of entry at the time of entry. The immigration officer will make the determination as to whether the applicant is admissible as a TN. No prior petition approval is required. No visa is required from a U.S. consulate either. Upon admission to the U.S., the Canadian citizen will be issued a Form I-94 for a period not exceeding 1-year, which will be marked "multiple entry" and can be used for future entries to the US during its validity.  

A Mexican citizen submits the application package described above directly to a U.S. consulate as part of an application for a TN visa. The consul makes the determination as to whether the applicant is eligible for a TN visa. Upon admission to the U.S., the applicant will be given a "multiple entry" Form I-94 for a period not exceeding 1 year.  

Spouses and unmarried children under 21 of the TN can be issued TD status or TD visas to accompany or follow to join the TN. A TD dependant is not permitted to work in the U.S. but may attend school.  

TN classification or a TN visa requires non-immigrant intent. As long as nonimmigrant intent continues to exist, the TN classification or TN visa can be extended in 1-year increments.  

Obtaining permanent resident ("green card") status for a TN can be challenging. Because of the strict non-immigrant intent requirement of a TN, the limited validity period of 1-year for a TN and the lengthy immigrant visa-quota waiting period, there generally is not enough time to complete the green card process before it becomes necessary to extend the TN for another year. If the green card process is started for a TN, there very likely will be problems extending the TN and/or re-entering the U.S. after travel abroad. TN physical therapists may be able to resolve this issue by changing status to H-1B (a dual intent status) before starting the green card process. Unfortunately, H-1B status is generally not available to registered nurses. Future legislation may address the quota issues and help resolve this issue.

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3. Gates Fuels Fire for H-1B Visa Cap Hike

The issue concerning raising the H-1B visa cap has always held very little importance in the overall spectrum of immigration reform. With an election year in place, it seemed almost destined that once again, a year would pass and there would be little attention paid to the idea of raising the H-1B visa cap.

Then there came Bill Gates.

After a visit to Washington this past month, Gates strengthened his adamant push for a H-1B visa cap increase. H-1B proponents in Congress acted quickly after Gates' visit, and U.S. Rep. Lamar Smith (R-Texas) introduced legislation that would increase the 2008 visa cap to 195,000, as well as set that level for the fiscal year, 2009, that begins on Oct. 1. Gabrielle Giffords (D-Arz.) introduced legislation that same week to increase the cap to 130,000 a year. The current cap is set at 65,000, with an additional 20,000 for holders of advance degrees.

In similar news, three new visa bills were introduced to the U.S. House of Representatives last month, and legislation is pending that addresses the shortfall in the nonimmigrant H1B category for highly-skilled foreign workers. And another bill has been introduced that would provide a new special immigrant category for persons with U.S. PhD degrees.

It is essential to understand that, at this time, the legislation described is simply in the proposal stage. It is an indication that a strong number of supporters have begun to take action, and it is causing positive changes in areas important to high skilled worker visas. Nonetheless, the law cannot change unless legislation is passed by both the House and the U.S. Senate and, thereafter, signed by the President.

For more information on the three new bills introduced to Congress:
Read this article from AILA

4. USCIS Director Gonzalez Resigns

After failing to reduce the naturalization process, and then drastically increasing the cost of becoming an American, USCIS Director Emilio Gonzalez, will resign and leave his post effective April 18.

Homeland Security Secretary Michael Chertoff praised Gonzalez, a U.S. citizen originally from Cuba.

"Emilio is an American by choice and he has brought that unique experience to his leadership of this critical agency, and more importantly to our nation's unparalleled efforts to welcome immigrants and foster their integration into our society," Chertoff said in a press release.

In his 2000 campaign, President Bush vowed to reduce the naturalization process to no more than six months. When Gonzalez took over the agency in January 2006, he faced a backlog of applications that dramatically worsened after the Sept. 11 attacks.

By 2007, Gonzalez reduced the average wait time to seven months, but an additional 1 million cases were not counted as part of the backlog. That progress completely disappeared last year when Gonzalez approved a dramatic increase in immigration fees that were said to be necessary to keep the agency afloat. The fee rose last summer from $330 to $595, plus an $80 fingerprinting fee, which was $10 more.  

In an effort to beat that application increase, nearly 500,000 citizenship applications were filed in July 2007. As a result, the agency said it would take 16 months to process applications from that point on.

However, in a statement released March 14, 2008, to members of the House Appropriations Committee, Gonzalez stated that USCIS had lowered its original processing projections for naturalization from 18 months to 14-16 months.  

To read more about the naturalization backlog:

Read this statement from the USCIS  

More on Gonzalez' resignation

5. Nursing Shortages Strike Canada, Recruiters Look to Overseas Nurses

The critical staffing crunch at various Calgary and Edmonton hospitals, Alberta's two major health regions, have extended nearly 1,400 job offers to international nurses as part of their largest overseas recruitment drive ever.

The push to hire nurses from around the world has been so intense in Canada, the intake requests for foreign applicants have risen to almost 200 requests a month.

This international recruitment drive is part of a larger effort in recruitment as many health care systems throughout the country face nursing shortages and other medical worker insufficiencies.  

In Calgary, Edmonton, and Regina, the staffing problems have forced hospitals to close beds and postpone surgeries. Moreover, in an effort to rush recruitment, some hospitals have sent recruiters overseas during the past year to make up for the nursing shortage.  

To read more about the nursing shortage in Canada:
Read this article from the Calgary Herald