New Regulations to Expedite the Entry of Spouses of Citizens and Labor Certification
This week, we discuss two new incentives that could speed up applications under both family and employment-based immigration. The first incentive is the implementation of K-3 regulations for spouses of US citizens and their children. The second incentive is the Labor Departmentís regulations to allow regularly filed labor certification applications to be converted into fast-track Reduction in Recruitment cases.
On August 14, 2001, the INS implemented the new K-3 visa for spouses of US citizens and their children. This visa would allow the spouse of a US citizen to enter the United States while awaiting the immigrant visa petition. It does not apply to spouses of green card holders.
When a US citizen marries a spouse overseas, he or she must file a petition to sponsor an alien relative, known as Form I-130. The Form I-130 has been taking several months, if not up to a year, to get approved by the INS. After the approval, the file is sent to the relevant consular post overseas so that the spouse can be interviewed for the immigrant visa. The whole process takes a year or more.
The new K-3 visa would allow such a spouse, awaiting final immigrant visa processing, to enter the United States on a K-3 visa more expeditiously. To be eligible for a K-3 visa, the US citizen spouse must file Form I-129F with a regional INS Service Center in the United States. Once this is approved, the spouse can apply for the K-3 visa and the child of this spouse can also get a K-4 visa. After entering the United States, the K-3 spouse can apply for adjustment of status to lawful permanent resident. Letís hope that the INS approves K-3 visa petitions quickly, otherwise one might as well wait for the entire immigrant visa processing overseas
Conversion to RIR
Many people who have filed labor certification applications several years ago are still waiting for an initial review of these applications. The Labor Department has issued a regulation that will allow such an application to be expedited through a procedure known as Reduction in Recruitment or RIR. In order to convert a regularly filed application into an RIR, the employer must be able to establish that it has recruited for the position during the past six months before making the conversion request. Once the request is made, the Labor Department will waive its own lengthy procedures involving supervised recruitment and expedite processing such an application. This regulation will take effect on September 6, 2001 and apply to every application filed on or before August 3, 2001.
Many employers who filed before the Section 245(i) April 30, 2001 deadline were unable to file labor certifications under the expedited RIR procedure due to the lack of time to conduct a recruitment. These traditionally filed applications will take several years to materialize and it is advisable that employers consider converting such labor certification applications to RIRs. All labor certification applications, except those that were filed under Schedule B occupation (these are mostly unskilled occupations), are eligible for RIR conversion.
Also, applications that were filed prior to January 14, 1998, the previous Section 245(i) deadline, and have not gone through supervised recruitment, may be converted to RIR under this regulation.
About The Author
Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, practices immigration law in New York City. He is a trustee of the American Immigration Law Foundation and recipient of the 1997 Joseph Minsky Young Lawyers Award. He is also Chair of the Immigration and Nationality Law Committee of the Association of the Bar of the City of New York. He frequently lectures on various immigration subjects at legal seminars, workshops and universities and may be contacted at 212-686-1581 or email@example.com