The N-648 medical waiver (formally known as Medical Certification for Disability Exceptions) is used to exempt people who have a physical or developmental disability or mental impairment from the requirement to demonstrate the otherwise required knowledge of English language and US history and civics in the Naturalization process.  The form is to be completed by the applicant’s physician.  It provides instructions to the physician as well as samples of the correct terminology.  The concepts are simple: the physician states a clinical diagnosis and description of the applicant’s disability or impairment, explains the connection between the impairment and the applicant’s inability to learn or demonstrate knowledge of English and history and finally, states their professional opinion that the applicant is unable to comply with the normal requirements of the test because of the disability.  While this sounds simple, physicians often do not have the time or the patience (no pun intended) to properly complete the form.  Gerstein & Gerstein Attorneys, PA has had much success in resolving these cases.  Often, we’re contacted by an applicant or their family member after their application has been denied or they have been rescheduled to present a properly completed application.  We work closely with physicians to properly and fully complete the form so that the applicant’s waiver can be granted.  Proper planning and understanding of the requirements can lead to a very smooth process.  The hiring of an attorney experienced in dealing with these matters goes a long way and, if the attorney is involved from the beginning, fees can often be less than when the attorney has to rectify the situation after the fact.

On February 4, 2008, the associate director of the USCIS issued a memorandum which stated that applicants with pending adjustment of status applications and waiver applications could be approved if the FBI name check has been pending for 180 days or more and the case is otherwise approvable.  This does not apply to naturalization applications, though.  He went on to say that if negative information comes to light after the case is approved, that the approval could later be revoked.  This is positive news for thousands of people who have been stuck in limbo for years.  The actual method of identifying these cases has yet to be determined.  As for cases pending at service centers, attorneys have been asked to hold off on inquiring for a couple of months while the USCIS attempts to identify these cases.  As for cases pending at local offices, no method has yet been released as to how they will identify these cases or have them brought to their attention.  Nevertheless, it appears, now, that relief has arrived and these cases will soon be finalized.

Often times the public can be unsympathetic with the plight of an immigrant.  They may feel that because someone came to the US illegally or overstayed their visa, that they should not be entitled to anything.  Well, what if that person is a child who had no say in the matter?  The Senate is currently considering the Development, Relief and Education for Alien Minors (DREAM) Act .  To be eligible, a child would have to have been brought to the US before the age of 16, be a person of good moral character (not having committed certain heinous offenses) and either attends college or joins the military.  This would place that person on the path towards permanent residence (green card) in the US.  Many members of the US Senate support the Act.  Those who do not argue that it is not appropriate to attach it to a defense spending bill or that immigration should not be tackled in a piecemeal fashion.  However, with the comprehensive immigration bill failing twice in the Senate and with an upcoming presidential election, I think that any immigration reform under possible consideration should be explored.

The latest news from US Immigration is that fees are proposed to increase in the coming few months.  I am providing our readers with a link to a chart for applications and petitions for which fees are proposed to increase.  The chart illustrates the current filing fees and the proposed filing fees side by side for easy comparison.  A press release was issued by the USCIS explaining the need for the fee increase based upon several factors including increased cost of processing applications and the fact that prior fees were based upon an older model.  One interesting proposal relates to the fee increase for adjustment of status (form I-485).  The current fee (excluding the biometrics cost) is $325.00.  The proposed fee is $905.00.  However, the fee is to include ancillary applications such as the applications for employment authorization and advance parole.  This is all well and good.  However, some people do not want or need these benefits and many others are not even eligible for advance parole (at least not without seriously jeopardizing their case).  It is also not clear whether renewals of those benefits are included based upon long processing times for adjustment of status.  The overall reason for the fee increase is to improve customer service and to shorten processing times while ensuring security.  If this is the result, then I would not have a problem with it.  If applicants are to pay much higher fees without seeing improved results, then applicants will really be at a disadvantage.

On our subsection category of "Immigration Through Marriage" we received a comment asking for further clarification.  The comment was as follows: "What happens AFTER the interview and you’re told you must wait for a name check?  Is there any way any of the attorney services out there could help expedite this process?  Also, what happens after the interview, and your spouse’s H1B status comes to the 6 year limit? will he/she have to leave the country even with the green card pending? will he/she be able to continue to work?"

Name and background checks are supposed to be completed before the applicant is interviewed.  I would say that in about ten percent of cases, this is not done.  When it has not been completed, these checks can take anywhere from weeks to years to resolve.  It is no USCIS that completes these checks, but rather another agency.  Therefore, when one is told that their case is being held up as a result, there really isn’t anything that the immigration officer can do about it.  Someone in each office is assigned to check on these cases once per week for any updates.  Other than waiting for the results, one could institute a Mandamus action against the government to in effect push them into obtaining the needed results rather than sitting on it endlessly. 

The commenter’s second question asks about how his or her foreign spouse will be able to work after H-1B visa status expires.  Whenever you have an adjustment of status case pending, you have the right to apply for an employment authorization document (work permit).  This card allows you to work anywhere in the US and is not limited to a specific employer and specific job as is the H-1B.  The commenter’s spouse would be best advised to apply for a work permit as soon as possible and it will allow him or her to continue to work with the greatest amount of flexibility.

As always, we invite our readers to comment on our blog and as always, we’ll do our best to answer your questions.