Marriage and Immigration Law Blog

New CIS Appeals Office Decision on Permanent Bar Helps Those Who Entered Illegally Prior to 4/1/97

noreply@blogger.com (Atty Heather) — Thu, 12 Jan 2012 01:41:00 +0000

We all know about the dreaded permanent bar = the law that was implemented on 4/1/97 that said anyone who was illegally present in the US for a year or more or who had been deported and then tried to illegally re-enter after either of these could not come back to the US for ten years. No waiver. Period. In recent months, CIS has wanted to retroactively apply this law to those who re-entered illegally before 4/1/1997 - before the law was in place. If a person illegally re-entered after the effective date of the law, even if the unlawful presence was before 4/1/97, current case law in the 9th Circuit says the permanent bar applies. But this week, the CIS Administrative Appeals Office gave immigrants a break finally on the permanent bar with an unpublished decision from December 29, 2011 (reposted on Aila.org).

The Field Office Director of the CIS San Francisco, California office had denied the Application for
Permission to Reapply for Admission into the United States after Deportation or Removal (Form 1-
212), and the Adjustment Application filed by a man whose brother was a USC and had an approved Immigrant Visa available to him based on this relationship.

This is the factual summary from the decision:

"The applicant was a native and citizen of Guatemala who initially entered the United States without inspection on or about March 29, 1985. He was taken into custody by U.S. immigration officials on March 30, 1985, and found to be subject to deportation for having entered the United States without inspection pursuant to section 241(a)(2) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1251(a)(2). The Immigration Judge granted him voluntary departure to occur on or before October 10, 1985. However, the applicant did not leave the United States by October 10, 1985. Rather, he was deported to Guatemala at the expense of the U.S. government on October 11, 1985. And, he reentered the United States without inspection on or about November 30, 1989. Subsequently, on January 28, 2011, he filed an Application to Register Permanent Residence or Adjust Status (FOlm 1-485) as the beneficiary of a Petition for Alien
Relative (Form 1-130) that was filed by his United States Citizen sibling and approved on June 30,
2005. The applicant concurrently filed Form 1-212. The applicant was found to be inadmissible (not eligible for a green card) because of 212(a)(9)(C) of the Immigration and Nationality Act - the permanent bar.

The AAO held that the San Francisco CIS Field Office incorrectly applied section 212(a)(9)(C) of
the Act as it only applies to applicants who were removed and then reentered the United
States on or after April 1, 1997. Since the applicant illegally re-entered before that date, he was eligible for his green card and was not subject to the permanent bar under section 2l2(a)(9)(C).

This is a great decision since this comes directly from CIS, itself (the AAO is the internal appeals office within the Department of Homeland Security).

Understanding the Financial Obligation to Sponsoring a Spouse for a Green Card

noreply@blogger.com (Atty Heather) — Tue, 10 Jan 2012 22:44:00 +0000

The Affidavit of Support is a contract with the federal government to reimburse the government for any means-tested public benefits that the immigrant receives in the 10 years after the immigrant is awarded their green card (becomes a permanent resident). The affidavit of support must be filed with immigration for the permanent residency application to be approved. If the green card case is not approved, the active support is not binding on whoever signed it. A U.S. citizen spouse or Lawful Permanent Resident spouse must make a certain income minimum on a yearly basis to sponsor the immigrant and must produce proof of ongoing employment or sufficient assets as well as have filed the last three years of tax returns and be willing to produce at least the latest tax return to immigration.

The U.S. citizen sponsor is responsible for paying back the government if the immigrant ever applies for and receives public assistance currently in the form of AFDC (cash aid), and non-emergency Medicare, among others. Means tested public benefits do not include social security, disability, or unemployment wages earned by the immigrant. The U.S. citizen or lawful permanent resident’s obligation to reimburse the Federal governments under the affidavit of support does not end if the couple legally separates or divorces.. The U.S. citizen sponsor is still on the proverbial hook for the remainder of the ten years. The only ways to avoid this obligation are:

Naturalization of the immigrant (immigrant becomes a U.S. citizen; the earliest the immigrant becomes eligible for citizenship is 3 years after permanent residency grant, if still living in marital union with their spouse);
The immigrant has worked or is credited with forty (40) qualifying quarters under social security laws;
The immigrant permanently departs the U.S.; or
The immigrant dies.

If the sponsor refuses to reimburse, a federal, state, local, or private agency can seek reimbursement from or file suit against the sponsor for all means-tested benefits provided to the immigrant.

Marital and prenuptial agreements may be a useful tool for U.S. citizen spouse sponsors to hold the immigrant responsible for any potential reimbursement scenario. The immigrant may choose in the agreement to waive a right to alimony, property, a spouse’s savings or 401k or other affirmative benefit in exchange for the risk of the Affidavit of Support creates for the sponsor if the immigrant ever falls on hard times in the future.
The immigrant may also choose to set up a trust or separate account for use by the U.S. sponsoring spouse and pay into it now, while the immigrant is working and has the financial means to fund it, in exchange for the sponsoring spouse assuming the Affidavit of Support risk. Many couples do not involve agreements at all, believing the potentiality of the immigrant falling on public assistance is so remote that the risk is minimal.

U.S. citizen or lawful permanent resident spouse petitioners can be worried about this financial obligation being used against them in family court proceedings if the marriage ever crumbles. The immigrant will not get far in introducing the Affidavit of Support as proof of the U.S. citizen spouse’s obligation to provide alimony or other means of support in a family dissolution or alimony proceeding or in settlement negotiations if the marriage later breaks down. The contract is limited to reimbursement of means tested public benefits only and cannot force a family court to order support. Alimony and divorce agreements are the purview of State family courts, not federal immigration law.

Some Unlawful Presence Waivers to Be Decided Inside the US Before Consulate Interview

noreply@blogger.com (Atty Heather) — Tue, 10 Jan 2012 21:13:00 +0000

The recent announcement from USCIS of its intent to propose a new rule regarding the processing of unlawful presence waivers has sparked a lot of of questions. This issue is all over the media this week as well and many are confused.

Some Unlawful Presence Waivers to Be Decided Inside the US Before Consulate Interview

US CIS has announced a proposal to create a new rule allowing for those who are having to consular process and are subject to the 3 or 10 year bars for unlawful presence to file their waivers with US CIS in the U.S. before attending their consulate interview. This will eliminate long separation periods, especially in Ciudad Juarez, Mexico, between filing of the waiver and a final decision on the waiver (at which point, only with an approval can the immigrant reenter the US). Important things to know about this proposal so far:

The provision is not in effect yet. We have no idea how long the rule will take to be implemented, although this is a positive step in that direction. According to today's teleconference with USCIS, the agency plans to introduce the final rule by the end of the year and the draft rule by spring 2012. No cases can be submitted under the provisional waiver process at this time.
Only applies to those married to US citizens or have US citizen parents as qualified relatives for the waiver. It does not apply to those with Lawful Permanent resident spouses or LPR parents for purposes of the qualifying relative for the waiver. It applies to those under the age of 21 who have US citizen parents - i.e., immediate relatives. An immigrant parent who is being sponsored by their USC child over the age of 21 but who has either a qualifying USC parent of their own (petitioner's grandparent) or USC wife of the parent for qualifying relative for purposes of the waiver qualifies under the provisional program. Those married to lawful permanent residents or are qualifying for the waiver through LPR parents do not qualify for this special provision. These individuals would still have to consular process first, have the consulate conclude that unlawful presence exists and then file the waiver abroad.
Only applies to 3 and 10 year bar waivers. If the immigrant has any other ground of inadmissability (misrepresentation, crimes, etc.), the immigrant must process the waivers (including the unlawful presence waiver) by traveling abroad for the Immigrant Visa interview, receive a determination from the consulate and then file the waivers with the consulate.
Under this proposal, if the waiver is approved in the US, the immigrant will still have to travel to the consulate abroad for their Immigrant Visa interview but there will be no need to stick around to file the waiver as it will be considered in effect the minute the immigrant departs the U.S. if it has already been approved by CIS in the U.S.
If you are already abroad and waiting to file your waiver or waiting for your waiver to be decided, currently this provision does not apply to you.

What this means for those who may be impacted: You will have weigh the pros and cons of traveling abroad under the current system or wait indefinitely in the US until this new provision is in place. There are pros to processing as usual (going to the consulate abroad to file the waiver):

You have an idea of how long it could take. At the consulate, typical processing times are available so you have an idea of how long it would take for your case to be decided. There is no indication of how long the case will take to be decided once the proposal becomes effective.
If some of your arguments will be weaker or unable to be documented in a year or more, it may be better to file now with the consulate while you have updated and stronger proof.
You don't want to wait anymore; you want the process over with. The waiver process can be emotionally draining and clients have often put their lives on hold awaiting the outcome of whether they will be separated a long time from each other depending on the outcome of the waiver.
There is no guidance on what happens if a waiver is denied in the US under the provisional program. There is great concern that all denials will receive a Notice to Appear for immigration court and applicants will be placed in removal proceedings where cases are usually much more difficult to be approved.

What now?

We expect more explanation on the new process once the rule making procedure ends for this provision which could take months before this procedure is put in place and utilized. Currently, CIS is expecting the final rule to be in place by the end of 2012.

What is the 3 & 10 year bar?

The 1996 Illegal Immigration Reform and Responsibility Act (IIRAIRA) created three year, ten year, and permanent bars on admission to the U.S. for a variety of immigration status violations.These bars apply widely and affect immigrants who have family in the U.S., have worked and paid taxes in the U.S., and in many cases are otherwise eligible for permanent resident status.

The three year bar to re-entry into the U.S.: The three year bar applies to individuals who have been unlawfully present in the United States for a continuous period of more than 180 days (6 months), but less than one year, and who voluntarily depart the U.S. The bar is triggered by the act of departing the U.S., even if to consular process to obtain an immigrant visa. Yes, this may apply to you even if you are married to a U.S. citizen.

The ten year bar to re-entry into the U.S.: The ten year bar applies to individuals unlawfully present in the U.S. for an aggregate period of one year or more who depart voluntarily (aggregate = CIS adds up all time in US without lawful presence, even if from different periods of time and different stays). Unlawful presence begins to accrue when the period of authorized stay expires or after an entry to the U.S. without inspection. Again, the bar is triggered by the act of departing the U.S., even if to consular process to obtain an immigrant visa. Yes, this may apply to you even if you are married to a U.S. citizen.

The Waiver Option

If the immigrant is married to a U.S. citizen or lawful permanent resident, or has a U.S. citizen or LPR parent, a WAIVER MAY BE AVAILABLE for 3 & 10 year bars but not for the permanent bar. To qualify for this waiver, which if approved, allows the immigrant to lawfully re-enter with the immigrant visa and not wait outside the US for 3 or 10 years, the immigrant must prove that his or her USC or LPR spouse or parent will suffer EXTREME HARDSHIP if the waiver is not approved.

The Prenuptial Agreement's Effect on a Marriage Green Card Case

noreply@blogger.com (Atty Heather) — Thu, 05 Jan 2012 22:32:00 +0000

A prenuptial agreement may be the deciding factor for a spouse who is hesitant about being involved with the immigration process in deciding to go through with the marriage. There’s no guarantee that a prenuptial agreement will actually hold up later down the line in state family court as this varies with each case depending on the facts involved, given the inherently often coercive nature of the terms or the timing. For immigration purposes, though, the content as opposed to the enforceability of the agreement, is often the key issue for CIS when reviewing a marriage-based green card case. Nothing in the statute requires a couple to volunteer the existence of a prenuptial agreement but if questioned about it by CIS officer at a green card interview, its existence must be disclosed or else the immigrant could face a misrepresentation bar to obtaining a green card and both the petitioner and immigrant could face civil and criminal charges and financial penalties for marriage fraud.

Why would a couple want to enter into a prenuptial agreement? Many modern couples do so to protect assets that existed before their marriage, especially if this is a second or third marriage and they want to be able to leave those assets to a son or daughter. Many couples also use prenuptial agreements so both parties feel that the marriage is being entered into for love and not financial gain and all the cards are on the table from the beginning. However, the very existence of a marital agreement may back-fire on the marriage-based immigration case.

In every marriage-based immigration case, CIS is concerned with marriage fraud and will want proof that the couple married for love, not to evade immigration law. Very much trapped in the mindset of the 1950s model of what a marriage looks like on paper, CIS officers routinely ask for proof of commingled assets including jointly held and actively used bank accounts, CDs, and stocks, housing held in joint tenancy, joint car loans and mortgages, and joint health, life, and car insurance. The modern couple that keeps their financial lives primarily separate due to retirement age, family trusts, or other needs, have a much tougher case to make. Marital and prenuptial agreements may also muck up the waters with potentially compromising provisions to the immigrant that could appear as if there is a financial arrangement in exchange for the U.S. citizen’s compliance with the immigration process (i.e., waiver of alimony or child support in exchange for cooperation in signing the Affidavit of Support or cooperating in the joint filing to remove the condition on a conditional green card or non-interference or contact with CIS if the immigrant wants to remove the condition on their own or needs copies of financial documentation in the future for purposes of documenting the bona fides of the relationship).

When the relationship starts to deteriorate, marital and prenuptial agreements have been used by the petitioning U.S. citizen spouses as proof of the immigrant’s intent to marry only for a green card (permanent residency status) after the immigrant has signed the agreement in an effort by the US citizen spouse to maintain control throughout the immigration process and especially, the finances. For this reason and due to the fact that these agreements are naturally suspect by immigration, they must be carefully drafted. Both parties should always consult a family lawyer and the immigrant should consult an immigration lawyer in addition before signing any kind of prenuptial agreement.

The Impulsive Marriage and Losing Your Visa Priority Date

noreply@blogger.com (Atty Heather) — Fri, 30 Dec 2011 22:10:00 +0000

A common problem that arises in the immigration context is a young marriage that results in the loss of a priority date of a visa petition filed by the lawful permanent resident parent for their son or daughter. A priority date is the date the visa petition is filed with immigration (US CIS).

For those subject to the visa bulletin and the visa quota system, which is anyone in the family category who is not an immediate relative of a U.S. citizen, the priority date determines where you are in line and how soon your visa will become available so you can apply for a green card. For certain countries like the Philippines and India, the backlog can be over 20 years in certain categories and priority dates go back as far as 1988. So, it is very important not to lose the priority date (your place in line) or you have to start all over again in line, in most circumstances.

Under the Immigration and Nationality Act, when the immigrant is being sponsored by a Lawful Permanent Resident parent for a visa petition and the immigrant decides to get married, their priority date is automatically lost upon marriage because he or she is no longer an “unmarried child of a permanent resident.” There is no category for visa sponsorship under federal immigration law for a married child of a lawful permanent resident. Many have the false belief that a subsequent divorce will cure the problem and reinstate or recapture the priority date, which it cannot. This can be an especially harsh reality in a situation where one immigrant marries another immigrant that lacks legal status. The immigrant with a pending immigrant visa filed by a parent on their behalf may be the only way the immigrant may obtain a green card. Always talk with an immigration lawyer to determine if there is a faster route to residency besides the family petition or a different immigrant visa that may apply to you if you want to get married and are in this category.

The Young Lovers – Sponsoring a Spouse For A Green Card When You’re Under Age

noreply@blogger.com (Atty Heather) — Wed, 28 Dec 2011 22:01:00 +0000

You must be at least 18 years old in the State of California to get married. In some states, you can be as young as 14. But what happens when a 17 year old in the State of California who is a US citizen marries their 16 year old girlfriend because there is no other way for the girlfriend to become a green card holder? California family code prohibits marriage between spouses where one party is under the age of 18, unless a court order granting permission is obtained, which is premised on the permission of the underage spouses’ parents. But even if these procedures are not followed and the children get impulsively married in California or another state that allows underage marriage and has no state residency requirements, CIS may still recognize such an underage marriage since the marriage is deemed voidable, not void. The marriage must be officially terminated through a nullity action in state court for it to be considered void and not legally valid. CIS may still deny the ultimate green card petition which is partly based on discretion to deter such a practice.

Even if the procedures are followed including granting the parents’ permission, it may still be in the immigrant’s best interest to wait until after s/he is 18 years old to marry because of the Affidavit of Support requirements and bona fide marriage issue that arises in each immigration marriage petition. Every family-sponsored immigrant must file an Affidavit of Support, which is a contract with the federal government that requires a minimum salary to be made by the sponsoring US citizen or permanent resident spouse of the immigrant. If both parties are underage, it is highly unlikely that the pair would either be able to combine incomes or use just the petitioning US citizen’s income to meet this income threshold for purposes of the immigration case. At that young age, the immigrant or his putative spouse would likely not have the work history and tax filing history to be a sponsor. If a joint sponsor who does meet the threshold is not available to step in (such as a U.S. citizen or Lawful Permanent resident parent or adult over the age of 18 (who is a US citizen or Lawful Permanent Resident), the immigrant cannot obtain permanent residency despite marriage to a U.S. citizen.

Another serious issue arises when an overage immigrant does not marry an underage U.S. citizen or lawful permanent resident - the allegation and potential charge of "statutory rape" or what is generally charged as "sexual assault", "lewd acts with a minor", "carnal knowledge of a minor", etc. depending on your state which can lead to the immigrant being detained, prosecuted and eventually deported. If this is your situation, consult a criminal lawyer in your state before engaging in this act with a minor and an immigration lawyer to determine what the state and federal potential consequences as there are differing provisions and defenses in each state.

Remarriage when your spouse disappears?

noreply@blogger.com (Atty Heather) — Thu, 22 Dec 2011 21:40:00 +0000

I come across a least a few times a year the situation where one of my clients has been married multiple times and now wishes to sponsor an immigrant spouse in their latest marriage that doesn’t have all of the divorce decrees or death certificates from prior spouse is to show that they have the legal right to marry the immigrant in their latest marriage. The US citizen petitioner typically has two or three divorce decrees but in one of the marriage is somewhere in between these decrees, they either for that to file for divorce or didn’t file at all because their spouse just disappeared. Without either a divorce or death decree from a prior marriage, U.S. Citizenship and Immigration Services (CIS), the agency in charge of granting the green card to the immigrant spouse, is likely to conclude that the current marriage to the foreign national is legally invalid and bigamous because the US citizen petitioner never got divorced from their prior spouse who disappeared.

In a state of California, for example, the family code has a special provision for this “presumed dead” spouse situation. If the US citizen or permanent resident petitioner believed that their former spouse was dead, any marriage entered into after this (with the immigrant, for instance), would be considered valid as it is not automatically void – it is voidable.

When a marriage is voidable as opposed to void, the marriage remains valid until a formal nullity decree is granted by a family court judge. Logically, the only person who would bring a nullity action, though, to invalidate the later and current marriage to the immigrant would be the former spouse who has since disappeared. This would only make sense if the former spouse all of a sudden arose from the dead or came back after years of disappearing and wanted to keep their marriage intact.

Therefore, if this never happened (no nullity action was ever brought in court), the subsequent marriage to the foreign national is considered legal despite the absence of a divorce decree from the prior wife. CIS recognizes voidable marriages as valid. Always consult a family lawyer when determining if your situation falls within this loophole in California as there are certain requirements under the statute that must be met. If you’re outside of California, there may be a similar family law provision or case in your state that may allow you to benefit from a disappearing spouse.

Former Divorce Can Screw Up Green Card Case

noreply@blogger.com (Atty Heather) — Sat, 17 Dec 2011 21:27:00 +0000

Obtaining a green card based on marriage can seem straightforward unless either the U.S. citizen petitioner or the foreign national spouse has ever been married before. If they both were living in the same state and were married and divorced in that state, the former divorces may hold up in court. Even either spouse has been divorced in another state, their former spouse was not present in the state when they got divorced, or either has received a divorce decree from another country, you should think twice before going ahead with a new green card case based on a marriage before you have those divorce decrees analyzed by competent family lawyer in your state.

CIS does not have to recognize the legitimacy of the foreign divorce Decree or another state’s divorce decree if CIS finds that the state where the parties are living in does not recognize the Decree due to its own jurisdiction issues, family code requirements or public policy.

This can be an extremely confusing area of the law. Because of differing State family laws, a couple could have completely different outcome on whether a divorce or marriage is recognized depending on the particular state they live in. And if this is discovered after they married and when the marriage falls apart and a potential green card is on the line, this could derail the divorce case for a spouse hoping for alimony and a share of the assets if the marriage the dissolution is based on is invalid under State law. This also derails the federal immigration case if the spouse obtained their permanent residency based on the presumed validity of the marriage when they find out that the marriage wasn’t valid to begin with because their prior divorce decree or their spouse’s prior divorce decree wasn’t valid. Just because you have a divorce decree signed by a judge either in another state, in your own state, or in a foreign country, does not mean that CIS will recognize the Decree as being valid. Further, there are federal monetary fines & possible imprisonment, as well as deportation consequences if marriage fraud or bigamy is implicated.

So how do you know for sure if your prior paperwork will hold up if you want to sponsor a subsequent spouse for a green card? Always start with consulting a competent family lawyer in your jurisdiction. That lawyer will need to know the location of both spouses who were party to the divorce at the time the divorce was filed and how long they’ve been living in that jurisdiction for starters. Often, a state will not recognize a quickie divorce such as one obtained from the Dominican Republic or other countries that don’t require residency prior to filing for divorce, if the state where the couple were residing at the time of the divorce had jurisdiction of the couple and the couple had to legally file in that state; they can avoid their own state’s laws by just crossing the border. You don’t want your whole case resting on a house of cards that could collapse if one divorce decree does not hold up later down the line. It’s worth the consultation fee to speak to a competent family lawyer.

Kim Kardashian's Aussie Trips Highlight Visa Fraud Problems Couples Face

noreply@blogger.com (Atty Heather) — Thu, 01 Dec 2011 20:12:00 +0000

Kim Kardashian is on an Australian immigration watch list now due to her multiple trips to Australia taken to promote her handbag line and reality TV show. The cardinal rule of visitor visas in the US is that you are here to visit, not work. Aussies feel the same way and expect her to get a work permit or other work related visa for this type of "visit." Many couples I encounter in consultations run into conflicts with this tourist visa problem and what CBP thinks is a conflicting intent. If you plan to work in the US, then you need to enter on a B-1 but can't be paid in the US and have to have a foreign employer (this equivalent of this is perhaps what Ms. Kim should have had when she entered Australia); you can't enter on a B-2 in the US and expect to work. If you really want to work for a US employer or promote your business, you should apply for an H-1B, H-3, J-1, or other form of work related visa.

CBP is also on the look out for foreign nationals entering the US on visitor's visas with the ultimate intent to marry their US citizen spouses and overstay their visas. The fact that they're engaged or have these plans can lead CBP to deny a foreign national entry into the US, because the foreign national is violating the terms of their visa. To obtain a tourist visa, the foreign national had to convince the issuing consulate and the CBP officer at the airport when trying to enter the US that they plan to go back home at the end of their visit (just visiting). Marrying a U.S. citizen shows the opposite of this intent in most situations, unless you can show that the US citizen lives outside of the US or they plan to live elsewhere, which is a difficult burden to meet when faced with a CBP officer.

Lies Discovered by Immigration After You Get Your Green Card

noreply@blogger.com (Atty Heather) — Wed, 16 Nov 2011 00:30:00 +0000

What happens if you lied to immigration to get your green card in the first place or you were inadmissible at the time of adjustment in the United States and CIS found this out after you’ve received your green card? CIS can start immigration proceedings against you by issuing an NTA. You may have relief in immigration court but generally, it's best to stay out of there!

The November 7 USCIS policy memo released by U.S. Citizenship And Immigration Services on when an officer must issue an NTA or refer the file to ICE for determination as to whether an NTA can be issued also affects those are already permanent residents. The memo highlights two situations in which NTAs can be issued when someone applies for citizenship. If the citizenship case involves fraud, the case must be referred to the Review Panel for a decision at to whether an NTA should be issued. There is no discretion; it must be referred. The review panel is assembled at the district office that is deciding the citizenship case. A permanent resident who was convicted of a crime that is considered an egregious public safety case after the time they became a resident must also be mandatorily referred to ICE for determination as to whether an NTA will be issued. Naturalization applications that involve a non-egregious criminal conviction can still be denied on good moral character grounds. If the crime is so old that it falls outside of the good moral character, CIS can make a written recommendation to the Review Board to issue an NTA and this recommendation is sent to a special NTA review panel that holds the naturalization case until removal proceedings have concluded. The NTA will not be issued though until a CIS Review Panel agrees with direct their recommendation of the officer who discovered the fraud. The review panel is located at the CIS office handling the case. The district director who gets involved if they review panel cannot reach a consensus on whether an NTA should be issued. If the NTA is issued, the naturalization application with placed on hold until removal proceedings have ended. But if the review panel does not issue an NTA, the underlying naturalization case will be denied. The only good part of this is that the immigrant avoids removal even though cannot benefit citizenship.

If the review panel decides not to issue the NTA or once proceedings have ended, the naturalization case can be adjudicated an approved if no other grounds block the issuance of approval. So, basically, it if a citizenship case involves past or current fraud, the NTA issuance is not automatic which is generally good news. However, with this memo, it is still unknown as to whether immigrants can provide more documentation to the review panel or appear in person before the panel to challenge the charges against them. We'll have to see how this new policy unfolds in future cases . . .

CIS finally issues "guidance" on when officers will issue NTAs for criminal cases

noreply@blogger.com (Atty Heather) — Thu, 10 Nov 2011 01:38:00 +0000

U.S. Citizenship and Immigration Services announced a new policy today to guide officers in knowing when to issue notices to appear (NTA). An NTA is the charging document that’s filed with the immigration court to place in immigrant into removal proceedings. Once an NTA is issued an accepted by the court, CIS no longer has jurisdiction and the immigrant is faced with dealing with an immigration judge and ice trial counsel who’s trying to get the deported. By law in under the statute, NTA’s have to be issued in certain circumstances. But there are many types is cases where NTA’s are not automatic and this is where this memo is most illustrative. CIS will forward certain types of immigrants who have criminal backgrounds to ice for ice to determine if ice wants to issue an NTA. These include cases egregious public safety cases involving murder, rape, or section abuse of a minor, trafficking and firearms, or fences involving firearms, crimes of violence, ransom, slavery, child pornography, alien smuggling, suspected street gang members or Interpol hits. This list will also affects immigrants who have felonies and have illegally reentered the United States after receiving a removal order. Non egregious public safety criminal cases will also be referred to ice, even if someone is applying for citizenship and is our rate permanent resident. In these cases, it CIS will not issue an NTA itself if ice decides to not issue an NTA. One of the more troubling aspects of this memo is that CIS will refer all cases to ice in which an immigration benefits application has been denied because the person failed to register with NSEERS. This was a failed program that Ast all male immigrants of a certain age from countries identified as harboring terrorists to voluntarily register their whereabouts in the United States following the 911 attacks. Didn make much sense of the times since terrace would be unlikely to register their whereabouts and so it targeted and racially profiled against many people who are innocent of any wrongdoing. Another problem within NSEERS was that many people did not know about it and the program ended many years ago when they are applying for relief now, are denied for failure to comply with an old program that they can do anything about now.

Common Issues on CA Drivers Licenses for Immigrants

noreply@blogger.com (Atty Heather) — Thu, 27 Oct 2011 03:29:00 +0000

It is difficult to obtain a driver's license in CA if you are in CA illegally or can't prove legal status. It may be advantageous for immigrants who are undocumented to keep their foreign driver's licenses valid so they have i.d. and are less likely to get fined or arrested for driving without a license if ever pulled over by California Highway Patrol. California CHP officers typically ask for a valid CA driver's license for anyone who has been in CA for at least 30 days. This can create a dual intent problem for those even in the US legally but on visitor's visas. Visitors who are granted 6 month stays on their I-94s should not be obtaining a CA driver's license if they want to show that they are not actually living in the US but are just visiting. If the Customs and Border Protection agent finds a CA driver's license on a Boarder Crosser or a B-2 visa holder, CBP may deny entry because of this document which may prove the immigrant is living in California. It's a big catch 22.

Another common problem for those legally in the US but who are here on temporary visas or green cards is changing their name, reflecting the correct birth date on the driver's license, a marriage change of name, or proving their identity if the passport biographical page doesn't match the birth certificate. The CA DMV will not accept copies of birth certificates, marriage and divorce certificates, change of name certificates, and other such documents. You must prove the change with an original document. Further, those with conditional green cards who have filed to remove the condition and have an I-751 receipt that extends their permanent residency status, may not be able to obtain extended driver's licenses at some offices because CA DMV only extends green cards based on approved documents, not receipt notices. Ask for a supervisor if this happens to you; there is a big difference between I-751 receipts and receipts for Nonimmigrant visa extensions.

Further, in CA, if your driver's license is expiring in the next 30 days, you can't get an extension unless you have an approved immigrant visa or temporary nonimmigrant visa petition proving you have valid immigration status for an additional period of time. If this new period of time is less than 5 years, your driver's license will only be extended for the term of your visa. Always consult a competent immigration attorney about your situation to determine what options you may have and to determine if any of these requirements have changed.

Be Careful: Permanent Bar Now Retroactive!

noreply@blogger.com (Atty Heather) — Thu, 15 Sep 2011 19:59:00 +0000

In Carrillo de Palacios, the Ninth circuit held that any unlawful presence period before 4/1/1997 can be used to trigger the permanent bar even if the illegal or attempted illegal re-entry happened only months after 4/1/97. The case is currently on appeal because it allows for a new law to be applied retroactively to unlawful presence before the new law (IIRIRA) took effect in 4/1/1997 when the permanent bar and the unlawful presence bars (3 & 10 year bars) were created. The applicant in this case had 245(i) adjustment eligibility if not for the permanent bar and was denied her opportunity to apply for a green card.

Determining Case Status on Waivers filed outside the US

noreply@blogger.com (Atty Heather) — Thu, 08 Sep 2011 22:15:00 +0000

Determining case status is one of the most frustrating parts of the current waiver process outside of the US. CIS offices not only differ on processing times for waiver submissions, but there is usually no way of finding updated information on how long a case is taking. The first place I always recommend is reviewing the consulate's website. Access the US Department of State's website for a list of consulates. Some of these consulates have links to the CIS office assigned to the consulate. Certain CIS offices post processing times in terms of the average monthly processing times. Others, such as the Athens office, allows applicants to track their case by the case number.

CIS Headquarters in the US has received complaints about this inability to track up to date processing information for many overseas offices. As of June 2011, CIS reports that they are trying to implement a "case status online" system for international cases much like that found for cases filed in the US and accessible through www.uscis.gov, but this international system is many months away. Always consult your immigration attorney to determine if there are more recent, available methods for the particular CIS office where your file is located to find out updated processing times.

Direct Filings of Marriage Green Card Cases at Consulates Changing

noreply@blogger.com (Atty Heather) — Thu, 01 Sep 2011 22:27:00 +0000

The One Step Filing Procedure Is Now Rare.

As of August 25, 2011, US citizens residing in a foreign country that does not have a US CIS office in that country, are no longer allowed to directly file their marriage-based immigrant visa cases with the consulate in that country. They have to file the case with US CIS lockbox in the United States. In only cases of rare emergency (such as medical emergencies or where the personal safety of the petitioner or beneficiary is at risk), will CIS authorize the Department of State (consulate abroad) to accept a direct filing when there is no CIS office in that country.

This will not be a popular decision as it eliminates the advantage to direct filing which was cutting out the long CIS processing time that averages 6 months for the file to be approved by CIS in the US), plus the time NVC takes to assemble and request more documents and set up the consulate interview. Now, it will take longer for CIS to approve the case, reroute it to the National Visa Center, then reroute it again to the consulate abroad for the immigrant's interview based on the marriage. Only those US citizens living in a foreign country that has a CIS office within that country will be able to skip the US CIS & NVC processing.

Fast Track Waiver Program Stays in Mexico

noreply@blogger.com (Atty Heather) — Thu, 01 Sep 2011 22:07:00 +0000

The US Consulate in Ciudad Juarez, Mexico receives 20,000 waiver filings (for unlawful presence, misrepresentation, prostitution, and criminal grounds) a year, with two full time workers assigned t the waivers. They have the only waiver system in the wqorld that is two-tracked. A case can be "instantly approved" within 3 weeks, on average, if the officer believes that the case is strong enough or there are no complications with arrest records, or other unresolved issues that need more attention. The cases that are not in these instantly approved batch, head to the backlog, which has taken as long as 16 months for a decision, an incredibly long time for an immigrant to wait abroad for a decision. CIS recently announced that CDJ CIS's fast track program is being considered for all waiver submissions when CIS brings all waiver filings to a lockbox set in the U.S. scheduled to be set up for next year. Right now, no other CIS office outside the US has this fast track program and CIS is making no plans to add the fast track to any of those offices as none have the volume of cases that CDJ has.

DHS Announces New Policy for those in Removal Proceedings

noreply@blogger.com (Atty Heather) — Thu, 01 Sep 2011 16:57:00 +0000

On June 17, 2011, ICE published a memo on their interpretation of when they will use prosecutorial discretion to dismiss pending removal cases. ICE, a subset of the Department of Homeland Security, is aiming its resources on enhancing border security and identifying and

removing criminal aliens, those who pose a threat to public safety and national security, repeat

immigration law violators and other individuals prioritized for removal.

In a letter from the current DHS Secretary to Congressman Dick Durbin published in August 2011, DHS Secretary writes, "President Obama has said on numerous occasions that to DHS it makes no sense to expend our enforcement resources on low-priority cases, such as individuals like those you reference in your letter, who were brought to this country as young children and know no other home. From a law enforcement and public safety perspective, DHS enforcement resources must continue to be focused on our highest priorities." DHS announced that it is organizing a work group with the Department of Justice (DOJ) which has oversight over the Immigration Courts, "to execute a case-by-case review of all individuals currently in removal proceedings to ensure that they constitute our highest priorities. The working group will also initiate a case-by-case review to ensure that new cases placed in removal proceedings similarly meet such priorities."

What does this mean for those currently in removal? Repeat immigration law violators will still have difficulty being released from immigration hold or having their cases dismissed from Immigration Court. Those who have one illegal entry as opposed to multiple entries, misrepresentations, or criminal convictions will likely not obtain prosecutorial discretion and dismissals of their cases. Further, there is going to be a lot of confusion about this policy, especially because DHS said they would consider issuing work permits on a case by case basis. Much like the guest worker program spoken of for years and years to no avail, the work permit option does not exist and may never. DHS confirms that the new policy does not give relief or benefits for anyone including any of those students that would be eligible under the Dream Act.

245(i) Grandfathering Getting Tougher

noreply@blogger.com (Atty Heather) — Thu, 25 Aug 2011 22:37:00 +0000

245(i ) is an ever changing area of court interpretation. The Board of Immigration Appeals decided in Matter of Legaspi that an immigrant spouse cannot always grandfather under 245(i) and independently qualify for a green card if s/he is married to another immigrant who does have 245(i) grandfathering protection. 245(i) allows immigrants who entered the US illegally and who were sponsored for an immigration benefit (IV or labor cert) by a relative or employer by the cut off date of April 30, 2001 to obtain their green card in the US despite the illegal entry. The general rule, without 245(i), is that an immigrant must enter legally to obtain a green card in the US. If the immigrant cannot prove legal entry, the immigrant would have to travel to the consulate abroad to interview for their green card. But 245(i) saves the immigrant from having to travel abroad, if you can prove you qualify. An immigrant is "grandfathered" under 245(i) if they were a beneficiary of a petition filed by that date or were the spouse or child of an immigrant who was the direct beneficiary of that petition filed by April 30, 2001.

The BIA in Legaspi drew the line for grandfathering and made it all that more confusing. Try to follow this one. In Legaspi, the immigrant's wife was the child listed in a petition filed for her father by his father (her grandfather). The immigrant wife's father was the main beneficiary of the petition filed by April 30, 2011. Yes, the immigrant's wife is grandfathered under the father's petition. But, since the immigrant's wife did not have a petition directly filed to benefit her by that cut off date, he could not use her grandfathering status (as the child of a 245(i) beneficiary) to qualify himself as a grandfathered alien because he married her and skip consular processing, the ten year bar, and who knows what else.

As you can read, 245(i) can be very fact specific and complicated. Even 10 years later, it's still being used to qualify family for green cards.

Unlawful Presence & Criminal Waiver Process Changing Worldwide

noreply@blogger.com (Atty Heather) — Tue, 16 Aug 2011 21:58:00 +0000

CIS recently announced in June 2011 that worldwide changes to the inadmissability waiver process are underway. One of the biggest changes affects how long these cases take to be decided. Applicants for waivers can send in their waiver directly to the CIS office assigned to the foreign consulate. Prior to this, Applicants were required to send the waiver packet to the consulate (Department of State) which would then forward the waiver packet to the CIS office. This could take many months, especially for cases in Latin and South American countries where consulates have been notoriously slow. An applicant still has to receive notification from the consulate at the Immigrant Visa interview that they are eligible to file a waiver before the CIS office assigned will accept the waiver submission.

Another important change coming is that US CIS has plans to create one lockbox in the US for the direct filings of all inadmissability waivers, so no waivers have to be decided by overseas offices. This could also save applicants a lot of time and we hope, should streamline the process and make overall decisions more consistent.

The In-Laws & Conditional Residency

noreply@blogger.com (Atty Heather) — Sat, 13 Aug 2011 21:27:00 +0000

Choosing whether to file a joint petition or a waiver to remove the condition on residency often comes down to what you can prove. I speak to many immigrants who have evidence of abuse or that they married for love (not immigration purposes) in the form of affidavits of relatives. Often times, relatives are the only witnesses. However, I usually never use the testimony or affidavits of the US citizen spouse's relatives. I understand that many times, the US citizen's family act helpful and claim to be upset with the US spouse's treatment of the immigrant or the US citizen spouse's immaturity. But when it comes down to it, they are the spouse's blood relations and their loyalty will always be there. Especially since in multiple types of waivers, the immigrant must show that the marriage fell apart because of the other spouse's fault; getting family to turn publicly on paper on their relative is unlikely. Exposing the US citizen's family to the type of waiver case an immigrant is filing with immigration by involving them runs a huge risk of the other spouse finding out what the immigrant is doing. This could lead to the other spouse retaliating by trying to contact immigration and make the immigrant's case even more difficult to prove. In my opinion, this is not worth the risk in 99% of all cases. There are other ways to document cases. Be careful.

Any way back from marriage fraud?

noreply@blogger.com (Atty Heather) — Tue, 28 Sep 2010 21:49:00 +0000

A finding of marriage fraud is a lifetime bar to a later filed immigrant visa by another spouse. This situation commonly arises when an immigrant pays someone to help them get their green card by posing as their spouse even though they have no relationship, do not live together and the marriage was set up solely for immigration purposes. Many times, an immigrant will get away with marriage fraud at the initial green card interview but will be caught later when the immigrant tries to release the condition and their spouse sabotages the interview or comes forward to INS about the fraud.

Is all hope lost for he immigrant? Maybe not. If the immigrant has been placed in removal due solely to the fraud in obtaining their green card, the immigrant may be eligible to waive the fraud and essentially back date it, as if it never happened. This is especially crucial in situations where the immigrant has since remarried to a US citizen and this marriage is real. The marriage fraud bars any visa application based on this new marriage so the immigrant had to file the waiver. The waiver is only available in immigration court and is always a risky venture. Always contact an immigration lawyer with experience with waivers to determine if you qualify

When You face a Judge After Conditional residency expiration

noreply@blogger.com (Atty Heather) — Wed, 04 Aug 2010 01:57:00 +0000

Often a conditional resident may end up in removal proceedings. This could be due to a denied case or failure to file to remove the condition while the residency period was intact. But not all hope is lost if placed in removal. If a CLPR's status has been terminated, the immigrant may be able to file a waiver case or joint petition to remove the condition with CIS and delay the issuance of a removal order. Judges have the power to delay proceedings to give the immigrant these options.

An immigrant who already filed a case with CIS which was denied can ask the judge to review the case in removal court and even provide more evidence at that point. Another option may be filing a new green card case based on a new marriage but in this scenario, the former/expired green card holder will likely face skepticism about the bona Fide nature of the new marriage and should document the case well.

Overstay Could Bar Green Card for Visa Waiver Entrants

noreply@blogger.com (Atty Heather) — Tue, 20 May 2008 17:34:00 +0000

Overstay Rules for Visa Waiver Countries Are Changing!

Visa waiver entrants benefit from a program that Congress created allowing citizens of certain countries to come to the U.S. as tourists for 90 days or less without visitor's visas. To get the government waiver of the usual visa requirement, the tourist has to sign a wiaver of his or her own right to contest removal other than on the basis of asylum. Visa waiver countries include Germany, the United Kingdom, Spain, Belgium, Australia, France, and others. A total of 27 countries currently have this designation.

In a recent 9th Circuit decision (Momeni v. Chertoff, March 31, 2008), the court held that a visa waiver entrant from Germany could not benefit from adjustment of status (green card application) from inside the US despite it being based on marriage to a U.S. citizen, due to overstay after the entrant was placed in removal proceedings before filing for adjustment. Under those facts, the visa waiver entrant would have to consular process and could be subject to an unlawful presence bar (3 or 10 years depending on the amount of time overstayed) which would require a lengthy waiver process to be able to re-enter the U.S. as well as grant from the Attorney General to let him come back despite a recent deportation.

What this case means at least in the 9th Circuit, is that it is riskier for a visa waiver entrant to apply for adjustment after the 90 day alloted stay expires.

CIS local offices may interpret this case to apply to visa waiver entrants who overstay their 90 days and then file a green card case (adjustment) whether or not a person is ever placed in removal, leading to a denial of the green card case. It's a catch in a way, because applying for an adjustment right after entry can lead to CIS concluding that the visa waiver entrant committed visa fraud at entry by really intending to move to the US on their visa waiver (which is the equivalent of a visitor's visa), which could result in denial of the adjustment application and eventual removal. Caselaw in other circuits may also affect visa entrants' ability to apply for permanent residency in the U.S.

Abused Spouses Who Enter Illegally Now Able to Obtain Green Card

noreply@blogger.com (Atty Heather) — Tue, 06 May 2008 00:53:00 +0000

CIS recently released a memo confirming a nationwide policy to allow battered spouses who have received an approved Violence Against Women Act (VAWA) petition to apply for a green card while in the U.S., despite an illegal entry. Prior to this memo's release, there was no nationwide interpretation of the statute on this issue and various CIS district offices were granting VAWA green cards for those who entered illegally and many other CIS offices were not.
This is a huge victory for battered spouses who entered illegally, many of which could face unlawful presence bars, the permanent bar, or be at risk if had to leave the U.S. to process their green card petitions abroad at a consulate.

This memo was very narrowly tailored, however, to apply to those who entered without inspection, not necessarily pertaining to those who entered by other means, i.e., with a fiance visa and did not marry the USC sponsor but married someone else who turned abusive, or those who entered with J-1s who are having adjustment problems (or other such situations).

noreply@blogger.com (Atty Heather) — Tue, 06 May 2008 00:49:00 +0000

9th Circuit Finds Adjustment (Green Card) Unavailable to Persons Who Enter the U.S. by Using False Documents or by Fraud; Must Consular Process!

summary posted by AILA (American Immigration Lawyers Association) InfoNet Doc. No. 08050544 (posted May. 5, 2008)

Orozco v. Mukasey, (9th Cir. Mar. 25, 2008)

On January 11, 1996, Petitioner entered the United States by presenting the permanent resident card ("green card") of another person to an immigration inspector. On April 13, 2005, Petitioner was charged with removability under INA §237(a)(1)(A) for having presented a counterfeit document to gain admission into the U.S. Petitioner, who was married to a U.S. citizen, submitted an application for adjustment of status (green card application) under INA §245(a) and a waiver of inadmissibility under INA §212(i) for the fraud. The immigration judge concluded that Petitioner was statutorily ineligible for adjustment of status because he had not been lawfully "admitted" for permanent residence and that even if Petitioner qualified for a §212(i) waiver, he remained ineligible for adjustment because of his fraudulent entry.

The court concluded, a "lawful" entry "requires more than simply presenting oneself for inspection and being allowed to enter the United States." Petitioner's use of a fraudulent document to gain entry into the U.S. was unlawful and was grounds for criminal charges under 18 USC §1001(a) and §1028(a)(7). Therefore, the court rejected Petitioner's argument "that his entry, while criminal, was lawful for purposes of [INA §245(a)] because he presented himself for inspection and admission and was allowed to enter the United States." Finally, the court rejected Petitioner's attempt to cure his unlawful entry with a waiver of inadmissibility under INA §212(i). The court explained that lawful entry is a statutory prerequisite for adjustment of status that cannot be waived by §212(i). The petition for review was denied.