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WAVE IN EXCEPTION

June 1, 2015

WAVE IN EXCEPTION

Author: New York Immigration attorney Alena Shautsova

One of the requirements for adjustment of status (or process of receiving permanent residency without leaving the U.S.) is evidence of being “inspected and admitted” as defined by 8 USC § 1101(a)(13)(A).

What constitutes admission is an important questions to answer, because it defines person’s eligibility for different immigration benefits such as, inter alia, adjustment of status and cancellation of removal.

Admission and inspection commonly takes place when a person is undergoing a “check” at the border or port of entry and presents him/herself to a CBP officer with a valid document such as a passport and a visa. However, this is not always the case. What to do in a case of crossing the border between the US and Canada or US and Mexico where there is no traditional Immigration control and checkup? That is how a “waved in” exception to traditional admission occurred. Through years of litigation and fights, it was finally decided that a person who was “waved in”: allowed to come to the US without a check- up, is a person legally admitted for the immigration benefit purposes.

The Board of Immigration Appeals found that “the terms ‘admitted’ and ‘admission,’ as defined in [§ 1101(a)(13)(A)], continue to denote procedural regularity for purposes of adjustment of status, rather than compliance with substantive legal requirements.” In re Quilantan, 25 I. & N. Dec. 285 ,at 290. See also Martinez v. Att’y Gen., 693 F.3d 408, 414 (3d Cir. 2012); Sum v. Holder, 602 F.3d 1092, 1096 (9th Cir. 2010); Emokah v. Mukasey, 523 F.3d 110, 118 (2d Cir. 2008). The Board also considered the definition of admission at § 1101(a)(13)(A) in light of its interaction with other statutory provisions of the INA and the intent of Congress in enacting the definition. See In re Quilantan, 25 I. & N. Dec. at 291–92. It further rejected the Government’s argument that an alien “must be admitted in a particular ‘status’” to satisfy the definition of admission. Id. at 293.

It means that a person is admitted, when is allowed to come into the U.S. The particular status of admission does not matter, as the person is considered to be admitted in “any status.” See recent decision Tula-Rubio v. Lynch, 5/21/15 from 5th Circuit Court of Appeals.

How one can prove that he/she was in fact waved in?

The courts found the fact of admission where people were able to provide detailed testimony as to circumstances of entry and present witnesses to confirm the entry. Interestingly, that admission was found in cases where the exact time and date of admission was not recalled as long as overall testimony was found credible.

Asylum and Gang Violence

May 5, 2015

Asylum and Gang Violence

Author: U.S. Asylum attorney Alena Shautsova

Asylum and Gang Violence

A claim of asylum connected to gang violence is one of the most common types unfortunately. Immigrants from El Salvador, Mexico and Ecuador are all coming to the U.S. in pursuant of a safe harbor. However, despite the obvious danger of gang violence, not every applicant who is afraid of gangs can succeed in a U.S. Immigration court.
For example, in two recent decisions, the courts came to the opposite conclusions. In one case, the court held a mother of a son who is being actively recruited by the gangs is subject to protection in the US , Hernandez-Avalos v. Lynch, 4/30/15. But in a different case, the court held that a young Salvadorian male who is being recruited by the gangs and resist joining them, is not subject to the protection in the US. Rodas-Orellana v. Holder, 3/2/15.
On its face, it seems that these two decisions are opposites and that something is going wrong… Well, what is going on here is the application of so called social visibility standard. An applicant who presents an asylum claim based on membership in a particular social group must show that the group he/she claims to belong to is socially visible. It is largely depends on the applicant’s attorney’s advocacy skills to persuade the court that the applicant in fact belongs to a group that has certain distinguished characteristics in the society it exists in, and that those characteristics are prominent enough for the “bad guys” to notice them and target members of this particular social group.
This demonstration is not an easy one as shown by the case examples above. In fact, in the first example the only thing that ‘saved’ the claim was the mother-son relationship between the applicant for asylum (claim was filed by mom) and the subject of gangs’ attention. So, the “group” mom was a member of, was …her own family. In the second example, the group was found by the judge too broad to be identifiable, and that is why the claim was denied.
It is obvious that asylum law is developing and is very, very complicated for an average asylum seeker to comprehend. We try to republish all important recent asylum decisions on our website’s Asylum Library: http://www.shautsova.com/immigration-usa/asylum-library.html

 

Legally Speaking: Top 10 Questions regarding Waivers under INA and Answers

April 15, 2015

Legally Speaking: Top 10 Questions regarding Waivers under INA and there Answers

Author: New York Immigration Lawyer Alena Shautsova

Legally Speaking: Top 10 Questions regarding Waivers under INA and there Answers

  1. Q: There is no one single waiver that will solve my inadmissibility’s, can I “stack” waivers as a solution to my inadmissibility?

 

A: That is a great question, in most cases, yes you will be able to stack your waivers. The waivers can and should be granted simultaneously. There are however a few exceptions to the stacking of waivers.

  1. When you are not “otherwise admissible” at the time of your entry, having been previously deported.
  2. When you were never charged with deportability/inadmissibility due to fraudulent marriage that was the basis for your lawful permanent resident status.

 

2.     Q: After we apply for a waiver will I be eligible for Employment Authorization before it is granted?

 

A: No. The waiver application itself does not provide for an opportunity to file for a waiver.

 

3.     Q: Is it possible to appeal or refile a waiver?

A: Yes. In most cases it is possible to appeal or file a motion to reopen/reconsider. In certain cases there is no appeal , but it is possible to refile.

 

4.     Q: I showed an Extreme hardship when submitting my waiver, why was I denied for lack of evidence?

A: In almost all situations, a waiver application is being analyzed first from the point of view of statutory eligibility, and then as matter of discretion. Also, it is USCIS who determines if there was enough evidence to demonstrate hardship.

5.     Q: I have been living in the US “under the radar” since I have been here, how can I prove that I have been here the whole time?

A: It is applicant’s burden to establish physical presence in the U.S. Possible evidence may include photos, social media updates, trip receipts, records of rent payments, medical records.

6.     Q: How much documentation is needed to show an Extreme hardship?

A: There is no set limit.

7.     Q: I don’t think I submitted enough evidence in my waiver submission, is it possible to add additional evidence?

A: Yes, before the decision is made, it is possible if you have a receipt number.

8.     Q: Why should I use an attorney to file my case when the instructions are right on the USCIS website?

A: An attorney can help to present the case and evidence in the most favorable light; also a good submission should be accompanied with the points of law that correspond to the published precedents and cases, which a person who is not practicing law will have a very hard time doing.

9.     Q: Why do you charge so much money for waivers opposed to other attorneys?

A: A good submission involves at least 40 hours of work which includes forms, affidavits, letters of support, consultations on different aspects, meetings with clients, memorandum of law, etc.

10.   Q: What makes you so successful when it comes to waivers?

A: First, it is time we spend talking to our clients and learning about their lives. Second, it is ability to make clients comfortable so that they will share all aspects of their lives and ability to explain to a third party why an applicant has a compelling story and deserves the pardon.

H1B 2016 Cap is Reached

April 8, 2015

H1B 2016 Cap is Reached

Author: New York Immigration attorney Alena Shautsova

On April 7, 2015 USCIS announced that the H1B Cap, or amount of visas that are allocated to foreign workers in specialty occupations has been reached for the 2016 fiscal year. The government has received more than allocated 20,000 petitions for the advanced degrees and more than 65,000 petitions for the general category.

Now, government’s computer will randomly select the “winners” and after that, their applications will go through consideration process. If the petition is granted an the beneficiary uses the cap, the petition is counted towards the cap. If for some reason, the selected petition is not approved or the beneficiary is not utilizing it, the “spot” will be returned to the pool and will be given to someone else.

USCIS continues to accept petitions that are not covered by the 2016 cap, or cap exempt. Such petitioner can be filed for example by those whose H1B status is being extended due to pending labor certification or  I-140 petition; or those whose employment conditions changed and need amendments, etc.

All petitions that will not be selected, will be returned together with the filing fees, as long as they were not duplicated.

Immigration Fraud Waiver 237(a)(1)(H)

March 26, 2015

Immigration Fraud Waiver 237(a)(1)(H)

Author: New York Immigration lawyer Alena Shautsova

Immigration laws are unforgiving to those who the government determined used fraud or misrepresentation to acquire an immigrant visa or adjustment of status. The Immigration Fraud waiver under 237(a)(1)(H) is one of the rare exceptions. 

Immigration fraud occurs when a person makes an intentional misrepresentation of material fact with intent to deceit the person to whom the message is addressed.

A misrepresentation occurs when a person presents facts that are not true. In the content of the discussed waiver, a misrepresentation may be willful or innocent.

As used in INA 212(a)(6)(C)(i), a misrepresentation is an assertion or manifestation not in accordance with the facts. Misrepresentation requires an affirmative act taken by the alien. A misrepresentation can be made in various ways, including in an oral interview or in written applications, or by submitting evidence containing false information.

Due to the broad definition of misrepresentation, and the fact that it can be innocent, a green card holder may be charged with removability based on misrepresentation even when he/she was not aware of the falsity of the information. For example, a person was not aware that he/she had an order of deportation against him/her and answered NO to the question regarding outstanding orders; a person was not aware that the divorce certificate was false and introduced it as a valid proof during an immigrant visa application…

A permanent resident who entered the US using an immigrant visa or who adjust his status in the U.S. may be charged with the ground of removability under INA 237(a)(1)(A) or INA 212(a)(6)(c)(i) if suspected of fraud or misrepresentation in connection with the receipt of IV (immigrant visa) or permanent resident status. The good news, is that in many cases, a person may apply for a 237(a)(1)(H) waiver.

To qualify for the waiver, a person first has to be charged with the mentioned above grounds of removability.

Second, a person has to have a qualified retaliate in the U.S.: a spouse, parent, son or daughter who is a U.S. citizen or LPR. The usual reading of the statute so far is that the relative must be alive at the time of the decision on the waiver and that the qualifying relationship should be in existence. However, at least one court in the 9th circuit held that a son of the deceased USC can qualify for the waiver; and in at least one BIA decision, a divorced applicant was allowed to apply for it.  See Matter of Soretire, 11/20/14, unpublished BIA decision.

Notably, no showing of extreme hardship to the relative is required for this particular waiver.

Third, a person must not be otherwise inadmissible.

This waiver may be helpful to those who gained their permanent resident status without disclosing that were married at the time of the marriage to the USC (bigamy); those who did not disclose that they were married when received a visa as an unmarried son or daughter of the LPR; those who presented false documents at the time of the Immigrant visa interview or adjustment of status; and those conditional resident who the USCIS believes engaged in fraudulent marriage.

Finally, if an applicant is statutory eligible for the waiver, he/she still has to demonstrate that he/she deserves a favorable discretion.  It means that person’s good moral character as well as hardship to the qualifying relative will be considered (however, the level of hardship does not need to rise to the extreme level).

Can one whose waiver was denied appeal the denial in court?

It depends on the grounds for the denial. Although a court does not have jurisdiction to review the discretionary denial of a fraud waiver, it does have jurisdiction to review the statutory eligibility elements under § 237(a)(1)(H) of the Immigration and Nationality Act (INA), 8 U.S.C.S. § 1227(a)(1)(H), as it may review constitutional claims or questions of law. INA § 242(a)(2)(D), 8 U.S.C. § 1252(a)(2)(D).

USCIS UPDATES G 28 form and I 864P poverty guidelines

March 16, 2015

USCIS UPDATES G 28 form and I 864P poverty guidelines

Author New York  immigration lawyer Alena Shautsova

USCIS updated its G 28 attorney or representative notice of appearance form. The main new change is that now, the applicant or petitioner can choose who should receive notices regarding immigration filings and documents: the applicant or petitioner or just his/her representative. The change should affect those applying for employment authorization and who would like their attorneys to receive the EAD card. Previously, it was impossible for an attorney to receive an EAD card at attorney’s address.

USCIS also updated I 864P poverty guidelines which establish income limits necessary to sponsor family members into the US. The forms submitted to USCIS prior March 1, 2015 will be considered under the previous guidelines.

Мой работодатель плохо относиться ко мне, a у меня нет легального статуса. Что я могу сделать?

March 5, 2015

Мой работодатель плохо относиться ко мне, a у меня нет легального статуса. Что я могу сделать?

Автор: Русскоговорящий Адвокат США Елена Шевцова

Плохо, когда люди обмануты их начальниками в Америке. Еще более плохо, когда они терпят плохое отношение, издевки и неуплаты, потому что они боятся  быть депортированными или заключенными в тюрьму в связи с отсутствием статуса.

Хорошим является то,  что законы Америки по трудовому праву одинаково защищают тех у кого есть статус и тех у кого его нет. Во  многих случаях при судебном разбирательстве работодатель или его адвокат не смогут даже спросить есть ли у работника статус в Америке, если работник уже нанят работодателем.

Более того, человек решивший пожаловаться на своего работодателя получает защиту от депортации а в некоторых случаях статус постоянного жителя.

Также, при приеме на работу работодатель не имеет права требовать определенные документы подтверждающие право на работу.  Работодатель может предложить список,  из которого работник сам имеет право выбрать какие документы предоставить.

Выше упомянутые законы не защищают работника если при приеме на работу он предоставил лживую информацию.  Если же работодатель не интересовался статусом или закрыл глаза на его отсутствие, ответственность лежит на работодателе.

Задавайте свои вопросы по телефону 917-885-2261.

AUTOMATIC CITIZENSHIP FOR CHILDREN OF US CITIZENS

February 21, 2015

AUTOMATIC CITIZENSHIP FOR CHILDREN OF US CITIZENS

Author: US Citizenship Attorney Alena Shautsova

U.S. Immigration law allows children of the U.S. citizens to automatically receive U.S. citizenship in certain situation.  It is a well-known fact that a child who is born in the US or its territory is a U.S. citizen regardless of citizenship or immigration status of child’s parents. The rules differ, however, in case of the child who is born outside of the US, or when a child’s parent becomes a US citizen prior to the child’s 18th birthday. The USCIS website provides a synopsis of basic qualifications.

For example: A child born outside of the United States automatically becomes a U.S. citizen when all of the following conditions have been met on or after February 27, 2001: 

​

•The child has at least one parent, including an adoptive parent​  who is a U.S. citizen by birth or through naturalization;​

•The child is under 18 years of age;​

•The child is an LPR; and​

•The child is residing in the United States in the legal and physical custody of the U.S. citizen parent.​ 

A child born abroad through Assisted Reproductive Technology (ART) to a U.S. citizen gestational mother who is not also the genetic mother may acquire U.S. citizenship under ​INA 320​ if:​

•The child’s gestational mother is recognized by the relevant jurisdiction as the child’s legal parent at the time of the child’s birth; and​
​

•The child meets all other requirements under ​INA 320​, including that the child is residing in the United States in the legal and physical custody of the U.S. citizen parent.
​

It is important to note that a stepchild who has not been adopted does not qualify for citizenship under this provision.​ Let’s say Juan marries Mary. Juan has a 5  years old  LPR child, and Mary is getting her citizenship a year after the marriage. Mary has not adopted Juan’s child. Mary has a child of her own, Stella. Stella is 17 years old and is an LPR. In this case, Stella will be able to qualify for automatic citizenship, but not Juan’s’ child.

Let’s say that Juan’s child was born in Mexico and Juan is not now and  had never been married to the child’s mother.  It is 2014. The child is 15 years old and Juan has applied and received his citizenship. Is the child a US citizen as well?

The Immigration and Nationality Act provides for the following definition of the word “child”:

(1) The term “child” means an unmarried person under twenty-one years of age who is-
(A) a child born in wedlock;
(B) a stepchild, whether or not born out of wedlock, provided the child had not reached the age of eighteen years at the time the marriage creating the status of stepchild occurred;
(C) a child legitimated under the law of the child’s residence or domicile, or under the law of the father’s residence or domicile, whether in or outside the United States, if such legitimation takes place before the child reaches the age of eighteen years and the child is in the legal custody of the legitimating parent or parents at the time of such legitimation;

So, if look at the point (c)

In a recent BIA decision, the Board concluded that a child born abroad to unmarried parents can be a “child” for purposes of INA section 320(a) if he or she is otherwise eligible and was born in a country or State that had eliminated legal distinctions between children based on the marital status of their parents or had a residence or domicile in such a country or State (including a State within the United States).  This ruling is important because there are still  countries that did not eliminate the distinguish between children born from parents who are married, and those who are not married.

Let’s say that Juan is from the country where the law says that he can ligitimate the child only by marrying the child’s mother, and Juan is still in that country residing with his son. Then, the answer would be NO. The child is not a U.S. citizen.  What if the son moves to the U.S.? Then, yes, the child will be able to become a U.S. citizen (provided the State law does not make a distinction between the children born in marriage and outside of the marriage).

Interestingly, in the past century, the laws have been changing, and in certain situation, a person may be a U.S. citizen when his/her grandparents passed on the citizenship to the person’s parents.

That is why it is advisable that a person consults with an attorney to see if he/she can qualify for citizenship.

USCIS Updates on NEW DACA

February 13, 2015

USCIS Updates on NEW DACA

Author: DACA attorney Alena Shautsova

United Stated Citizenship and Immigration Services (USCIS) has published new questions and answers regarding the New DACA program.

The updates specify when one can apply for DACA in connection with removal proceedings; possibility of the waiver of the application fee;

On February 11, 2015, USCIS updated its Consideration of Deferred Action for Childhood Arrivals (DACA) page to include information on expanded DACA. USCIS will begin to accept requests for consideration of expanded DACA on February 18, 2015. The current revision is on the USCIS website.

Please note that any travel after January 1, 2014 will interrupt continuous residence requirement necessary to obtain DACA.

New Rule on Notices From USCIS

January 29, 2015

New Rule on Notices From USCIS  effective 01/27/2015

Author: New York Immigration attorney Alena Shautsova

United States Citizenship and Immigration Services  published its new rule on notices USCIS issues to applicants and petitions.  Notices are extremely important: they confirm the receipt of an application or petition; valid status in the US or a date for an interview. Currently, the notices are sent  to an applicant or petitioner and a copy is sent to an attorney of record.  USCIS now clarifies its rules in that:

” First, USCIS will clarify that it will send notices only to the applicant or petitioner when the applicant or petitioner is unrepresented. See new 8 CFR 103.2(b)(19)(i). Second, if USCIS has been properly notified that the person or entity filing the benefit request is represented by an attorney or accredited representative recognized by the Department of Justice, Board of Immigration Appeals, USCIS will send notices to the applicant or petitioner who filed the benefit request and to their attorney or accredited representative of record. See new 8 CFR 103.2(b)(19)(ii)(A). Third, if provided for in the applicable form, form instructions, or regulations for a specific benefit request, an applicant or petitioner may request that USCIS send original notices and documents only to the official business address of their attorney or accredited representative, as reflected on a properly executed Notice of Entry of Appearance as Attorney or Accredited Representative, with a courtesy copy being sent to the applicant or petitioner for their records.”

Finally, in case of electronic applications, the person has options: the notices may be sent electronically to both the applicant and the attorney or via mail.

Most importunately, the official documents such as EAD (work authorization card) or permanent resident card currently are being sent to the applicants only unless the applicant or self-petitioner designates  their attorney’s official address as the delivery address.

These rules of notice delivery may seem trivial, however when a notice is not delivered it causes delays, denials and frustration. For more information see http://www.aila.org/content/fileviewer.aspx?docid=50525&linkid=281897