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FALSE CLAIM TO US CITIZENSHIP CAN BE EXCUSED

June 20, 2017

FALSE CLAIM TO US CITIZENSHIP CAN BE EXCUSED

Author: US Citizenship attorney Alena Shautsova

Many are already aware that false claim to US citizenship disqualifies them from any and all Immigration benefits in the United States, forever.  Such claims usually appear when one is trying to use a false US citizen passport to enter the United States, claims that he/she is a US citizen on I-9 employment eligibility verification form or fills out a form to obtain a US citizen passport (let’s say, in a postal service)…

However, some claims of US citizenship can be excused and will not be on one’s way to a green card. These are very rare occasions, and they have to fall squarely into an exception.

Specifically, a disqualifying claim to United States citizenship occurred when  (1) when there is direct or circumstantial evidence that a claim was made with subjective intent to obtain a purpose or benefit under the Act or under Federal or State law and(2) the claim actually affects or matters to the purpose or benefit sought. See Matter of Richmond, 26 I&N Dec. 779, 786-787 (BIA 2016). In the past the following “claims” to the US citizenship were recognized as the ones not obstructing a person’s ability to receive a green card: a claim to a US citizenship on an application for a small business loan (Hassan v. Holder, 604 F.3d 915, 928-29 (6th Cir. 2010)). In a 2016 case coming from the Board of Immigration Appeals, it was also recognized that a US citizenship claim during the application for a driver’s license is not the one to prevent one from obtaining a green card. Rodolfo Melendez Manriquez, A089 599 983 (BIA Nov. 25, 2016).

It means that if a person claimed to be a US citizen to “enhance” his /her chances to receive a benefit, but it was not necessary for a person to be an actual citizen to receive such a benefit, then a claim to US citizenship may be excused.

There are some other exceptions to the main rule. See: Claiming US Citizenship.

 

Incorrect Translation in Immigration Proceedings Can Cost you a Green Card

June 7, 2017

Incorrect Translation in Immigration Proceedings Can Cost you a Green Card

Author: New York Immigration Attorney Alena Shautsova

Any person applying for US Immigration benefits (apart from those who are filing for citizenship without any waivers) can bring an interpreter with himself/herself for an interview. When choosing an interpreter, one has to  keep in mind that the quality of the interpretation often will affect the results.

I have once attended an interview for asylum when an interpreter that a client insisted on bringing with her, could not translate accurately the name of the month when the events occurred. The “controlling” interpreter who should have corrected the one in the room (during an asylum interview, the government turns on a telephonic system when a government interpreter is listening to the interpreter the applicant invited and corrects or at least is supposed to correct all inaccurate translations). I did not speak the language and could not catch the mistake until another client, who happened to use the same interpreter but who also knew a little bit of English realized that the interpreter had very basic knowledge of the language he claimed to be proficient in. I have seen translations of documents that incorrectly omit the most important part of the document (I happened to speak both languages and could notice the mistake).

When a mistake is caught early enough, it is possible to correct it, but sometimes a mistake can ruin a person’s chance for relief completely.  It happens because the government would try to argue that the person is lying when testifies inaccurately, or a person’s testimony can be translated to have a very different meaning than the person intended to give it to; or a judge may come to a different conclusion based on an incorrect testimony.

There is a recent case coming form the Board of Immigration Appeals that discusses a situation that arose during the Immigration Bond proceedings. The stakes during the Bond proceedings are serious: if a judge determines a person does not deserve a bond, the person will remain in jail until her Immigration case is decided.  In the case at issue, the judge denied the bond. The Immigration Judge relied on the interpreter’s translation of the phrase, finding that when asked why he drove after drinking the respondent answered “that it seemed easy.” The person’s answer, however, was supposed to have been translated differently than it was: the interpreter translated person’s statement in Spanish, “Se me hizo facil” as “that it seemed easy,” but the phrase is a Mexican idiomatic expression which should be translated as “I didn’t think about it” or “I didn’t really think about the consequences.” Luckily for the person, the Board of Immigration Appeals agreed with him and now his request for bond will be re-evaluated. Matter of Hernandez, 8/4/16 BIA.

But it is not always the case. It means that when preparing your documents, you need to make sure you utilize professional services, that would not allow a sloppy job to interfere with your case.

Privacy Laws Change For Non-USC and Non-LPR

April 30, 2017

Privacy Laws  Change For Non-USC and Non-LPR

New York Immigration Lawyer Alena Shautsova

The Trump administration has announced new changes to privacy laws that will affect non US citizens and non permanent residents.  Since 2007, the government, and DHS in particular, extended privacy laws protection enjoyed by USC and LPRs to non-immigrants and immigrants (Privacy Policy Guidance Memorandum 2007-01/Privacy Policy Directive 262-12, DHS Privacy Policy Regarding Collection, Use, Retention, and Dissemination of Information on Non-U.S. Persons). Basically, the agency could not release or share information regarding a specific individual freely. It could be done only in specific situations and when  a subject of record would provide a release.  After new Executive order, the administration is changing its policies to strip non citizens and non LPRs from privacy protection. According to the Memo released on April 27, 2017, “Section 14 of E.O. No. 13,768 requires that “[a]gencies shall, to the extent consistent with applicable law, ensure that their privacy policies exclude persons who are not United States citizens or lawful permanent residents from the protections of the Privacy Act regarding personally identifiable information.” Privacy Policy Guidance Memorandum 2007-01/Privacy Policy Directive 262-12 is inconsistent with Section 14 of E.O. 13,768.”

What does this really mean? If one looks at the Memo in question, he/she will find that its language is rather convoluted and the real meaning is hidden somewhere between the lines.

Analyzing the document as a whole, one can make at lease these two conclusions:

1. No Privacy Act protection means easy exchange of collected data by any and all government participants. Like in a Red Riding Hood, the wolf had big eyes to better see the girl, here, the government opens its volts of data to better see potential deportees.

2.  The government will have free hands with regard to  collection, use, dissemination, or maintenance of personally identifiable information.  The only limitation specified in the DHS Memo is “any sharing of such information outside the agency must be compatible with the purposes for which the information was originally collected.” ” Seeking consent is always a preferable privacy practice, and consent should be sought when practical.” However, it is well known that once information is collected and available, to track the purpose of its usage is extremely hard. It is even harder to prove (for a regular person) that his/her information was mishandled and shared in violation of restrictions. And, I have never heard of a situation where a government official would reach out to a non-immigrant and ask for his/her consent prior to share his info with, let’s say, another consulate…

3. The Memo states that ” People not covered by the Privacy Act or Judicial Redress Act (JRA) (which is non USC or non LPRs) still may obtain access to records consistent with FOIA unless disclosure is prohibited by law or if the agency reasonably foresees that disclosure would harm an interest protected by an exemption.” It is in this line that many practitioners may see a problem: will their clients still be allowed to have copies of the government records pertaining to their full immigration history?

To sum it up, there come significant changes in how the government is going to collect and share information regarding non citizens and non-permanent residents. Perhaps, about citizens and LPRs as well…

 

TPS holders Can Adjust in the 9th Circuit (Alaska, California, Arizona, Hawaii)

March 31, 2017

TPS holders Can Adjust in the 9th Circuit (Alaska, California, Arizona, Hawaii)

 

Author: Immigration lawyer Alena Shautsova

 

TPS or temporary protected status is a form of deferred action. One can receive it, if otherwise is qualified, even if he/she entered the country illegally. There is a long lasting dispute whether those who receive TPS are “inspected and admitted” and can adjust their status to permanent residency.

Now, in Ramirez, et al. v. Brown, et al., 3/31/17, the 9th Circuit court holds that TPS is an admission. In 2013, the 6th Circuit court reached the same conclusion in  Flores v. USCIS.

In analyzing the language of the statute regarding TPS, the court held:

“Employing the traditional canons of statutory construction at step one, we conclude that § 1254a(f)(4) unambiguously treats aliens with TPS as being “admitted” for purposes of adjusting status. Because the statutory language is clear, that ends the inquiry: the agency has no interpretive role to play but must instead follow the congressional mandate. Chevron, 467 U.S. at 842–43 & n.9; see I.N.S. v. Cardoza-Fonseca, 480 U.S. 421, 446 (1987).”

In its decision, the court also mentioned the decision from the 11th Circuit, where the court reached an opposite conclusion (that a TPS recipient cannot adjust). The court stresses, however, that a mere existence of a different opinion does not invalidate their analysis.

 

It seems that now, it would be up to the Supreme Court to decide the issue of the TPS holders, and resolve the split between the courts. Until then, applicants in the 6ht and 9th circuits should be able to receive positive decisions on their I 485 if they are beneficiaries of TPS.

 

The United States Court of Appeals for the Ninth Circuit has jurisdiction over the district courts in the following districts

 

  • District of Alaska.
  • District of Arizona.
  • Central District of California.
  • Eastern District of California.
  • Northern District of California.
  • Southern District of California.
  • District of Hawaii

 

 

The United States Court of Appeals for the Sixth Circuit has jurisdiction over the district courts in the following districts:

 

 

 

No Premium Processing for H1B This Year

March 4, 2017

No Premium Processing for H1B This Year

Author: Employment Immigration Attorneygreen-card

USCIS has just announced that this 2017 year will go without premium processing for all H1B filings.  The suspension will start on April 3, 2017 (the first day when cap H1B petitions will be accepted for FY2018 ) and will last for at least 6 months according to USCIS.

It is important to know this, because many, when submit their H1B petitions provide only one, combined check for H1B petition and premium processing. USCIS announced that in such cases it will reject the entire filing for the incorrect fee. It means that a person may loose his/her change for the H1B completely if the petition is rejected (including for the reason of an incorrect fee).

Those who submit their petition before April 3, 2017, will be able to still take advantage of the premium processing.

However, in extraordinary circumstances, petitioners may ask to expedite the processing of the H1B petitions. For example, USCIS may grant a request to expedite in case regular processing may cause:

  • Severe financial loss to company or ​person​;​
  • Emergency situation;​
  • Humanitarian reasons;​
  • Nonprofit organization whose request is in furtherance of the cultural and social interests of the United States​;​
  • Department of Defense or ​n​ational ​i​nterest ​s​ituation (These particular expedite requests must come from an official U.S. government entity and state that delay will be detrimental to the government.);​
  • USCIS error; or​
  • Compelling interest of USCIS.​

It means that requests to expedite will be considered on case by case basis only for H1B petitions this year, and significant amount of work will be needed  to prove the meeting of the enumerated criteria (opposed to paying additional fee for premium processing).

USCIS says that the change in premium processing will actually help to process long pending petitions and improve the consideration of the petitions all together.  Perhaps, it is a better solution than redundant, unfounded RFEs that were issued in the past to slow down the premium processing requests. At least, one would not lose their paid fees this way.  At the same time, lack of premium processing may negatively affect those waiting to change their status or those who have other “legal” issues that require fast answer on petitions.

Those who are considering changing employers, or filing cap exempt H1B petitioners and are counting on premium processing, should file their documents before April 3, 2017.  Rules regarding expedited requests can be found here: https://www.uscis.gov/forms/expedite-criteria.

Trump Is Said to Sign New Travel Restrictions Order

February 28, 2017

Trump Is Said to Sign New Travel Restrictions Order 

Author: New York Immigration attorney Alena Shautsova

 

It is reported by the Associated Press that Trump is to sign a new Immigration Order restricting travel from certain countries and refugees on this coming Wednesday, March 1, 2017.

The old order was blocked by a Federal Judge, and hence is not being implemented. Trump’s team (as reported) has drafted a new order.

Unfortunately, the source of this news remained anonymous, and the details of the new proposed order are not available.

See: https://apnews.com/642cce00352e483f88cbb0570c632a18/The-Latest:-Trump-to-sign-new-travel-order-on-Wednesday?utm_campaign=SocialFlow&utm_source=Twitter&utm_medium=AP.

The restrictions on travel and entry for refugees have been criticized by both republicans and Democrats.  The order prohibiting travel from seven countries was poorly drafted and on its face does not pass constitution standards for which it was blocked by a Federal Judge.  In anticipation of a new order it is recommended to avoid international travel for those who are in the US, and return to the US for all those who are currently outside.

 

 

Obama Immigration Legacy

January 19, 2017

Obama Immigration Legacy

Author: New York Immigration attorney Alena Shautsova

 

While everyone is talking about President-elect possible Immigration policy, I would like to recap on what President Obama did. Even though he was not successful on his promise of comprehensive Immigration reform, his administration did promulgate several executive and administrative actions that liberalized Immigration regulations of 1996, and  helped thousands to achieve their dream of living in America.

  1. DACA or Deferred Action for Childhood Arrivals

 

Implemented in 2012. It was created to help young undocumented residents to stay in the US and work legally. Many could receive an advance parole document that allowed them to travel and get back to the US to cure the entrance without inspection. Currently, still in effect. In 2014, DACA was to be expanded, but the opposition forces sued the government and the new plan together with proposed DAPA are still frozen.

 

  1. I 601A waiver and its expansion

 

I -601A Provisional waiver was implemented in 2013 and allowed those who entered the US without inspection or, let’s say using C1/D or K visas, to receive immigrant visas overseas and return back. The waiver “waived” the unlawful presence bar, and the best part about it: it is possible to file for it and wait for the result of the filing in the United States.

 

  1. New Rules about Work Visas

 

Under the President Obama administration, holders of the work visas and future holders, received good news: automatic extensions of employment authorization in case of re-filing; H4 employment authorizations under certain conditions; 2-year EAD cards for asylum seekers, improved portability rules for employment based immigrants.

 

  1. Parole program for entrepreneurs

 

A very new change: just came into effect parole for business people who will improve and contribute into the US economy. The program designed for start-ups and covers spouses and children of the qualified entrepreneurs.

 

  1. Clarification and expansion of military parole in place program

Parole in place policy was explained and expanded: immediate relatives of military and ex-military members received an opportunity to be “paroled” or allowed to “enter” the US legally without actually leaving the US.

 

  1. And of course, we cannot forget expansion of Federal Immigration benefits for the same-sex couples: one of the biggest and most fought for benefit.
  2. Parole for children of from certain South American countries whose parents are in the US legally; Parole for members of the families of Pilipino World War II veterans.

 

It is quite regretful that during its last days, the Obama administration decided to abolish Cuban parole (wet foot/dry foot) policy. Nevertheless, if to focus on positives, one should admit that in addition to new liberalized regulations, the function of the DHS became more transparent within the past 8 years. I hope that the incoming President will focus on finding reasonable solutions, rather than unreasonable conclusions.

New Standard for National Interest Waiver (NIW green card)

January 5, 2017

New Standard for National Interest Waiver (NIW green card)

Author: Employment Immigration Attorney Alena Shautsova

National interest waiver is an immigration tool that allows certain qualified individuals to sponsor themselves for a US green card without the need for an employer sponsorship and without labor certification. Subparagraph (A) of section 203(b)(2) of the Act makes immigrant visas available to “qualified immigrants who are members of the professions holding advanced degrees or their equivalent or who because of their exceptional ability in the sciences, arts, or business, will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States.” Under subparagraph (A), immigrant visas are available to such individuals only if their “services in the sciences, arts, professions, or business are sought by an employer in the United States.” Under subparagraph (B) of section 203(b)(2), however, the Secretary of Homeland Security may waive the requirement of a “job offer” (namely, that the beneficiary’s services are sought by a U.S. employer) and, under the applicable regulations, of “a labor certification.” 8 C.F.R. § 204.5(k)(4)(ii).

In short, national interests waiver is just that: it is a confirmation issued by USCIS that an applicant’s  qualifications and proposed work in the US will be in the US’ interests. Over the years, the authorities developed “standards” on how to consider the applications in order to determine if a person meets the requirements. See section 203(b)(2)(B)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(2)(B)(i) (2012). Until recently, the leading case  on point was Matter of New York State Dep’t of Transp. (“NYSDOT”), 22 I&N Dec. 215 (Acting Assoc. Comm’r 1998).  The NYSDOT framework looks first to see if a petitioner has shown that the area of employment is of “substantial intrinsic merit.” Id. at 217. Next, a petitioner must establish that any proposed benefit from the individual’s endeavors will be “national in scope.” Id. Finally, the petitioner must demonstrate that the national interest would be adversely affected if a labor certification were required for the foreign national. Id.

Now, however, the standard was changed and became more relaxed, see Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016).

This precedent decision means that USCIS may grant a national interest waiver if the petitioner demonstrates: (1) that the foreign national’s proposed endeavor has both substantial merit and national importance; (2) that he or she is well positioned to advance the proposed endeavor; and (3) that, on balance, it would be beneficial to the United States to waive the requirement of a job offer and thus of a labor certification.

It the third part of the test that was significantly allowing many to obtain the waiver easier.

A typical applicant for a NIW would be a researcher, professor, or an  engineer. There is a special exception for physicians. (The USCIS has set forth the following seven factors which may be considered in defining national interest: Would one’s  employment (1) improve the U.S. economy, (2) improve the wages and working conditions of U.S. workers, (3) improve education and training programs for U.S. children and under-qualified workers, (4) improve health care, (5) provide more affordable housing for young and/or older poorer U.S. residents, (6) improve the environment and make more productive use of natural resources, or (7) did you come to the U.S. at the request of a U.S. Government agency?).

USCIS Clarifies and Expands Immigration Benefits for Military Families

November 24, 2016

USCIS Clarifies and Expands Immigration Benefits for Military Families

Author: NYC Immigration Lawyer Alena Shautsova

USCIS published new memorandum explaining and expanding benefits for military families. Specifically, the memorandum clarifies that adult sons and daughters of former or present military personnel can apply for parole in place.  It is true for deceased  or discharged members of the military as well, as long as the discharge was honorable.

Parole in place is an important benefit that 1). allows to adjust those who have immigration petitions filed by immediate relatives; and 2). allows its holders to apply for an employment authorization.

Importantly, USCIS clarified that relatives of enlistees are also  eligible for these benefits. Of course, each case would be decided on specific facts.

USCIS: ” Because covered military personnel and veterans generally will be U.S. citizens or lawful permanent residents (or, in the case of MAVNI, soon-to-be U.S. citizens or lawful permanent residents), their sons and daughters will often be on paths to lawful permanent resident status and eventual citizenship. See INA § 203(a), 8 U.S.C. § 1153(a). Parole in place or deferred action would therefore serve as a temporary bridge for such sons and daughters while they apply for and await adjudication of their applications for lawful permanent resident status. ”

 

Trump’s Employment Immigration Plans

November 22, 2016

Trump’s Employment Immigration Plans

Author: Employment Immigration Attorney Alena Shautsova

Today President-elect Trump announced that during his first day of presidency, he is going to implement an executive action affecting Employment Immigration. To wit: Trump announced that his team would be working on tightening Employment Immigration laws to make sure that employment places would be saved for U.S. workers opposed to being given to immigrants.

It seems that somehow, President-elect Trump believes that by making it even harder for U.S. employers to employ foreign workers, U.S. workers will benefit from it and will accept employment spaces that somehow are taken from them.

To begin with, I must state that for a foreign worker to start working in the US on an H1B visa (the most common work visa type), the employer must test the market by posting notes to all interested workers and by posting ads regarding the job.  If, and only if, the employer does not find an eligible U.S. worker, an employer can hire a foreigner. But even prior to that, the U.S. laws impose a cap, a limitation on how many foreign workers can be hired at a given year in the United States.

Here is what is really going on: an employer would start going through the process only if the employer already has in  mind a foreign worker he/she needs to hire. An employer who hires a foreigner must pay him/her required wages that often are higher than the going market wage. In other words, an employer (unlike in the case of a US worker) cannot set a wage below required by the Department of Labor. I am positive that if a US worker were available, a worker that meets all the requirements and experience for the job, an employer would not be jumping through the hoops by trying to go through the process that requires money, time and induces an unwanted stress on all involved. By imposing restrictions on the hiring process, US laws limit US employers’ choices in hiring those who are most suitable for the job, impeding an employer’s ability to develop.

It is a different matter that sometimes the H1b process is not real, and a foreigner is “hired” for a position that does not exist just so that a foreigner may benefit from the US Immigration laws. It is an Immigration fraud, but no foreigner, in this case, takes a job from  a US worker: the job never existed, to begin with.

There are other types of Immigration work visas: TN, O, P, R, and L. They come with various restrictions and are used for those workers who either work in specific occupations or possess outstanding qualifications.

Interestingly, Mr. Trump’s wife allegedly came to the US on a work visa.

I am not sure (as it was not announced) about the specific of the coming changes. I hope that these changes would take into consideration that immigrants, and many of them, contribute to the development of the United States. The employer should have a choice who to hire, finding the best, the most hardworking and talented employees.