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Category: Immigration To The USA

Deportation, Immigration To The USA

Statute of Limitations For Green Cards Rescission

July 25, 2016

Statute of Limitations For Green Cards Rescission

Author: Green Card Attorney Alena Shautsova

In law, there is a statue of limitations or period during which one can bring a legal action with regard to almost all rights, regulations, incidents, accidents or actions. For example, if you happened to be in a car accident, you have 3 years to sue. If you became a victim of fraud, you have 6 years to sue your offender.

Now, believe it or not, there is  a statue of limitations as to how long the government can wait before taking your green card from you if it was issued in error. The bad news is that there is only one Circuit Federal Court in the whole United States which follows this five-year statute.

This Court is the Court for the 3rd Circuit, and it covers New Jersey! Only this Circuit court held that  the government cannot take someone’s green card away if the government issued it in error after five years passed since the issuance under 8 U.S.C. § 1256(a):

 

If, at any time within five years after the status of a person has been otherwise adjusted under the provisions of section 1255 or 1259 of this title or any other provision of law to that of an alien lawfully admitted for permanent residence, it shall appear to the satisfaction of the Attorney General that the person was not in fact eligible for such adjustment of status, the Attorney General shall rescind the action taken granting an adjustment of status to such person and cancelling removal in the case of such person if that occurred and the person shall thereupon be subject to all provisions of this chapter to the same extent as if the adjustment of status had not been made. Nothing in this subsection shall require the Attorney General to rescind the alien’s status prior to commencement of procedures to remove the alien under section 1229a of this title, and an order of removal issued by an immigration judge shall be sufficient to rescind the alien’s status.

Interestingly enough, there is no time limitation on when the government may start deportation or removal proceedings against a person, so in reality, if the government really wants to take the green card or lawful permanent status away, it may “find” a valid basis for removal, and very often such a basis is determined to be fraud.

Moreover, if a person became a U.S. citizen, and the government still has time to rescind its decision regarding the person’s permanent resident status, the person would lose the citizenship as well.  In reality, however, just like with the rescinding or removal of a person in  permanent resident status, the government is not bound by the five-year statute and often, naturalized citizens of many years, and decades may lose their citizenship if a mistake is uncovered.

To rescind one’s LPR status, the government would:

1. Would send a notice with intent to rescind

2. A LPR has 30 days to contest the notice and then there will be a hearing with the Immigration Judge. The result of the hearing is appealable.

If a LPR does not respond to the notice within 30 days, he will not be afforded a hearing with  an Immigration judge. Important: a request for more time is not a request for hearing! See Ali v. Reno, 22 F 3d 44 (2n Cir. 1994).

3. The government has to prove their case by clear, convincing and unequivocal evidence.

If you  receive a notice of intent to rescind your LPR status, call an attorney right away. You can reach us at 917-885-2261.

 

 

 

 

Asylum in USA, Immigration To The USA

EAD Clock and Transfer of Pending Asylum Case

July 12, 2016

EAD Clock and Transfer of Pending Asylum Case

Author: USA Asylum Attorney Alena Shautsova

Finally, there is a good news for asylum seekers. USCIS is adjusting its policy on stopping the employment authorization clock in case an applicant is filing his/her request to change the venue or transfer the case from one asylum office to another.

Previously, any request for transfer at any point of asylum case was considered by USCIS as a delay of the proceedings caused by the applicant and the EAD clock (the 180 day clock for employment authorization that starts to run once the case is filed) would be stopped, and often stopped permanently.

Recently, USCIS announced that in case of a transfer request the clock will be stopped only if the case had already been scheduled for an interview prior to the request. It is unclear, if the applicant should be aware of the scheduled date or not,  for the “punishment” to be imposed. However, the good news is that clock will be and should be restarted for all those cases were it was stopped in violation of this new policy.

The EAD clock is one of the most sensitive topic for asylum seekers. In many other countries, asylum seekers may enjoy different benefits while they are waiting for the resolution of their applications. The only benefit that they get in the US is a right to an employment authorization that  one can use after his/her case was pending for more than 180 days.

Sometimes, pro se applicants transfer their cases without knowing of the consequences of transfer. The new policy should help to eliminate this injustice and help those awaiting for their asylum cases to be resolved.

The other aspect of the issue is that the wait times for asylum interviews increased dramatically within the past few years. It is not uncommon for an asylum seeker to  wait for 2 years before he/she is called for an appointment with an Asylum officer. It means that if somebody moved within the first 6 months after filing the case, he lost his/her chance for an employment authorization for the whole time the case would be pending.  Hopefully, the new policy will help “movers” to avoid this consequences.

Immigration To The USA, USCIS

J1 Visa Options

June 21, 2016

J1 Visa Options

Author: US Visa Immigration attorney Alena Shautsova

J1 or foreign exchange visa program was first implemented in the US in 1961. Contrary to common belief that a J1 visa is used for “foreign kids” for “summer jobs”, the actual regulation provides 14 different categories of programs with variety of purposes and time limits. A visa applicant needs a DS2019 form in order to apply for the visa. The DS form itself is provided by Department of State to a “sponsor”.  Different categories determine the maximum length the J1 visa holder may remain in the US.  For example, “work and travel” J1 visas are typically issued for 4 months.  However, somebody who is a “trainee” and holds a J1 status can be admitted for 18 months. J1 visas are given without a specific date limitation, but rather for “duration of status.” This “D/S” designation is important because it helps to avoid unlawful presence bar if a J1 visa holder’s plans would change.

Some J1 visas come with a two year residency requirement, but not all of them. This condition depends on a J1 category.

These categories include:

Au pairs: students who live with a host family for 12 months and experience (1)U.S. culture while providing child care and taking courses at an accredited U.S. post-secondary institution.
(2) Camp counselors: Post-secondary students, youth workers, or teachers interact with and supervise youth at U.S. camps.

(3) College and university students: Foreign students enrolled in degree programs overseas study at American academic institutions or participate in an internship program facilitated by an academic institution.
(4) Government visitors: Influential and distinguished foreign nationals are selected by U.S. federal, state, or local government agencies to participate in observation tours, discussions, consultations, professional meetings, conferences, workshops, and travel in order to strengthen professional and personal ties between key foreign nationals and Americans and American institutions.
(5) Interns: College and university students or recent graduates gain exposure to U.S. culture by participating in an internship program in their specific academic fields.

(6) International visitors: Foreign leaders are selected by the Department of State to participate in programs designed to enable the international visitors to better understand American culture and society and enhance American knowledge of foreign cultures.
(7) Physicians: Foreign doctors participate in U.S. graduate medical education programs or training at accredited U.S. schools of medicine.
(8) Professors and research scholars: These two programs promote the exchange of ideas, research, and linkages between research and academic institutions in the U.S. and abroad.
(9) Secondary school students: Foreign high school students study at an accredited public or private high school and live with an American host family or at an accredited boarding school.
(10) Short-term scholars: Professors, scholars, and other accomplished individuals travel on a short-term visit to lecture, observe, consult, train, or demonstrate special skills at research and academic institutions, museums, and libraries across the U.S.
(11) Specialists: Experts in a field exchange ideas with their American counterparts.
(12) Summer work travel program: University and college students work and travel in the United States during the summer.
(13) Teachers: Foreign educators teach full-time at a primary or secondary school in K-12 classrooms in the US.
(14)  Trainees: Foreign professionals with a degree, professional certificate, or relevant work experience gain exposure to U.S. culture and receive training in U.S. business practices through a structured and guided work-based program.

Within recent years, the J1 program regulations and requirements became stricter, with a a greater control over the applicants’ placements and conditions of work or training. J1 status can be changed to a different non-immigrant status or immigrant status (if the 2 year requirement does not apply).

 

Immigration To The USA, USCIS

Online Inquiries for Employers Sponsoring Employees With I-129

June 4, 2016

Online Inquiries for Employers Sponsoring Employees With  I-129

Author: New York Employment Immigration Lawyer Alena Shautsova

As of April 21, 2016, USCIS has made it possible to submit inquiries regarding I-129 petitions in an effort to modernize its processing. Specifically, the new rule is applicable to those petitions that are requesting an extension of stay or change of employer.

The inquiries are only allowed to be made by petitions pending of 210 days or more as currently this is the “standard” processing time for I-129 extensions or change of employer. To give an example, if previously when you would like an update on your case, you would  have to wait 30 minutes  on the phone during normal business hours 9:00 AM – 5:00PM, and then an additional 30 minutes to speak with a representative before you give them the required information and convey to them what your question is.  Now, you may submit your inquires online.

The benefits while seemingly small can be huge if you are an employer with multiple petitions, saving at least 1 hour of time per  pending case.

With the heavy influx of recent petitions this online inquiry system is said to cut the processing times significantly. It is easier and faster to send out an email then to address someone via the telephone to explain the case status. With officers spending less time on the phones and more time reviewing the actual cases the results should not only be faster processing times but less increases in application fees over time ( we can only hope).

Other processes that have been “revamped” or added to the list, include the ability to correct typographical errors and even request accommodations for interviews.

While we believe the eligible for online inquires  categories will expand over time, many inquires still have to be made over the phone or in writing. In addition, it is impossible to submit any inquires for a pending administratively asylum case.

 

Immigration To The USA, USCIS

MOTHER’S DAY: HOW TO HELP YOUR MOM TO STAY/COME TO THE US

May 10, 2016

MOTHER’S DAY: HOW TO HELP YOUR MOM TO STAY  OR COME TO THE US

Author: New York Immigration lawyer Alena Shautsova

A mother is the dearest, the dearest and the most loving person… I cannot describe and count how many inquiries I receive from children of all ages who would like their moms to live with them in the United States.

Let me help you a little bit in clarifying certain important points.

1. Only US citizens have a right to sponsor their  mothers.  Unfortunately, U.S. permanent residents or green card holders cannot sponsor their mothers (or fathers) into the US

2. To sponsor your mother (or father) you need to be 21 years old

3. To sponsor your mother (or father) you need to be able to execute an affidavit of support or find a joint sponsor

4. It is possible to sponsor a parent who came to the US using a visa or a parole, even if now their status had expired

5. A parent who entered the country illegally usually cannot get a green card without leaving the United States, unless he/she qualifies for Parole in Place, or 245(i) INA exception, or some other exception

6. A parent who came to the US via visa but did not state on application that the child was already in the Unites States, will need a waiver to get an Immigration benefit in the United States, including a green card

7. Finally, a parent who has been abused, may self-petition using form I-360

8. All petitions for parents (apart from self petitions) start with filing I-130 forms (and sometimes together with I-485 form, if applicable)

It will be necessary to prove that parent is the parent of the child. In most cases, it is easy by submitting a copy of the birth certificate. Sometimes, USCIS will demand a DNA test…

Finally, it is possible to sponsor a step-parent if the marriage of the parents occurred before child’s 18th birthday. A child who was adopted or received a SIJ status cannot sponsor his/parents if the adoption of SIJ became the basis for the child’s Immigration benefits in the US.

 

I hope these simple facts would help a little bit when you think about how you can help your mom. Remember: do your research and consult with an attorney. Many situations have solutions!

Immigration To The USA, USCIS

U.S. Immigration Fingerprints Abroad

April 25, 2016

U.S. Immigration Fingerprints  Abroad

Author: US Immigration attorney Alena Shautsova

Almost all immigration applications require that an applicant comply with the biometrics requirement and appear for a fingerprinting procedure in the US.  Previously, U.S. Immigration fingerprints were not collected abroad.

This is especially true for such important applications as Re-Entry Permit for lawful permanent residents , Advance Parole and Refugee/Asylee Travel documents. All these applications should be submitted to USCIS using form I-131. After the submission, according to the instructions, the approved documents (that look almost like passports) can be shipped overseas. For example, due to an urgent travel an applicant cannot remain in the US and have to leave before he/she receives the document. In such cases, USCIS can send the document either to the overseas consulate or a specified address abroad. What the instructions do not say is that prior to departure, the applicant must appear for fingerprinting appointment in the US. For years, there was no exception to this rule, and one would miss such an appointment and depart the US, would face significant difficulties coming back as there was no way for the applicant to comply with the biometrics procedure overseas.

Recently, USCIS allowed applicants to comply with the biometrics requirement outside the US. Biometrics collection for certain applications, such as a Form I-131, Application for Reentry Permit, may be taken at a USCIS office abroad, even if the collection was originally scheduled at an ASC office in the United States. This is available to residents of countries where USCIS has an international office. For example, Russia, Germany.

Only those can demonstrate urgent and severe circumstances will be allowed to comply with the procedure overseas. In addition, the applicant would have to demonstrate that he/she tried to expedite or reschedule the fingerprinting appointment.  It means that one who has I-131 pending and has to leave the country urgently, still has to show his/her attempts to comply with the regular procedure.

Examples of urgent circumstances may include: an urgent job assignment, a need to take care of a family member that requires urgency, etc.

The new procedure will help thousands who previously did not have a choice and had to either miss an important presence overseas or forego US immigration benefits or jeopardize their status to comply with U.S. Immigration fingerprints abroad.

 

Immigration To The USA

Ineffective Assistance of Counsel in Immigration Proceedings

March 21, 2016

Ineffective Assistance of Counsel in Immigration Proceedings

Author: New York Immigration Lawyer Alena Shautsova

A person who is hiring an attorney for representation should be able to rely on that attorney’s advice, skills and knowledge. Unfortunately, sometimes lawyers make mistakes. They might undertake a case they lack necessary skills or knowledge to handle, they might give a wrong advice or they might misinform the client or fail to file an important document or check an important information. For example, due to an attorney’s failure to check client’s previous Immigration history might cause removal proceedings to be initiated against the client; failure to submit all necessary documents with a motion may cause a denial…

Such failures hurt clients and hurt justice. The law recognizes this and sometimes, a clients is given a second chance when he/she is using “ineffective assistance of counsel” to reverse a negative decision, be it a removal, denial of motion to removal, or a removal order issued in absentia.

In Immigration proceedings, to prior to using “ineffective assistance of counsel” defense or cause, a person has to comply (or substantially comply) with the requirements specified in a case called Matter of Lozada, BIA 3059 (1988). Substantially, a person seeking to reverse a negative decision, has to file a grievance complaint against his/her previous lawyer, and present its copy before the Board of Immigration Appeals or Immigration court. As everything and anything in law is subject of a dispute, so is the “compliance” with the requirements. That is why a lawyer’s assistance is needed even if one would like to complain about a previous lawyer, because if the “complaint” is done incorrectly, it will not have the necessary legal effect.

 

 

 

 

 

Asylum in USA, Immigration To The USA, USCIS

How to Avoid Mistakes While Representing Yourself in Immigration Court

March 3, 2016

How to Avoid Mistakes While Representing Yourself in Immigration Court

Author: New York Immigration lawyer

You ended up in Immigration court and do not know what to do…

The easy answer to this situation would be “hire an attorney!”, but sometimes an individual cannot afford an attorney, or believes that the first portion of a case can be done pro-se to reduce attorney’s fees.

First, if you cannot afford an attorney, try your best to find a low-bono or a pro-bono one. Some non-for profit organizations are offering free legal services, and local bar associations cab direct you to the pro-bono lawyers in the area. Also, law schools have legal clinics that take different type of matters and can help you as well.

However, if you are “stuck” by yourself, here are some tips.

  1. Stay away from FRAUD. As tempting as it can sound, or as persuasive as an “uncle” promised it to be, lying on Immigration applications and in Immigration court is never a good idea. It does not mean that you cannot advocate on your own behalf, explaining the impact of certain events and providing your point of view and research, let’s say, on country conditions. But, stating something that you know is not true, for purpose of obtaining Immigration benefits will make you permanently inadmissible into the United States.
  2. Read available memos, cases and practices and procedures. It is not easy, but it is not a rocket science. Start with the Immigration Practice Manual which outlines the basics of Immigration court procedures. Some non-for –profits publish excellent resources on various topics, such as U visas, VAWA, asylum, Cancellation or Removal… Those resources are available on Google and are free!
  3. Another common error encountered when dealing with former pro- se clients, is that they give too much information in there affidavits in support of their claims (If they submit one to begin with). The old saying, keep it simple goes a long way for affidavits. Focus on the reason you are writing the affidavit: if it is submitted, to prove a bona fide marriage write about your relationship and how it developed. It is always better to be concise and allow for later expansion of your testimony.
  4. At last, remember that each and every word is transcribed. Speak clearly and think before answering questions. Refrain from any type of vulgarity, and show respect to the judge who ultimately decides whether or not you are going to stay in the U.S, and the prosecutor. When you speak before the court, or to the prosecutor, your words have value. Trying to exemplify your knowledge of the English language is helpful at times to show the Judge you have a desire to learn the language of the country, but if you are not sure of the definitions of your words you are using, refrain from using them. One such example, is the word “moot”: the definition of the word in the Webster’s dictionary differs significantly from the meaning the courts give to this word, and without knowing it, one may misunderstand the entire proceedings.

And now, some practical tips:

 

  1. When you use ASYLUM as defense from removal, after you are asked to designate a country to be removed to in the event of denial of your case, you should respectfully decline to do so. The idea is that there is no country in the world where you feel safe, and hence, you do not wish to be removed to any country.
  2. Make sure your documents are filed on time, preferably before the deadline or a “call up date”.
  3. Check the status of your fingerprints: if possible, ask to expedite the clearance, and make sure nothing on your end is holding up the process.
  4. If you filed your asylum application with the Court and not USCIS, you must follow special procedure for ordering your own fingerprints by filing first three pages of I-589, and a copy of the instructions with USCIS. This is the only time fingerprints are not automatically ordered for you, but without this clearance, your application for asylum with the Immigration court might be denied.
Immigration To The USA, USCIS

How to Bring Your Brother or Sister to the USA

February 14, 2016

How to Bring Your Brother or Sister to the USA

 

Author: New York Immigration Lawyer Alena Shautsova

A petition for a sibling to come to the US is something many wish to do. The process starts with filing of the I-130 petition for a relative. Unlike a marriage to a US citizen, or a child who is over 21 years of age petitioning for their parents, a sibling is not considered an immediate relative. Conservatives have tried to eliminate this category in the past, but so far their efforts were not successful. The average wait time for a petition of a sibling by a US citizen ranges from 7 to 12 years. The line moves on a first-come- first serve basis. As such, the sooner petition is filed, the sooner the priority date will become current (if, of course, 10 years can be regarded fast…).

The petitioning of a sibling does come with some drawbacks, worst of which is that your sibling will most likely not be able to enter the US on a nonimmigrant visa, whether for tourism or business, once the petition is filed. The reason for this is that once the petition is filed, your sibling is considered an intending immigrant. It is so even if the true purpose of the visit is to spend a couple of weeks in the U.S. One should discuss with a sibling the possibility of not being able to enter the U.S. for a period of at least 7 years.

Prior to filing, a person has to read instructions to the I-130 form. The filing address for the I-130 depends on which state the petitioner resides in. A list of required documents includes:

  1. Certificate of Naturalization, if applicable, for the US Citizen
  2. Birth Certificates for both US Citizen and sibling showing at least one common parent
  3. Adoption papers if either sibling was adopted ( both siblings must have been under 16 years of age)

For siblings with the same father but different mothers, USCIS requires marriage certificates and divorce decrees of the father. It is more common nowadays that this is impossible to obtain such documents as the father of a sibling may have never been married to the mother. In this circumstance, evidence of legitimacy or proof of relationship with the father will suffice. The easiest way to prove this would be to submit financial records if a father had given money to the sibling or the US Citizen. If this is not possible to obtain, one should speak with an experienced attorney to discuss the options available to prove the relationship to the common father.

 

 

Immigration To The USA, Other

MOTION TO CHANGE/TRANSFER VENUE IN IMMIGRAITON COURT

January 30, 2016

Motion to Change/Transfer Venue in Immigration Court

Author: New York Immigration Attorney Alena Shautsova

In my practice, quite often I receive a phone call with the following content: “Hello, my name is so and so, my nephew/husband/family friend is in detention in Texas, Virginia, New Jersey… I want the person to be released and be allowed to see an Immigration Judge in New York, where he/she lives/intends to live…”  I say “O’K, let’s see what we can do..” Then, I meet with the calling party and find out the details. Often, the scenario that I have to deal with is that a person was crossing the border, or recently crossed the border and was apprehended by the ICE enforcement. Often, the detained person is very young. But what unites all these calls, is that the person would be detained in a state other than New York,  but  it is New York where the person’s family and friends reside.

In such a situation, I as a practitioner have to file two motions. First, is a motion for re-determination of the bond consideration so that my client will be released from the ICE custody. (I will address this type of application in a separate blog).

And second, I have to file a motion to change venue of the proceedings, unless my client would like to travel back to TX, VA or MD for his/her future court hearings (which is not the case, of course).

1. When To File For Change of Venue and Why

One should file for change of venue of the proceedings as early as possible. In most cases, a person is being put in removal proceedings within the jurisdiction of the court where the person was detained. For example, J. crossed the border in TX and was apprehend. Even though J intended to reside in NY, and in NY J has all his family members, his court proceedings will be started in TX.  It means that if released from custody, J will have to travel to TX for each and every hearing and J’s witnesses, if any will have to travel to TX as well. Of course, it may not be practical or possible for the witnesses to travel, as well as for J. That is why, as soon as an attorney is retained, and attorney is advised that J can be released to his/her family members in a different state, attorney should file motion to change venue.  It is important to act as quickly as possible: the longer local DHS counsel will be involved in the J’s case, the more reluctant the DHS counsel will be to lose the case from his/her desk. As such, the DHS counsel will have a valid argument that the government will be prejudiced if the motion to change venue is filed late in case.

2. What Needs to be Submitted to Court to Show that there is Good Cause for Change of Venue

In order for the motion to be granted, the moving party has to demonstrate that a good cause exists. Usually, I submit: the motion itself (it is my affirmation describing the facts under which the request should be granted); an affidavit from my client; affidavits from friends and family explaining the ties my client has with the venue where we would like the case to be moved; etc. Under the current regulations, a request to change venue should be accompanied with the written pleadings to the allegations in the Notice to Appear.  Like any other motion, motion to change venue should contain a proposed order and proof of service on DHS.  It is also a good idea  to submit a draft of the application the client will be submitting with the court to demonstrate that client has a potential relief from removal.

3. What to do if the Motion is Denied

Even through that many view motions to change venue as trivial, sometimes they do get denied. In this case, a person has a couple of options. One may appeal the denial, or renew his/her request with the Court. Often, in the denial decision, the Court would “give a hint” as to what additional information it would like to see before granting the request. Often, a denial is a result of poor preparation, and with a little more effort, a request to change venue is granted.