Immigration To The USA, Uncategorized, USCIS

What Happens if I 751 Petition Filed Late?

October 14, 2014

What Happens if I 751 Petition Filed Late ?

Author: New York Immigration lawyer Alena Shautsova

I-751 petition is an Immigration form that is sued to remove the condition from permanent residency for those non-citizens whose marriage with a USC was younger than 2 years old at the time adjudication of adjustment of status application or issuance of an immigrant visa.

I-751 must be filed within 90 days prior to the second anniversary of the conditional residency. Sometimes, the petition is submitted late. A jointly filed I-751 petition filed after the second anniversary of the CPR’s admission or adjustment may be considered only if the CPR is able to demonstrate good cause and extenuating circumstances for the failure to timely file. The instructions to the Form I-751 clearly state that a CPR may file a petition untimely only if he or she includes a written explanation for his or her failure to timely file and a request that USCIS excuse the late filing. The law provides for broad discretion as to what constitutes good cause and extenuating circumstances. Some examples of what constitutes good cause and extenuating circumstances may include but are not limited to: hospitalization, long term illness, death of a family member, the recent birth of a child (particularly if there were complications), and a family member on active duty with the U.S. military.

Please note that there is no limit as to how many I 751 petitions can be filed.

Those filers who request a waiver from joint filing, also can file multiple petitions. If an immigration officer encounters a waiver request petition subsequent to the denial of a previous waiver request petition based on the same ground (termination of a marriage entered in good faith, extreme hardship, or battery or extreme cruelty), the he/she will review the new petition to determine if the applicant has presented additional evidence different from the first petition. If a waiver request I-751 petition filed subsequently to a previously denied waiver request petition is based on a different ground than the previous petition, the immigration officer will evaluate the new petition separately from the previous denial.

If the petition is denied, then the USCIS has to issue a Notice to Appear, because person’s conditional resident status gets terminated.

Also, sometimes it is apparent the couple will separate or will file for divorce. Nevertheless, the non-citizen still has to file I 751 petition, sometimes prior to the divorce proceedings being finalized. If a CPR files a waiver petition based on termination of marriage, but the CPR is legally separated or in pending divorce or annulment proceedings, USCIS shall issue an RFE requesting documents
terminating the marriage. If the CPR provides within the allotted 87 days responsive information, the service center shall adjudicate the petition on the merits. Otherwise, the I-751 will be denied.

It is always a good idea to consult with an attorney prior to filing of I 751, or if after a joint filing, the couple separated. Denial of the I 751 petition leads to the removal proceedings and can be avoided if mistakes are corrected early.

Asylum in USA, Immigration To The USA

Solutions For Unaccompanied Minors

October 9, 2014

Asylum For Unaccompanied Minors

Author: New York Immigration attorney Alena Shautsova

Recent influx of children from South America posted serious questions in front of the US government. While the Obama administration promised an Immigration reform, it also decided to handle the cases of these children rather harshly: new immigration detention facility in Texas and surge dockets in Immigration courts do not look like measures that should address this crisis in a humane way.

Nevertheless, most of the children are eligible for some sort of relief. For example: asylum, Special immigrant juvenile status, U or T visa, and sometimes VAWA derivative status.

Most of the asylum claims of unaccompanied children involve allegations of family or domestic violence or gang violence.

Special Immigrant Juvenile Status can be granted to those children who have a guardian or custodian in the US pursuant to a State judge’s court order. The child can submit application for SIJ as long as he/she is under 21 years old.

In New York, any person can serve as a guardian, as long as he/she does not have disqualifying criminal convictions, and can demonstrate that he/she will be a suitable and reliable adult.

The fact that a child has one parent present in the US does not disqualify the child from the SIJ status.

Sometimes, the DHS issues an expedited order of removal against the child (for example, when the child is 18 years old, he/she can still qualify for SIJ status, but the Immigration treats him/her as an adult). Such an order will not be a bar to SIJ status. If, however, the child is placed in regular Immigration proceedings, and now is applying for SIJ, it is likely that the judge will not terminate the case until I 360 is approved.

Recently, the DHS has harshened its policies and practices of dealing with immigrant children: the DHS keeps these kids in detention, would refuse or set a very high bond; would issue expedited orders of removal against those kids who turned 18… However, it does not mean that there are no solutions for children and, if possible, a child or his/her family members should consult with an attorney to explore defenses to the removal.

Immigration To The USA

Travel to Belarus for Children with Dual Citizenship

September 26, 2014

Travel to Belarus for Children with Dual Citizenship

Author: Immigration attorney Alena Shautsova

The laws of the Belarus allow children under 16 years old to have a dual citizenship. When a child of a Belarusian citizen is born abroad, he or she automatically becomes a Belarusian citizen as well.

When traveling to Belarus the first time after the child’s birth, parents should know certain requirements and particularities that would help to avoid issues at the Belarusian/Russian border.

To wit, a Belarusian citizen child may return to Belarus using a document called “Permission to Return to the Motherland.” The permission gives the child a right to come to Belarus ONCE. The child will not be able to exit the country using the same document or his/her foreign passport, if that passport did not contain a Belarusian visa.

The only possible way the child will be able to exist Belarus if the child will hold a Belarusian passport. It means that while planning a trip to Belarus, the parents must also take with them child’s birth certificate with apostile. The apostile is a necessary attachment to the birth certificate, with it the Belarusian authorities will not consider the certificate. Further, upon arrival, the birth certificate and apostile must be translated and notarized.

The procedure of applying for the child’s Belarusian passport in Belarus starts with the child’s registration at the place of residence in Belarus; further an application form with passport photos must be submitted. If the parents would like to speed up the process of passport issuance, they will need to pay a small fee, otherwise, children receive passports in Belarus free of charge.

When the child reaches 16 years old, he/she will need to choose the citizen of which country he/she would like to remain.

Another important fact is that if the child travels to Belarus with one parent, the Belarusian authorities will need to see a notarized permission from the other parent allowing the child to be crossing the Belarusian border while leaving the country. Such a permission may be obtained in the Belarusian consulate abroad.

Uncategorized, USCIS, Visas

RELIEF FOR CITIZENS OF EBOLA AFFECTED COUNTRIES

August 15, 2014

RELIEF FOR CITIZENS OF EBOLA AFFECTED COUNTRIES

Ebola Outbreak-related Immigration Relief Measures to Nationals of Guinea, Liberia and Sierra Leone Currently in the United States

Release Date: August 15, 2014 by USCIS

U.S. Citizenship and Immigration Services (USCIS) is closely monitoring the Ebola outbreak in West Africa. USCIS offers relief measures to nationals of those three countries who are currently in the United States.

Immigration relief measures that may be available if requested include:

Change or extension of nonimmigrant status for an individual currently in the United States, even if the request is filed after the authorized period of admission has expired;
Extension of certain grants of parole made by USCIS;
Expedited adjudication and approval, where possible, of requests for off-campus employment authorization for F-1 students experiencing severe economic hardship;
Expedited processing of immigrant petitions for immediate relatives (currently in the United States) of U.S. citizens;
Expedited adjudication of employment authorization applications, where appropriate; and
Consideration for waiver of fees associated with USCIS benefit applications.

To learn more about how USCIS provides assistance to customers affected by unforeseen circumstances in their home country, visit www.uscis.gov/humanitarian/special-situations.

Immigration To The USA, USCIS

Do I Need to Renew Green Card Prior to Citizenship Application?

August 9, 2014

Do I Need to Renew Green Card Prior to Citizenship Application?

Author: New York Immigration lawyer Alena Shautsova

Many permanent residents have a question as to what they need to do if they are eligible for naturalization, but their green card or permanent resident card has expired: do they renew it first, or shall they just apply for citizenship?

The Immigration laws require that permanent residents over age 18 be in possession of a permanent resident card. INA § 264.

As such, if an individual applies for naturalization six months or more before the expiration on his/her permanent resident card (Green Card), he/she does not have to apply for a new card. However, he/she may apply for a renewal card by using Form I-90, Application to Replace Permanent Resident Card.
If an individual applied for naturalization less than six months before the expiration date on his/her Permanent Resident Card, or did not apply for naturalization until the card had already expired, then he/she must renew his/her card.

If the card was lost, the card must be renewed/restored before applying for citizenship.

Deportation, Immigration To The USA

New Fingerprinting Procedure for Immigration Court

August 8, 2014

New Fingerprinting Procedure for Immigration Court

Author: New York Immigration Lawyer

All respondents in Immigration court have to make sure that the results of the fingerprinting procedure are valid on the date of their Immigration court hearing. Expired results cause delays and adjournments and bring frustration to all participants of the process.

Currently, the Immigration court places the burden of notifying respondents about updating of the biometrics results on their attorneys. Until recently, the procedure required, that respondent submits the Applicant Information Worksheet (AIW) to ICE OCC-NYC at the 11^th floor window at 26 Federal Plaza, New York, NY. ICE OCC-NYC would then forward the AIWs to USCIS, and USCIS would determine if an Applicant’s fingerprint checks were expired, and if expired, reschedule the Applicant for an appointment to be physically re-printed.

Effective August 11, 2014, the AIW has to be sent directly to USCIS to

U.S. Citizenship and Immigration Services

Attention: AIW

26 Federal Plaza – Room 3-120

New York, NY 10278.

USCIS requests the following on all AIW submissions:

1 – Respondent/attorney clearly indicate the next court date at the top of the AIW and, if possible, attach a copy of the EOIR notice indicating the next court date.

2 – Submit the AIWs to USCIS at least 60 days but no more than 120 days before the next merits court date. USCIS will not entertain any AIWs for reprints if the next court date is more than 120 days out.

3 – USCIS will not entertain any AIWs for reprints if, according to their records, the fingerprints will still be valid at the time of the next court date.

Immigration To The USA, USCIS

How To Bring Family Members to the US

July 29, 2014

How To Bring Family Members to the US

Author: New York Immigration Attorney Alena Shautsova

An ability to sponsor a family member into the US depends on (1) the immigration status of the sponsor and (2) the relationship between the sponsor and the family member who is overseas.

A US permanent resident can “bring” over: a spouse, a child (unmarried under 21 son or daughter); an unmarried son or daughter. A permanent resident cannot sponsor his or her siblings, grandparents/grandchildren or parents.

A US citizen may sponsor a spouse, a child (unmarried under 21 son or daughter); unmarried son or daughter; married son or daughter and their children; a sibling. There is no ability to bring over grandparents or uncle and aunts.

For example, an adult US citizen daughter would like to sponsor her mother who lives abroad. Will she be able to sponsor her under-aged siblings with the mother as well? The answer is no. A 21 years old, US citizen daughter can sponsor her parent, but not parent’s children. The law does not allow that. However, the children may be sponsored by the mother herself as soon as she becomes a permanent resident. The US daughter may file for her siblings of course, but the wait time for siblings is significantly longer than for children of the permanent residents. See Visa Bulletin.

May a child sponsor a step parent? Let’s say mother of the same US citizen daughter re-married. Yes, but only if the mother married the step dad before the US citizen daughter’s 18th birthday.

For more information on family immigration visit: http://www.shautsova.com/immigration-usa/marriage-visas-usa-immigration.html.

Deportation, Immigration To The USA, USCIS

Unlawful Presence Bar Can Be Served In the US

July 23, 2014

Unlawful Presence Bar Can Be Served In the US

Author: New York Immigration Lawyer Alena Shautsova

Under the Immigration laws, if a person overstayed his/her visa or period of authorized stay, he or she would be inadmissible into the US for a period of 3 or 10 years depending on the period of overstay if such a person leaves the US. The bar to entry triggers only when the person leaves the US, however for a long time the question was: does the person have to be outside the US to subsequently receive immigration benefits, or does the bar starts to run when the person leaves the US and continues to run even if the person somehow re-enters the US.

The question was answered in unpublished BIA decision Matter of Cruz, 4/9/14. The BIA stated that “..if section 212(a)(9)(B) of the Act created inadmissibility for an alien who seeks or has sought admission to the United States (similar to section 212(a)(6)(C)(i) of the Act’s provision for the inadmissibility of an alien who “seeks” or “has sought” to procure admission or another immigration benefit by fraud or willful misrepresentation of a material fact), we might construe the statute as creating permanent rather than temporary inadmissibility. However, the statute simply states that an alien is inadmissible if he “seeks” admission within the pertinent period, which is ambiguous language.”

It means that the bar of unlawful presence is a temporary bar which triggers when the person leaves the country and continues to run if the person re-enters the US without inspection and/or using misrepresentation. This is an important decision because it illuminates need for an extreme hardship waiver if the time of the bar has passed.

Immigration To The USA, USCIS

New York To Issue IDs to Undocumented Immigrants

July 15, 2014

New York To Issue IDs to Undocumented Immigrants

Author: New York Immigration lawyer Alena Shautsova

The story with identification cards for undocumented began when states started to refuse issuing Id’s to those who could not prove their immigration status in the US. With time, some states opted out and passed local laws that allowed for different forms of identification for “illegal” immigrants: Illinois, Utah, Washington, Washington DC, Connecticut, New Mexico, and Maryland allow those who cannot show a visa to get state “ID-s”.

Surprisingly, New York, a pioneer in many innovations where nations and religions are blended like a mix of multicultural cuisines in Manhattan, has not yet allowed its residents, even illegal ones, to enjoy the privilege of being able to identify themselves using a state plastic card.

New York City, tired of waiting for the State to move on the issue, decided to pass its own legislation that allows undocumented men, women and children to apply for and receive a resident ID. The Bill was in fact passed and signed by Mayor on July 10, 2014. There is no information if such an ID will be recognized on Federal level, and if it will help to avoid state wide punishments for not possessing valid ID: for example, driving without a driver’s license.

It is however, a first step towards recognition that “illegal” and “undocumented” are not ghosts in our society, they would not just disappear one morning, and they, people who pay taxes and develop our economy deserve a little better than a five year struggle to pass an Immigration reform…

Immigration To The USA, Uncategorized, USCIS

DHS Website for Students

July 9, 2014

DHS New Website For Students

“The Department of Homeland Security (DHS) launched an enhanced Study in the Stateswebsite Monday with four new features. The features enable the Student and Exchange Visitor Program (SEVP), housed within U.S. Immigration and Customs Enforcement’s (ICE) Homeland Security Investigations (HSI), to convey pertinent information to stakeholders about the international student process in a clear and interactive manner.

The new features include:

An interactive glossary
An “Ask a Question” section
An enhanced School Search page
A mobile-ready version of Study in the States

“Being an international student is a complex process that involves several government agencies, and the new Study in the States tools will help students and schools easily find the latest news, information, interactive guides and videos they need,” said SEVP Director Lou Farrell.

The revamped site also features streamlined navigation and a blog geared to international students and school officials. Users can translate the site into multiple languages.

The Study in the States website serves as an information hub for the international student community. It brings together the various federal agencies that play a role in implementing our student visa and exchange visitor programs, including ICE, U.S. Citizenship and Immigration Services (USCIS) and U.S. Customs and Border Protection (CBP).

Study in the Stateswas launched by former Homeland Security Secretary Janet Napolitano in 2011, as part of a larger DHS initiative to enhance our nation’s economic, scientific and technological competitiveness by finding new ways to encourage the most talented international students to study and learn about expanded post-graduate opportunities in the United States. This initiative includes a focus on streamlining the student visa process, enhancing coordination among government agencies and keeping international students better informed about student visa rules and regulations.

SEVP monitors approximately one million international students pursuing academic or vocational studies (F and M visa holders) in the United States and their dependents. It also certifies schools and programs that enroll these students. The U.S. Department of State monitors exchange visitors (J visa holders) and their dependents, and oversees exchange visitor programs.

Both use the Student and Exchange Visitor Information System (SEVIS) to protect national security by ensuring that students, visitors and schools comply with U.S. laws. SEVP also collects and shares SEVIS information with government partners, including CBP and USCIS, so only legitimate international students and exchange visitors gain entry into the United States.

HSI reviews potential SEVIS records for potential violations and refers cases with potential national security or public safety concerns to its field offices for further investigation. Additionally, SEVP’s Analysis and Operations Center reviews student and school records for administrative compliance with federal regulations related to studying in the United States.”