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Category: Immigration To The USA

Deportation, USCIS

Expedited Removal and Asylum

May 15, 2014

Expedited Removal and Asylum

Author: New York Asylum Attorney Alena Shautsova

Expedited removal is a form of removal proceedings during which a person who is coming to the US is being deported by DHS without  seeing a judge. Such person is also called an arriving alien: a term of art in Immigration law that has its consequences.

Expedited removal from the U.S., a procedure established by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, allows immigration officers to issue expedited removal orders against non-U.S. citizens, resulting in removals that, except in very limited circumstances, are carried out with no hearing or review by an immigration judge.  Under the statute, the procedure may be used against noncitizens, except those from Cuba, who have not been admitted or paroled into the U.S., have been in the U.S. for less than two years, and are determined to be inadmissible for either (1) having used fraud or misrepresentation to procure an immigration benefit or (2) lacking a valid visa or other entry document (two of the grounds of inadmissibility).

Most often, expedited removal is being used at the airports against people who are coming to the US on a non-immigrant visa but a CBP officer determines that this person is an intending immigrant who does not have an immigrant visa. Arriving aliens as they are called by the DHS are subject to mandatory detention. So, if a CBP officer determines that a B1/B2 holder is really intending to stay in the US indefinitely, this person will be detained.

Another common way when the DHS will use the expedited removal process is when a person is apprehended by the DHS officers within 100 miles from the border within the 14 days of the arrival into the US.  Of course, such a person is subject to the removal only if entered the country without inspection.

Subjects of the expedited removal cannot see a judge. They would be removed immediately, unless they express  fear of returning back to their home country or a fear of torture. At this point they would be referred to the Asylum Officer who should conduct a credible fear or a reasonable fear (in case a person has already been removed form the US on  a prior occasion) interview.  See 8 C.F.R. § 208.31(b) and 8 C.F.R. § 241.8(e).If the asylum officer determines that the subject possess the fear, then the person can be paroled into the US and freed from detention. If not, the person will be removed unless the judge overrules the officer’s determination. Id. § 208.31(g).

If the person passes the interview, a Notice to Appear will be issued and the bond will be established. Upon information, the current guidelines for the DHS states that the bond for those who are apprehended at the border should be $7,500. This determination can also be appealed to the judge.

Aliens who have been expeditiously removed are
barred from returning to the United States for five years. They cannot return to the US earlier than 5 years without granted application for permission to re-apply for admission.

 

Immigration To The USA, USCIS

Adjustment of Status for VAWA self-petitioners

May 13, 2014

Adjustment of Status for VAWA self-petitioners

Author: New York Immigration attorney Alena Shautsova

VAWA self petitioners may adjust their status to permanent residency if their petition I -360  is granted. Those who are/were married to abusive US citizens may file the whole adjustment package together with the I-360 form. Those who abusive spouses are/were permanent residents have to wait until their priority date becomes current.

VAWA beneficiaries may adjust even if they entered the US without inspection. However, if they entered as K-1 fiance, and did not marry their K-1 petitioner, VAWA self petitioners would not be able to adjust. See KHANH NHAT THUY LE v. Holder, 5th Cir.

There is hope, however, if the K-1 fiance did marry the petitioner within the 90 days and then divorced him/her and subsequently applying for the adjustment of status under the Matter of Sesay, 25 I&N Dec. 431 (BIA 2011). However, USCIS will require that the original petitioner executes I-864 affidavit of support, even if the K-1 holder and the petitioner are no longer married.

 

 

Discrimination, Immigration To The USA, USCIS

Students Must Have Education Regardless of Status

May 9, 2014

Students Must Have Education Regardless of Status

Author: New York Immigration Lawyer

“The Justice and Education Departments jointly issued an update of guidelines they published three years ago, reminding districts that they “may be in violation of federal law” if they turn students away because the children or their parents do not have immigration papers. The guidelines clarify what documents  schools can and cannot require to prove that students live in their districts” New York Times.

Sadly, too many schools violate this policy. According to Attorney General Holder, reports the New York Times, the policy guidelines were based primarily on a 1982 Supreme Court decision, Plyler V. Doe, which found that schools cannot deny access to public education through the 12th grade on the basis of a student’s immigration status. That mandate and civil rights laws also require schools to make sure students are not rejected because of their parents’ legal status.

Immigration To The USA, USCIS

Marriage Based Citizenship: Red Flags At the Interview

May 1, 2014

Marriage Based Citizenship: Red Flags At the Interview

Author: US Immigration attorney Alena Shautsova

One of the ways to receive citizenship in the US is naturalization after the marriage to a US citizen. Prior to that, of course, a person has to become a permanent resident. However, the wait time for this particular category of applicants for naturalization is significantly lower: only three years, opposed to regular five years.

With that, however, the law requires to prove that the applicant for naturalization is still in vital marital union with the US citizen spouse. With the N-400 form, the applicant will have to produce not only copies of his green card and passport photos, but also evidence of bona fide marriage. By this time, the applicant will be producing this evidence for the third time pretty much: first when he/she was applying for conditional residence, then when he/she was applying for removal of the condition, and finally, when he/she would be applying for naturalization.

The evidence that should be produced are: copies of tax returns for the past 3 years; copies of utility bills; joint bank accounts; insurance policies; evidence of ownership of common property; birth certificates for common children.  One would think that birth certificates of children in marriage is the most significant proof of the strong marital union. However, surprisingly, USCIS still will require utility bills and joint bank accounts statements… The logic behind such requests is puzzling, but, unfortunately, non-compliance with the request may lead to  denial of the application.

One common pitfall that many applicants get caught at is failure to file joint tax returns. Another one would be having  different residence addresses. Lack of commingling of assets is another “strong” evidence against the vital marital union finding. Finally, failure to mention all the children, including step children, may also lead to  denial.

It is very common that an applicant had what he/she thought was a successful interview, but subsequently received a negative decision. That is why it is recommended that an applicant brings an attorney for the interview. If there is choice between paying attorney’s fees for the preparation of the application and for the interview attendance, choose an interview attendance. The mistakes on the application can be always corrected at the interview, but if something goes wrong at the interview, and there is no lawyer there to help, the case might get too lengthy and too expensive to deal with in the future.

 

 

 

Immigration To The USA, USCIS, Visas

I-94 electronic record

April 29, 2014

I-94 electronic record of admission

Author: New York Immigration lawyer Alena Shautsova

For a very long time the record of inspection and admission, I-94 form was issued on paper, and was the only proof of alien’s legal admission into the U.S. The form looked like a card, the paper used for it was white, and soon enough many practitioners started to refer to it as the “white card.”  Even though, the CBP, should maintain records of everybody who entered the country from a specific point in time, in practice, to restore someone’s I-94 if it got lost, is almost impossible if the information on form I-102 (form that is used to restore the lost I-94 card) does not match completely the CBP records and/or a copy of the admission stamp is not attached…

Recently, Department of Homeland Security decided to switch from paper to electronic record of all arrivals. Now, instead of paper I-94, a person’s information is recorded electronically. A person can (or should be able to ) retrieve information regarding his/her past travels from the CBP database using their website.

Unfortunately, sometimes the new system does not work. In this case, the website directs the person to go to the nearest CBP differed inspection office for help…

Here is the link to the website with questions and answers regarding the new I-94 process: https://i94.cbp.dhs.gov/I94/request.html

The bottom line that it is still a good practice to keep copies of your passport with travel admission stamps throughout your “immigration life” in the U.S. Store them both in paper form and electronically, and hold on to the old I-94 by all means!

 

Immigration To The USA, USCIS

Affidavit of Support Form I 864

April 25, 2014

Affidavit of Support Form I 864: what does it entail?

Author: Immigration attorney Alena Shautsova

Affidavit of Support Form I 864 must be filed in almost all cases of family based immigration. The law requires the intended immigrant to produce proof  that he or she will not become a public charge.

Usually, I-864 is filed by the person who is petitioning for the family member. However, when the petitioner’s income is not sufficient under the guidance (form I-864P), then a joint sponsor whose income is sufficient can help. In this case, however, the joint sponsor’s income by itself must be sufficient. It is not usually permissible to combine  incomes of the principal and  joint sponsors.

Many, however, a confused as to the obligations that stem from the signing of I-864 form. The form is actually a three way contract between the immigrant, the signing party and the US government. The agreement states that the signing party undertakes an obligation to provide support to the immigrant for the whole time while he or she is going to live in the U.S. in permanent resident status. The law lists five circumstances when the sponsor’s financial obligation terminates: (1) the sponsored immigrant becomes a citizen of the United States; (2) the sponsored immigrant has obtained forty (40) quarters of coverage under Title II of the Social Security Act; (3) the sponsored immigrant ceases to hold LPR status and departs the United States; (4) the sponsored immigrant becomes subject to removal but applies for and obtains a new grant of adjustment of status; or (5) the sponsored immigrant dies. Id. § 213a.2(e)(2)(i)(A)-(E). The Form I-864 presently makes explicit that “divorcedoes notterminate your obligations under this Form I-864.”

Further, this contractual obligation can be enforced in any State or Federal court. Very often it is being enforced in connection with divorce proceedings.  It is important to remember that obligations under the I-864 are separate from any obligations and restrictions that the couple might outline in prenuptial or post-nuptial agreements. See Toure-Davis v. Davis, MD Dist Court. 8:13-cv-00916-WGC.  As explained in the decision, a party seeking enforcement of the contract must submit an affidavit specifying failure to provide support for each year, and explaining how he or she was able to support herself/himself.

 

 

Deportation, Immigration To The USA

Troubles with Immigration 800 number

April 23, 2014

Author: New York Immigration Attorney  Alena Shautsova

Have you tried to access your Immigration  case information via 800- number (1-800-898-7180)  recently and got conflicting information or did not get through at all?

Do not worry: you are not the only one. EOIR alert that it is currently experiencing a systems outage involving several computer applications including eRegistration and the telephonic case information system (the 1-800 phone number). EOIR hopes to have the situation resolved in the near future!

How can you get your information in the meantime? Try calling local Immigration court, go there or contact your attorney!

Immigration To The USA, USCIS

US Supreme Court Rejects Arizona Appeal in Immigration Cases

April 23, 2014

The US Supreme court declined to review the ruling that barred police from arresting people who harbor those living in the United States illegally.

The provision was struck by the 9th Circuit  last year as an unnecessary one because there is Federal law imposing punishment for harboring illegal immigrants. If the State law provision was allowed, it would authorize the State police to enforce the law.

Read more:

http://abcnews.go.com/Politics/wireStory/court-hear-arizona-appeal-harboring-ban-23405416?utm_source=AILA+Mailing&utm_campaign=fa4213cde3-AILA8_4_22_14&utm_medium=email&utm_term=0_3c0e619096-fa4213cde3-290719465

 

Immigration To The USA, USCIS

Driver’s License for Undocumented Immigrants

April 21, 2014

Author: New York Immigration Lawyer Alena Shautsova

Driver’s License for Undocumented Immigrants

One of the problems that undocumented immigrants face in this country is that they cannot legally drive in the US: they do not possess necessary documents to receive state issued licenses.  The Real ID Act which demanded that the immigrants present certain documents verifying identity and immigration status before a driver’s license can be issued, placed millions of persons into disrepair: they choices became to either drive in violation of the laws and risk obtaining criminal convictions for which they can get deported; or not to drive at all and for many it would mean loss of significant income.  The activities opposing the Real ID Act created a website called Real Nightmare: http://www.realnightmare.org/

However, almost a decade later, more and more states came to conclusion that it is better and safer to issue license to immigrants than force them to find sometime not so legal solutions to the problem.

Recently, another U.S. territory : Washington D.C. announced that it will issue driver’s license to the undocumented for “limited purpose”:

“The Limited Purpose credential also requires a one-time validation of source documents when applying for your DC Limited Purpose driver license or identification card. The driver knowledge and road tests will be required for all applicants applying for the Limited Purpose driver license. First time DC applicants must be a resident of the District of Columbia for at least 6 months. Applicants must have never been issued a social security number, previously been issued a social security number but no longer eligible, or not be eligible for a social security number. The Limited Purpose driver license/identification card may not be used for official federal purposes, and it will be marked to reflect this requirement. You must schedule an appointment
to obtain a Limited Purpose credential. Prior to your DMV appointment for a Limited
Purpose driver license, be sure to study and review the Driver Manual in preparation for the knowledge test. If you fail the knowledge test, you will be required to make another appointment.”
So, to receive this document, a person would have to pass the road test and the theoretical portion of the test as well.   The DC DMV will accept foreign birth certificate and foreign passports as proof of identity! Here is the link to the DC DMV that explains the procedure and requirements: http://dmv.dc.gov/page/limited-purpose-credential
USCIS

H1B Premium Processing Time

April 19, 2014

Author: New York Immigration lawyer Alena Shautsova

H1B Premium Processing Time

Many H1B applicants are nervous: the fees for premium processing were paid but they have not heard anything back form the USCIS. Should they think of other options? Should they want? Does it mean their applications were denied?

Actually, it is totally normal not to hear anything back by this time. USCIS will start adjudicating Premium Processing petitions beginning April 28, 2014.

While it is always good to have a back up plan, H1B processing right now is actually on track.