The California Senate passed AB1081, called the TRUST Act. This bill seeks to prevent law enforcement officials from referring undocumented immigrants to Immigration Customs Enforcement (ICE) unless the courts convict the individual of a violent crime or felony. The nickname for this bill is the “anti-Arizona law.” It opposes the provision that the U.S. Supreme Court recently upheld in Arizona’s law that allows police officials to check immigration status of detained immigrants.

ICE’s Secure Communities policy states that the federal government’s limited resources should be used to remove immigrants who pose a threat to public safety or who are repeat immigration offenders. Under S-Communities, ICE set up programs with local communities like the one in operation in Escondido, CA. Escondido California currently works directly with ICE, and ICE agents even have offices within the Escondido Police Department. As it stands, local law enforcement agencies across the country share information with ICE, the FBI, and Homeland Security on fingerprints and other information.

The CA bill would limit local police collaboration with ICE by focusing only on offenders convicted of serious felonies. If the bill passes and California’s governor signs the bill, then local law enforcement would no longer be permitted to work with ICE unless a serious felony conviction exists.

Proponents contend that the bill guards against profiling and unnecessary and wrongful detainment. Opponents argue that undocumented immigration drives up medical costs, prison costs, state welfare programs, and other expenses that lead to state insolvency.

It remains to be seen how this bill will play out, if passed, and the effect it may have on the evolving U.S. immigration laws.

If you are dealing with immigration issues, consult New York lawyer. Our law firm keeps its finger on the pulse of ever-changing immigration laws and a knowledgeable lawyer can help protect your rights.

A Long Island Lawyer Serving New York Community
New York Russian speaking lawyer Alena Shautsova is located in Long Island and serves Brooklyn, New York City, Manhattan, Queens, the Bronx and surrounding communities. Call Today. (917) 885-2261.

How One Can Bring Their Children to the US to Live With Them

Generally speaking, a child for Immigration purposes is an unmarried child under 21 years old. When the Immigration law refers to a “son” or “daughter”, the law means a son or daughter who is married and/or over 21 years old. It is important to know this difference in order to correctly determine eligibility for Immigration benefits.

Children Of The US Citizens

When a parent is a US citizen, he or she can petition for their children to come to the US. If a child is unmarried and under 21 years old, the child is considered to be an immediate relative of the US citizen for whom an Immigrant visa number is immediately available. It means that as soon as US citizen’s petition for his or her child gets approved, the child can apply for an immigrant visa, and will receive permanent resident status shortly.

When a son or daughter of a US citizen is over 21years old and/or is married even if under 21, such a son or daughter will have to wait for the immigrant visa number to become available. The wait time varies, and usually takes years. The information on wait time is provided by the U.S. Department of State on a monthly basis, and can be found here: U.S. Department of State Visa Bulletin.

Children Of Permanent Residents

A permanent resident likewise may petition for his or her children. However, the children must be under 21 years old, or if they are older, must be unmarried. The wait time for immigrant visas for these categories of applicants is also very long.

Here are some exceptions that were created by the law for children of permanent residents.

First of all, if a parent obtains his or her permanent resident status through a marriage to a US citizen, than such a US citizen may petition for his or her spouse’ unmarried children by including them on I-130 form filed for the non-US spouse. The Immigration law allows a stepparent to petition for a stepchild, under condition that the marriage creating step-child-parent relationship occurred before the child’s 18s birthday.

If, however, the US citizen did not do so, the parent of the children will need to petition for them by filing a separate form I-130 after the parent gets his or her permanent resident status.

Second, if a parent receives his or her permanent resident status not through marriage, but, let’s say, DV lottery, employment, or because a US citizen sibling or US citizen parent sponsored them, then such a parent does not have to file a separate I-130 for his or her children, but should file a FOLLOWING TO JOIN petition, form I-824. This filing allows the parent to inform Immigration authorities that the children should receive permanent resident status as well. The USCIS will inform the consulate abroad, and the child would not need to wait for a long time to come to the US and live with the parent. Children may be eligible for following-to-join benefits if:

• Parent immigrated on the basis of a fiancè(e) petition; or
• on the basis of a diversity immigrant application; or
• on the basis of an employment-based petition; or
• on the basis of a petition filed by a brother or sister; or
• on the basis of an immigrant petition filed by a US citizen parent(s) when the parent was married or when the parent was unmarried and over 21 years of age; or
• on the basis of parent’s relationship with parent’s lawful permanent resident parents when the parent was unmarried.

A child to be eligible for following-to-join benefits, he or she must:

• Be unmarried; and
• Be under 21 years of age; and
• Be a child of the parent prior to admission to the US; or
• Be a stepchild from a marriage of a parent (the marriage must have existed at the time of admission to the U.S.); or
• Be legally adopted prior to admission to the U.S., and otherwise qualify as an adopted child under the Immigration law.

If the child accompanies a parent who immigrates to the US on fiancé visa, to be eligible for following to join benefits, the child must be under 21 years old on the date of the admission to the US, even if the marriage between the fiancé-parent and US citizen occurs after the child turns 18. ¹Matter of Hieu Trung LE, Respondent, June 23, 2011.

Conditional Permanent Residents:

If a stepparent is petitioning for a step-child and has not been married to the child’s biological parent for 2 years at the time the child receives permanent residence, the child will be granted conditional permanent resident (CPR) status. Form I-751, Petition to Remove the Conditions on Residence is used to remove the conditional basis of permanent residence.

Dependent children of a conditional permanent resident who acquired conditional permanent resident status concurrently with the parent may be included in the joint petition filed by the parent and the parent’s petitioning spouse. A child shall be deemed to have acquired conditional residence status concurrently with the parent if the child’s residence was acquired on the same date or within 90 days thereafter. Children who cannot be included in a joint petition filed by the parent and parent’s petitioning spouse due to the child’s not having acquired conditional resident status concurrently with the parent, the death of the parent, or other reasons may file a separate Petition to Remove the Conditions on Residence (Form I-751).

Finally, the Child Status Protection Act (the CSPA), Pub. L. No. 107-208 (Aug. 6, 2002) provides benefits to those children for whom the immigration petitions were filed when they were under 21, but got adjudicated after the children turned 21, or “aged out.” The CSPA does not change the definition of a child, but instead establishes a formula for determining “age” that is not based solely on chronological age. The CSPA applies to:

• Derivative beneficiaries of asylum and refugee applications (the child must be under 21 at the time the asylum application was filed);
• Children of U.S. citizens;
• Children of lawful permanent residents (LPR); and
• Derivative beneficiaries of family-based, employment-based and diversity visas.

As a general rule, the CSPA freezes the age of a child of a US citizen on the date that the US parent files an I-130 visa petition for the child (or the date on which an immediate relative files a self-petition under VAWA). CSPA §2; 8 U.S.C. §§ 1151(f)(1).

Child Of Permanent Resident Or Derivative Beneficiaries Of Family-Based, Employment-Based And Diversity Visas

For this group of children, the process of determining the age is more complicated. The formula for these cases is that the child’s age will freeze as of the date that a visa number becomes available for the petition in question reduced by the number of days that the petition was pending, but only if the child seeks to acquire the status of an LPR within one year of the date the visa became available. CSPA §3; * U.S.C. §§ 1153(h)(1) and (2). This CSPA benefit also applies to self-petitioners and to derivatives of self-petitioners. 8 U.S.C. § 1153(h)(4).

As such, one must first determine the child’s age at the time a visa number becomes available (a visa number becomes available on the first day of the month that the DOS Visa Bulletin says that the priority date has been reached); then subtract from this age the number of days that the visa petition was pending (a petition is pending between the date that the petition is properly filed (receipt date) and the date that an approval is issued. In family-sponsored cases, the receipt date is the priority date. For employment-based cases, the date to be used in CSPA calculations is the date the I-140 is filed (the receipt date) and not the priority date); and determine whether the beneficiary sought permanent resident status within one year of the visa availability date.

There is a number of Statutes that further explain the benefits for age-out children in special circumstances:

Under the USA Patriot Act, the child beneficiary of a petition filed prior to September 11, 2001, will remain eligible for child status for 45 days if they turn 21 after September 11, 2001. Children who turn 21 during September 2001, will remain eligible for child status for an additional 90 days. USA PATRIOT Act of 2001, Pub.L. No. 107-56, 115 Stat. 272. The Child Status Protection Act – Children of Asylees and Refugees (August 17, 2004).

¹The Associate Director of Domestic Operations issued a 2007 memorandum reminding USCIS officers to construe the term “minor child” consistently with the definition of a “child” in section 101(b)(1) of the Act, that is, an unmarried person under 21 years of age. See Interoffice Memorandum from Michael L. Aytes, USCIS Assoc. Dir., Domestic Operations, to DHS officials (Mar. 15, 2007), available a http://www.uscis.gov/memoranda (regarding “Adjustment of Status for K-2 Aliens”). The purpose of this memorandum is to remind officers that K-2 aliens seeking to adjust status are NOT required to demonstrate a step-parent/step-child relationship with the petitioner. A K-2 alien who is over 18 years of age may adjust status provided they satisfy the requirements for adjustment of status under Section 245 of the Immigration and Nationality Act (INA). Officers should follow the regulations at 8 CFR 214.2(k)(6)(ii) regarding adjustment of status for K-2 aliens.
. . . .
Officers should NOT limit the adjustment of status of K-2 aliens to persons under the age of 18 based on the term “minor child” as it appears in 245(d). The INA does not define the term “minor child.” Section 101(b)(1) defines the term “child” as “an unmarried person under twenty-one years of age.” Consequently, officers should allow for the adjustment of status of K-2 aliens under the age of 21, provided the requirements for adjustment of status in 245 of the INA are satisfied.

Marriage To A US Citizen is one of the ways for a non-U.S. citizen to gain the right to live and work permanently in the U.S.

Quite often, however, a person who decides to marry a U.S. citizen has already been in the country “illegally” for a prolonged period of time. Is it possible for such a person to successfully apply for a green card? The answer depends on several factors.

First, as of today, a person can adjust his or her status to one of a permanent resident (receive a green card) while in the U.S. if such a person entered the country legally: that is had a valid visa at the time of the entry, was inspected and admitted or paroled to the United States. However, as a general rule, if a person came to the U.S. under visa waiver program, or as a foreign national crewman, or came to the U.S. as a transit territory and stayed, such a person generally is not eligible to receive a permanent resident status without leaving the U.S. An exception to this restriction may apply under “grandfathering” provision of 8 C.F.R. 245.10.

Second, a person can adjust his or her status if he/she is not “inadmissible” under Section 212 of INA. In some cases, depending on the ground of inadmissibility, a waiver can cure this problem. If an individual is eligible for permanent residence, but not eligible for adjustment of status, that person might still obtain permanent residence by leaving the U.S. and completing the process for an immigrant visa at a U.S. consulate abroad. However, if such a person had been unlawfully present in the U.S. for more than 180 days, he or she would be barred from reentering the U.S. for at least 3 years, and perhaps as long as 10 years if unlawful presence is more than one year. Under Section 245(i), an eligible individual can remain in the U.S. to obtain permanent residence through adjustment of status, and thus never trigger these entry bars.

It is important to remember that unauthorized employment, unlawful status or failure to maintain status are not bars for adjustment of status for those who marry a U.S. citizen.