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VAWA and ILLEGAL ENTRY

October 8, 2017

VAWA and ILLEGAL ENTRY

Author: VAWA Attorney Alena Shautsova

VAWA stands for “Violence Against Women Act” and essentially allows certain non-citizens to obtain a green card by sponsoring themselves if they were in a qualifying relationship with a US citizen or a permanent resident.  So, VAWA provisions may be used not only by married women but by men, children and certain parents.

One of the advantages of VAWA is that not only it allows a person to sponsor her/himself, but it also “erasers” certain grounds of inadmissibilities, and sometimes even works to waive the permanent bar!

For example, a VAWA beneficiary may receive a green card or adjust her status to one of a permanent resident even if she/her entered the US illegally. The VAWA self-petitioner is not required to show a “substantial connection” between the qualifying battery or extreme cruelty and the VAWA self-petitioner’s  unlawful entry. Also, a VAWA beneficiary who spent in the US more than a year illegally and then left the US and returned back illegally may avoid the permanent bar imposed on regular applicants in similar circumstances, if they qualify for a waiver  under INA 212(a)(9)(C)(iii). No waiver is available for non-VAWA petitioners. 

VAWA petition is, however, not helpful for K visa entrants. There is a mistaken approach that if a person entered the US on a K-1 (fiance) visa, he/she will be able to receive a green card if qualifies for I 360. This is not so yet.  I 360 may be granted, and automatically a person will get a deferred action – protection from removal, but not the green card. The adjustment of status for most such persons will be denied.

Now, persons who are abused or battered but do not have the required connection with a US citizen or a permanent resident, cannot benefit from the VAWA laws.  For example, if X had to flee El Salvador due to a violent husband, she will still be required to demonstrate that she has a legal entry or parole into the US before her application for a green card is granted.

 

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?).

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.

 

 

 

 

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!

Glitches in USCIS System

December 4, 2014

Glitches in USCIS System

Author: New York Immigration Lawyer

USCIS stands for the United States Citizenship and Immigration Services and is a government body that accepts and processes all petitions and applications related to any and all immigration benefits.

The process of communication with USCIS boils down to exchange of papers and on rare occasions, includes phone calls and infopass appointments.

That is why it is very important to submit correctly filled out forms; timely respond  to request of more evidence and organize the papers in the most convenient way for the adjudicator.

In cases that do not require an interview, the petitioner or applicant will never meet the person who makes a decision on his/her case. However, often, an applicant or an attorney would receive correspondence from the adjudicator: request for more evidence; notice of intend to deny, etc. Often such notices are mere duplicates of the instructions for the form submitted; sometimes a person gets a notice twice; or receives something that does not make a sense at all.

Recently, USCIS revealed that some of such notices are sent automatically due to the “glitches” in their system.  For the past year, the glitches are to blame for RFEs for I 864 affidavit of support form; double notices for fingerprint appointments and receipts of filing with the RFE in it (this one is a hybrid, a new “monster”  created by glitches).

The unfortunate thing is that an attorney or petitioner/applicant still has to address these babies of the glitches even if they do not make any sense, because, if for example, an attorney fails to respond to an RFE, the case almost surely will be denied on the basis of failure to response to an RFE, even if the RFE itself did not make any sense.

Glitches or not, submission to the USCIS is a serious matter, and should not be taken lightly as any mishap will result in frustration, loss of money and time!

 

 

 

DMV Denial of License

October 21, 2014

DMV Denial of License

New York Immigration lawyer Alena Shautsova

Have you recently moved from another state and had difficulties getting NY driver’s license? Were you totally confused? Were you blamed you are not a US citizen?

It happened to my client: a born US citizen who has spent several years in a different state, and when she came back to NY and decided to apply for NY driver’s license and report a change of her address, a lady at the DMV Manhattan office told her that …. she needs to present “more proof” that she in fact was a US citizen… hmm

My client actually presented a social security card; different state ID card; a US birth certificate; bank statements from different banks and utility bills. According to the DMV point system table she had enough points to get her NYS driver’s license.  Nevertheless, the clerk told her to apply for a US passport and come back…

The question was: did the DMV clerks look at their own point table? Or is it just anther document issued to confuse everybody and make people’s life more difficult?

This client is a US citizen, and eventually, after visiting a different DMV  location, she was able to get her license.

Many non-citizens, however, experience the same issue. The government passed the Real ID act which requires the DMV offices to check for the lawful immigrant status before issuing an ID to the applicant. However, DMV clerks are not attorneys and often they lack training to ascertain if a person is in fact in lawful immigration status or status that allows a person to receive a state ID or driver’s license.  For example, another client of mine, an applicant for asylum was denied Chicago State ID because the clerk there decided that his documents showing pending case with the Immigration Court were not sufficient to prove authorized stay in the US…

At the same time, there are people without lawful immigration status who were able successfully to extend their 8 years DMV licenses even after the Real ID act…

Recently, New York City voted to issue Id-s to everybody, regardless of their immigration status.

Maybe, it is time to change the rules?

Crime of Moral Turpitude in Immigration Court and Record of Conviction

February 25, 2014

Author: Criminal Immigration attorney Alena Shautsova

Crime of Moral Turpitude in Immigration Court and Record of Conviction

Conviction of crime of moral turpitude may cause a permanent resident to be deportable if committed within 5 years from the date of admission.  (Date of admission is the date when an alien was admitted to the US or paroled, but does not restart when an immigrant adjusts his or her status as per Matter of ALYAZJI, 25 I&N Dec. 397 (BIA 2011)).

However, what a crime of moral turpitude is, is decided in almost every case separately. Why? Because the term of “crime of moral turpitude” is a term of art.  The Immigration and Nationality act does not provide a definition to it, and courts look at the conviction to determine whether  a particular offense falls under the category of a CMIT.

In doing so, the courts follow the following analysis: first, they look at whether the statute a person was convicted of is divisible or not divisible. A statute is not divisible when it describes only one way to commit a crime. If the statute sets out a list of alternative ways to commit the crime, and where some of these “sub-violations” categorically meet the federal standard while others do not necessarily meet this federal standard, then the statute is divisible.  A statute categorically meets federal standard when every violation of a particular criminal statute meets the generic federal definition.

If a non divisible State statute mimics the Federal definition, there is no reason to look at the record of conviction: the person will be found guilty of crime of moral turpitude for Immigration purposes. If not, the State statue includes acts that will not be punished under the Federal law, then the person will be “off” federal hook for Immigration purposes.

As for divisible statute: most likely the court will look at the record of conviction, which consists of criminal charge, the plea agreement, and any plea or sentencing colloquy. The record of conviction does not include arrest reports, the pre-sentence investigation, the testimony of witnesses, etc. Shepard v. U.S., 544 U.S. 13 (2005); U.S. v. Kovac, 367 F.3d 1116, 1120 (9th Cir. 2004).

In addition, currently, in several Circuits the courts are permitted to look beyond the record of conviction to see if the person committed a CMIT under the Matter of Silva-Trevino.  This might present a problem for an immigrant who, essentially, will have to be re-tried in Immigration court for the same conduct he was tried in criminal court in. The court may look at any necessary and appropriate evidence to determine whether the foreign national’s conduct did, in fact, involve moral turpitude.

If you have questions regarding Immigration court proceedings, call office of Alena Shautsova 917-885-2261.

PAROLE IN PLACE: NEW IMMIGRATION POLICY

November 21, 2013

PAROLE IN PLACE FOR MILITARY FAMILIES

Who is eligible?

Spouses, Children and Parents of

  • Active duty Members of the U.S. Armed Forces
  • Individuals in the Selected Reserve of the Ready Reserve
  • Individuals previously served in the U.S. Armed Forces or Selected Reserve of the Ready Reserve

The eligible individuals should not have criminal convictions and should submit the following documents:

  • Application for Parole on USCIS form I 131
  • Evidence of the family relationship
  • Evidence of the family member  belongs to the eligible group of the U.S. Armed Forces
  • Evidence of the additional favorable factors

Call Alena Shautsova, New York Immigration lawyer to get FREE PHONE CONSULTATION REGARDING PAROLE IN PLACE RELIEF: 917-885-2261

How to Get Citizenship

April 15, 2013

How to get citizenship is a question of many immigrants. The immigration reform drafters are also discussing paths for citizenship for undocumented workers. However, no matter what they will decide, to get citizenship, one have to first obtain a green card or permanent resident status. Provided, of course, the laws will not be drastically changed in the nearest future.

The only way to get citizenship without obtaining permanent resident status first, is by being born on the US territory or by being born to or being adopted by the US citizens (provided other conditions for automatic citizenship are met).
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