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How To Expedite Travel Documents

October 2, 2023

Author: New York Russian Speaking Immigration lawyer Alena Shautsova

If you are not a US citizen yet, you most likely have certain anxiety attached to possible international travel: you may be worried about being allowed to enter the US upon return, or if you can even qualify for travel documents, or if you will be able to return to the US after a prolonged stay abroad.

These are all common questions asked by both green card holders and those for whom the laws of the US allow to apply for a travel permit while they are in the process of receiving a status. For example, people granted asylum or a refugee status in the US can travel abroad only using an asylee/refugee travel document; persons in TPS status, adjustment of status pending, T status, or DACA may request advance parole which will allow them to return upon temporary travel abroad; persons with green cards who may stay abroad for longer than 6 months would want to file for a re-entry permit to avoid issues at the border.

 Almost all travel documents such as advance parole, re-entry permit, and refugee/asylee travel documents are filed for using form I 131 found at www.usics.gov. It is the same form that is used by different applicants for different purposes. The filing fee for the form will depend on the purpose or the type of travel authorization one is requesting. For example, today, for an advance parole one will have to pay $575, for a refugee travel document most applicants will pay $220, and for a re-entry permit: $660.

Typically, form I 131 is filed with USCIS by mail, and processing times vary upon the type of the document requested, and vary from 3.5 months to 6-9 months. But what if your need to travel is quite urgent and you cannot wait for such a long time? Then, depending on the type of document you request and the circumstances, you may request that USCIS expedite the issuance of travel documents.

There are two ways one can go about it. If your application with USCIS  had been filed already, and the travel needs from less urgent turned into very urgent, you can submit and expedite the request with USCIS asking to process the already filed application. Your request will have to comply with the expedited guidelines that can be found here: https://www.uscis.gov/forms/filing-guidance/how-to-make-an-expedite-request.

You will have to demonstrate that failure to process the document fast will result in:

·       Severe financial loss to a company or person, provided that the need for urgent action is not the result of the petitioner’s or applicant’s failure to:

o   Timely file the benefit request, or

o   Timely respond to any requests for additional evidence;

  • Emergencies and urgent humanitarian reasons;
  • Nonprofit organization (as designated by the Internal Revenue Service) whose request is in furtherance of the cultural or social interests of the United States;
  • U.S. government interests (such cases identified as urgent by federal agencies such as the U.S. Department of Defense, U.S. Department of Labor, National Labor Relations Board, Equal Opportunity Commission, U.S. Department of Justice, U.S. Department of State, U.S. Department of Homeland Security, or other public safety or national security interests); or
  • Clear USCIS error.

If USCIS agrees with you, your document will be issued pretty quickly, but still, it will take about 30 days to get processed!

But, there is a different way as well. What if the need to travel appeared within the past 48 hours due to some sort of emergency? Then (and it is true, especially for advance paroles), you may request that your travel document be issued to you in person at a local USCIS field office. For that, you first have to request an appointment at a local USCIS field office either by calling USCIS customer service number or using the online scheduling tool: https://my.uscis.gov/en/appointment/v2. If your request for the appointment is confirmed, you will have to appear at the local USCIS office with your filing fee, filled out form I 131, proof of emergency, a copy of your ID, passport, and 2 passport-style photos, as well as proof of your eligibility to seek advance parole (a copy of receipt for pending I 485 form, affirmative asylum, or having a DACA or TPS status for example). A local USCIS officer will decide if your request warrants merit, and if agrees with you, you will receive advance parole on that very day. 

USCIS WILL RESUME DEFERRED ACTION PROGRAM

September 20, 2019

Author: New York Immigration Lawyer Alena Shautsova

About a month ago USCIS announced that it would stop the Deferred action program for non-military members. The public reacted by convincing USCIS that the deferred action program should be restored. Several weeks later, USCIS agreed.

What is Deferred Action?

Deferred action is a government’s act to accommodate an individual even though he/she does not have a recourse under the current Immigration law. As a rule, deferred action happens in a form of a parole. It can be parole in place; parole instead of a visa/status. Often, deferred action is granted to a person who is in removal proceedings. But USCIS also practices an affirmative deferred action: the one for individuals who are not in removal proceedings. Government regulations characterize deferred action as “an act of administrative convenience to the government which gives some cases lower priority.” 8 C.F.R. § 274a.12(c)(14).

Who can apply for Deferred Action?

Anyone present in the US with severe medical conditions, when the treatment for those conditions is unavailable in their home countries, may ask USCIS to grant them deferred action in the form of parole which will allow them to stay in the US without accumulating unlawful presence. Also, persons whose countries were affected by serious natural disaster, may likewise apply for deferred action.  During the validity of the deferred action, the person is considered to be safe from removal/deportation.

How to Apply for Deferred Action?

Apparently, there is no centralized, nation-wide procedure for the deferred action. A person would have to submit the request to the local USCIS office. A front desk would take these applications and provide a receipt stamp. An applicant must be out of status in order to file for deferred action.  Applicants will be fingerprinted. There is no application form and there is no application fee. An applicant will have to present evidence of the need to stay in the US, for medical deferred action it would be affidavits, medical records, doctor’s reports. To file, a person typically also would need to present:

  1. Signed written request
  2. Form G325A
  3. Copies of passport, visa, and birth certificate
  4. 2 passport-style photos

Beneficiaries of deferred action can apply for employment authorization. A deferred action may be granted to the person and his/her immediate relatives. A deferred action would typically be granted for a period of two years.

In 2011, the USCIS ombudsman recommended that USCIS adopts unified procedures for adjudicating deferred actions requests. In 2012 USCIS issued a memo U.S. Citizenship & Immigration Servs., Standard Operating Procedures for Handling Deferred Action Requests at USCIS Field Offices 3 n.1 (Mar. 7, 2012) (“USCIS Standard Operating Procedures”). However, the procedure itself still remains largely unknown and varies from office to office.

FOIA: The Importance of Having Your Full Immigration Record

May 20, 2019

FOIA: The Importance of Having Your Full Immigration Record

Author: New York Immigration Attorney Alena Shautsova

FOIA stands for Freedom Of Information Act and is essential for one’s Immigration case. By filing FOIA request, one may not only receive a copy of his/her Immigration file form an Immigration court, Board of Immigration Appeals or USCIS, but also obtain records of one’s interactions with the CBP at the border; receive notes about one’s testimony during his/her Asylum interview and obtain records from the Stokes interview.

A response to FOIA has to be current: if you received a “CD” (the government usually delivers responses to FOIA requests on CDs) in the past but since then had some immigration history: forms filed, a decision made, etc, you need to obtain a “fresh” FOIA response.

One of the most overlooked and underused FOIA requests is an OBIM FOIA: U.S. Office of Biometrics Identity Management (“OBIM,” formerly US-VISIT). Basically, if you would like to receive your files regarding interactions with the Border Patrol officials, you need to file a request for FOIA with OBIM. OBIM requests may be submitted by letter request; Form G-639 by mail, fax, or email; or electronically through the DHS Online Request Form. They should include an original fingerprint card or A-number.

Another important source of information is CBP. A request for records to the CBP may reveal:

Apprehensions and detentions at the border: • Interactions with CBP at the border or in the interior • Form I-94 records • Voluntary return records • Records of entries and exits xi • Expedited removal orders • Advance parole records obtained through CBP.

Unfortunately, the government does not have to disclose all the information. Often,  important information is being withheld according to the provisions allowing the government not to share information that they use for investigation purposes, for example. If, however, an adverse decision is made in one’s case, he/she is entitled to have an opportunity to review and respond to the adverse information in the file.

Finally, often, as a result of the lawsuits, the government is forced to share previously withheld information. What was not available 8 years ago, now, may be available, in other words. If you are seeking to “fix” an old Immigration problem, a FOIA request is a must. It takes several months before you receive a response, but the wait is worth it. Through FOIA you can also obtain copies of lost documents; information regarding old filings that potentially can qualify you for an Immigration benefit; and, of course, information that was filled in the forms which can be checked for accuracy.

If you need assistance in obtaining your files, please call 917-885- 2261 for an appointment.

Changes in New York Criminal Law May Serve As a Basis for Immigration MTR

November 28, 2018

Changes in New York Criminal Law May Serve As a Basis for Immigration MTR

Author: New York Immigration Attorney Alena Shautsova

Recently, New York highest Court, the Court of Appeals held that a defendant facing criminal charges with a risk of deportation should be entitled to a jury trial. Under  State Criminal Procedure regulations  340.40, a criminal defendant may be denied a jury trial for certain offenses. As such, such a person will face a bench trial instead: a trial where a judge without a jury will decide his/her faith.  

This regulations and practice have been found violating immigrants’ rights who may face deportation/removal even for otherwise low-level offenses.  The court held:

“It is now beyond cavil that the penalty of deportation is among the most extreme and that it may, in some circumstances, rival incarceration in its loss of liberty,” Stein wrote. “Accordingly, we hold that a noncitizen defendant charged with a deportable crime is entitled to a jury trial under the Sixth Amendment, notwithstanding that the maximum authorized sentence is a term of imprisonment of six months or less.”

It means that in every case, a careful analysis of the consequences of the potential conviction is required. It also means, that those who were convicted of deportable offenses and now are facing deportation, should be able to file corresponding motions to reopen their cases both in criminal and immigration courts. 

If you have Immigration questions related to criminal convictions, please call our office for a consultation at  917 885 2261.

 

 

USCIS ADOPTS NEW POLICY FOR NTAs

July 6, 2018

USCIS ADOPTS NEW POLICY FOR NTAs

Author: New York Immigration Lawyer Alena Shautsova

USCIS changes policy on how and when it will be referring applicants to court. Now, all persons who applied for Immigration benefits and were denied will be issued Notices to Appear. A Notice to Appear is a charging document that means that the person is going to be placed in removal proceedings in Immigration Court. 

Under the new policy, the following cases will be referred to court: 

  • Cases where fraud or misrepresentation is substantiated, and/or where an applicant abused any program related to the receipt of public benefits. USCIS will issue an NTA even if the case is denied for reasons other than fraud.
  • Criminal cases where an applicant is convicted of or charged with a criminal offense, or has committed acts that are chargeable as a criminal offense, even if the criminal conduct was not the basis for the denial or the ground of removability. USCIS may refer cases involving serious criminal activity to ICE before adjudication of an immigration benefit request pending before USCIS without issuing an NTA.
  • Cases in which USCIS denies a Form N-400, Application for Naturalization, on good moral character grounds because of a criminal offense.
  • Cases in which, upon the denial of an application or petition, an applicant is unlawfully present in the United States.

The revised policy does not change the USCIS policy for issuing an NTA in the following categories:

  • Cases involving national security concerns;
  • Cases where issuing an NTA is required by statute or regulation;
  • Temporary Protected Status (TPS) cases, except where, after applying TPS regulatory provisions, a TPS denial or withdrawal results in an individual having no other lawful immigration status;
  • DACA recipients and requestors when: (1) processing an initial or renewal DACA request or DACA-related benefit request; or (2) processing a DACA recipient for possible termination of DACA.

Unlawful Presence For F, M and J Students

May 25, 2018

Unlawful Presence For F,  M and J Students

Author: New York Immigration Lawyer Alena Shautsova

Major changes are coming to the Immigration filed and how the laws are implemented. For almost two decades, students admitted on F, J, and M programs were admitted for Duration of Status (D/S) and were not acquiring unlawful presence if they overstayed their visas unless an Immigration Judge or a DHS made a determination that their status was terminated. 

Previously, for example,  a J1 student who came on a Work and Travel program and overstayed her visa, would not face the 3/10 year unlawful presence bars if she later left the US and applied for, let’s say an Immigrant visa.  The amount of time that was overstayed would not matter.  Now, however, DHS made it clear, that even those admitted for Duration of Status will be accumulating the unlawful presence time after their authorized stay expires (stay including the authorized periods that are grunted to students after the expiration of their programs which is 60 days for F students and 30 days for J students). 

It means that those who overstay their student visas, dispte the D/S admission will face 3/10 unlawful presence bars and will have to take this into consideration when making decisions about applying for reinstatement, changing status or returning back home.  A person who is subject to an unlawful presence bar must receive a waiver to come back to the US before the ban expires. 

The new calculation of unlawful presence will come into effect on August 9, 2018. Prior to this date, the old rule is in effect. 

USCIS Will Destroy Undelivered Documents

April 3, 2018

USCIS Will Destroy Undelivered Documents

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Author: New York Immigration Lawyer Alena Shautsova

Sad news came today from USCIS: the agency announced that it will start physically destroying documents green card, employment authorizations and travel documents that were marked as “undeliverable” if within 60 days the beneficiary did not contact USCIS.

In my practice, I at times,  get notices from USCIS that the documents it was to deliver to my office somehow were “undeliverable.”  I am not sure where the confusion comes from: from the post office itself or incorrect spelling of addresses, but it does happen. Imagine also, a person after an interview is told that USCIS will make a decision within 90 days.  A person does not expect the green card to arrive earlier than 90 days. A person may not even know that USCIS tried to deliver his/her green card and does not contact USCIS within 60 days…. I just do not see how this new practice will make life easier for anyone. I cannot imagine that anyone who spent time and money on Immigration documents would intentionally fail to contact USCIS within two months period. If people would miss the 60 days deadline, it is likely because they had  no clue that the document was attempted to be mailed to them. Now, on top of waiting for the document, they will find an unpleasant surprise: their documents will be destroyed and they will have to file for the replacement….

 

I 601A Provisional Waiver: Step by Step Guide

March 27, 2018

I 601A Provisional Waiver: Step by Step Guide

Author: Provisional Waiver Attorney Alena Shautsova

A provisional  I 601A waiver waives the unlawful presence bar for those who have certain LPR or USC relatives in the US. An unlawful presence bar applies to all who accumulated unlawful presence in the US, left the US, and now are applying for Immigration benefits from outside the US.  The positive side of this waiver is that  unlike many waivers that can be filed only once the person departed the country, I601A can be filed for while the person is still in the US; and second, recently US relaxed the standard for granting the waiver, and now, the person can win the waiver either by providing that the relative will not be able to move with him/her outside the US (will suffer extreme hardship in case of a move) or that the relative will have extreme hardship in case the immigrant is removed out of the US.

Here are the steps for the waiver:

First Step: An approved Immigrant Petition

A person who is planning on filing for the waiver has to have an approved immigrant petition. It can be I 130, I 140, or even a selection in the DV lottery.

Second Step:

The petition has to the sent for processing to the National Visa Center, and a person has to pay the Immigrant Visa and Affidavit of Support Fees (when necessary)

Third Step:

Submitting I 601A to USCIS with a filing fee and supporting documents. Once the waiver is accepted by USCIS, the clock in the NVC is stopped.

Fourth Step:

Once the waiver is approved, USCIS informs NVC about the approval, the applicant has to submit DS 260 immigrant visa form and supporting documents for the visa. Then he/she has to wait for the visa interview; schedule the medical exam overseas and plan for the departure.

Fifth Step

An applicant will have to travel overseas for their visa interview. A consulate will use an immigrant visa that will be stamped in the passport. Upon arrival to the US, the applicant will have the actual “green card” mailed to the address they left on file with USCIS.

These are the most common steps for those who have never been in court and do not have other inadmissibility issues.

 

EXTENSIONS OF NON-IMMIGRANT PETITIONS WILL BE REVIEWED AS NEW SUBMISSIONS

October 25, 2017

EXTENSIONS OF NON-IMMIGRANT PETITIONS WILL BE REVIEWED AS NEW SUBMISSIONS

Author: Work Visa Immigration Attorney Alena Shautsova

USCIS has recently announced that it will no longer rely on previous approvals when deciding petitions for extensions of certain non-immigrant work visas.

This new policy will affect L1 petitions the most.

The changes

If previously, when the same company would file for an extension of the L1 petition for the same employee, USCIS would generally rely on the first approved petition to determine the validity and sufficiency of the extension request, now, USCIS will consider each request for an extension as a new petition.

Specifically, the new policy states:

“In adjudicating petitions for immigration benefits, including nonimmigrant petition extensions, adjudicators must, in all cases, thoroughly review the petition and supporting evidence to determine eligibility for the benefit sought. The burden of proof in establishing eligibility is, at all times, on the petitioner. The fundamental issue with the April 23, 2004 memorandum is that it appeared to place the burden on USCIS to obtain and review a separate record of proceeding to assess whether the underlying facts in the current proceeding have, in fact, remained the same. Not only did this improperly shift the burden of proof to the agency contrary to INA § 291, but it was also impractical and costly to properly implement, especially when adjudicating premium processing requests.”

It means that a requestor for an extension will have to resubmit all documents that were necessary to qualify the beneficiary initially, plus more documents establishing qualifications for an extension. Such documents may be, but are not limited to: records of payroll, copies of tax returns, bank account statements, contracts, etc. (The large companies have different requirements).

 

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.