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New Form I 131A For Lawful Permanent Residents

September 30, 2016

New Form I 131A For Lawful Permanent Residents

Author: New York Immigration attorney Alena Shautsova

Form 131 is currently used by Immigration for a variety of different applications. For example, if somebody would like to apply for an advance parole, humanitarian parole, a refugee/asylee travel document, or a re-entry permit, they would have to submit their applications using I 131. Also, those who are seeking parole in place, also would have to use the same form.

For a while, there was a confusion when a permanent resident would go abroad and having spent there less than a year would find him/herself in a situation where his/her green card is missing: stolen, destroyed or lost.  Such a person would have to “work” with a US consulate oversees to obtain a boarding foil and pay fees for a new green card.

Now,USCIS issued a new form: I-131A. This form is to be used to apply for a travel document if they are returning from temporary overseas travel of less than one year and their green card has been lost, stolen, or destroyed, or are returning from temporary overseas travel of less than two years and their reentry permit has been lost, stolen, or destroyed. 

For convenience, the fees for the form (the current fee is $360) can be paid online. The form has to be filed with the nearest US consulate, and before making an appointment with a consulate, a person has to print a copy of the receipt for the paid fee.

Hopefully, the new procedure will simplify the process of obtaining a permission to return to the US for those LPRs who are not in possession of valid green cards or re-entry permits.  LPRs who are filing I 131A must submit appropriate evidence, including copies of documents confirming their identity and status. A passport style photo is also a must.

It is important to remember, that if a LPR stayed abroad for longer than a year, and does not possess a re-entry permit, he/she would have to seek a returning resident visa.

Those who are no longer in LPR or conditional resident status, may not use I 131A. For example, if a decision on a pending application was negative, and the person was overseas at this time, he/she will not be able to come back to the US using I-131A.

You may direct your questions to office@shautsova.com.

Immigration Rainbow: Good to Know!

September 5, 2016

Immigration Rainbow: Good to Know! Author: New York Employment Immigration attorney Alena Shautsova

It seems that New York managed to avoid the powerful hurricane Hermine. Quoting a famous singer “after a hurricane comes a rainbow”…  AILA or American Immigration Lawyers Association published a practice pointer that recommends to use…a  rainbow in dealing with USCIS Nebraska Service Center.

To wit, practitioners (a/k/a lawyers) when dealing with employment based RFEs and NOIDs (depending on the subject of the RFEs and NOIDS) should submit their (timely, always timely) responses using color stripes. For example: when one submits a response to an RFE in connection with regular processing of forms I 129 and I 140, they should use a RED stripe. If the processing was expedited, then they should use a BLUE stripe for I 140, and PURPLE for I 129 forms. If one responds to a NOID, then a GREEN stripe must be used. I guess, a usage of a wrong color may really get  one in trouble…

I must state that there is an ongoing problem with RFEs. And it is not just the latest demand of using  “a rainbow” to respond to them. The problem usually lies in that cases get denied for failure to respond to an RFE when a  person or his/her attorney never received one.  Another issue with RFEs that I have spotted (and I am sure I am not the  only one) is that they contain demands for information/documents that were already provided.

The problem here is that when I get requests like this, it makes me think: 1). maybe they lost the entire file??? or 2). it seems that USCIS is trying to “buy” itself a little more time before moving the case along. Whatever the reason is, the response to such an RFE must be submitted, or the entire case will be denied. I hope that the rainbow codes will help the process to be better organized.  But for some reason, I suspect it will cause even more confusion…

New Immigration Opportunities for Entrepreneurs

August 26, 2016

New Immigration Opportunities for Entrepreneurs 

Author: New York Business Immigration Attorney Alena Shautsova

Good news: new regulations are being implemented for entrepreneurs and owners of successful start-ups. USCIS announced plans to allow business owners to be paroled into the United States in connection with their business activities.  As always, the beneficiaries have to meet certain requirements and comply with certain restrictions.  One may find the text of the new proposed rules here: https://www.uscis.gov/sites/default/files/USCIS/Laws/Articles/FR_2016-20663_793250_OFR.pdf.

First, the proposed rules will provide a parole, not a visa. A parole is a permission to come, stay and work, but it does not in itself give a right to apply for permanent residency or citizenship. The qualifying beneficiaries have to be owners with at least 15% interest share, and the start ups should be new enterprises (opened within the past 3 years), and the enterprises must be “ promising” in that they  can create a substantial revenue or jobs.

Second, as always, the amount of money that a business should hold is quite substantial:  $345K from qualifying U.S. investors (such as venture capital firms, angel investors, or start-up accelerators), or at least $100K coming from grants.

In addition, an enterprise has to demonstrate a potential for reliable growth, job creation and overall be in the U.S. national interests.

How would this work? Basically, a business person who actively participates in the development of the business  will be allowed to come and stay in the US on a parole to oversee the development of the startup. (In most instances it means that a company also will be able to sponsor the person for permanent residency).  Once the 2 years are over, the beneficiary may apply to be re-paroled for an additional 3 years.  (DHS proposes that an applicant would generally be expected to demonstrate that the entity received at least $500,000 in additional qualifying funding during the initial parole period. A). The proposed rule will allow the entrepreneur’s spouse and children to apply for employment authorization.

The new proposed parole program may open the door to many entrepreneurs by allowing them to come to the US easier and avoid L1A/B requirements. It also is different from current non-immigrant visa regulations as it eliminates the need of an investment treaty between the country of origin and the US.  It sets defined criteria for the amount of capital that the startup should attract to be considered successful.

 

 

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.

 

 

 

 

EAD Clock and Transfer of Pending Asylum Case

July 12, 2016

EAD Clock and Transfer of Pending Asylum Case

Author: USA Asylum Attorney Alena Shautsova

Finally, there is a good news for asylum seekers. USCIS is adjusting its policy on stopping the employment authorization clock in case an applicant is filing his/her request to change the venue or transfer the case from one asylum office to another.

Previously, any request for transfer at any point of asylum case was considered by USCIS as a delay of the proceedings caused by the applicant and the EAD clock (the 180 day clock for employment authorization that starts to run once the case is filed) would be stopped, and often stopped permanently.

Recently, USCIS announced that in case of a transfer request the clock will be stopped only if the case had already been scheduled for an interview prior to the request. It is unclear, if the applicant should be aware of the scheduled date or not,  for the “punishment” to be imposed. However, the good news is that clock will be and should be restarted for all those cases were it was stopped in violation of this new policy.

The EAD clock is one of the most sensitive topic for asylum seekers. In many other countries, asylum seekers may enjoy different benefits while they are waiting for the resolution of their applications. The only benefit that they get in the US is a right to an employment authorization that  one can use after his/her case was pending for more than 180 days.

Sometimes, pro se applicants transfer their cases without knowing of the consequences of transfer. The new policy should help to eliminate this injustice and help those awaiting for their asylum cases to be resolved.

The other aspect of the issue is that the wait times for asylum interviews increased dramatically within the past few years. It is not uncommon for an asylum seeker to  wait for 2 years before he/she is called for an appointment with an Asylum officer. It means that if somebody moved within the first 6 months after filing the case, he lost his/her chance for an employment authorization for the whole time the case would be pending.  Hopefully, the new policy will help “movers” to avoid this consequences.

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!

U.S. Immigration Fingerprints Abroad

April 25, 2016

U.S. Immigration Fingerprints  Abroad

Author: US Immigration attorney Alena Shautsova

Almost all immigration applications require that an applicant comply with the biometrics requirement and appear for a fingerprinting procedure in the US.  Previously, U.S. Immigration fingerprints were not collected abroad.

This is especially true for such important applications as Re-Entry Permit for lawful permanent residents , Advance Parole and Refugee/Asylee Travel documents. All these applications should be submitted to USCIS using form I-131. After the submission, according to the instructions, the approved documents (that look almost like passports) can be shipped overseas. For example, due to an urgent travel an applicant cannot remain in the US and have to leave before he/she receives the document. In such cases, USCIS can send the document either to the overseas consulate or a specified address abroad. What the instructions do not say is that prior to departure, the applicant must appear for fingerprinting appointment in the US. For years, there was no exception to this rule, and one would miss such an appointment and depart the US, would face significant difficulties coming back as there was no way for the applicant to comply with the biometrics procedure overseas.

Recently, USCIS allowed applicants to comply with the biometrics requirement outside the US. Biometrics collection for certain applications, such as a Form I-131, Application for Reentry Permit, may be taken at a USCIS office abroad, even if the collection was originally scheduled at an ASC office in the United States. This is available to residents of countries where USCIS has an international office. For example, Russia, Germany.

Only those can demonstrate urgent and severe circumstances will be allowed to comply with the procedure overseas. In addition, the applicant would have to demonstrate that he/she tried to expedite or reschedule the fingerprinting appointment.  It means that one who has I-131 pending and has to leave the country urgently, still has to show his/her attempts to comply with the regular procedure.

Examples of urgent circumstances may include: an urgent job assignment, a need to take care of a family member that requires urgency, etc.

The new procedure will help thousands who previously did not have a choice and had to either miss an important presence overseas or forego US immigration benefits or jeopardize their status to comply with U.S. Immigration fingerprints abroad.

 

How to Avoid Mistakes While Representing Yourself in Immigration Court

March 3, 2016

How to Avoid Mistakes While Representing Yourself in Immigration Court

Author: New York Immigration lawyer

You ended up in Immigration court and do not know what to do…

The easy answer to this situation would be “hire an attorney!”, but sometimes an individual cannot afford an attorney, or believes that the first portion of a case can be done pro-se to reduce attorney’s fees.

First, if you cannot afford an attorney, try your best to find a low-bono or a pro-bono one. Some non-for profit organizations are offering free legal services, and local bar associations cab direct you to the pro-bono lawyers in the area. Also, law schools have legal clinics that take different type of matters and can help you as well.

However, if you are “stuck” by yourself, here are some tips.

  1. Stay away from FRAUD. As tempting as it can sound, or as persuasive as an “uncle” promised it to be, lying on Immigration applications and in Immigration court is never a good idea. It does not mean that you cannot advocate on your own behalf, explaining the impact of certain events and providing your point of view and research, let’s say, on country conditions. But, stating something that you know is not true, for purpose of obtaining Immigration benefits will make you permanently inadmissible into the United States.
  2. Read available memos, cases and practices and procedures. It is not easy, but it is not a rocket science. Start with the Immigration Practice Manual which outlines the basics of Immigration court procedures. Some non-for –profits publish excellent resources on various topics, such as U visas, VAWA, asylum, Cancellation or Removal… Those resources are available on Google and are free!
  3. Another common error encountered when dealing with former pro- se clients, is that they give too much information in there affidavits in support of their claims (If they submit one to begin with). The old saying, keep it simple goes a long way for affidavits. Focus on the reason you are writing the affidavit: if it is submitted, to prove a bona fide marriage write about your relationship and how it developed. It is always better to be concise and allow for later expansion of your testimony.
  4. At last, remember that each and every word is transcribed. Speak clearly and think before answering questions. Refrain from any type of vulgarity, and show respect to the judge who ultimately decides whether or not you are going to stay in the U.S, and the prosecutor. When you speak before the court, or to the prosecutor, your words have value. Trying to exemplify your knowledge of the English language is helpful at times to show the Judge you have a desire to learn the language of the country, but if you are not sure of the definitions of your words you are using, refrain from using them. One such example, is the word “moot”: the definition of the word in the Webster’s dictionary differs significantly from the meaning the courts give to this word, and without knowing it, one may misunderstand the entire proceedings.

And now, some practical tips:

 

  1. When you use ASYLUM as defense from removal, after you are asked to designate a country to be removed to in the event of denial of your case, you should respectfully decline to do so. The idea is that there is no country in the world where you feel safe, and hence, you do not wish to be removed to any country.
  2. Make sure your documents are filed on time, preferably before the deadline or a “call up date”.
  3. Check the status of your fingerprints: if possible, ask to expedite the clearance, and make sure nothing on your end is holding up the process.
  4. If you filed your asylum application with the Court and not USCIS, you must follow special procedure for ordering your own fingerprints by filing first three pages of I-589, and a copy of the instructions with USCIS. This is the only time fingerprints are not automatically ordered for you, but without this clearance, your application for asylum with the Immigration court might be denied.

TIPS ON WORKING WITH NVC

January 18, 2016

TIPS ON WORKING WITH NVC

Author: New York Immigration attorney Alena Shautsova

Once an Immigrant petition is approved, the NVC receives the file and acts as middle man between the petitioner and the consulate. It collects the fees, documents and more information before it schedules an interview for the visa applicant. The NVC process in itself can be quite frustrating, and not only for those petitioners and applicants who do not have an attorney. The Q&A below intend to help pro-se petitioners with the process.

 

  1. Why and how NVC terminates the petition?

The termination process is only entered after the priority date becomes current. A notice is given to applicants explaining that if the NVC does not hear from a representative of the case for a period of one year the case will be terminated and the individual will be required to resubmit the case again with additional filing fees, if applicable. However, the period of one year only starts after the priority date becomes current.

  1. How can I know if an approved I-130 is still valid?

Here, it is wise to have an attorney, because attorneys have a special way to communicate with the NVC: When determining whether or not an I-130 is still valid after being sent to the NVC the fastest way to do so is by emailing NVCattorney@state.gov or by calling the NVC directly.

If a response is not procured within 15 days after sending an email to NVCattorney@state.gov you may send a second follow up email. If after an additional 15 days you still do not receive a response you may send a third follow email with subject line “Attention PI Supervisor,” the supervisor will then respond within 5-7 business days.

  1. NVC collected the documents and did not mention about any issues, but the visa was denied, why?

When discussing a Nonimmigrant Visa, the NVC is authorized to answer questions regarding the general NIV application process, status of the application, whether or not the case was refused or requires additional information. The NVC cannot advise an applicant if they are eligible for a specific nonimmigrant visa.

  1. I had to submit an I 601A waiver. The decision on the waiver takes a long time. Will my petition be terminated?

When waiting for an I-601A response from USCIS the one year termination process will no longer be in effect. If you receive a letter stating the I-130 application has been terminated while I-601A waiver is pending, contact an attorney immediately or NVC directly to resolve the situation.

  1. Do I have to file with the NVC a letter from employer to show my current income?

When submitting an I-864 Affidavit of Support, an employer letter is not required from the petitioner when evidence of previously filed taxes are more than sufficient. If it is not possible to get a letter from your employer as to your current income contact, your attorney or NVC as soon as possible to avoid further delays in your case.

Immigration Consequences of Arrest

January 4, 2016

Immigration Consequences of Arrest

Author: New York Immigration lawyer Alena Shautsova

An arrest occurs when a person is taken into a custody against his/her will for interrogation or search. What constitute an arrest and custody is actually depends on the facts and the occurrences that have been deemed to constitute an arrest have been examined by the judges for a long time.

Sometimes, after an arrest a person is issued a document by the arresting authorities, sometimes it does not happen. Such documents may be a police report, a desk appearance ticket… In other words, sometimes, an arrest results in criminal or administrative charges and sometimes it does not.

The question that I receive often is: should one disclose a fact of arrest that did not result in formal charges? For example, a husband and a wife had a domestic dispute, their neighbors called the police, the couple was brought to the precinct, the wife was let go, but the husband was not. The wife did not have to submit herself for the fingerprint procedure. Does she have to disclose this incident on her citizenship application?

Or, let’s take a different set of facts: young people, whose names are A, B and C, return to their apartment after a party. A decides to do something in public which is not allowed and an officer issues him a ticket. The rest are asked to present proof of their identity. Shall B disclose this fact on his green card application? B was not issued or ticket and was not charged with anything.

And finally, A, B and C are shopping. A security guard suspects that A, B and C committed shoplifting. All three are taken into custody and the police is called. A, B and C are issued desk appearance tickets. During the court hearing, charges against A are dismissed. Shall A disclose this incident during his permanent residency interview?

Let’s see… nowadays most immigration applications and petitions require full disclosure of any arrests and any and all charges, including those resulted in dismissal. Even administrative incidents must be disclosed during the citizenship process: such as stops by Immigration or Customs agents in the airports. An individual who does not disclose a fact of arrest may be charged with committing fraud or misrepresentation in connection with application for Immigration benefits: a charge that requires a hardship waiver or results in finding of lack of good moral character.

It means that almost in all cases an individual has to disclose the arrest, even if subsequently the charges were never brought against the individual. In our first example, the wife will have to disclose the fact that she was brought to the precinct as a suspect , even though the police later realized she was the victim. In the second example, I believe, there was no arrest, even though some might argue that even though B and C who were not issued tickets,  they were not free to leave once an officer asked them to present their IDs. In the third example, A absolutely has to disclose the incident.

Citizenship applicants with arrest history are severely scrutinized on the point of “Good Moral Character.” A dismissal can usually be construed to a misunderstanding between the parties.

In any case of arrest or administrative or criminal charges, an individual who is looking to obtain Immigration benefits such as visa, change of status, permanent residency, citizenship has to consult with an attorney. The Immigration law says that one who admits to committing the elements of the offense (even if the person is not convicted) is deemed to commit and be convicted of the offense under the Immigration law.

Finally, if the person was fingerprinted, and/or the formal charges were brought and later dismissed, this information is FOREVER in the person’s FBI history and will show during the USCIS security checks. So, as a reminder, every applicant has to answers all the questions truthfully, and fully…