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USCIS UPDATES G 28 form and I 864P poverty guidelines

March 16, 2015

USCIS UPDATES G 28 form and I 864P poverty guidelines

Author New York  immigration lawyer Alena Shautsova

USCIS updated its G 28 attorney or representative notice of appearance form. The main new change is that now, the applicant or petitioner can choose who should receive notices regarding immigration filings and documents: the applicant or petitioner or just his/her representative. The change should affect those applying for employment authorization and who would like their attorneys to receive the EAD card. Previously, it was impossible for an attorney to receive an EAD card at attorney’s address.

USCIS also updated I 864P poverty guidelines which establish income limits necessary to sponsor family members into the US. The forms submitted to USCIS prior March 1, 2015 will be considered under the previous guidelines.

New Rule on Notices From USCIS

January 29, 2015

New Rule on Notices From USCIS  effective 01/27/2015

Author: New York Immigration attorney Alena Shautsova

United States Citizenship and Immigration Services  published its new rule on notices USCIS issues to applicants and petitions.  Notices are extremely important: they confirm the receipt of an application or petition; valid status in the US or a date for an interview. Currently, the notices are sent  to an applicant or petitioner and a copy is sent to an attorney of record.  USCIS now clarifies its rules in that:

” First, USCIS will clarify that it will send notices only to the applicant or petitioner when the applicant or petitioner is unrepresented. See new 8 CFR 103.2(b)(19)(i). Second, if USCIS has been properly notified that the person or entity filing the benefit request is represented by an attorney or accredited representative recognized by the Department of Justice, Board of Immigration Appeals, USCIS will send notices to the applicant or petitioner who filed the benefit request and to their attorney or accredited representative of record. See new 8 CFR 103.2(b)(19)(ii)(A). Third, if provided for in the applicable form, form instructions, or regulations for a specific benefit request, an applicant or petitioner may request that USCIS send original notices and documents only to the official business address of their attorney or accredited representative, as reflected on a properly executed Notice of Entry of Appearance as Attorney or Accredited Representative, with a courtesy copy being sent to the applicant or petitioner for their records.”

Finally, in case of electronic applications, the person has options: the notices may be sent electronically to both the applicant and the attorney or via mail.

Most importunately, the official documents such as EAD (work authorization card) or permanent resident card currently are being sent to the applicants only unless the applicant or self-petitioner designates  their attorney’s official address as the delivery address.

These rules of notice delivery may seem trivial, however when a notice is not delivered it causes delays, denials and frustration. For more information see http://www.aila.org/content/fileviewer.aspx?docid=50525&linkid=281897

 

 

 

 

I- 9 and E Verify : What Employer Needs to Know

December 29, 2014

I- 9  and E Verify : What Employer Needs to Know

Author: New York Immigration Attorney Alena Shautsova

I-9 form is one of the form used by the US government to verify employment eligibility of a worker. An employer regardless of size must have I-9 forms for each employee. The form has been in use since 1986. For many, an I -9 audit comes as a surprise: employers  claim they have never heard of such a form at all! However, this is a perfect example of ignorance not serving as an excuse..

I-9 form must be filled out for every worker: part I must be filled out no later than the first day of work by the employee and part II no later than the 3rd business day of hire of a new worker.

It is very important that an employer CANNOT ask form an employee to present a particular form of employment eligibility verification. However, an employer can and should point out to the list of documents as per form I-9 from which an employee can choose what forms / documents he/she can wishes to present.  An employer who asks for  a particular proof, can be charged with discrimination and subjected to severe penalties.

Further, once I-9 form is filled out, it should be kept by the employer during the time the employee is working and after he/she stops the work as well. If you are an employer, you must retain the I-9 for 3 years after the date employment begins or 1 year after the date the person’s employment is terminated, whichever is later. 

E-verify is based on I-9 form but is an electronic system that compares the information an employer provides with the Federal databases. E- verify is different from I-9 as it asks for different information and is processed differently. Not every employer has to use E-verify. Most employers have a choice if to use E- verify.

Department  of Homeland Security checks the I-9 forms compliance.  For more information on I-9 forms and I-9 audit, visit http://www.shautsova.com/immigration-usa/i-9-uscis-forms.html.

 

What Happens if I 751 Petition Filed Late?

October 14, 2014

What Happens if I 751 Petition Filed Late ?

Author: New York Immigration lawyer Alena Shautsova

I-751 petition is an Immigration form that is sued to remove the condition from permanent residency for those non-citizens whose marriage with a USC was younger than 2 years old at the time adjudication of adjustment of status application or issuance of an immigrant visa.

I-751 must be filed within 90 days prior to the second anniversary of the conditional residency.  Sometimes, the petition is submitted late. A jointly filed I-751 petition filed after the second anniversary of the CPR’s admission or adjustment may be considered only if the CPR is able to demonstrate good cause and extenuating circumstances for the failure to timely file. The instructions to the Form I-751 clearly state that a CPR may file a petition untimely only if he or she includes a written explanation for his or her failure to timely file and a request that USCIS excuse the late filing. The law provides for broad discretion as to what constitutes good cause and extenuating circumstances. Some examples of what constitutes good cause and extenuating circumstances may include but are not limited to: hospitalization, long term illness, death of a family member, the recent birth of a child (particularly if there were complications), and a family member on active duty with the U.S. military.

Please note that there is no limit as to how many I 751 petitions can be filed.

Those filers who request  a waiver from joint filing, also can file multiple petitions. If an immigration officer encounters a waiver request petition subsequent to the denial of a previous waiver request petition based on the same ground (termination of a marriage entered in good faith, extreme hardship, or battery or extreme cruelty), the he/she  will review the new petition to determine if the applicant has presented additional evidence different from the first petition. If a waiver request I-751 petition filed subsequently to a previously denied waiver request petition is based on a different ground than the previous petition, the immigration officer will evaluate the new petition separately from the previous denial.

If the petition is denied, then the USCIS has to issue a Notice to Appear, because person’s conditional resident status gets terminated.

Also, sometimes it is apparent the couple will separate or will file for divorce.  Nevertheless, the non-citizen still has to file I 751 petition, sometimes prior to the divorce proceedings being finalized. If a CPR files a waiver petition based on termination of marriage, but the CPR is legally separated or in pending divorce or annulment proceedings, USCIS shall issue an RFE requesting documents
terminating the marriage. If the CPR provides within the allotted 87 days responsive information, the service center shall adjudicate the petition on the merits. Otherwise, the I-751 will be denied.

It is always a good idea to consult with an attorney prior to filing of I 751, or if after a joint filing, the couple separated.  Denial of the I 751 petition leads to the removal proceedings and can be avoided if mistakes are corrected early.

 

 

 

How to Overcome Denial under the Adam Walsh Act

May 28, 2014

How to overcome Adam Walsh denial

Author: New York Immigration lawyer Alena Shautsova

Adam Walsh Act enacted on July 27, 2006 [PL 109-248, Title IV] prohibits United States citizens and Lawful permanent residents who have been convicted of certain sexual offenses against a minor from petitioning family members, unless in the “unreviewable discretion” of the Secretary of DHS, the USC or LPR poses no risk to the beneficiary. The same provision applies when a USC would like to petition his/her fiance.

Examples of offenses include: offenses involving the use of minors in prostitution; offenses against minors involving sexual contact; offenses involving the use of a minor in a sexual performance; and offenses involving the production or distribution of child pornography. The Immigration laws very broadly define “Sexual abuse of a minor.” Please note  sexual abuse of a minor is also an aggravated felony under the Immigration laws.  Examples of aggravated felonies under NYPL are: use of a child in a sexual performance in violation of 263.05; sexual misconduct under 130.20).

Examples of crimes that are not aggravated felonies: knowingly engaging in sexual intercourse or oral sexual conduct with person under 18; parents consenting to child’s sexual performance.

A felony conviction is not necessary, as a misdemeanor sexual abuse conviction is sufficient for finding of an aggravated felony under the Immigration law (for example: NYPL 130.60(2) conviction is an aggravated felony).

If after family petition was filed, USCIS found that Adam Walsh Act is applicable, the only way for the petitioner is to demonstrate to the satisfaction of the USCIS that he/she does not posses threat to the beneficiary or that he/she was not convicted of the qualified crime. The burden lies on the petitioner to show that the crime is not the one covered by the Adam Walsh Act. It means that almost in every case a very detailed and difficult analysis of the conviction is necessary. See Matter of INTROCASO, 26 I&N Dec. 304 (BIA 2014).  It is important to know that under the recent BIA decision, Adam Walsh Act has retroactive effect: it applies for convictions that took place before the statute’s enactment as well as to those occurred after its enactment .

To demonstrate that the petitioner posses no risk to the beneficiary, the petitioner must present a very strong record of rehabilitation: probation report; reports by a treating doctor; evidence of community service… Under the recent BIA decision, Matter of ACEIJAS-QUIROZ, 26 I&N Dec. 294 (BIA 2014), the BIA lacks jurisdiction to review the “no risk” finding. It means that the application has to be impeccable.

A petitioner who has criminal convictions should consult with an Immigration lawyer prior to starting “immigration case” for his/her relatives. A mistake and lack of knowledge may cause deportation/removal of the family members and their permanent inadmissibility. If  you have questions regarding Adam Walsh Act, please call New York Immigration attorney Alena Shautsova at 917-885-2261.

 

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!

They Give it: They Can Take it Back: How DHS Can Take Your Passport Away

March 14, 2014

They Give it: They Can Take it Back: How DHS Can Take Your Passport Away

Author: Immigration attorney Alena Shautsova

There are two main ways a person may obtain US citizenship: by being born in the US or its territory and via naturalization. Naturalization is a process of conveying US citizenship on an individual who originally held a different citizenship or was a person with no citizenship at all.

It has been said that there is no distinction between US born citizens and those who received citizenship via naturalization. However, one major distinction between the two kinds of citizenship does exist:  the second kind can be taken away from an individual even if he or she has been in citizenship status for decades.

This happened to Hzim who originally received his citizenship in 1989. Even though for decades he held the title of US citizenship and traveled overseas, in 2011, the US Department of Homeland Security decided to “take back” his citizenship, saying that they made a mistake in 1989…

The mistake was that somebody in INS (Immigration and Naturalization Services (USCIS used to be called this way)) did not check all the requirements for Hazim’s naturalization and mistakenly believed Hazim’s father conveyed his citizenship to Hazim…. Even though there was no Hazim’s fault in it all, and even though he did not lie to the US government in any way, the Federal Court, 2nd District said it cannot stop Immigration authorities from taking Hazim’s citizenship away over twenty years later…

Of course, despite the fact that they are taking his citizenship away, Immigration promised Hazim that there are Other means of correcting the situation, but it seems that Hazim should not be the one paying for someone’s lack of qualification and expertise…

That is why it is strongly advisable that everybody who is applying for citizenship, consult with an Immigration attorney to make sure Hazim’s story would not repeat itself.

 

Waivers Of Inadmissibility

August 16, 2013

Waivers Of Inadmissibility: Permission to Come or Stay in the US

Author: New York Immigration attorney Alena Shautsova

Waivers of inadmissibility are applications that should be submitted to USCIS in order to perceive a permission to come or stay in the US after the violation of Immigration laws. There are different kinds of waivers for different kinds of violations. For example, some waiver, if granted, excuse the existence of criminal convictions; some excuse immigration misrepresentation/fraud; some excuse unlawful presence; etc.

All waivers can be divided into two big category: those that waive some condition with an immigrant visa/permanent residency application; and those that waive a condition for a non-immigrant visa application.
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Same Sex Marriage Immigration Petitions

July 7, 2013

Same Sex Marriage Immigration Petitions

Author: New York Immigration attorney

With the DOMA being overruled by the U.S. Supreme Court, same sex couples received an opportunity to utilize Federal Immigration benefits. It means that  a U.S. citizen or permanent resident is able to sponsor his/her partner for residency in the United States. The same sex couples are able to use all Immigration venues, including family based petitions, K-1 visas for finance, waivers, motions to reopen, cancellation of removal, VAWA, etc.
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TPS Holders May Adjust Their Status To LPR Says 6th Circuit

June 5, 2013

Holders of the TPS who entered the US without inspection (EWI) may nevertheless successfully adjust their status to one of a permanent resident…  Flores v. USCIS, (June 4, 2013 6th Cir). The 6th Circuit rejected long standing government position that the holders of the TPS status who came to the US without inspection may not adjust their status to LPR even if subsequently they marry a US citizen.
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