I know that many are extremely worried about the recent developments in immigration law and enforcement. Here at our office we share your concerns and working as hard as we can to stay current with all the changes and be able to provide the best advice possible in this rapidly changing environment.

Many of our clients have asked me what they can do to be prepared in case the worst happens: an arrest by Immigration and Customs Enforcement (ICE). There are a few things I would like you to know.

First, it is a good idea to have a Power of Attorney prepared which will give someone you trust completely the power to manage your finances, property, and belongings if you are detained or out of the country. The Power of Attorney document will enable the person you select to make transactions and decisions as if he or she were you. Even more importantly, if you have children you should have documents prepared that will enable a trusted person to enroll your children in school, give consent to medical procedures, and travel with them.

If you are worried about how your affairs will be handled or who will care for your children, ask your attorney if he or she can prepare these documents for you.

I also urge you to prepare an emergency file containing all contact phone numbers for family, child caregivers, and the immigration attorney of your choice, medical information for yourself and your children, and absolutely every immigration-related document you have ever possessed.

Under the Department of Homeland's Security most recent memos, the power of expedite removal is being expanded, which means that an undocumented person can be immediately removed from the United States without even seeing a judge if the person is unable to prove having lived in the United States for at least two years. For this reason, it is imperative that you carry documents showing you have lived here for at least two years with you. Place them in the glove compartment of your car or whatever container you carry with you on the street. These documents could be tax returns, bank statements, school transcripts, anything that shows you have been here for two years. If you have a petition or application pending, carry a copy of the receipt as well.

If officers come to your home, you do not have to let them enter unless they show you a warrant that specifically allows them to enter your home. You should ask them to pass the warrant under the door before you open it. You do not need to answer their questions but can instead ask that your attorney be present. You should not sign anything unless your attorney advises you to do so.

This is not a full list of the things to do or not to do. If you have any doubts about steps you plan to take, consult with me a licensed immigration attorney.

USCIS has announced new fee increases for most of its applications and petitions, shamefully exorbitant increases in some cases. The higher fees go into effect on December 23, 2016 as the agency's grim Christmas present to itself. If you are planning to apply for a benefit for which you properly qualify, file your case before then to avoid paying more. Always act under the advice of a competent, licensed attorney.

Some examples. . . 


Provisional Waivers are going from $670 to $1,015, an increase of over 50%.
Adjustment of Status with a Family Petition is going from $1,490 to $1,760
Fiance Petitions are going from $340 to $545
See all the increases at http://www.nafsa.org/Content.aspx?id=53836

For years, being a victim of domestic violence was not a good ground on which to build an asylum claim. Even those fleeing horrific abuse and torture from their spouses at home could expect to lose their asylum cases simply because being a victim of domestic violence was not considered to place an applicant within a "social group" that was defined with particularity and/or "socially distinct." In other words, the courts did not believe that "battered spouses" were a group that society recognized as a specific population of persons. Without membership in a "social group" as defined by immigration law, asylum is impossible.

But ever since the Board of Immigration Appeals issued their decision in Matter of A-R-C-G- et al., 26 I&N Dec. 388 (BIA 2014), that has changed. In A-R-C-G, the Board held that "married women in Guatemala who are unable to leave their relationship” is a particular social group for purposes of obtaining asylum and withholding of removal. This is a binding, precedential decision, which means that lower courts are required to follow its holding.

Whether any individual applicant can put this case to advantage depends on many factors. The court must look at the applicant's specific society to determine whether that society sees "women who are unable to leave their relationship" as a distinct social group or not. The applicant will also have to prove that she does fit within that definition and suffered or has a well-founded fear of suffering harm that rises to the level of persecution because of her inability to leave her relationship. Among other things, she will also have to prove that her government is unwilling or unable to assist her, and that she cannot reasonably solve the problem by relocating within her country.

In a recent unpublished decision, the Board went even further and held that it was not necessary for a woman to married to her abuser for her to avail herself of this theory. See Matter of H-R-M-, AXXX XXX 381 (BIA March 14, 2016).

Domestic violence asylum claims remain difficult to win, but there is a legitimate chance of winning with the help of experienced legal counsel.

A major expansion of opportunity is opening on August 29, 2016 for immigrants who entered the United States without inspection and wish to obtain a green card through family.

An immigrant who entered the United States without being inspected by immigration officials is normally not able to obtain a green card in the United States but must travel outside the country and process at a foreign consulate. And yet, most undocumented people who depart the United States after a certain amount of unlawful presence face a 3- or 10-year bar against returning, making this option unavailable to them. Since 2013, the U.S. Citizenship and Immigration Services (USCIS) has allowed certain immediate relatives of U.S. citizens to apply for a "provisional waiver" of this unlawful presence bar, based on the extreme hardship their U.S. citizen spouses or parents would suffer if the waiver were not granted. With an approved waiver, and assuming no other grounds of inadmissibility, the applicant can proceed to the consular interview without facing a bar. Again, the extreme hardship only counted if it affected a U.S. citizen spouse or parent.

As of August 29, 2016, USCIS is expanding the waiver, so that an applicant can also use the extreme hardship of a spouse or parent who is a lawful permanent resident (LPR). This expansion will help many would-be applicants who were held back from applying for a provisional waiver because their spouses were permanent residents who could not learn enough English to become U.S. citizens and qualify as a hardship basis.

In addition to expanding the class of persons who can be used to show hardship, the new rule also expands the class of persons who can apply in the first place. The old rule allowed applications only for immediate relatives (spouses, parents, and children under 21) of U.S. citizens. Now, a beneficiary of any family- or employment-based petitions can apply for a provisional waiver, assuming of course that the the approved petition has a current priority date and the applicant has a spouse or parent who is a US citizen or green card holder that will suffer extreme hardship in the event of denial.

The new rule is doing even more than that. Under the old 2013 Rule, USCIS would deny a provisional waiver if it had "reason to believe that the alien may be subject to grounds of inadmissibility other than unlawful presence." Many people were denied waivers because they had minor criminal convictions that may not actually have prevented them from obtaining their green cards. This happened simply because officers considered there was a remote possibility that the crimes would render the applicants inadmissible. In a sense, this was good because it protected people from leaving the United States if they had other issues (such as crimes) that would have resulted in a denial at the foreign consulate. But it also prevented some viable cases from moving forward merely because an officer incorrectly perceived a problem. Under the new rule, reason to believe other grounds of inadmissibility exist is no longer a basis for denial of the provisional waiver. But importantly, it is still true that a provisional waiver is automatically revoked if the foreign consulate discovers, at the time of the immigrant visa interview, an additional ground of inadmissibility. The change opens new possibilities but creates an even greater need for caution and consultation with an attorney.

Perhaps most excitingly, the new rule is opening the provisional waiver application to some individuals who have final orders of removal, exclusion or deportation, including an in absentia order of removal. An additional waiver on Form I-212 is necessary in these cases, and not everyone will qualify. Among other disqualified persons are those who unlawfully returned to the United States after a prior removal or prior unlawful presence of a year or more, and those who reentered unlawfully after removal and thereby received a reinstated order of removal, deportation, or exclusion.

Remember that the rule does not come into effect until August 29, 2016. This is a new avenue of relief that will help many people who were previously told there was no immigration law that could currently help them. If you think you fit into any of these categories, you should seek qualified counsel to explore your options.

It's fairly well known by now that most immigrants who entered the United States without being admitted or paroled at a port of entry do not qualify to adjust their status in the United States, even if they fulfill all other requirements. Such immigrants must attend an interview outside the U.S., and in many cases they will not be allowed back in once they leave unless they get an approved waiver which many do not even qualify for.

One group that is permitted to adjust without leaving the country is the group of individuals protected by section 245(i) of the Immigration and Nationality Act. Most people who have this protection obtained it when somebody filed a family or labor petition on their behalf on or before April 30, 2001, and they have proof of being physically present in the United States on December 21, 2000.  This physical presence requirement is not necessary for those whose petition was filed on or before January 14, 1998 or who are derivative beneficiaries (i.e., related to the person on whose behalf the necessary petition was filed. As long as the petition was "approvable” at the time of filing, the beneficiary will fall under the protection of this law and can, with the payment of a penalty fine, adjust status in the United States if they are still the beneficiary of an approved petition, have a visa available, and are not inadmissible for other reasons.

The remaining lucky few who had a petition filed on their behalf usually know that they are protected by 245(i). Less known is that their spouses or children may enjoy the same protection, and that protection can follow them even if they end their relationship with the principal beneficiary, i.e., the person on whose behalf the petition was filed.

To "inherit" the protection of 245(i), the relationship of the spouse or child with the 245(i) prinicipal beneficiary must have existed on or before April 30, 2001. Remember that one must be under 21 to be considered a child in immigration law. A person who has "inherited" the protection carries that protection even if that person later divorces or turns 21, or if the principal beneficiary dies. Of course, it is still necessary for one who has "inherited" 245(i) protection to be the beneficiary of an approved petition, have a visa available, and be otherwise inadmissible. But it is not necessary to be petitioned by someone who is protected by 245(i). For example, a woman married to a man who was the beneficiary of a petition filed by his brother in 1997 could divorce that man, and marry a different U.S. citizen. She could then adjust status in the country through her new husband because her marriage to a 245(i) beneficiary before 4/30/01 allows her to carry her 245(i) protection with her even when that marriage is over. In contrast, those whose relationship with a principal 245(i) beneficiary came into being after April 30, 2001 will only enjoy the protections of 245(i) if they adjust as dependents of that particular principal beneficiary.

If you think you might have "inherited" 245(i) protection from an earlier relationship or parent, you should speak with an immigration attorney about a path to a green card that might be easier than you had thought.​

Those who must process their green card applications outside the United States, whether because they are residing outside or do not qualify for adjustment of status within the U.S., must interview at a foreign consulate. The following information is unique to the U.S. Consulate in Ciudad Juarez, Mexico and was current in summer 2016, but it may be useful in getting a general idea of what to expect in any country. Always check with an attorney familiar with your particular consulate for up-to-date information.

Before leaving home for the consulate, review the checklist of documents you received and make sure you have everything required, making special note where originals are required and where copies are sufficient. Then make an extra copy of everything to bring with you as well. You should also speak with your attorney to make sure you have no grounds of inadmissibility that would arise at the interview, such as fraud, alien smuggling,  or certain repeat immigration violations just to mention a few examples. This is especially important if you are coming from the United States since the waiver of unlawful presence you may have just been granted will not help you if other unanticipated problems arise at the consulate. You do not want to get stuck outside the U.S. and find there is no return possible. So have a full conversation with your attorney prior to departure. 

The day prior to your interview, there will be a medical examination. This examination requires disrobing, and physicians will be noting, among other things, the presence of tattoos. Some tattoos can lead to a suspicion of gang membership and a denial on that ground. No appointment is necessary, but you must show your interview appointment letter and bring your passport. The exam includes an x-ray (applicants age 14 and under take a tuberculosis skin test instead and will have to return days later for a reading) and a physical examination. Screening by blood test for certain diseases may occur. You may have to receive vaccinations if you cannot produce records showing that you do not need them. Physicians will seek to discover, among other things, if you have a problem with drug or alcohol abuse or addiction and will refer you to a psychologist or require a urinalysis if they deem it necessary. A finding of inadmissibility for reasons of abuse/addiction will require a showing of one year of remission.

Biometrics will be taken in a center near the consulate and are required of all applicants age seven or above. Appointments for this can be made online before or after the medical exam, but it is best not to leave it for the day of the consular interview since that may not give the consular officer sufficient time to review the results.  You will need to bring your passport, DS-260 confirmation page, visa appointment letter, and ASC appointment notice.  

The interview itself is often quite brief. Applicants are issued a ticket and sit in a waiting area to be called to a numbered window where they meet with an officer.

At the end of the process you will designate the  DHL location where you want the visa package delivered, and this can take a number of days.

An important reminder: the plaza outside the consulate and clinic is full of fraudsters and con artists pretending to work for either agency. They aggressively approach applicants, sometimes wearing counterfeit badges, and try to sell services or "arrange" people's papers for them for expedited processing. Avoid these people at all costs since they could damage your case or at least steal your money. No actual employee of the consulate or the medical clinic will ever operate in the outdoors. Please do not fall victim to these scams. Equally important, seek a legitimate hotel in the vicinity of the consulate since there are also reports of scams associated with questionable accommodations.

Same-sex couples are entitled to all of the same rights and privileges as opposite-sex couples under immigration law. However, they may face special challenges when seeking a provisional waiver to excuse the alien spouse's unlawful presence in the United States. With some important exceptions, aliens who entered the United States without inspection must apply for permanent residency through an interview in their home country. These people will face a 3- or 10-year bar against returning once departed unless they are granted a waiver to excuse the time spent in the U.S. unlawfully. The provisional waiver is a remedy that can be applied for before departure and is based on extreme hardship to the U.S. spouse.

This hardship can take many forms, but for many victorious couples the core of their argument lies in the children they are raising together. Couples with children are also more likely to earn income unequally, and a stay-at-home parent has a powerful argument in the loss of income that would attend the breadwinner's removal. Statistically, a same-sex couple is less likely to have children and therefore less likely to have these arguments available.

Also, opposite-sex couples routinely invoke the support of family members and the strength of their ties. Tragically, many LGBT individuals have family members who reject their marriage or have even shunned them altogether. 

Same-sex couples must focus their attention on their own unique characteristics. Does the U.S. spouse have a history of abuse, bullying, social isolation, family rejection? That can be an extreme hardship that would be exacerbated by the thwarting of a love that has been criminalized and vilified for centuries. Is the home country of the foreign spouse dangerous for LGBT persons? Will it recognize their marriage? The progress in LGBT rights in Mexico and other Latin American countries has had the unfortunate side effect of weakening such arguments, but advocates must make clear that rights in the legislature and courtroom do not always translate to rights or even physical safety out on the streets.

Yes, the provisional waiver is available to same-sex couples, but the strategy must be tailored to a slightly different fit.