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Will i be interviewed for the removal of conditions on my green card (I-751)?

4/10/2019

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A new policy enacted by U.S. Citizenship and Immigration Services on November 30, 2018 has made it substantially more likely that those seeking to remove the conditions on their permanent residence will have to attend an interview together with their U.S. spouse.

The Removal of Conditions is a step that applies only to those who gained permanent residence through marriage to a U.S. citizen or Lawful Permanent Resident where the marriage was less than two years old on the date of acquiring Permanent Residence. It effectively upgrades the Permanent Resident Card from a 2-year card to a 10-year card and converts the holder from a Conditional Lawful Permanent Resident to a Lawful Permanent Resident. Those who gained Permanent Residence other than through a marriage petition and those who were already married more than two years when they gained Permanent Residence do not have to engage with this process at all. For those who must, however, the Form I-751 and supporting documents must be filed no later than the second anniversary of their acquiring their Permanent Resident status. Those who fail to file are placed in removal proceedings.

In the past, it was quite rare for an interview to be part of this process. Most cases were decided based on the documents submitted by mail. In the November 30, 2018 policy memo, however, USCIS greatly changed its guidance to officers on this subject. Whereas before guidance stated that interviews were only needed under certain circumstances, the policy now states that interviews should be held unless certain conditions are met. One notable rule is that for any I-751 case received on or after December 10, 2018, USCIS must hold an interview if it has never before interviewed the principal petitioner. This would almost always be the case where the green card was obtained abroad through a consular interview since petitioners are normally not interviewed during that process. It would also often be the case where a petitioner was a parent or son or daughter of the applicant since interviews for such petitioners are often waived during the initial adjustment of status process.

Another notable difference is that whereas the old policy called for an interview where there is "evidence" of fraud or misrepresentation, the new policy calls for an interview merely where there are "indications" of fraud or misrepresentation. Though we don't know the precise significance of the change, it could mean for example that an age difference or a country of origin that is known to have a rate of marriage fraud could count as fraud "indications" requiring an interview even though there is no specific "evidence" that fraud occurred in this particular marriage.

In short, the answer to this question has shifted from "probably not" to "probably." If you are called for an interview, you have the right to bring an attorney with you. Doing so will help ensure appropriate conduct from the interviewing officer and make easier any necessary appeal or complaint since your attorney will have been a firsthand witness of whatever went wrong.

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Can having daca lead to permanent residence?

1/21/2019

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When Deferred Action for Childhood Arrivals (or "DACA") was created in 2012, it was never intended to create a path to permanent residence. Many holders of DACA have no path to permanent residence immediately available, and some may never have one. It is for this reason that there is so much political debate about the future for DACA holders.

At the same time, it has always been true that some DACA holders have or will have a path to permanent residence that has nothing to do with DACA itself. A foreign national who is married to a U.S. citizen, and whose most recent entry to the United States was with a valid visa (or through the Visa Waiver Program), can usually apply for a family-based green card (assuming no other obstacles or issues). The same is true of foreign nationals who are parents of U.S. citizens of age 21 years or over and who entered with a valid visa or through the Visa Waiver Program. Of course, they must consult carefully with a qualified attorney to see if events or circumstances in their particular case might pose special problems.

But for those who entered the United States illegally, DACA has indirectly and perhaps even unintentionally created two routes to permanent residence that will benefit some foreign nationals who are beneficiaries of approved family petitions.

First, most beneficiaries of family petitions who entered the United States illegally are required to complete their immigration interview outside the United States and face a 3- or 10-year bar against returning once they leave. The bar is triggered for anyone who accumulates more than 180 days of "unlawful presence" and then departs the country, which is obviously a huge portion of applicants. Those who can show extreme hardship to a U.S. citizen or Lawful Permanent Resident spouse or parent can apply for a waiver that will cancel the bar. Hardship to one's children or one's self is not counted. Such waivers can be difficult to win, costly, and long in adjudication. The good news is that "unlawful presence" days are not counted before an applicant's 18th birthday, nor during the time that an applicant holds DACA. This means that an applicant who has held DACA continuously since before turning 18 years and 181 days old will not have enough "unlawful presence" to trigger the 3- or 10-year bar. Such applicants who entered the U.S. illegally will still be required to complete their interview outside the country, but they will no longer need a waiver. This is an enormous advantage given the difficulty of gaining a waiver, but let a qualified attorney determine whether it applies to you.

Secondly, DACA provided a method by which a DACA holder could apply for travel authorization, an opportunity that no longer exists but that many took advantage of while they could. Anyone who departed and returned using a validly issued travel authorization can now say that their last entry was not "illegal" and will not need to interview outside the U.S. or require a waiver at all. These fortunate applicants can apply for permanent residence as the beneficiary of their U.S. citizen spouse or over-21-year-old child locally and complete their whole process without leaving the United States. This process could be complicated if the applicant has a history with the immigration court or has been in removal or deportation proceedings, and departing the U.S. is a risk that should never be taken without consulting with a qualified attorney. If you have previously traveled with authorization (or if a now-pending lawsuit brings back travel authorization) consult with an attorney to decide if travel is safe for you and could help in your situation.

The bottom line is that nobody yet knows whether DACA will lead directly to a path to permanent residence. But even if it does not, it may still be of use to some. Therefore, one thing known clearly is that anyone with DACA should strive to maintain it without interruption. Anyone who lost DACA or let it lapse should do everything possible to reacquire it. Any benefits that may proceed from holding DACA will obviously be difficult or impossible to attain if your status lapses.

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How have the public charge requirements changed in 2018?

7/24/2018

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Recent changes from the U.S. Department of State present new challenges for those immigrating from at a U.S. Consulate abroad for a green card.

For many years, an intending immigrant has been required to prove that he or she will not be a "public charge" upon arrival to the United States. In other words, the immigrant will not become dependent on public benefits and become a burden to society due to inability to work or be supported by family. In the past, this was showing was a routine matter, accomplished by the petitioner or a third-party sponsor signing an "Affidavit of Support" and showing a certain threshold amount of income. In all but unusual circumstances, the signing of this Affidavit of Support and accompanying proof of income was sufficient to satisfy this requirement.

Now, however, the Affidavit of Support is to become just one element under examination in a broader inquiry. Officers are instructed to consider the applicant's work history, age, health, and education, as well as to question the relationship between the sponsor and the applicant with the aim of judging whether the sponsor is really likely to comply with these obligations or is just signing the paper as a gesture. This latter part is particularly absurd since the document is a legally binding contract and signed under penalty of perjury, not to mention that an officer at a consulate abroad is no way to equipped to judge whether a sponsor will or will not take the obligations seriously.

The result, however, is that cases must now be approached with much more caution, especially where an elderly parent who is beyond working age is the party immigrating. The sponsoring family member must be prepared to show exactly how they will handle health coverage for an immigrant who will not be working. If the immigrant will be working, it may be necessary to convince the officer through evidence of recent employment, job skills, licensing, and education. Any deficiencies in these regards will require an explanation. Sponsors who are not family members should be prepared to explain the basis of their attachment to the immigrant and document well their ongoing, present income.

The policy is still too new to say how rigorously it is being applied and with what effects. It is especially troublesome for anyone who is already in the United States but will be travelling abroad after winning an unlawful presence waiver (I-601A) based on hardship to the U.S. spouse. After all, if the spouse is suffering hardships, this may create doubt in the officer as to how the immigrant will be supported.

This new policy does not -- at this time -- apply to interviews occurring in the United States (the Adjustment of Status process).

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Why Do I need an Immigration Attorney?

7/16/2018

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One of the most common questions an immigration attorney faces is why an applicant needs an attorney in the first place. Usually this is followed by some variation of, "It's just filling out forms, isn't it?"

Before one can even decide how to fill out the forms, an analysis must be made of an applicant's eligibility and of risk factors. Applying for something one doesn't qualify for can be the fastest way to get deported. Representing oneself as qualifying for a benefit that one doesn't qualify for can lead to a charge of fraud and possibly a permanent bar to immigrating. Immigration law is as bizarre as it is complex and ever-changing. The factors that determine eligibility or that can cause a problem often seem completely innocent in themselves, and a non-professional would never think twice about them. The year you were born, the year you entered the U.S., the number of times you entered, the way you entered, what was said at entry, the timing between entry and marriage, actions prior to entry, the country of origin, the state of current residence,  previous applications filed by or for one's parents -- all these are things that can make a tremendous difference in how and whether a green card will be granted.

Last month alone, we met a woman whose friend had tried to help her file following the steps that had worked for her. As a result, the case was scheduled for a domestic interview when she was required to interview for abroad, and when she showed up to the interview in Los Angeles she was arrested. We also met a man who applied for citizenship not realizing that by divorcing his wife and remarrying a friend from his home country so soon after gaining residency he was flagging himself for a fraud investigation and ended up in removal proceedings instead of becoming a citizen. Another young man who has lived here since the age of 2 filed papers without realizing that his parents had made multiple misrepresentations on papers they filed for him during his childhood, all of which were charged against him when he tried to file for himself.

With the stakes so high, it is imperative that an applicant's entire history and profile be analyzed before determining a course of action.

Even once the proper process has been selected, the forms involve far more than lists of addresses and jobs. They contain many questions that require legal interpretation, some of which have ambiguous meanings and are the subject of ongoing lawsuits. Do you know if using the Driver's License of a U.S. citizen to buy alcohol count as a false claim to citizenship? Do you know if presentation of a counterfeit visitor's visa counts as an entry with inspection? When did your periods of unlawful presence as defined in INA 212(a)(9)(B) begin and end, and should your answer be affected by the amended decision in Carrillo de Palacios v. Holder? An answer based on "common sense" may be completely wrong and result in a finding of inadmissibility for fraud or a delay of years.

Even before our current climate of anti-immigration, USCIS was at best a convoluted and over-burdened bureaucracy with its own quirks and unstated rules. Only someone who routinely files dozens of applications in a month will know these unstated rules, the practices that while correct will be misunderstood, and the ways to make sure routinely missed factors are properly noticed. A simple oversight usually costs several months in delays. USCIS usually only gives one chance to respond to a request and then denies the case, requiring repayment of the whole filing fee -- and under new guidance announced in July 2018 --- often leading to an automatic commencement of removal proceedings.

Finally, USCIS is not the agency it was a few years ago. No longer a customer-service based organization (they even took those words out of their mission statement recently) they are now operating under an imperative to impede and even reverse the granting of immigration benefits, looking for any ground on which to deny a case and even routinely claiming that a document is missing when it is not. Many feel this is a deliberate tactic to frustrate and discourage potential applicants. Considering all that is at stake for the immigrant, it is nothing short of madness to walk into an encounter with a government official trusting that he has your best interests at heart and will treat you in a fair and legally proper manner. The government has nearly inexhaustible resources to investigate you and throw up legal challenges to the benefit you are seeking. They have thousands of attorneys working for them. You need one too.

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What is the USCIS Medical Exam Like?

5/19/2018

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Almost all applicants for Permanent Residence must take and pass a medical exam administered by a U.S. Civil Surgeon, which is just a physician who has been approved by USCIS for these purposes. You must ensure that the physician you use is approved by USCIS. The exam consists principally of tests for tuberculosis, syphilis, and gonorrhea, blood and urine tests, vaccinations where necessary, and a few other screenings. Results are given in a sealed envelope, but you should insist on receiving an open copy as well so that you or your attorney can review for errors in filling out the form that may cause substantial delays with your case. The forms are poorly designed, and so errors by the medical staff are not uncommon. Sometimes, conditions irrelevant to medical eligibility such as pregnancy are erroneously listed as serious health conditions that imply a need for long-term institutionalization or incapacity. It is best to catch these before submitting the results to USCIS.

Medical exams conducted outside the United States for those who are consular processing abroad are even more problematic. Staff at these facilities may aggressively question applicants about past alcohol or substance abuse, even in the far past, attempting to elicit a "confession" that can render an applicant temporarily or permanently inadmissible. Some reports state that even an admission to casual use of alcohol has led to the requirement of lengthy alcohol "counseling" before a visa can be issued. There is also an extensive inquiry into any tattoos that applicant may have as staff attempt to determine whether they represent gang affiliation. If you have any potential issues concerning alcohol, controlled substances, or tattoos you should speak in depth with an attorney to assess whether you can safely navigate this process and how best to handle any questions truthfully without creating unnecessary problems.

If you have objections to vaccines, discuss this with your attorney before advancing too far in this process. Although the law provides for religious exemptions they are difficult to obtain and require proof of a sincerely held religious belief. Objections not based on religion carry no weight at all. Pregnant applicants should also discuss the implications with their attorney to see how vaccinations and chest x-rays will be handled and whether it is best to proceed with the exam while pregnant or to wait.

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Will being in the military help my family immigrate?

1/8/2018

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In most cases, a person who entered the United States without inspection (i.e., without presenting documents to an official) cannot obtain a green card without leaving the country which runs the risk of a 10-year bar against returning). A grant of Parole in Place allows an applicant to seek a green card without departing the United States, which is safer, more convenient, and can be done with greater legal protections.
The application is discretionary, meaning that approval is not automatic. The Department will look at hardship to the military servicemember and the applicant’s history of good conduct in the community.

After being granted Parole in Place, the applicant will get work authorization but must still fulfill all other requirements for a green card. Among other requirements, a green card will only be immediately available if the applicant is the Immediate Relative of a U.S. citizen. An Immediate Relative is a spouse, a child under 21 years of age, or a parent where the child-citizen is 21 years of age or over. Those in other categories (adult or married sons/daughters of U.S. citizens, siblings of U.S. citizens, and spouses or children of lawful permanent residents (LPRs)) will usually not qualify for a green card because they are required to have never fallen out of lawful immigration status. This is a restriction that does not apply to immediate relatives as listed above.

Be aware that the future of the Parole in Place program is in question under the current presidential administration. Be sure to get the most current information before pursuing this option.

To determine whether your current or former military status could make a difference in the immigration status of your family members, always consult first with a licensed attorney experienced in immigration.


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Can Temporary Protected Status Lead to A Green Card?

3/31/2017

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Today, March 31, 2017, the Ninth Circuit Court of Appeals held that individuals who have been granted TPS (Temporary Protected Status) are considered to have been lawfully inspected and admitted to the United States. This decision is of enormous importance because lawful inspection and admission is what usually determines whether a person can obtain permanent residence through a family member without first departing the country. Thousands of TPS-holders who were unable to seek permanent residence because they would have been required to depart the U.S. first and did not qualify for a waiver allowing them to return will now have a path to their green card that did not exist before. In making this decision, the Ninth Circuit comes into agreement with the United States District Court for the Western District of Washington and the Sixth Circuit courts of Appeals and extends this opportunity to those residing in the states of Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington. Would-be applicants must still otherwise qualify for adjustment of status. Consideration of the entire immigration history is necessary to determine eligibility.

One word of caution: this decision was issued by a panel of the Ninth Circuit Court. It is possible that the Court could be petitioned to re-hear the case before all the judges together (en banc) which could lead to this decision being reversed. For now, however, the decision is the law. If you hold TPS and live in one of those states, speak with an immigration attorney right away to determine the possibilities in your case.

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What is the Permanent Bar?

1/10/2017

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What is the new expanded provisional waiver rule?

7/29/2016

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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.



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Am I Protected by the 245(i) law if i divorce?

7/13/2016

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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.​

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