Vakhtang Pruidze v. Eric H. Holder, Jr., United States Attorney General

Immigration, United States Immigration | Posted by Herman Dhade
Oct 23 2011

Our firm successfully argued this landmark case in the United States Court of Appeals for the Sixth Circuit.  This case was an individual who was ordered removed from the United States due to a conviction.  Subsequently, that conviction was vacated. Since the underlying basis for the removal order was vacated, the Court of Appeals held that the individual may still file a motion to reopen even though he is not in the United States.  Full text of the decision is below.

 

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RECOMMENDED FOR FULL-TEXT PUBLICATIONPursuant to Sixth Circuit Rule 206

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

VAKHTANG PRUIDZE, Petitioner

v.

Eric H. Holder Jr., United States Attorney General, Respondent

No. 09-3836

On Petition for Review of an Order of the Board of Immigration Appeals.No. A077 434 982.Argued: October 18, 2010

Decided and Filed: February 3, 2011

Before: BOGGS, MOORE, and SUTTON, Circuit Judges.

COUNSEL

ARGUED:  Herman S. Dhade, DHADE & ASSOCIATES, Farmington Hills, Michigan, for Petitioner.  Jessica Segall, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.  Trina Realmuto, NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD, Boston, Massachusetts, for Amici Curiae.  ON BRIEF:  Marshal E. Hyman, Russell Reid Abrutyn, MARSHAL E. HYMAN & ASSOCIATES, PC, Troy, Michigan, for Petitioner.  Anthony J. Messuri, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. Trina Realmuto, NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD, Boston, Massachusetts, Beth Werlin, AMERICAN IMMIGRATION COUNCIL, Washington, D.C., for Amici Curiae.

OPINION

SUTTON, Circuit Judge.  The Board of Immigration Appeals interprets a

regulation promulgated by the Attorney General to provide that the Board lacks

1

jurisdiction to review a motion to reopen once an alien leaves the United States, whether voluntarily or involuntarily. Yet the statute that empowers the Board to consider motions to reopen says nothing about jurisdictional limitations of any kind, let alone this kind. Because this regulatory interpretation has no roots in any statutory source and misapprehends the authority delegated to the Board by Congress, the Board’s order disclaiming power to consider the motion to reopen filed by Vakhtang Pruidze must be vacated.

I.

In July 2004, Pruidze, then a green-card holder, returned to the United States and applied for admission as a lawful permanent resident alien.  The Department of Homeland Security denied his application for admission, explaining that Pruidze’s state conviction for a controlled-substance crime made him inadmissible.  After a merits hearing, an immigration judge found Pruidze removable and denied his application for withholding of removal.  The Board affirmed the immigration judge’s decision without opinion, and this court denied Pruidze’s petition for review.

On April 6, 2009, the Department issued a warrant for Pruidze’s removal and removed him on April 29.  Six days later, Pruidze moved the state court to reopen his criminal proceedings because he had entered his guilty plea without counsel.  On May 12, 2009, the state court set aside Pruidze’s conviction and redocketed the case.

On May 29, 2009, Pruidze moved the Board to reopen his removal proceedings based on the state court’s decision to set aside the conviction.  The Board denied his motion, reasoning that, because Pruidze was no longer in the United States, it did not have “jurisdiction” to hear Pruidze’s motion. The Board relied on Matter of Armendarez-Mendez, 24 I. & N. Dec. 646 (B.I.A. 2008), which held that the “departure bar,” 8 C.F.R. § 1003.2(d), divested the Board of “jurisdiction” to entertain motions to reopen filed by aliens who are abroad. The departure bar says that “[a] motion to reopen . . . shall not be made by . . . a person who is the subject of exclusion, deportation, or removal proceedings subsequent to his or her departure from the United States.”  Id.

II.

Pruidze’s petition for review raises one question:  Does the Board of Immigration Appeals lack jurisdiction to consider an alien’s motion to reopen once the alien is no longer in the United States? The answer is no.

A.

Some background is in order.  In 1940, Congress put the Attorney General in charge of immigration matters, giving the office the authority “to make and prescribe, and from time to time to change and amend, such rules and regulations not in conflict with this Act as he may deem necessary and proper in aid of the administration and enforcement of this title.”  Pub. L. No. 76-670, 54 Stat. 675, 675, § 37(a) (1940). That same year, the Attorney General established the Board of Immigration Appeals. Regulations Governing Departmental Organization and Authority, 5 Fed. Reg. 3502, 3503 (Sept. 4, 1940) (codified at 8 C.F.R. § 90.2).  By regulation, the Board may entertain immigration-related motions on behalf of the Attorney General subject to limitations that the Attorney General places on that authority.  Id. at 3504 (codified at 8 C.F.R. § 90.9 (1941)). In 1952, the Attorney General promulgated the “departure bar,” a regulation barring the Board from reviewing a motion to reopen filed by a person who has left the United States.  17 Fed. Reg. 11469, 11475 (Dec. 19, 1952) (codified at 8

C.F.R. § 6.2 (1953)). Then, not unlike today, the regulation read:

A motion to reopen or a motion to reconsider [before the Board] shall not be made by or in behalf of a person who is the subject of deportation proceedings subsequent to his departure from the United States.  Any departure of such person from the United States occurring after the making of a motion to reopen or a motion to reconsider shall constitute a withdrawal of such motion.

Id.  Early on, the Board construed the departure bar as a limitation on the agency’s “jurisdiction.” Matter of G-Y-B, 6 I. & N. Dec. 159, 159–60 (B.I.A. 1954). The substance of the departure bar has not changed, although the Attorney General has redesignated it several times.  See 27 Fed. Reg. 96, 96–97 (Jan. 5, 1962) (codified at 8

C.F.R. § 3.2 (1962)); 61 Fed. Reg. 18900, 18905 (Apr. 29, 1996) (codified at 8 C.F.R.

§ 3.2(d) (1997)); 68 Fed. Reg. 9824, 9830 (Feb. 28, 2003) (codified at 8 C.F.R. § 1003.2(d)).

While continuity has marked the regulation, change has marked the statutory backdrop to it. In 1961, Congress created a statutory counterpart to the Board’s departure bar for judicial review of immigration decisions, establishing that federal courts could not review deportation and exclusion orders if the aliens left the country after the agency issued the contested orders.  Act of Sept. 26, 1961, Pub. L. No. 87-301, § 5(a), 75 Stat. 650, 651–53 (1961) (codified at 8 U.S.C. § 1105a(c) (1962)) (“An order of deportation or of exclusion shall not be reviewed by any court if the alien . . . has departed from the United States. . . .”).

In 1996, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act, overhauling immigration law in many respects.  Pub. L. No. 104¬208, div. C, 110 Stat. 3009, 3009-546 (Sept. 30, 1996). Of import here, Congress

•             codified the right to file a motion to reopen, IIRIRA § 304(a)(3) (codified at 8 U.S.C. § 1229a(c)(6) (1997)) (recodified as § 1229a(c)(7) in 2005 without substantive changes, see REAL ID Act of 2005, Pub. L. No. 109¬13, div. B, § 101(d), 119 Stat. 231, 304 (May 11, 2005));

•             repealed the statutory departure bar to judicial review, IIRIRA § 306(b); and

•             adopted a 90-day period for the government to deport a person ordered removed, IIRIRA § 305(a)(3) (codified at 8 U.S.C. §  1231(a)(1)), and a 60- or 120-day limit for voluntary departures, IIRIRA § 304(a)(3) (codified at 8 U.S.C. §§ 1229c(a)(2)(A), (b)(2)).

In implementing the Act, the Attorney General promulgated several additional regulations. Inspection and Expedited Removal of Aliens; Detention and Removal of Aliens; Conduct of Removal Proceedings; Asylum Procedures, 62 Fed. Reg. 10312 (Mar. 6, 1997). Among other regulatory considerations, the Attorney General, after a notice and comment period, concluded that the Act did not repeal the departure bar and opted to maintain the bar on motions to reopen and motions for reconsideration.  Id. at 10321, 10331.

In 2000, Congress made additional revisions to the statute governing motions to reopen. See Violence Against Women Act of 2000, Pub. L. No. 106-386, div. B, § 1506(c), 114 Stat. 1464, 1528 (codified at 8 U.S.C. § 1229a(c)(6)(C)(iv) (2000)).  In an effort to aid victims of domestic violence, Congress exempted some alien victims from the deadlines on motions to reopen.  8 U.S.C. § 1229a(c)(6)(C)(iv) (2000). In 2005, Congress added a qualifying requirement to the exemption:  the alien victim must be “physically present in the United States at the time of filing the motion.”  See Violence Against Women and Department of Justice Reauthorization Act of 2005, Pub.

L. No. 109-162, § 825(a)(2)(F), 119 Stat. 2960, 3063–64 (Jan. 5, 2006) (codified at 8

U.S.C. § 1229a(c)(7)(C)(iv)(IV)).

In 2008, the Board addressed these revisions in Matter of Armendarez-Mendez. It concluded that none of the statutory revisions repealed 8 C.F.R.§ 1003.2(d), “that the departure bar rule remains in full effect” and that it continues to impose a “jurisdictional” bar on the Board’s authority. 24 I. & N. Dec. 646, 660.

B.

In reviewing an administrative action that turns on the meaning of a federal statute that Congress has empowered the agency to interpret, we generally give the agency wide berth in construing the provision.  Unless the statute’s terms “directly address[] the precise question at issue,” we defer to the agency’s “reasonable” interpretation of the provision. Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843–44 (1984). There is some question whether Chevron applies to disputes about the scope of an agency’s jurisdiction.  Although the Supreme Court has invoked Chevron in resolving some disputes over an agency’s jurisdiction, see, e.g., Food & Drug Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000); Commodity Futures Trading Comm’n v. Schor, 478 U.S. 833 (1986), it has not mentioned Chevron in seemingly similar disputes, see Union Pac. R.R. v. Bhd. of Locomotive Eng’rs, __ U.S. __, 130 S. Ct. 584 (2009); Miss. Power & Light Co. v. Miss. ex rel. Moore, 487 U.S. 354 (1988), and, so far as we can tell, has yet to resolve the debate that Justice Scalia and Justice Brennan first waged over the point in 1988.  See Miss. Power & Light, 487 U.S. at 382–83 (Scalia, J., concurring in the judgment) (Chevron applies); id. at 386–87 (Brennan, J., dissenting) (Chevron does not apply). Our circuit has not taken a position on the issue, see Bush & Burchett, Inc. v. Reich, 117 F.3d 932, 936 (6th Cir. 1997), and as of 2009 two scholars agreed that “[t]he Supreme Court has yet to resolve whether Chevron deference should apply when an agency is interpreting the reach of its own jurisdiction.” Nathan Alexander Sales & Jonathan H. Adler, The Rest Is Silence: Chevron Deference, Agency Jurisdiction, and Statutory Silences, 2009 U. Ill. L. Rev. 1497, 1500. Today is not the day to stake out a position on the point because the issue does not affect the outcome of this case.  Pruidze wins either way for two basic reasons.

First, no statute gives the Board purchase for disclaiming jurisdiction to entertain a motion to reopen filed by aliens who have left the country.  The most relevant statute, adopted in the 1996 Immigration Act, offers nothing to support such an interpretation of the regulation. “An alien,” it says, “may file one motion to reopen proceedings under this section, except that this limitation shall not apply so as to prevent the filing of one motion to reopen described in subparagraph (C)(iv).”  8 U.S.C. § 1229a(c)(7)(A). This is an empowering, not a divesting, provision, as it grants the Board authority to entertain a motion to reopen.  Even the limitations contained in the provision—permitting the alien to file just one motion and excepting alien victims of domestic violence from this limitation, id. §§ 1229a(c)(7)(A), 1229a(c)(7)(C)(iv)—do not purport to be jurisdictional. The definition of “alien”—“any person not a citizen or national of the United States,” 8 U.S.C. § 1101(a)(3)—also provides no basis for saying that the Board lacks jurisdiction over certain types of motions to reopen.

The only other clue provided by the 1996 Immigration Act is that Congress repealed the one statutory departure bar then in existence, the one applicable to judicial review. Pub. L. No. 104-208, div. C, § 306(b), 110 Stat. 3009, 3009-612.  Even if an alien’s departure from the United States had legal significance at one point in time under the statutory scheme, the repeal of this departure bar in 1996 eliminates that potential handhold for the Board’s interpretation. Not one of the relevant statutory provisions, then, gives the Board authority “to decline the exercise of jurisdiction which is given.” Union Pac., 130 S. Ct. at 590 (quoting Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 404 (1821)).

Second, even if doubt lingered about the Board’s authority to interpret the regulation as jurisdictional, a recent line of Supreme Court decisions removes it.  Over the last decade or so, the Court has been vigilant in clarifying the distinction between jurisdictional requirements on the one hand and claim-processing and other mandatory rules on the other. See, e.g., Reed Elsevier, Inc. v. Muchnick, __ U.S. __, 130 S. Ct. 1237 (2010); Union Pac., 130 S. Ct. 584; Bowles v. Russell, 551 U.S. 205 (2007); Arbaugh v. Y & H Corp., 546 U.S. 500, 510 (2006); Kontrick v. Ryan, 540 U.S. 443 (2004); Steel Co. v. Citizens for Better Env’t, 523 U.S. 83, 90 (1998). Not all mandatory requirements, these decisions make clear, establish jurisdictional prerequisites.

Nothing in the statutory scheme suggests that the Board lacks jurisdiction—the legal power or adjudicative competence, see Reed Elsevier, 130 S. Ct. at 1243—to issue decisions that affect the legal rights of aliens abroad.  Whether the regulation itself—essentially a mandatory claim-processing rule to the effect that the Board categorically will reject motions to reopen filed by aliens who have left the country or will always treat such motions as withdrawn upon the alien’s departure—is valid is a different matter, one that has divided the lower courts, compare Coyt v. Holder, 593 F.3d 902 (9th Cir. 2010), and Contreras-Bocanegra v. Holder, __ F.3d __, 2010 WL 5209228 (10th Cir. 2010), with William v. Gonzales, 499 F.3d 329 (4th Cir. 2007), and one on which this court has taken a partial position, see Madrigal v. Holder, 572 F.3d 239 (6th Cir. 2009) (holding that the departure bar does not apply to the involuntary removal of aliens). What matters here is that the Board has assumed authority to interpret the regulation as a jurisdictional rule, not a mandatory rule, and we cannot ignore the difference between the two. “As a rule about subject-matter jurisdiction,” the departure bar “is untenable.” Marin-Rodriguez v. Holder, 612 F.3d 591, 593 (7th Cir. 2010).

Union Pacific R.R. v. Brotherhood of Locomotive Engineers, 130 S. Ct. 584, shows why. Congress delegated authority to the National Railroad Adjustment Board over “all disputes,” 45 U.S.C. § 152 First, between carriers and their employees, 45

U.S.C. § 153(h) First, (i). The Adjustment Board promulgated a regulation saying that “No petition shall be considered . . . unless the subject matter has been handled in accordance with the provisions of the [statute].” 29 C.F.R. § 301.2(b).  One of those provisions required the parties to conference before submitting a dispute to the Adjustment Board for arbitration, 29 C.F.R. pt. 301 (2009); 45 U.S.C. § 152, and the Adjustment Board construed the requirement as a jurisdictional prerequisite. 130 S. Ct. at 593–94. After explaining that legal rules can be mandatory without being jurisdictional, the Court held that the Adjustment Board could not curtail its own jurisdiction in this manner.  Id. at 596–98. Nothing in the statute, the Court reasoned, linked this conferencing requirement with the Adjustment Board’s powers, and no statute authorized the Board to create jurisdictional rules. Id.

Union Pacific proves Pruidze’s point. The statute in Union Pacific vested the agency with broad authority over “all disputes,” which the agency nonetheless declined to exercise. Union Pac., 130 S. Ct. at 597 (emphasis added); see 45 U.S.C. § 153(h) First. Just so here: Congress empowered the Board to consider motions to reopen filed by “any person not a citizen or national of the United States.”  8 U.S.C. § 1101(a)(3) (emphasis added); see also id. § 1229a(c)(7)(A). Yet, as in Union Pacific, the Board of Immigration Appeals construed one of its legal rules as jurisdictional.  See 8 C.F.R. § 1003.2(d); see also 29 C.F.R. § 301.2(b); Matter of Armendarez-Mendez, 24 I. & N. Dec. 646. The Board of Immigration Appeals, just like the National Railroad Adjustment Board, cannot point to any statute indicating, or even suggesting, that the relevant requirement—the physical-presence requirement in one instance, the conferencing one in the other—is jurisdictional.  On this statutory slate, the agency may not disclaim jurisdiction to handle a motion to reopen that Congress empowered it to resolve. See Union Pac., 130 S. Ct. at 596.

Even the Board does not buy everything it is trying to sell. In Matter of Bulnes-Nolasco, 25 I. & N. Dec. 57 (B.I.A. 2009), the Board held that it could take action with respect to a motion to reopen filed by an alien who has left the United States if the alien claims not to have received notice of the warrant of removal. Id. at 58–60. Yet if the Board lacks the “adjudicatory authority,” Reed Elsevier, 130 S. Ct. at 1243, to hear motions to reopen filed by aliens who are abroad, it follows that it lacks jurisdiction to hear a subset of those motions.  See Marin-Rodriguez, 612 F.3d at 595. Bulnes-Nolasco suggests that the departure bar does not deprive the Board of jurisdiction to handle all matters relating to removed aliens, which is the explanation the Board gave for declining to hear Pruidze’s motion to reopen.  And the reasons the Board gave for its decision are what we must review.  See Sec. & Exch. Comm’n v. Chenery Corp., 332 U.S. 194, 196–97 (1947).

No doubt, the agency is not required—by statute or by this decision—to grant Pruidze’s motion to reopen.  But it is required—by both—to consider it.  When the Board reconsiders Pruidze’s motion to reopen, it has authority to determine whether the motion is untimely and, if so, whether the departure bar limits the Board’s ability to grant Pruidze relief. Cf. Zhang v. Holder, 617 F.3d 650 (2d Cir. 2010) (examining validity of departure bar as applied to Board’s sua sponte authority to grant motions to reopen). If, on the other hand, the Board finds that Pruidze’s motion is not time-barred, it may wish to consider whether the departure bar is a mandatory rule.  Cf. Madrigal, 572 F.3d at 245–46. These are all things the Board may do, but because we review what the Board did do—improperly deny Pruidze’s motion on the invalid ground that it does not have jurisdiction over motions to reopen filed by aliens abroad—they are questions for another day. See Chenery, 332 U.S. at 196–97.

Perhaps, one might say, we have stretched the analogy to Union Pacific. While Congress gave the Adjustment Board power to “adopt such rules as it deems necessary to control proceedings,” 45 U.S.C. § 153 First (v) (2006), it gave the Attorney General power to “establish such regulations, . . . review such administrative determinations in immigration proceedings, delegate such authority, and perform such other acts as the Attorney General determines to be necessary for carrying out this section.”  8 U.S.C. § 1103(g)(2). The latter delegation of authority, we acknowledge, is broader than the former.  But that reality misses the larger point, the one dispositive here—that an agency cannot contract its power to hear claims that fall plainly within its statutory jurisdiction. See Union Pac., 130 S. Ct. at 596–98; Arbaugh, 546 U.S. at 510, 514.

The Attorney General adds that, under Chevron, we must defer to its interpretation of § 1229a(c)(7) because the provision is silent—or at least ambiguous—on whether an alien abroad may file a motion to reopen.  See 467 U.S. at 843–44. But the Board cannot clear the first step of Chevron because the Court has drawn a line between mandatory rules and claim-processing rules on the one side and jurisdictional ones on the other. Union Pac., 130 S. Ct. at 596. Whatever powers of interpretation Chevron gives agencies, it does not allow them to alchemize the authority to pass a mandatory rule into the authority to pass a jurisdictional one.  We defer to an agency’s efforts to fill statutory gaps, not to create them, and in this instance Congress left no gap to fill when it empowered the agency to consider all motions to reopen filed by an alien, not just those filed by aliens who remain in the United States up to the time of decision. 8 U.S.C. § 1229a(c)(7)(A). The Attorney General may be right that there is “silence” in the statutory scheme.  But the relevant silence goes to the alleged authority to disclaim jurisdiction over motions to reopen in the face of clear language giving the Board jurisdiction over all motions to reopen.  That is not the kind of silence that aids an agency.

The Attorney General takes a different tack in leaning on Commodity Futures Trading Commission v. Schor, 478 U.S. 833. “[W]hen Congress revisits a statute giving rise to a longstanding administrative interpretation without pertinent change,” Schor says that “the congressional failure to revise or repeal the agency’s interpretation is persuasive evidence that the interpretation is the one intended by Congress.” Id. at 846. Yet when Congress enacted the 1996 Immigration Act, there was no statutory provision to “revisit.”  Until then, Congress had not spoken about motions to reopen and thus it had said nothing that could give rise to an agency interpretation that Congress could codify. The Attorney General had adopted the departure bar in accordance with his then-unlimited authority over motions to reopen, see 17 Fed. Reg. 11469, 11475 (Dec. 19, 1952) (codified at 8 C.F.R. § 6.2 (1953)), and Congress created a statutory right to file a motion to reopen for the first time in 1996.  No less importantly, the Schor presumption is just that, a presumption, and the Board can point to nothing in positive law suggesting that the Board does not have the power to consider motions to reopen in this setting. See Union Pac., 130 S. Ct. at 596.

III.

We vacate the Board’s order and remand the case to the agency for further proceedings.

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Proving Non-immigrant Intent

Immigration, United States Immigration | Posted by Herman Dhade
Oct 23 2011

Proving Nonimmigrant Intent

Two principal visa categories exist. The first, are those visas that fall within the “Immigrant Visa” category. Immigrant visas are available to those seeking to permanently remain in the U.S. The second category, referred to as “Nonimmigrant Visas,” is a viable option for those seeking to visit the U.S. on a temporary basis.
Nonimmigrant Visas
Applying for a nonimmigrant visa is an avenue to temporarily remain in the U.S. for those desiring to travel to the U.S. to visit the various tourist destinations, to conduct business in the U.S., receive medical treatment in the U.S., or engage in temporary work in the U.S. See http://travel.state.gov/visa/temp/temp_1305.html

B-1/B-2 Nonimmigrant Visa

One common visa category, B-1/B-2, visitor for business or pleasure, is a common nonimmigrant visa category. A B-1 visa is commonly used by those individuals longing to enter the U.S. for purposes of conducting business on a temporary basis. Whereas a B-2 visa, is a feasible option for individuals seeking to enter the U.S. for pleasure, tourism, medical treatment or to engage in personal affairs. http://travel.state.gov/visa/temp/types/types_1262.html
Applying for a B-1/B-2 nonimmigrant visa involves several steps, the submission of relevant applications pertaining to the prospective nonimmigrant’s reason for coming to the U.S., and the submission of various supporting documents. Though the application process may seem complex, it is manageable through the proper assistance of counsel.
Presumption of Immigrant Intent
However, there is one major hurdle that a foreign national seeking to apply for a nonimmigrant visa to the U.S. The foreign national must overcome the presumption of immigrant intent.
Pursuant to U.S. immigration law, “every alien nonimmigrant . . . shall be presumed to be an immigrant . . .” until such alien demonstrates to the consular officer at the time the visa is applied for, and to the immigration officer at the time of admission, that he possesses nonimmigrant intent. See INA § 214(b). It is imperative that the foreign national overcomes the presumption of immigrant intent, and demonstrates that he does NOT harbor immigrant intent, as this would be contradictory of the nonimmigrant visa category that the nonimmigrant is seeking to enter the U.S. under.
Evidence to Overcome the Presumption of Immigrant Intent
Certain evidence must or should be submitted with the nonimmigrant visa application in order to defeat the presumption of immigrant intent. The following documentary evidence is sufficient in most instances to overpower the presumption of immigrant intent:
Evidence demonstrating the purpose of the trip;
Intent to depart the U.S. via a round-trip ticket;
Arrangements to cover the costs of the trip;
Family ties to the foreign national’s home country;
Bank accounts in the foreign nationals home country;
Employment in the foreign nationals home country;
Proof of permanent residence in the foreign national’s home country;
If the foreign national is coming to conduct business in the U.S., proof the duration of the business is temporary, and that the foreign national will be paid abroad by his employer;
Any other relevant evidence that would demonstrate the foreign national intends to depart the U.S. upon expiration of his visa.
See http://travel.state.gov/visa/temp/types/types_1262.html. This list is not comprehensive, and a plethora of other avenues exist to help overcome the presumption of immigrant intent. Provided you are prepared with the appropriate documents accompany your application, this burden may be satisfied.
For further information on applying for nonimmigrant visas to enter the U.S., and overcoming nonimmigrant intent, please contact our offices.

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Foreign Nationals Seeking to Adjust Status Based on Their Marriage to a United States Citizen

Immigration, United States Immigration | Posted by Herman Dhade
Oct 23 2011

Foreign Nationals Seeking to Adjust Status Based on Their Marriage to a

United States Citizen

You, the Foreign National, are in the United States on a non-immigrant visa. Throughout your temporary stay here, the unexpected happens. You meet a person who sweeps you off your feet. All of the sudden, you can no longer picture your life without this person. As time continues on, you and this individual are married to one another. However, a problem presents itself. In the midst of your newfound relationship, you realize your non-immigrant visa is due to expire, and you fear being separated from your U.S. citizen spouse. Fortunately for you, United States Citizenship and Immigration Services (USCIS), has a sense of compassion for individuals who find themselves in situations such as yours. To ensure family unity, and stability, USCIS has made Adjustment of Status within the U.S., a viable option for non-immigrants who marry U.S. citizens, to transition to lawful permanent residence based on their marriage; so long as USCIS is satisfied that the marriage is “bona fide.”

Addressed below, is the basic process that has been established to permit non-immigrant Foreign Nationals who marry U.S. citizens to remain in the U.S. as lawful permanent residents.

What is Adjustment of Status?

Adjustment of Status is a process utilized by Foreign Nationals who are admitted to the United States as non-immigrants, in order to become lawful permanent residents in the U.S. Immigration and Nationality Act, § 245. It is in the discretion of the attorney general of the U.S. to allow a Foreign National to adjust status. Id at § 245(a). To do so, the Foreign National must apply to adjust status via USCIS Form I-485, Application to Adjust Status; the Foreign National must be eligible to adjust status, and there must not be a bar to the Foreign National’s admissibility to the U.S. for permanent residence; and lastly, there must be an immigrant visa readily available for the Foreign National at the same time that the application to adjust status is filed. Id at § 245(a)(1)-(3).

In its desire to further promote family unity, USCIS allows U.S. citizens to petition for certain relatives to permanently live in the U.S. Spouses, unmarried children of U.S. citizens under the age of 21, and the parent(s) of a U.S. citizen who is over the age of 21, are eligible to adjust status. Two options are available for the Foreign National if they are in the U.S. to adjust status. The Foreign National may either adjust status by utilization of “One-Step” processing (also referred to as concurrent filing) or “Two-Step” processing. (See www.uscis.gov). Due to the efficiency and convenience, One-Step processing is the preferable method for Foreign Nationals already present in the U.S. in non-immigrant status, to adjust status and become permanent residents in the U.S.

How Does a Foreign National Adjust Status While in the U.S.?

One-step processing culminates into a convenient and efficient method for those admitted as non-immigrants, who marry U.S. citizens and are present in the U.S., to become lawful permanent residents. One-step processing entails simultaneously filing an I-485, Application to Adjust Status, and I-130, Petition for Alien Relative. Because a Foreign National spouse of a U.S. citizen qualifies as an “immediate relative,” a visa number is immediately available, allowing for the utilization of One-step processing. A clear advantage to One-step processing, is the elimination of consular processing by means of the Department of State. (See www.uscis.gov).

 

Forms I-485, Application to Adjust Status & I-130, Petition for Alien Relative

Form I-485 is to be completed by the non-immigrant applicant seeking to adjust status. Certain initial supporting documentation must be submitted with the I-485. Such supporting documentation includes: documentation regarding the non-immigrants criminal history in the U.S., if applicable; birth certificate; copy of passport with non-immigrant visa; photos; biometric clearances; police clearances; medical exams; Form G-352A, Biographic Information Sheet; Affidavit of Support, Form I-864 and an employment letter by the relative sponsoring the non-immigrant for adjustment of status via the I-130; and lastly, a copy of the I-130 Petition for Alien Relative must be attached to the I-485, as proof of the non-immigrant’s eligibility to adjust status. (See Instructions for Form I-485).

Form I-130, Petition for Alien Relative, is to be completed by the U.S. citizen spouse, commonly referred to as the “petitioner.” Completion of the I-130 to be submitted with the I-485 application, requires submission of the following supporting documents by the petitioner: proof of U.S. Citizenship, which may be demonstrated through submission of a birth certificate, certificate of naturalization/naturalization certificate, a copy of the petitioner’s expired U.S. passport, etc.; a copy of your marriage license, in order to prove the family relationship, along with proof of termination of prior marriages, if applicable; Form G-325A biographic information sheet, to be completed by the Petitioner and spouse being sponsored; along with other evidence demonstrating the marriage is “bona fide,” (not a sham). (See Instructions to Form I-130).

Evidence demonstrating the marriage is bona fide, or “legitimate,” would include submission of the existence of joint ownership of property in both spouses names, a lease in the name of both spouses, proof that assets of the spouses have been co-mingled, birth certificates of biological children of the petitioner and his/her spouse, along with affidavits attesting to the bona fides of the marital relationship. Moreover, a petitioner is urged to submit any other documentation that would assist in demonstrating the bona fides of the marriage, such as mail in the name of the petitioner and the spouse, utility payments in the name of both spouses, and photographs of the petitioner and spouse together. (See Instructions to Form I-130).

Once the non-immigrant seeking to become a lawful permanent resident via his marriage to a U.S. citizen, and the petitioning U.S. citizen spouse, compile all of the documentary evidence to be simultaneously submitted with Forms I-485 and I-130, the applications will be sent together to the USCIS Chicago Lockbox. Upon receipt, the application will be checked to ensure it is complete. USCIS has the liberty of requesting more supporting information or evidence, or the originals of documents that it has received by the petitioner and Foreign National. Further, USCIS may request that the Foreign National and petitioner, make themselves available for an interview at the USCIS offices. Once USCIS comes to a decision, the Foreign National and petitioner will receive a written decision from USCIS. (See www.USCIS.gov).

Benefits of Adjustment of Status Through One-Step Processing

Adjustment of status from non-immigrant to immigrant status is beneficial for those non-immigrants present in the U.S. seeking to adjust status based on their marriage to U.S. citizens. Further, One-step processing, simplifies the adjustment of status process by eliminating consular processing through the Department of State. Additionally, USCIS helps expedite the adjustment of status process because it makes visas immediately available for those seeking to adjust status based on their qualifying as an “immediate relative” of a U.S. citizen, a category that a spouse clearly classifies under.

To determine whether Adjustment of Status based on your marriage to a U.S. citizen is a viable option for you, please contact our offices and schedule a consultation, so that we may assess the circumstances surrounding your possible transition from non-immigrant to immigrant status.

 

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Refugee Status for Displaced Religious Minorities in Iraq

Immigration, United States Immigration | Posted by Herman Dhade
Oct 25 2011


The U.S. led war in Iraq, has left many Iraqi nationals internally displaced. Many of Iraq’s religious and ethnic minorities fear returning to Iraq, and being targeted for persecution based on their race, nationality, religious beliefs, ethnicity, political opinion, or membership in a particular social group.

In an effort to offer a safe harbor to Iraqi’s who have been displaced, the U.S. has willingly offered assistance to these displaced individuals, and has even broadened the category of Iraqi’s who are eligible for refugee resettlement in the U.S.

 

Refugee Defined

 

The Immigration and Nationality Act defines “Refugee” as any person who is outside their country of nationality, and who has a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. See INA § 101(a)(42)(A). This “well-founded fear” must also make the person unwilling or unable to return to the country of feared persecution. Id. Further, even where the person with a well-founded fear of persecution based on one of the aforementioned grounds is still in the country of feared persecution, the President of the U.S., may in his discretion specify that person as a refugee. See INA § 101(a)(42)(B).

 

Person’s Eligible to Directly Apply for Refugee Status with USRAP

 

National’s of Iraq who have assisted the U.S. by offering services as an interpreter or translator are eligible to directly apply for refugee status in the U.S. through the United States Refugee Admission Program (USRAP). See http://www.state.gov/g/prm/rls/fs2011/163502.htm. Moreover, in an effort to assist more of Iraq’s displaced nationals, the U.S. has expanded the categories of Iraqi Nationals eligible for “Direct Access” to the U.S. via USRAP, to those currently displaced in Egypt and Jordan, who supported U.S. directives in Iraq. Id. Direct Access is available to Iraqis who are spouses, children, parents, or siblings of U.S. citizens, or who are the spouses or unmarried children of a Permanent Resident Alien of the U.S., via an approved I-130 Immigrant Visa Petition. Id. Individuals who qualify for these categories, may directly access USRAP in Egypt, Jordan, and Iraq. Id.

 

In addition, the U.S. has recognized that Iraqi’s who have been subjected to religious persecution due to their affiliation with Iraq’s religious minorities, or who fear persecution based on their religious beliefs, are also given particular care when applying for refugee status. Id. In sum, the U.S., has expanded access to USRAP to Iraqi’s with direct family in the U.S., who fear persecution on one of the enumerated grounds in section 101(42) of the Immigration and Nationality Act.

 

Applications for refugee status in the U.S. are processed based on various priority categories. Priority 1 involves direct referrals to USRAP by the United Nations High Commissioner for Refugees (UNHCR), a United States Embassy, or a designated non-governmental organization (NGO).  Priority 2 deals with groups of special humanitarian concern identified by USRAP. Priority 3 deals with cases of family reunification. See www.uscis.gov.

Refugees Already in the U.S. Petitioning for Their Relatives in Iraq Facing Persecution

Further, refugees who have already arrived in the U.S. may also file Form I-730 Refugees/Asylee Relative Petition. This form allows individuals admitted as refugees to the U.S. to apply on behalf of spouses, children, parents, and siblings. Id. The application must be filed within two years of the principal refugee’s admittance to the U.S. Typically, I-730 take seven to nine months to be adjudicated. Once a National of Iraq is admitted to the U.S. as a refugee, they must remain in refugee status for 12 months before filing an application to adjust their status to a Lawful Permanent Resident. See http://www.state.gov/g/prm/rls/fs2011/163502.htm. While waiting to adjust status, the refugee is expected to apply for work authorization and work in the U.S. Id.

In Sum . . .

Nationals of Iraq who have a well-founded fear of persecution based on their race, nationality, religion, membership in a particular social group, or political opinion, are eligible to apply for refugee status with the U.S. government. For some displaced Iraqi’s in Jordan and Egypt, this may be done through Direct Access to USRAP. Other displaced Iraqi’s have the option of registering with UNHCR offices, which may refer eligible refugees to USRAP. Moreover, once a refugee is admitted to the U.S., they have available to them various mechanisms to bring members of their “nuclear family” to the U.S.

For more information, or to determine whether you or your family members are eligible to apply for Refugee Status with the U.S. government, feel free to contact our offices.

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The Petty Offense Exception to Section 212 of the Immigration and Nationality Act

Immigration, United States Immigration | Posted by Herman Dhade
Oct 25 2011

Immigration consequences can be steep for certain aliens who are convicted of committing crimes while in the United States. The commission of certain offenses, which may be classified as “crimes involving moral turpitude,” may render an alien inadmissible or removable from the U.S. See INA § 212(a)(2) and § 237.

A crime involving moral turpitude (CIMT) involves a crime that is “inherently base, vile or depraved, and contrary to the accepted rules of morality, and the duties owed between persons or society in general.” Matter of Olquin, 23 I & N Dec. 896 (BIA 2006). Though the consequences of being charged with a CIMT may be severe, aliens who commit certain offenses may still be eligible for admissibility into the U.S. Aliens whose offenses fall within what is referred to as the “petty offense exception,” will not be found inadmissible to the U.S.

Section 212(a)(2)(A)(ii)(II) of the Immigration and  Nationality Act, states that an alien who has only committed one crime shall not be found inadmissible if the “maximum penalty possible for the crime of which the alien was convicted . . . did not exceed imprisonment for one year and, if the alien was convicted of such crime, the alien was not sentenced to a term of imprisonment in excess of 6 months.” See INA § 212(a)(2)(A)(ii)(II). Therefore, certain aliens may seek comfort in knowing that not every offense will subject that alien to being found inadmissible.

 

Aliens who only commit ONE crime that is considered a CIMT may fall within the petty offense exception. Further, for an alien to qualify under the petty offense exception and not be found inadmissible, the statute under which he/she was convicted must not impose a term of imprisonment of more than one year. In conjunction with that requirement, the alien’s sentence must not have been in excess of six months of imprisonment. Both these factors must be satisfied in order for the alien to qualify for the petty offense exception.

 

The petty offense exception allows certain qualifying aliens to avoid harsh immigration consequences. To determine whether your offense falls under the petty offense exception, feel free to contact our offices.

 

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Los inmigrantes latinoamericanos en los estados unidos

Immigration, United States Immigration | Posted by Herman Dhade
Oct 31 2011

Los inmigrantes latinoamericanos en los estados unidos

Hoy en día, la mayoría de los inmigrantes en los Estados Unidos es de Latinoamérica. Los mexicanos forman el grupo principal, seguido por los cubanos y los salvadoreños. Aunque el crecimiento de inmigrantes hispanos ha declinado en los años recientes, ha sido rápido a lo largo de la última década. El censo de 2010 muestra que hay 21.2 millón inmigrantes latinoamericanos en los Estados Unidos, 5.1 millón más que en 2000 (16.1 millón). La mayoría de ellos, residen en los estados de California, Tejas, Florida, y Nueva York. Las contribuciones de los inmigrantes han sido substanciales, particularmente la contribución económica.
Los inmigrantes son un grupo que forma un 15% de la mano de obra, aunque forma 12% de la población. Son un grupo clave para las industrias de agricultura, servicios, y construcción.  Las ciudades con un crecimiento rápido de inmigrantes, como Denver, Atlanta y Phoenix, han experimentado un crecimiento rápido en sus economías. Las economías de ciudades como Detroit o Cleveland, que no han experimentado un crecimiento rápido de inmigrantes, han sufrido económicamente. El número de empresas creado por hispanos es tres veces más que el promedio nacional. Además, los inmigrantes hispanos han contribuido a la economía estadounidense por los impuestos de propiedad y por el consumo. La labor de los inmigrantes latinoamericanos, su espíritu emprendedor, y su consumo de productos vendidos en los Estados Unidos, hacen este grupo un parte crucial del país.

http://pewhispanic.org/reports/report.php?ReportID=140
http://www.fas.harvard.edu/~gstudies/latin/curriculum/intro.htm
http://www.nilc.org/immspbs/research/research003.htm
http://www.fiscalpolicy.org/immigration.html

http://www.census.gov/population/foreign/

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The H-1B Visa and the Specialty Occupation Requirement

Immigration, United States Immigration | Posted by Herman Dhade
Oct 31 2011

The H-1B Visa and the Specialty Occupation Requirement

H-1B visas are typically utilized by U.S. employers seeking to employ a foreign national in a specialty occupation. See www.uscis.gov. Prior to filing the I-129 petition for an H-1B visa, a Labor Condition Application must be applied for with the Department of Labor. The Labor Condition Application requires the U.S. employer to make four essential attestations in order to protect the U.S. labor market. See Martin J. Lawler and Margaret D. Stock, Professionals: A Matter of Degree, 5th ed., at 271 (2009 AILA Publications). Upon approval of the Labor Condition Application, the I-129 non-immigrant visa petition may be filed.

 

An H-1B visa is an attractive visa option for professionals seeking to work and immigrate to the U.S., since the prospective applicant is permitted to harbor immigrant intent. However, a major obstacle in applying for an H-1B visa, is demonstrating that the occupation which the foreign national is being employed in is a “specialty occupation.”

 

For H-1B purposes, a specialty occupation is referred to as an “occupation which requires theoretical and practical application of a body of highly specialized knowledge, and attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.” See INA 214(i)(1). This definition is extremely cumbersome. There is no list of approved specialty occupations. Moreover, proving that the particular “specialty occupation” requires the attainment of a bachelor’s degree is also another hurdle that must be overcome.

 

If one is indeed successful in attaining approval of their H-1B visa petition,   the H-1B visa is initially valid for a three year period, and an individual in H-1B status in the U.S., is eligible to renew their visa for an additional three years. See www.uscis.gov. The total period of time that an individual may remain in valid H-1B status in the U.S. is six years. See Martin J. Lawler and Margaret D. Stock, Professionals: A Matter of Degree, 5th ed., at 207 (2009 AILA Publications).

 

Mechanisms exist that allow individuals in H-1B status to extend their stay in the U.S., such as re-capturing time spent abroad while in H-1B status. Id. at 223. Further, because an H-1B visa allows for dual intent, immigrant and non-immigrant intent, individuals who have applied for permanent residence while in H-1B status, and whose period in H-1B status has expired while they are awaiting approval of their permanent residence applications, are eligible to apply for unlimited one-year extensions of H-1B status until their application for permanent residence is approved.

 

With the proper assistance of counsel, an H-1B visa is attainable, and a feasible option for employers seeking to hire a foreign national to work in what is referred to as a “specialty occupation.” For further information or inquiries on the H-1B visa process, feel free to contact our office.

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Immigrant Contributions to the United States

Immigration, United States Immigration | Posted by Herman Dhade
Nov 10 2011

Immigrant Contributions to the United States

The United States is a nation that was born out of the hard work of immigrants in search of a new life. Today, immigrants continue to make substantial contributions to the country. In recent decades immigrants have been particularly important to agriculture, manufacturing, construction, and the food and service industries. Contrary to the belief that immigrants are taking jobs of US citizens, immigrants generally obtain jobs that employers are struggling to fill. Certain industries such as agriculture, services, and hospitality are particularly dependent on immigrant labor. Without immigrants, these industries would either suffer significantly, or have to outsource jobs overseas.

In addition to providing labor to critical economic industries, immigrants also contribute about $27 billion to local economies every year, and contribute $150 billion to federal, state, and local governments. While some have claimed that immigrants are a drain on social services, immigrants contribute $3 billion annually to Social Security and Medicare, even though they cannot claim these benefits. The current total of unclaimed Social Security and Medicare benefits is $475 billion. About 15% of the US population is foreign born, and contribute to local economies through the consumption of daily goods and services. Undocumented workers alone provide local economies with an estimated $100 billion in consumer spending. Immigrants also contribute positively to their community by being law abiding citizens. Many studies show that immigrants are less likely to commit crimes in their communities than citizens born in the US. It is clear that immigrant contributions to our economy and to their communities make them a positive part of US society.

 

http://supportfloc.org/ContributionstoSociety.aspx

http://www.drummajorinstitute.org/library/report.php?ID=104

http://www.usimmigrationsupport.org/contributions.html

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TN Status under NAFTA

Canada Immigration, Immigration, United States Immigration | Posted by Herman Dhade
Dec 11 2011

The North American Free Trade Agreement allows for Canadian Citizens (and Mexican Citizens) to apply for the nonimmigrant visa category, referred to as a TN visa. In order to qualify for a TN visa, the Canadian Citizen seeking to enter the U.S. in this visa category must be offered an employment position in one of the categories listed in Chapter 16 Appendix 1603.d.1 of The North American Free Trade Agreement (NAFTA).

For Citizens of Canada, a visa is not required to enter the U.S. and work as a NAFTA professional. Canadian citizens are permitted to obtain admission under the TN category by applying at a Port of Entry, rather than applying for a visa with a U.S. Consulate. A Canadian Citizen requesting admission under the TN category at a Port of Entry must present proof of their Canadian Citizenship. Additionally, the Canadian Citizen must provide the Customs & Border Patrol Officer with an employment letter from the prospective employer outlining the terms of employment, purpose of employment, length of stay, and educational qualifications, in order to establish that the offered position qualifies as one listed in Appendix 1603.d.1. Where required, the Canadian Citizen may also need to provide credentials evaluation.

If the Customs and Border Patrol Officer is satisfied by the evidence presented by the Canadian Citizen, the Canadian Citizen will be admitted as a TN nonimmigrant. Proof of entry in the TN category will be evidenced by a stamp placed in the Canadian Citizen’s I-94 Arrival/Departure Record.

Family members of the TN nonimmigrant may also join the TN nonimmigrant in the U.S., on what is referred to as a TD Visa. Spouses and children under the age of 21 who are Canadian Citizens also do not need to apply for a visa, but may request admission under TD status at the Port of Entry with the TN applicant. The spouse/children of the TN applicant must provide proof of their Canadian Citizenship, relationship to the TN nonimmigrant, and photocopies of the TN’s I-94 Arrival/Departure Record.

However, non-citizen Canadians who are the spouses/children of a TN nonimmigrant must apply for a TD Visa with a U.S. Consulate. Once the TN nonimmigrant is granted admission in TN status, the spouse/child of the TN nonimmigrant may apply for the TD visa.

Stay in TN/TD status is valid for three years. Extensions of stay are also available for this nonimmigrant category. Most important under the TN category, is that the applicant continues to possess nonimmigrant intent, and demonstrate to the Customs and Border Patrol Officer or Consular Officer that they do not harbor immigrant intent. Further, there is no cap or limit on the number of times a Canadian Citizen may apply for TN visa or extend their stay in TN status.

For assistance with your TN Visa application, feel free to contact our office.

 

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Canada Super Visa

Canada Immigration, Immigration | Posted by Herman Dhade
Dec 29 2011

Canada announces new “Super Visa” for parents and grandparents

In December 2011, Canada announced Super Visas for parents and grandparents to live in Canada for up to 24 months.  Canadians are indicating that it should be processed in about eight weeks.  This solves a long standing problem in Canada of having to wait many years before being able bring your parents.

To apply for a super visa, you must be

  • be the parent or grandparent of a Canadian citizen or a permanent resident of Canada;
  • be found admissible to Canada; and
  • meet certain other conditions.

Currently, visitors to Canada usually may only visit for six months at a time. Most visitors who wish to stay longer must apply for an extension, and pay a new fee, every six months. With the Parent and Grandparent Super Visa, eligible parents and grandparents will pay fewer fees and have some certainty that they will be able to enjoy the company of their families in Canada for a longer period of time. Dhade & Associates can assist individuals to obtain a super visa.

CIC will be able to issue the visas, on average, within eight weeks of the application. This means that instead of waiting for eight years, a parent or a grandparent can come to Canada within eight weeks.

In order to obtain a Parent or Grandparent Super Visa, you also need to provide:

  • Evidence of the parent or grandparent relationship to the Canadian citizen or permanent resident you wish to visit (e.g., birth certificate, baptismal certificate or other official document naming you as parent);
  • AA letter of invitation from your child or grandchild that includes arrangements for care and support;
  • Proof from your child or grandchild that he or she meets the financial requirements and
  • Proof that you have private medical insurance valid for a minimum of one year from a Canadian insurance company and that:
    • Covers health care, hospitalization and repatriation;
    • Provides a minimum coverage of $100,000; and
    • is valid for each entry to Canada and available for review by a port of entry officer.

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Conversion of Preference Categories & Retention of Priority Dates

Immigration, United States Immigration | Posted by Herman Dhade
Dec 29 2011

The priority date on an immigrant or non-immigrant petition is conveyed as the date when the petition was properly filed with United States Citizenship and Immigration Services (USCIS). The priority date on a petition is only a concern for preference petitions, as it determines the beneficiary’s place in the visa queue. Priority dates are not a concern for immediate relative petitions, as a visa is readily available for the beneficiary in those cases.

Priority dates play a significant role in the issuance of visas, as the Department of State has placed limits on the number of visas that are dispersed annually. For Family-Based Preference Petitions, those filed on Form I-130, only 226,000 are available annually, and for Employment-Based Preference Petitions, those filed on Form I-140, only 140,000 visas are issued annually. Thus, the Department of State issues visa depending on the Preference Category of the Petition, and the priority date.

The priority date is essential for determining when the beneficiary of an immigrant petition will be able to join their family member(s) in the U.S. It is only when the priority date becomes current that the beneficiary will be able to apply for a visa. Because some preference categories suffer from long backlogs, changes may occur such as the petitioner naturalizing, or the beneficiary aging out, or marrying. When this occurs, certain petitions will automatically convert to a different preference category. Where concern may arise is regarding whether the original priority will be retained. In certain situations, the original priority date maybe retained and the beneficiary will not lose his/her place in the visa queue, and there is also the situation where it is beneficial to preserve the original preference category. The law office of Dhade & Associates assists with these types of cases.

If you are a petitioner of an I-130 petition, and there has been a change in your immigration status or a change in the beneficiary’s status, schedule a consult with our office to determine how this change will affect your immigrant petition, and whether or not your priority date or preference category may be retained.

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Are student visa’s available for Academic Students in grades 9-12?

Immigration, United States Immigration | Posted by Herman Dhade
Jan 30 2012

Are student visa’s available for Academic Students in grades 9-12?

 

Yes.  F-1 Student Visas are available for academic students in high school.  This visa allows you to enter the United States as a full-time student at an accredited college, university, conservatory, academic high school, or other academic institution.  It is not available for persons seeking to enter the U.S. in order to attend a public primary/elementary school or a publicly funded adult education program.

 

The requirements for an F1 Visa for secondary schools:

  •             Secondary School (grades 9-12) visas are limited to 12 months of study;
  •       F-1 Students are required to pay the full cost of education:
  • Costs normally between $3,000 and $10,000;
  •            The F-1 student seeking a visa needs to be proficient in English or needs to be enrolled in courses leading to English Proficiency.

The consular officer will determine whether a student is eligible for an F-1 Visa.  Additionally, the applicants must demonstrate that they properly meet student visa requirements including:

  • The student has a residence abroad, with no intention of abandoning that residence;
  • The student intends to depart from the United States upon completion of course study, and;
  • Possesses significant funds to pursue the proposed study.

To apply for an F1 Visa: the student needs to apply to an SEVP approved school in the United State, and once accepted to the school the student needs to obtain Form I-20 from the school. The next step is to pay the SEVIS I-901 Fee. After paying the fee and receiving a receipt, the student needs to apply for a visa at any American Embassy.

 

Requirement documentation for an F-1 Visa:

  • Form I-20 (which is provided by the school)
  • Online Non-Immigration Visa Electronic Application, Form D-160;
  • A passport;
  • One 2×2 photograph;
  • An MRV Fee Receipt to show payment of Visa Application Fee;
  • The SEVIS I-901 Fee Receipt;
  • Transcripts from previously attended institutions, and;

Financial evidence that shows you or your parents have sufficient funds to cover your tuition and living expenses.

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Benefits and Responsibilities of Citizenship

Immigration | Posted by Herman Dhade
Jan 30 2012

Benefits and Responsibilities of Citizenship

 

Gaining a citizenship to the United States is a great honor.  The status of permanent resident brings with it many benefits with it, but there are a few benefits that only come with citizenship.  The biggest benefit is the ability to show patriotism.  Some of the other rights only for citizen are:

  1. Voting in a federal election (most states also have a citizenship requirement);
  2. Ability to participate in politics and becoming an elected official
  3. Eligibility for federal funds;
  4. Obtaining citizenship for children born abroad;
  5. The ability to bring family member to the U.S. under a priority category;
  6. Being able to travel abroad using a U.S. passport which brings with it the assistance from the U.S. Government.

 

The rights listed above are not all the benefits but they are some of the most important.  However these rights also bring certain responsibilities.  Citizenship through naturalization is difficult to take away but not impossible.  It is important to keep in mind the following responsibilities both before naturalization and after naturalization for one to avoid losing their citizenship.

 

Before Naturalization:

  1. Oath of Allegiance to the U.S. to support and defend the constitution and laws of the U.S. as well as to serve the country when required;
  2. Participate in political process by registering and voting;
  3. Tolerance for differences of others;
  4. Participating in jury duty when called upon to serve.

 

Events that could lead to Denaturalization of a U.S. citizen:

  1. Lying to the U.S. Citizenship and Immigration Service (USCIS) during the Naturalization process
  2. Conviction for an Act of Treason against the U.S.
  3. Serving in your Native (non-U.S.) country’s armed forces as an officer or serving while native country is engaged in hostilities or at war with the U.S.;
  4. Refusal to testify before Congress about your subversive activities;
  5. Holding a Policy level position in a foreign country or a high level administrative position where you make government policy.

 

Again it is important to keep in mind, this is not an exhausted list nor is it easy to take away a person’s citizenship.  A person’s citizenship cannot be arbitrarily revoked.  If you are not sure whether an act will put your citizenship at risk it is important to check with the proper channels before you act.   The USCIS offers many different resources to those who have question about their citizenship.

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Conditional Permanent Residence

Immigration, United States Immigration | Posted by Herman Dhade
Jan 28 2012

Conditional Permanent Residence

An immigrant is classified as holding conditional permanent resident status if they have only been married for a period of less than two years to a U.S. Citizen or permanent resident, when they are granted permanent residence by UCSIS. The underlying purpose of granting these individuals permanent residence on a conditional basis is to satisfy USCIS that the marriage is actually “bonafide,” or in other words, the marriage was not entered into for the sole purpose of obtaining permanent residence, and later, citizenship.

 

The conditional status on the permanent residence of such individuals may be removed in certain instances. Some of these instances include the following:

 

  1. If after two years of conditional status, the conditional permanent resident is still married to the same U.S. citizen or permanent resident;
  2. The conditional permanent resident is now a widow or widower who embarked into the marriage in good faith;
  3. The conditional permanent resident entered into the marriage in good faith, but subsequently received a divorce/annulment from the U.S. Citizen or Permanent Resident; or
  4. The conditional permanent resident entered into the marriage in good faith, but subsequently was subject to domestic violence or was battered.

 

In most instances the conditional permanent resident and the spouse must jointly apply to remove the conditions placed on permanent residency after spending two years as a conditional permanent resident. An application to remove the conditions may and should be filed 90 days before satisfying two years in conditional status. Applying before the conditional permanent resident status period of two years is reached, is essential, as it is the validity period of the green card, and failing to apply to remove the conditions may result in loss of permanent resident status in its entirety, resulting in potential removal from the U.S.

 

In instances where the marriage has failed or for widowers, the joint filing will be waived. In these situations, one may apply to remove the conditions on the permanent residency at anytime, and especially before they are removed from the country.

 

For more information see www.uscis.gov. If you are a conditional permanent resident in the U.S., please contact our office for assistance in applying to remove the conditions on your permanent resident status.

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Naturalization through Military Service

Immigration, United States Immigration | Posted by Herman Dhade
Jan 23 2012

Qualifying members of the U.S. armed forces may be able to expedite the application and naturalization process.  In addition, spouses of members of the U.S. armed forces who are or will be deployed might also be eligible for the expedited naturalization.  IN order to qualify the member must be a part of one of the following branches: Army, Air Force, Navy, Coast Guard, Marine Corps, and certain components of the National Guard and Selected Reserve of the Ready Reserve.  Further the member must be of good moral character, have knowledge of English and of U.S. government and history, and must have attachment by Oath of Allegiance to the U.S. Constitution.  They are exempt from other naturalization requirements such as physical presence and resident in the United States.

 

In order for a spouse to qualify for expedited naturalization he/she must:

  • Be 18 years of age or older
  • Be present in the U.S. pursuant to a lawful admission for permanent residence at the time of examination on the naturalization application
  • Present in the U.S. at the time of naturalization
  • Understand how to  read, write, and speak basic English
  • Understand or have a basic knowledge of U.S. history and civics
  • Establish that his or her spouse is deployed abroad as a service member
  • Be of good moral character
  • Be well disposed to the good order and happiness of the U.S. during all relevant periods under the law.

 

Qualify Family of Deceased Service Members

 

Under certain conditions a family member of a deceased service member may qualify for naturalization.  This option is only available to spouses, children, or parents of a deceased service member.  Additionally the service member must have been a citizen and, must have served honorably on active duty, and was currently serving at the time of the death (or death was combat related).

 

Overseas Naturalization of Family Members

 

Certain eligible spouses and children of service members are allowed to naturalize abroad without traveling to the U.S.  The requirements for spouses and children differ slightly.  For spouses, he or she must:

  • A permanent resident spouse of a member of the U.S. armed forces
  • Be authorized to accompany the service member abroad
  • Be residing abroad with the member in marital union
  • Meet the other requirements for naturalization except for the residence and physical presence requirements

For the children, classified as under age 18, they must:

  • Have at least one parent that is a U.S. citizen or if deceased, the parent was a U.S. citizen at the time of death
  • The U.S. citizen parent has been physically present in the U.S. for at least 5 years, at least two of which were after attaining the age of 14
  • Be residing outside the U.S. in the legal and physical custody of the U.S. citizen parent (if deceased the person in legal custody must no object to the application)
  • Be in temporarily present in the U.S. after having entered lawfully and is maintaining lawful status in the U.S.

 

For more information on naturalization through military service, you can visit USCIS.gov.

 

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USCIS PROVIDES RELIEF FOR CERTAIN VICTIMS OF VIOLENT CRIME

Immigration, United States Immigration | Posted by Herman Dhade
Jan 20 2012

 

Types of Relief for Victims of Violent Crimes

 

If a legal or illegal immigrant is in the U.S. and becomes a victim of violent crime, various U.S. laws exist to protect such victims. Reporting a violent crime to authorities will not render the legal or illegal immigrant removable from the U.S., as they may fear. Eligible legal/illegal immigrants who are victims of violent crime may either apply for a U Visa, T Visa, or self petition under the Violence Against Women Act (VAWA) for Legal Status in the U.S. Thus, legal or illegal immigrants who are victims of violent crimes are strongly encouraged to report the crime to the authorities, and not to fear doing so.

 

The U-Visa

 

Legal/illegal immigrants who are victims of violent crimes may apply for a U-Visa if they are a victim of certain qualify criminal activity, which resulted in the suffering of substantial mental/physical abuse, and they must have reliable and credible evidence regarding the criminal activity. Further, the applicant for a U-Visa must assist/help in the investigation or persecution of the criminal activity.

 

Additionally, the criminal activity must have violated U.S. law. Victims of rape, murder, torture, kidnapping, blackmail, domestic abuse, false imprisonment, abusive sexual conduct, abduction or prostitution, may be eligible to apply for a U-Visa. Victims of certain other crimes may also qualify for a U-Visa. See Immigration Options for Victims of Crimes Brochure at www.uscis.gov. 

 

The T-Visa

 

The T-Visa is available for victims of human trafficking. Victims of trafficking are usually lured by the trafficker by false promises of prosperity and stability in the U.S. Rather, the victim is subject to poor and inhumane conditions. Victims of human trafficking, who suffered severe forms of trafficking may be eligible for a T-Visa if they aid law enforcement authorities in the investigation of and prosecution of trafficking cases. See Immigration Options for Victims of Crimes Brochure at www.uscis.gov. 

 

VAWA Petitioner

 

A spouse, former spouse, child or parent of a U.S. Citizen or permanent resident, who has been victimized by domestic violence at the hands of their U.S. Citizen or permanent resident spouse, may be eligible for relief under the VAWA. Individuals, who qualify under the VAWA, may self petition for permanent residence without the U.S. Citizen or Permanent Resident spouse. VAWA benefits apply whether the victim is male or female. .See Immigration Options for Victims of Crimes Brochure at www.uscis.gov. 

 

If you have been a victim of violent crime and are a legal/illegal immigrant in the U.S., please contact our office, to see if these forms of relief are available to you.

 

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Adjustment of Statuse for foreign nationals married to U.S.

United States Immigration | Posted by Herman Dhade
Jan 19 2012

Can foreign nationals, married to a U.S. Citizen gain legal status after
they have overstayed a visa?

If you are a U.S. Citizen married to a foreign national who overstayed a
visa, it is possible for you to gain legal status for that person.
Adjustment of status is (within a few exceptions) available only to
couples who have combined elements of a U.S. Citizen (not permanent
resident) spouse and a legal entry, and where the spouse is living in the
United States. The spouse of a U.S. Citizen is considered an immediate
relative and there is no priority date, annual quota or big waiting
period.

Adjustment of status is the process by which the status of a person
already in the United States, either on some temporary nonimmigrant visa
or no visa at all, is adjusted to that of a lawful permanent resident
(LPR), or green-card holder.
To file for an adjustment of status, you need to file forms I-130 and
I-485, and attend an interview with the Department of Homeland Security
(DHS). Your spouse will be required to accompany you to the Adjustment of
Status interview. An attorney can also accompany you to the interview.

• This strategy may not work for the spouse of a U.S. Green Card Holder;
• This strategy will not work if the Immigrating Spouse Entered Without
Inspection;
• This strategy will not work for a spouse who has returned to his or her
home country;
• However, there are always other options available.

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Humanitarian Parole

Immigration, United States Immigration | Posted by Herman Dhade
Jan 18 2012

Humanitarian Parole:

The Department of Homeland Security, in its discretion, may allow an alien to come into the United States under parole, when the person otherwise would not be admissible. The standard for parole is usually on a case by case basis for urgent humanitarian reasons. Parole does not confer any permanent immigration status.

Parole may be requested in four situations:

1.) When an alien is requesting admission at a U.S. port of entry (including a land border);
2.) When the alien residing abroad requests parole in advance of entry;
3.) When an alien in the U.S. is needed by DHS for purposes of public interest. ; or
4.) When the alien is (or has been) in the U.S. applying for adjustment of status, enduring                    removal proceedings, or TPS status, and seeks advance permission to return after a
departure.

The two general standards for parole are for emergent reasons, generally referred as humanitarian parole, and for in the public interest, which is generally referred to as public interest parole.  Humanitarian parole is granted in situations where the alien has an emergency situation needing entry into the United States— such as a relatives funeral. Public interest parole is granted when aliens are needing in court proceedings as defendants or witnesses. It depends on the type of parole requested and alien’s condition to where they would file the application for parole.

The application should include:

1. Form I-131 and filing fee in the form of cashier’s check;
2. Complete name, and date and place of birth;
3. Occupation and current address abroad;
4. Relationship to sponsor;
5. Length of time for which parole is sought;
6. Documents which establish items 2-5.

For the sponsor:

1. Complete name, address, and place of birth;
2. Immigration status;
3. Current address;
4. Occupation;
5. Statement of how needs of parolee will be met;
6. Affidavit of support for each prospective parolee;
7. Statement of why a U.S. visa cannot be obtained;
8. Statement of why a waiver of inadmissibility cannot be obtained;
9. Copies of approved visa petitions;
10. Evidence ov relationship between sponsor and prospective parolee;
11. Statement of the emergent reasons why a parole should be authorized;
12. Documents that establish items 1-10.

Citation:

http://www.uscis.gov

Robert C. Divine & R. Blake Chisam, Immigration Practice (2009-2010 ed).

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Options for Criminally Inadmissible to Canada

Canada Immigration, Immigration | Posted by Herman Dhade
Jan 15 2012

Options for Individuals Criminally Inadmissible to Canada

 

Under certain circumstances, a U.S. Citizen may be deemed criminally inadmissible to enter Canada for committing crimes outside of Canada. Grounds of inadmissibility Canada may be found in the Canadian Immigration and Refugee Protection Act (IRPA). Some of the grounds of inadmissibility to Canada include:

 

  • Security
  • human or international rights violations
  • criminality
  • organized criminality
  • health grounds
  • financial reasons
  • misrepresentation
  • non-compliance with IRPA or
  • having an inadmissible family member

(http://www.cic.gc.ca/english/information/inadmissibility/index.asp)

 

One of the most common grounds of inadmissibility is criminal inadmissibility. Grounds of criminal inadmissibility may include being charged/convicted of a drug offense in the U.S., or a having been charged/convicted of a DUI in the U.S. Despite being found criminally inadmissible to enter Canada, mechanisms are available to “overcome” a finding of criminal inadmissibility. Some of these mechanisms include Deemed Rehabilitation, Applying for Rehabilitation, or Applying for a Temporary Resident Permit.

 

Deemed Rehabilitation applies to those found criminally inadmissible for committing crimes outside of Canada, and who have committed a single criminal act or have only one conviction. Further, the offense committed outside of Canada, must be an indictable offense in Canada, not subject to a term of imprisonment of more than ten (10) years. Additionally, ten (10) years must have elapsed since commission of the crime outside of Canada.

 

For those not eligible for Deemed Rehabilitation, Applying for Rehabilitation will abolish the criminal ground of inadmissibility, based on the applicant’s proof that they are no longer susceptible to criminal activity and they lead a steady life. To be eligible to Apply for Rehabilitation, at least five (5) years must have elapsed since commission of the offense outside of Canada, or five (5) years has elapsed since the term of the sentence imposed for the crime committed outside of Canada.

 

Individuals who have committed crimes outside of Canada who are neither eligible for Deemed Rehabilitation or to Apply for Rehabilitation, may apply for a Temporary Resident Permit to enter Canada regardless of their criminal inadmissibility. These individual’s may apply for a Temporary Resident Permit if they establish that they have a “compelling reason to enter Canada. Thus, the individual’s need to enter Canada must “outweigh” the security or health risks to Canadian Society. Approval of a Temporary Resident Permit is not guaranteed, and thus, it will only be granted in exceptional cases and for a specified duration of time.

 

Besides the aforementioned, obtaining a Pardon of your conviction outside of Canada or an expungement, may in some instances clear the ground of criminal inadmissibility, allowing one who was inadmissible to be found admissible to enter Canada.

 

If you are currently criminally inadmissible to Canada, for committing a crime outside of Canada, and are seek to enter Canada, please contact our office to determine the options available for your prospective admission to Canada.

 

http://www.cic.gc.ca/english/information/inadmissibility/permits.asp

http://www.cic.gc.ca/english/information/applications/guides/5312ETOC.asp

 

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New Hotline for Immigration Detainees

Immigration, United States Immigration | Posted by Herman Dhade
Jan 15 2012

New Hotline for Detainees

 

On December 29, 2011, The Los Angeles Times reported a new toll-free number, (855) 448-6903 is now available to detainees held by state or local law enforcement agencies if the detainees “believe they may be U.S. citizens or victims of a crime”.  The hotline will help to ensure detainees know or are informed of their rights.

 

The hotline is in response to recent changes and controversies over programs that allow for local law enforcement to detain people they believe to be illegal immigrants.  “Immigrant rights groups say the program has led to civil rights violations and racial profiling, and such authority has been especially controversial in Arizona.”

 

The president and general counsel of the Mexican American Legal Defense and Education Fund, was quoted stating that the hotline “should have been in place the very first time ICE undertook an expansion of its detainers.”  He sees the hotline as “a positive development,” but “overdue” and “inadequate.”

“Often people who are subject to ICE detainers have no idea why they are being held,” said Saenz, who is based at the national Latino civil rights group’s Los Angeles headquarters. “This kind of step should have been in place the very first time ICE undertook an expansion of its detainers.”

 

The hotline will be offered 24 hours a day, seven days a week, and interpreters will be available in several different languages.  The phones will be answered by U.S. immigration and Customs Enforcement agency (ICE) personnel.  The ICE personnel will be able to refer the detainee to the relevant ICE Enforcement and Removal Operations field office for any immediate action.

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Foreign Students Studying in the United States with a F-1 visa

Immigration, United States Immigration | Posted by Herman Dhade
Jan 15 2012

Foreign Students Studying in the United States with a F-1 visa

 

If I originally entered the United States on a B-2 visitor visa may I adjust my status to a F-1 Student visa?

 

In recent years the rules have tightened for people wishing to adjust their status from a B-2 visitor to F-1 student status.  If a person knows at the time they apply for their visitor visa that they plan to eventually adjust their status to student status they must make their intention know on their application.  However, often when a person is applying for a visitor visa they are not aware of their future plans to become a student studying in the United States.  If this is the case a person in this situation should make it known at the time of entry on their I-94 card their intention to pursue an education in the United States.

 

Can I change schools without having to leave the country?

 

If done properly a student can easily make a change from on school to another or from one education level to another.  The first step the in the process is that the student must inform the old school of their plan to transfer.  The student should be conscious of dates at all time.  The Student must be able to start classes at the new school before the current I-20 grace period expiration, or within 5 months of transferring out of the old school.  The new school will need to issue a I-20 and within 15 days after the new program start date the student contacts the new designated school official (DSO), who updates the student and exchange visitor information system (SEVIS).

 

While studying in the United States may I work?

 

Students studying in the United States under a F-1 visa may seek employment under certain conditions and restrictions.  The 2 most common ways for a F-1 student to pursue employment are:

  1. On-Campus Employment
  2. Off-Campus Employment under Sever Economic Hardship

 

A student may take on an on-campus job before finishing a course of study.  On-campus means either a job on the school’s premises or an off-campus location that is educationally affiliated with the school.  The student will be allowed to work 20 hours a week and the student may work on-campus during school vacations.

 

In order to pursue off-campus employment the student must have completed a minimums of one academic year and must demonstrate “severe economic hardship caused by unforeseen circumstances beyond the student (‘s) control.” (8 CFR 214.2(f)(9)(ii)(C).(D)(ii), and (f)).  Examples of severe economic hardship include, but are not limited to, loss of on-campus employment, fluctuations in value of currency or exchange rates, and increases in tuition or living costs.  The student will need to complete an application package and submit it to the USCIS service center that has jurisdiction over his or her residence.

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