Unlawful Presence I-601 Waiver: Advance Copy of USCIS Final Rule

The long awaited “Advance Copy of USCIS Final Rule to Support Family Unity During Waiver Process” was just released.  This final rule relating to the unlawful presence waiver is not effective yet, but at least we’re getting a sneak peek at the regulation.  With this new change, spouses, parents, or children of U.S. citizens can file their unlawful presence waiver applications while still in the United States.  Once approved, they would still have to leave the United States but this time:

  1. For a much shorter time (weeks instead of months or years); and
  2. With an assurance that the applicant will be allowed to return to the United States after consular processing (ok, maybe not an assurance, but we’ll unpack this on a different post)

Although this is a welcomed change that is sure to benefit many families, it’s important to keep in mind that the “extreme hardship” standard is still very much in place.   What is “extreme hardship”? No one really knows for sure, since it’s not defined in our immigration laws, but USCIS claims to know one when it sees one (hmm..).  In any case, many years of case decisions give us a good idea.

As an attorney who has successfully assisted many families in preparing waiver petitions throughout the years, it is very important that interested parties consult with a qualified immigration attorney before proceeding with the unlawful presence waiver.  In future posts we will discuss the “extreme hardship” standard, when is a waiver needed, what is a waiver, who is a “qualifying relative”, how to apply, what questions to ask your immigration attorney, what documents to prepare, and other similar topics.  Stay tuned and thank you for reading.

Commandment #6 of Applying for Naturalization: Thou Shall Go Back to Your Roots

Not remembering important information can complicate an applicant’s naturalization application.  This is especially true when dealing with issues of eligibility.  That’s why having a copy of one’s  “A file” has become increasingly more important. The “A file” is basically a person’s record maintained by the U.S. Citizenship and Immigration Services (USCIS).Once created, it contains all immigration records for that particular person.  Recently I wrote about the

Five Benefits of Having a Copy of Your “A File” from USCIS or the Immigration Court through a FOIA Request. I encourage readers to review that post for some practical information.Take for example the case of an applicant who obtained Lawful Permanent Resident (LPR) status through an employment-based petition.  The answers to the questions that USCIS may have can get complicated when considering the passage of time, promotions, employers with subsidiaries, change of ownership, and other factors.  Some questions could be:

    • What was the original title for the position?
    • What were the duties?
    • What were the minimum requirements for the position?
    • Did the position require the supervision of any workers?
    • Who signed the petition?
USCIS wants to ensure that all eligibility requirements were met at the time of adjudication.  However, since in all likelihood at least five (usually more) years have passed since the original petition was filed with the U.S. Department of Labor and USCIS, the applicant should have at least reviewed those old files to refresh his or her memory.

Applicants should come to the interview prepared to address potential concerns that the adjudicating officer may have.  If the applicant obtained LPR status through employment, then the applicant should bring documentation showing that the applicant continues to work for the same company. This evidence could include tax returns, W-2s, pay stubs, and a letter of employment.  If the applicant is no longer employed by the sponsoring company, then the applicant should come prepared to show the time he or she was actually employed by the company.     

The general rule of thumb is that if an applicant has changed to a different employer (or changed spouse’s for that matter) within one year of obtaining their LPR status (based on that relationship), they should come prepared to show the legitimacy of the employment or marriage relationship. The closer the severing of the relationship is from the time of LPR grant, the more likely it is that questions will be asked.  It’s important to keep in mind that an application for naturalization gives USCIS a fresh opportunity to review the applicant’s file in its entirety – not just the naturalization or citizenship application.

Five Benefits of Having a Copy of Your “A File” from USCIS or the Immigration Court through a FOIA Request

Obtaining a copy of your “Administrative” or “A” file from the U.S. Citizenship and Immigration Services (USCIS) or the Executive Office for Immigration Review (EOIR) has many benefits.  As most of our readers know, USCIS is part of the U.S. Department of Homeland Security and it is responsible for the administration of immigration and naturalization adjudication functions and establishing immigration services policies and priorities.  The Immigration Courts are a component of EOIR under the U.S. Department of Justice.

The request for a copy of the A-file is done through a Freedom of Information Act (FOIA) request. The “A file” is basically a person’s record maintained by USCIS (and legacy INS) since at least 1955. Generally speaking each individual should have only one A-file.  The A-file is created when action is required for a particular individual. This “action” can include for example petitioning for an immigrant visa, requesting an immigration benefit, the initiation of removal proceedings, or submitting an adjustment of status petition.  The A-file can also be created at “any other time a case file is needed”. Once created, it contains all immigration records  for that particular non-citizen applicant.
I’m not very fond of the word “alien” so I use “non-citizen applicant” instead.  In all fairness to our friends at USCIS, the term “alien” is actually a statutory term defined in the Immigration and Nationality Act (INA).  INA section 101(a)(3) defines an “alien” as any person not a citizen or national of the United States.
Although there are many reasons why an applicant should have a copy of his or her A file, here are some:   
  • It helps you determine whether or how to proceed with an application. In some cases the A file will reveal facts that may have not been disclosed previously or were simply forgotten.  Some of the information contained in the A file may affect eligibility for the benefit desired, or may affect where and how the application has to be submitted.
  • It will help you see what the immigration officer is seeing.  The A file will have the documents you submitted and those that others have submitted on your behalf.  The interviewing officer will be making his or her decision in part by what’s in the record. It’s important that the applicant also know what’s in the file.
  • It helps you prepare.  By knowing what you have in the file, you can prepare adequately for an interview and anticipate issues that may be addressed.  In some cases many years have passed since the original A file was created and it’s important to review the file. 
  • It helps you determine eligibility. In some cases obtaining a copy of the A file will help determine eligibility for the relief sought such as a Motion to Reopen or assist in documenting an application for relief.
  • It’s free (for the most part). Most requests have no fees associated with them (unless the records are voluminous or take several hours to research).
Keep in mind that each agency has different procedures on how they handle FOIA requests.  Because every agency has different FOIA procedures, Customs and Border Protection and Immigration and Customs Enforcement should be contacted separately.  Below is some information on how to submit a FOIA request with USCIS and EOIR. 
  • USCIS.  Utilize Form G-639USCIS‘ website has a lot of useful information that will assist you in preparing and submitting the application. 
  • EOIR (Immigration Court).   The request should be made in writing to EOIR. The request should have some information such as a description of the records sought, the applicant’s name, “A number”, and the date and court location of the proceedings.  A Certification of Identity (Form DOJ-361) may also be required.   For more information please review EOIR’s Fact Sheet on FOIA requests. 
Done with time, the results of a FOIA request can be a very useful tool.  Keep in mind that FOIA requests take several months to process. Submitting the request as early as possible is the way to go.

How a Government Shutdown Might Affect Your Immigration Case

Because the U.S. federal government may shut down, it’s important to know how your immigration case may be affected.  
If you have a case pending before the U.S. Citizenship and Immigration Services (USCIS) your adjustment or naturalization interview will most likely take place as scheduled.  The same would apply for naturalization ceremonies.  Because USCIS is funded primarily through application fees, it is expected that most of its services and centers will operate normally.  However, because USCIS works with other agencies to adjudicate pending cases, temporary delays should be expected. 
If you have a removal or deportation case pending before the Executive Office for Immigration Review, most likely only detained cases will go on as scheduled.  The immigration courts in Arlington, Virginia and Baltimore, Maryland have stated that, in case of a government shutdown, only detained cases would be heard and that non-detained master or individual hearings would be rescheduled. Also, the front window of the immigration court would be closed and the immigration court phones would not be answered. 

If you have a case pending before the U.S. Department of State, DOS is expected to cease non-emergency visa services and non-US citizen services at U.S. Consular Posts abroad. As a result, no new visas are expected to be issued and visa application interviews would be rescheduled. Also, no passport applications will be accepted during a government shutdown.  
If you have a case pending before the U.S. Department of Labor, their offices will be closed.  This will delay the processing of PERM cases, as well as the processing of Labor Condition Applications for nonimmigrant visas such as H-1Bs, E-3s, etc.  Also affected would be requests for Prevailing Wage Determinations with the U.S. Department of Labor.

Hopefully the government will not shut down as expected and the processing of all immigration-related cases will not be affected. Should you have any questions please feel free to contact our office.

Matter of Vo: CIMT for Attempt Offenses

In Matter of Vo, 25 I&N; Dec. 426 (BIA 2011), the Board of Immigration Appeals (BIA) held that where the substantive offense underlying a foreign national’s conviction for an attempt offense is a crime involving moral turpitude, the foreign national is considered to have been convicted of a crime involving moral turpitude for purposes of section 237(a)(2)(A) of the Immigration and Nationality Act (INA).
The respondent is a native and citizen of Vietnam who was admitted to the U.S. as a lawful permanent resident in 1989. He was convicted in California of grand theft and receipt of stolen property. He was also convicted, at a later date, of attempted grand theft. The Department of Homeland Security (DHS) initiated removal proceedings against the respondent, charging that he was deportable under INA § 237(a)(2)(A)(ii) as an alien convicted of two or more CIMTs that did not arise out of a single scheme of misconduct.
The Immigration Judge found that because section 237(a)(2)(A) does not expressly reference “attempts,” as does section 212(a)(2)(A)(i)(I), the respondent’s crime did not qualify as a deportable offense, so he terminated the proceedings. The Department of Homeland Security appealed. The BIA reasoned that, with respect to moral turpitude, there is no distinction between the commission of a substantive crime and the attempt to commit it. Noting that Congress added the “attempt” language to various sections of the Act at different times, the Board determined that it could not reasonably conclude that the inclusion of attempts in those other sections represented a unified design to effectuate a single intent or that Congress’ express inclusion of attempt offenses in some sections indicated its intentional exclusion of them from other sections.
Since grand theft is a CIMT, the respondent’s attempted grand theft was also a CIMT, rendering him deportable based on his convictions. Therefore, the BIA concluded, the respondent is deportable as charged for a crime involving moral turpitude within the meaning of the statute.

Matter of Sesay: K-1 Adjustment Possible Even After Divorce (In Some Cases)

In Matter of Sesay, 25 I&N; Dec. 431 (BIA 2011), the Board of Immigration Appeals (BIA) held that a K-1 fiance can adjust status even if the marriage to the U.S. petitioner does not exist at the time that the adjustment application is adjudicated, if the applicant can demonstrate that the marriage was bonafide and done within the required 90-day period.  The BIA also held that: 
  1. A K-1 visa holder can only adjust status based on the marriage to the K-1 petitioner.
  2. A K-1 visa holder whose bonafide marriage to the K-1 petitioner is more than 2 years old at the time the adjustment application is adjudicated is not subject to the provisions for conditional resident status.
The respondent in this case, a native and citizen of Sierra Leone, was admitted to the United States in April 2000 as a K-1 non-immigrant.  He married and filed an application for adjustment of status which was later denied. The couple divorced on June 5, 2003 and later that year the respondent was placed in removal proceedings. In 2004, the respondent married his second wife, who filed an immediate relative visa petition (I-130) on his behalf.
In removal proceedings, the respondent renewed his adjustment application based on his I-129F fiancé petition. He also filed an adjustment application premised on the I-130 petition filed by his current wife. The Immigration Judge denied both adjustment applications, finding that he had no jurisdiction to adjudicate the adjustment application based on the respondent’s first marriage because it was no longer in existence. The Immigration Judge denied the I-130 adjustment application because the respondent had been admitted on a fiancé visa and therefore could only adjust based on the I-129F petition.
The BIA concluded that the respondent had completed the required steps in the fiancé adjustment process and that he was not subject to the provisions of section 216 of the Immigration and Nationality Act (INA) because his marriage was more than 2 years old when his adjustment application was adjudicated. Accordingly, the Board found that his divorce did not render him ineligible for adjustment of status and remanded the record for consideration of his application as a matter of discretion.

7 Reasons Why An Immigration Attorney Might Not Take Your Case (But Won’t Tell You)

As with any other profession, immigration attorneys have difficult choices to make when deciding which cases to take on. Some reasons why the attorney won’t take the case are very legitimate, and those tend to be centered around procedural, law, ethics, or competence grounds.  For example:
  • Not being entitled to any immigration relief.
  • The time to file an appeal is very close or has already lapsed.
  • There’s a conflict of interest with other cases the attorney is handling or has handled in the past.
  • Representation would be unlawful, unethical or imprudent.
  • Commitments to current clients make it impossible to take on new cases.
  • Not being familiar with that particular area of the law.
Some reasons however, deal more with a matter of preference, lessons learned from previous cases, or personal pet-peeves. Although many factors come into play, here are some reasons why an immigration attorney might not take your case – but won’t necessarily tell you: 
  1. You’ve had three previous attorneys, and none of the other five attorneys you’ve visited since then will take your case. 
  2. You’re complaining about, and bad-mouthing, all of the attorneys mentioned in #1.
  3. You have your own opinions as to how the attorney should handle the case – regardless of what the law says.  
  4. You have unrealistic expectations as to the handling or outcome of the case.  
  5. You call the office four times before the initial consultation insisting to talk with the attorney because you “don’t talk with staff” – just to ask for directions on how to get to the office.  
  6. You bring six people to the initial consultation, each one having their own immigration problems, and one being a notario that is just “helping out”. You then ask for a discount on the initial consultation fee.
  7. Your three children are jumping up and down on the reception room sofa while trying to stick their hands with Oreo crumbs in your fish tank to hold the “little fishes”.
OK, maybe I’m exaggerating a bit but you get the point.  I’m sure people have plenty of reasons why they wouldn’t hire an attorney.  If you have some suggestions please let me know.  

Matter of GUEVARA ALFARO: Silva-Trevino’s mandatory three-step framework supports finding that intentional sexual conduct by an adult with a child is a Crime Involving Moral Turpitude (CIMT).

In Matter of GUEVARA ALFARO25 I&N; Dec. 417 (BIA 2011), the Board of Immigration Appeals (BIA) held that:
  1. Any intentional sexual conduct by an adult with a child involves moral turpitude, as long as the perpetrator knew or should have known that the victim was under the age of 16.
  2. Absent otherwise controlling authority, Immigration Judges and the Board of Immigration Appeals are bound to apply all three steps of the procedural framework set forth by the Attorney General in Matter of Silva-Trevino for determining whether a particular offense constitutes a crime involving moral turpitude.
In a decision dated April 27, 2010, an Immigration Judge terminated the removal proceedings against the respondent. The Department of Homeland Security (“DHS”) appealed from that decision. The appeal was ultimately sustained, the proceedings reinstated, and the record remanded for further proceedings.
The respondent in this case was a citizen of El Salvador  who adjusted his status to that of a lawful permanent resident in 1997. He was placed in removal proceedings after being convicted of several offenses, including unlawful sexual intercourse with a minor (statutory rape) in violation of section 261.5(d) of the California Penal Code. That section provides as follows:
Any person 21 years of age or older who engages in an act of unlawful sexual intercourse with a minor who is under 16 years of age is guilty of either a misdemeanor or a felony, and shall be punished by imprisonment in a county jail not exceeding one year, or by imprisonment in the state prison for two, three, or four years.
In Matter of Silva-Trevino the Attorney General established a three-part framework for determining whether a particular offense constitutes a crime involving moral turpitude.

 

  • First, a categorical approach must be employed under which the criminal statute at issue is examined to ascertain whether moral turpitude is intrinsic to all offenses that have a “realistic probability” of being prosecuted under that statute.
  • Second, if the issue cannot be resolved under the categorical approach, a modified categorical approach should be undertaken, which requires inspection of specific documents comprising the alien’s record of conviction (such as the indictment, the judgment of conviction, jury instructions, a signed guilty plea, or the plea transcript) to discern the nature of the underlying conviction. 
  • Finally, if the record of conviction is inconclusive, probative evidence beyond the record of conviction (such as an admission by the alien or testimony before the Immigration Judge) may be considered when evaluating whether an alien’s offense constitutes a crime involving moral turpitude. 
When applying Matter of Silva-Trevino to this case, the BIA analyzed this case as follows:
  • It first analyzed section 261.5(d) of the California Penal Code under the categorical approach. Since the statute does not require a perpetrator to have engaged in intentional sexual contact with someone he or she knew or should have known to be a child, there is a realistic probability it could be applied to conduct that does not involve moral turpitude. The offense prohibited by section 261.5(d) is therefore not a categorical crime involving moral turpitude under the first step of Silva-Trevino. 
  • Applying the second step, the BIA found that there were no documents in the record of conviction establishing that the respondent knew or should have known that his victim was a child.
  • The only remaining step of Silva-Trevino is the third, which provides for consideration of probative evidence beyond the record of conviction. For this step, the BIA analyzed the respondent’s testimony before the Immigration Judge. 
Because the BIA generally lacks the authority to make findings of fact in the course of deciding appeals (8 C.F.R. § 1003.1(d)(3)(iv)), it remanded the case for the Immigration Judge to make specific factual findings regarding whether the respondent knew or should have known that his victim was a minor, taking into consideration the respondent’s prior testimony before the Immigration Court and any other relevant evidence.

 

Matter of Nelson: Continuous residence clock for Cancellation of Removal not reset by alien’s departure and reentry – absent waiver of inadmissibility for conviction.

In Matter of Nelson, 25 I&N; Dec. 410 (BIA 2011), the Board of Immigration Appeals (BIA) addressed the question of the “stop-time” rule under section 240A(d)(1) of the Immigration and Nationality Act (INA).  More specifically, the BIA addressed the issue of whether the clock can be reset by an alien’s departure from, and reentry to, the United States after a conviction for a crime that would otherwise stop the accrual of continuous residence for purposes of determining eligibility for cancellation of removal under INA section 240A(a).

Section 240A(d)(1), which sets forth the “stop-time” rule, provides in pertinent part:

Termination of Continuous Period. For purposes of this section, any period of continuous residence or continuous physical presence in the United States shall be deemed to end (A) . . . when the alien is served a notice to appear under section 239(a), or (B) when the alien has committed an offense referred to in section 212(a)(2) that renders the alien inadmissible to the United States under section 212(a)(2) or removable from the United States under section 237(a)(2) or 237(a)(4), whichever is earliest.

The BIA held in this case that continuous residence cannot be restarted absent a waiver of inadmissibility in regard to the conviction. That is, once a foreign national has been convicted of an offense that stops the accrual of the 7-year period of continuous residence required for cancellation of removal, INA section 240A(d)(1) does not permit such residence to restart simply because the alien has departed from, and returned to, the United States.

In this case the respondent, who is from Jamaica, was admitted to the United States as a lawful permanent resident in 1994.  In 1999 he was convicted of possession of marijuana in New York. In 2000 he visited Canada for two days and returned to the United States. In removal proceedings the respondent applied for Cancellation of Removal. The Immigration Judge denied the respondent’s application for cancellation of removal under INA section 240A(a) because he failed to establish the requisite 7 years of continuous residence. Specifically, the Immigration Judge found that the respondent was admitted in 1994 and that under section 240A(d)(1) of the Act, his period of continuous residence ended in 1999 when he committed the drug offense that rendered him removable.

The BIA agreed with the Immigration Judge’s conclusion that under INA section 240A(d)(1), the period of time the respondent was in the United States after his conviction and subsequent reentry cannot be counted toward the accrual of the 7 years of continuous residence required for cancellation of removal, since the clock does not start anew when the alien departs and reenters the United States following the commission of a triggering offense.

Matter of ALYAZJI: 5-year clock for 237(a)(2)(A)(i) removability is not reset each time a foreign national is admitted (within the United States).

Matter of ALYAZJI, 25 I&N; Dec. 397 (BIA 2011), identifies when the date of admission begins to run for purposes of section 237(a)(2)(A)(i) of the Immigration and Nationality Act (INA), which in a pertinent part, authorizes the removal of any alien who “is convicted of a crime involving moral turpitude committed within five years . . . after the date of admission,” provided the crime is punishable by a sentence of imprisonment of 1 year or longer.

In Matter of ALYAZJI the Board of Immigration Appeals (BIA) held that  a conviction for a crime involving moral turpitude triggers removability under section 237(a)(2)(A)(i) only if the crime was committed within 5 years after the date of the admission by virtue of which the alien was then in the United States.  The BIA concluded that the class of aliens “in and admitted to the United States” referred to in the opening sentence of 237(a) of the INA consisted of:
  • Those who entered the United States with the permission of an immigration officer after being inspected at a port of entry; and
  • Those who entered the United States without permission or were paroled, but who subsequently became lawful permanent residents.
Under the BIA’s new understanding of the phrase “the date of admission”, the 5-year clock is not reset by a new admission from within the United States (through adjustment of status). To ascertain an alien’s deportability under section 237(a)(2)(A)(i), one must first look to the date when the crime was committed. If, on that date, the alien was in the United States pursuant to an admission that occurred within the prior 5-year period, then he is deportable. Conversely, the alien is not deportable if he committed his offense more than 5 years after the date of the admission pursuant to which he was then in the United States.

Matter of ALYAZJI overrules Matter of Shanu, 23 I&N; Dec. 754 (BIA 2005), where the BIA held that the term “admission” used in section 237(a)(2)(A)(i) referred to adjustment of status as well as admission at the border; and second, that an alien’s conviction for a crime involving moral turpitude supported removal under that section so long as the crime was committed within 5 years after the date of any admission made by the foreign national.

This case involved Alla Adel Alyazji, a Palestinian citizen who entered the United States on a temporary visa in 2001 and became a lawful permanent resident in 2006.  In January 2008, the respondent was convicted of indecent assault in violation of Pennsylvania law, based on a 2007 offense. As a result of that conviction, the Department of Homeland Security (“DHS”) initiated removal proceedings. Shortly after removal proceedings commenced, the respondent sought termination on the ground that his indecent assault conviction resulted from an offense committed more than 5 years after his “admission” as a nonimmigrant in August 2001. The Immigration Judge denied the motion based on Matter of Shanu, holding that the respondent is removable because he committed his offense less than 5 years after his “admission” to lawful permanent resident status in April 2006.
The BIA terminated removal proceedings against Mr. Alyazji concluding that when he committed his crime involving moral turpitude in 2007, he was in the United States pursuant to his 2001 admission as a nonimmigrant. Because he committed his offense more than 5 years after that “date of admission,” he was not deportable, even though he was “readmitted” by means of adjustment of status in April 2006.
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