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H1B Premium Processing Time

April 19, 2014

Author: New York Immigration lawyer Alena Shautsova

H1B Premium Processing Time

Many H1B applicants are nervous: the fees for premium processing were paid but they have not heard anything back form the USCIS. Should they think of other options? Should they want? Does it mean their applications were denied?

Actually, it is totally normal not to hear anything back by this time. USCIS will start adjudicating Premium Processing petitions beginning April 28, 2014.

While it is always good to have a back up plan, H1B processing right now is actually on track.

I-9 compliance : it is for everyone!

April 18, 2014

Author: New York Immigration Lawyer Alena Shautsova

I- 9 compliance I-9 is the form that should be filled by everyone who accepts employment in the United States. It is used by US government to determine if employers comply with prohibition on hiring people without work authorization. The form has to be filled out by the employee no later than the first day of employment; it is also has to be completed by the employer, no later than the third day of employment.

There is also something called E-verify: it is an electronic program which allows employers to confirm if an employee is allowed to work in the US. While it is not the electronic I-9, it does call for a lot of similar information. There are companies that must participate in E-verify, and there are companies and organizations that choose to do so. In any event, form I-9 still must be completed.

What is the importance of I-9 form? An employee should be aware that if he or she lies on the form regarding his or her Immigration status, it can be used by the DHS later: for example, an employee in hope to get a job may check off “citizen of the US” as a filed for employment eligibility. This conduct actually triggers permanently inadmissibility into the US, as somebody who claims to be a US citizen while he is not, cannot get legal in the US.

For employers: form I-9 compliance is being checked recently more and more often. The fines for violations of the form are thousands of dollars for one violation and also may cause charges of document fraud and discrimination.

The USCIS has pretty helpful resources on the topic: http://blog.uscis.gov/2014/04/whats-form-i-9-e-verify-who-new-videos.html

In addition,  you may use our website page to learn I-9 and E- verify basics: http://www.shautsova.com/immigration-usa/i-9-uscis-forms.html

Adjustment of Status for Family Members

April 2, 2014

Author: New York Immigration attorney

Adjustment of status for family members

Family based immigration is one of the most common ways of getting legal immigration status in the US.  Parents can sponsor their children, siblings can sponsor siblings and children can sponsor parents. Stepchildren can sponsor their parents, and so do parents: they are allowed to sponsor their stepchildren.

However, for each of the above situations there are its own limitations. The success of adjustment of status for a family member depends on the immigration status of the relatives, their age (in case of a children) and marital status.

The following family members cannot sponsor each other: uncles/ants and nephews and nieces; grandchildren and grandparents; cousins.

It is best if a person consults with an experienced immigration attorney before he or she starts the process of sponsoring. One of the most common misconceptions is that a U.S. citizen parent can sponsor his or her child who is in the United States even if the child lost his or her immigration status. This may work only if the child qualifies as an immediate family member of the sponsoring party. It means the child is under 21 years old at the time of the adjustment of status, or the child’s age froze when the parent “filed” for him and now the child is physically older, but for legal purposes the child is still under 21.

In all other situations, a child will not be able to get adjustment of status or green card while in the US, if he or she overstayed the immigration status.

Let’s say a mother filed for the child when he was 22 and back then she was a permanent resident. Now she is a US citizen, and the child is 28. The child entered the country as a B1/2 7 years ago and fell out of status. Now, the child’s priority date on I-130 filed by the mother is current. The child files for adjustment of status, and at the interview gets denial. The denial is justifiable because an adult son or daughter of the US citizen (See: Who is a Child for Immigration Purposes ) is not an immediate family member of the US citizen and the gap in his or her status cannot be forgiven to such a child, and the child’ application will be denied and this person can be placed in removal proceedings.

Different categories of family members can be viewed HERE: VISA BULLETIN

Applying for adjustment of status can be costly. Consult with an Immigration attorney before starting paperwork:  call us at 917-885-2261.

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

March 14, 2014

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

Author: Immigration attorney Alena Shautsova

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

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

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

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

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

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

 

DEADLINE FOR MOTION TO REOPEN OF DOMA DENIALS

March 6, 2014

Author: Immigration Attorney Alena Shautsova

The deadline to reopen cases based on DOMA is approaching.

In June, 2013 the U.S. Supreme Court held that  same sex marriages should be recognized for the purposes of Federal laws, and this caused expansion of the Immigration benefits to the same sex couples.

Subsequently, USCIS held that  all those received denials based solely on Section 3 of DOMA could file their motions to reopen the cases.

March 31, 2014 is  the deadline for requesting that USCIS reopen a petition or application based on a marriage between a same-sex couple that was denied prior to February 23, 2011. To request reopening, send an e-mail to USCIS at USCIS-626@uscis.dhs.gov and note that you believe the petition was denied on the basis of DOMA section 3.

 

Crime of Moral Turpitude in Immigration Court and Record of Conviction

February 25, 2014

Author: Criminal Immigration attorney Alena Shautsova

Crime of Moral Turpitude in Immigration Court and Record of Conviction

Conviction of crime of moral turpitude may cause a permanent resident to be deportable if committed within 5 years from the date of admission.  (Date of admission is the date when an alien was admitted to the US or paroled, but does not restart when an immigrant adjusts his or her status as per Matter of ALYAZJI, 25 I&N Dec. 397 (BIA 2011)).

However, what a crime of moral turpitude is, is decided in almost every case separately. Why? Because the term of “crime of moral turpitude” is a term of art.  The Immigration and Nationality act does not provide a definition to it, and courts look at the conviction to determine whether  a particular offense falls under the category of a CMIT.

In doing so, the courts follow the following analysis: first, they look at whether the statute a person was convicted of is divisible or not divisible. A statute is not divisible when it describes only one way to commit a crime. If the statute sets out a list of alternative ways to commit the crime, and where some of these “sub-violations” categorically meet the federal standard while others do not necessarily meet this federal standard, then the statute is divisible.  A statute categorically meets federal standard when every violation of a particular criminal statute meets the generic federal definition.

If a non divisible State statute mimics the Federal definition, there is no reason to look at the record of conviction: the person will be found guilty of crime of moral turpitude for Immigration purposes. If not, the State statue includes acts that will not be punished under the Federal law, then the person will be “off” federal hook for Immigration purposes.

As for divisible statute: most likely the court will look at the record of conviction, which consists of criminal charge, the plea agreement, and any plea or sentencing colloquy. The record of conviction does not include arrest reports, the pre-sentence investigation, the testimony of witnesses, etc. Shepard v. U.S., 544 U.S. 13 (2005); U.S. v. Kovac, 367 F.3d 1116, 1120 (9th Cir. 2004).

In addition, currently, in several Circuits the courts are permitted to look beyond the record of conviction to see if the person committed a CMIT under the Matter of Silva-Trevino.  This might present a problem for an immigrant who, essentially, will have to be re-tried in Immigration court for the same conduct he was tried in criminal court in. The court may look at any necessary and appropriate evidence to determine whether the foreign national’s conduct did, in fact, involve moral turpitude.

If you have questions regarding Immigration court proceedings, call office of Alena Shautsova 917-885-2261.

March 2014 Visa Bulletin is Here

February 8, 2014

Visa Bulletin provides schedule for Immigrant visas for family and employment based immigration. The US government establishes a number of categories for immigrant visas and a certain number of immigrant visas available for each category. As a result, there is a wait time for people in each category to get their immigrant visa, except for those who qualify as intimidate relatives of US citizens (spouses, parents and children under 21  years old).

Each month the Department of State updates Visa Bulletin with current state of the wait time.

You may view the Visa Bulletin for March 2014 here.

CLAIMING US CITIZENSHIP ON I9 FORM WILL CAUSE PERMANENT INADMISSIBILITY

January 27, 2014

CLAIMING US CITIZENSHIP ON I9 FORM WILL CAUSE PERMANENT INADMISSIBILITY

Author: New York Immigration attorney Alena Shautsova

According to the laws of the US, when an employer is hiring an employee, the employee must fill out I-9 form: this form helps an employer to determine if the potential employee has a proper employment authorization and may accept employment in the US. The form consists of simple questions and check boxes and one of those check boxes asks the filler to answer if he/she is a US citizen or US national. Of course, answering YES or checking off this box will mean that the person who is filling out the form has the proper documentation to work in the US.

Many immigrants without employment authorization are tempted to check off that little square “Citizen or National of the US.” However, many of them ignore the drastic consequences.

This happened in the case of  Nyabwari. She entered the US on a visa, overstayed it, and later married a US citizen. She though she would have no problem receiving her green card. Indeed, many with the same situations can got citizenship.

However, the government learned that at some point in time, while in the US, Mrs. Nyabwari was working illegally, and to make the situation worse, the government discovered that Mrs. Nyabwari submitted form I-9 to her employer stating she was a US citizen or US national.

Mrs. Nyabwari’s explanation that she did not understand who the national was, did not help her. Both,  Immigration judge and the Board of Immigration Appeals said that checking  off that one box caused Mrs. Nyabwari to be PERMANENTLY inadmissible into the US, as this was a violation of the US laws for which there is no waiver.

The end of Mrs. Nyabwari’s immigration saga is very sad: she will likely to have to leave the country permanently or to stay in the US illegally forever. This serves as a great lesson: if you in doubt, you must consult an attorney to avoid “deporting” yourself before your time.

 

 

Do I need a lawyer?

January 22, 2014

Do I need a lawyer?

I would like to share these stories with my audience in hope to answer  one of the most popular questions potential clients are asking themselves: do I need a lawyer?I met these two clients recently. Two of them have very different stories, but both have one thing in common: they both tried to handle their legal issues themselves.

The first client is a teenage boy who came to the US on a student visa from Russia. He is enrolled in high school, and recently together with his friend was accused of shoplifting. Instead of contacting an attorney, he decided that he did not want to inform his parents in Russia about “the situation” and decided to go to court himself. He was provided a free attorney. Now, I do not want to make any assumptions about legal aid attorneys, but this particular one, for some reason decided that my client did not deserve zealous representation and simply told him to plead guilty. The eighteen years old with no prior convictions, plead guilty to a crime of moral turpitude when he was not even the one caught with the merchandise. Even the prosecutor was in shock and reduced the charge to disorderly conduct, which is still a misdemeanor under the Immigration law.  The free attorney also advised that my client that his visa will be revoked and he would  never come to the US again.

Needless to say that the advice was incorrect. I only regret that the boy did not contact us earlier so we could have helped him to avoid having any record at all.

The second client is from one of the countries of former Soviet Union. He came to ask for help because local police refused to accept his crime report. This client was a victim of domestic violence and extortion: his former family member stole his immigration documents and refused to give them back unless my client payed him several thousand dollars.  So, what do you think happened in the police precinct when my client decided to file a report? He was accused by the detectives of alleged immigration fraud! This was a clear case of profiling. I was so upset for the client and the police’s actions, that I had to go to the police precinct and after two hours of arguing with the whole precinct, the report was finally filed. I must say with regret, that no person who is not an attorney would be able to make those officers to accept the report. I do not know if we will be able to persuade the officers to investigate the reported crime, but at least my client has a copy of the report which will help him to restore his stolen documents.

I hope these examples will help you to answer that question I posed at the beginning of this post.

 

Prepare for Your Travel to the USA

January 13, 2014

Prepare for Your Travel to the USA

Author: US Visa Attorney Alena Shautsova

How one can prepare for travel to the US? What do one need to come to the US and be admitted without issues at the border?

First of all, one must be in possession of an unexpired passport that would expire only 6 months after the intended departure from the US. If you travel with a visa, a consulate would not stamp your passport if its expire date is sooner than 6 months from the date of the intended departure. If you come on ESTA program, make sure your passport has enough validity period not to cause problems at the border.

Second, if your name in the passport is different than your name on your green card, you should have a copy of better an original of the marriage certificate showing the name change. If the name change happened as a result of court order, you should have a copy of the order with you.

Third, a valid visa is a must of course. A visa sticker and time one may be present in the US are two different things. The dates on the visa itself show only the period of time within which a person may enter the US, but it is up to the CBP officer and the type of visa one holds that would determine how long one may stay in the US. For example, a B1/B2 visa may be valid for 2 years: it means one may enter the US within this 2 years period. But the B1/2 visa allows its holder to stay in the country for no longer than 6 months at a time (provided no extension is requested).

Lastly, if a person who is coming to the US is not a green card holder, he/she will be assigned an I 94 number. Due to resent changes, the I 94 number will not longer be provided on a paper card. It is all done electronically now. One must print it out before leaving the US though, or will have to submit a FOIA request to retrieve that number after departure. Please see this page about I-94 new procedure.

If your green card expired and you need to travel to the US, visit our page for more information: http://www.shautsova.com/law-publications/lost-green-card-transportation-letter-boarding-foil.html#.UtRy9bR78w8

For more information: call law office of Alena Shautsova at 917-885-2261