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Unlawful Presence For F, M and J Students

May 25, 2018

Unlawful Presence For F,  M and J Students

Author: New York Immigration Lawyer Alena Shautsova

Major changes are coming to the Immigration filed and how the laws are implemented. For almost two decades, students admitted on F, J, and M programs were admitted for Duration of Status (D/S) and were not acquiring unlawful presence if they overstayed their visas unless an Immigration Judge or a DHS made a determination that their status was terminated. 

Previously, for example,  a J1 student who came on a Work and Travel program and overstayed her visa, would not face the 3/10 year unlawful presence bars if she later left the US and applied for, let’s say an Immigrant visa.  The amount of time that was overstayed would not matter.  Now, however, DHS made it clear, that even those admitted for Duration of Status will be accumulating the unlawful presence time after their authorized stay expires (stay including the authorized periods that are grunted to students after the expiration of their programs which is 60 days for F students and 30 days for J students). 

It means that those who overstay their student visas, dispte the D/S admission will face 3/10 unlawful presence bars and will have to take this into consideration when making decisions about applying for reinstatement, changing status or returning back home.  A person who is subject to an unlawful presence bar must receive a waiver to come back to the US before the ban expires. 

The new calculation of unlawful presence will come into effect on August 9, 2018. Prior to this date, the old rule is in effect. 

USCIS Will Destroy Undelivered Documents

April 3, 2018

USCIS Will Destroy Undelivered Documents

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Author: New York Immigration Lawyer Alena Shautsova

Sad news came today from USCIS: the agency announced that it will start physically destroying documents green card, employment authorizations and travel documents that were marked as “undeliverable” if within 60 days the beneficiary did not contact USCIS.

In my practice, I at times,  get notices from USCIS that the documents it was to deliver to my office somehow were “undeliverable.”  I am not sure where the confusion comes from: from the post office itself or incorrect spelling of addresses, but it does happen. Imagine also, a person after an interview is told that USCIS will make a decision within 90 days.  A person does not expect the green card to arrive earlier than 90 days. A person may not even know that USCIS tried to deliver his/her green card and does not contact USCIS within 60 days…. I just do not see how this new practice will make life easier for anyone. I cannot imagine that anyone who spent time and money on Immigration documents would intentionally fail to contact USCIS within two months period. If people would miss the 60 days deadline, it is likely because they had  no clue that the document was attempted to be mailed to them. Now, on top of waiting for the document, they will find an unpleasant surprise: their documents will be destroyed and they will have to file for the replacement….

 

I 601A Provisional Waiver: Step by Step Guide

March 27, 2018

I 601A Provisional Waiver: Step by Step Guide

Author: Provisional Waiver Attorney Alena Shautsova

A provisional  I 601A waiver waives the unlawful presence bar for those who have certain LPR or USC relatives in the US. An unlawful presence bar applies to all who accumulated unlawful presence in the US, left the US, and now are applying for Immigration benefits from outside the US.  The positive side of this waiver is that  unlike many waivers that can be filed only once the person departed the country, I601A can be filed for while the person is still in the US; and second, recently US relaxed the standard for granting the waiver, and now, the person can win the waiver either by providing that the relative will not be able to move with him/her outside the US (will suffer extreme hardship in case of a move) or that the relative will have extreme hardship in case the immigrant is removed out of the US.

Here are the steps for the waiver:

First Step: An approved Immigrant Petition

A person who is planning on filing for the waiver has to have an approved immigrant petition. It can be I 130, I 140, or even a selection in the DV lottery.

Second Step:

The petition has to the sent for processing to the National Visa Center, and a person has to pay the Immigrant Visa and Affidavit of Support Fees (when necessary)

Third Step:

Submitting I 601A to USCIS with a filing fee and supporting documents. Once the waiver is accepted by USCIS, the clock in the NVC is stopped.

Fourth Step:

Once the waiver is approved, USCIS informs NVC about the approval, the applicant has to submit DS 260 immigrant visa form and supporting documents for the visa. Then he/she has to wait for the visa interview; schedule the medical exam overseas and plan for the departure.

Fifth Step

An applicant will have to travel overseas for their visa interview. A consulate will use an immigrant visa that will be stamped in the passport. Upon arrival to the US, the applicant will have the actual “green card” mailed to the address they left on file with USCIS.

These are the most common steps for those who have never been in court and do not have other inadmissibility issues.

 

What Happens After ICE Arrest

February 9, 2018

What Happens After ICE Arrest

Deportation attorney Alena Shautsova

Recent news brings worry and anxiety to Immigrants: ICE arrests non-citizens in courts, at work, in their homes.  But what actually happens after an individual is taken into ICE custody? The answer to this question depends on individuals’ Immigration history and the exact reason for the arrests.

Individuals with Prior Orders of Deportation/Removal

If ICE picks up a person who has a prior order of removal/deportation, ICE may either reinstate the order of removal and try to physically remove the person from the US; or, if a person has any possibility of relief from the physical deportation, ICe may issue an order of supervision.  A person would have to file an application for administrative stay of removal and ICE would release such a person on an order of supervision.  If the application for stay is granted, a person will be allowed to remain in the US, wait for the resolution of his/her applications here, and legally work in the US.

Individuals Charged With Aggravated Felony 

If ICE arrests someone who does not have an order of removal/deportation but is deportable due criminal conudct, and especially due to an agrevated felony, ICE may choose to remove such a person using an expedited procedure tool,  and will serve on an individual a “Notice of Intent to Issue Final Administrative Removal”.  If an individual does not successfully contest such a notice, he/she may be removed out of the US without seeing a judge.

Other Cases

In the majority of other cases, ICE will have to place a person in INA 240 removal proceedings where an individual will have a right to present a defense to removal in court before an Immigration Judge. A person is likely to be detained for a month or so until the bond hearing takes place, and then a person will be released (once the bond is paid.) Some immigrants, are not eligible for the bond (but even this law provision has been challenged in courts.)

In many cases, I would say in the majority of cases, long-time US residents may have defenses to deportation/removal. Depending on their exact situation, they may qualify for adjustment of status (with a waiver, for example); cancellation of removal; SIJS benefits (for children); or else.

If you need a consultation regarding possible defenses, please call us at 917 885 2261.

 

Administrative Closure v. Termination of Immigration Proceedings

January 30, 2018

new-york-supreme-court

Administrative Closure v. Termination  of Immigration Proceedings

Author: New York Immigration Attorney Alena Shautsova

I would like to share this article as a little clarification as to what happens in Immigration court (at times) and the difference between two, almost identical decisions (as many clients see them): administrative closure and termination of Immigration proceedings.

In Immigration Court, a person may have various forms of relief, or sometimes, does not have any benefit that he/she qualifies now, but may qualify in the future. Also, sometimes, when a case is pending against a person, he/she cannot apply for a relief, he/she would otherwise qualify for.  For example, a person in removal proceedings, cannot submit he/her application for adjustment of status with USCIS but has to do so with an Immigration Judge (IJ).  A judge has to close a person’s case in court first so that a person can submit his/her application administratively.  Or, in another example, a person with a final order of removal, and an approved I 601A waiver, cannot leave the country without the case being reopened and closed. (If, of course, a person would like to come back to the US after a trip abroad, or if he/she does not want to apply for yet another waiver).

What happens in such situations, that a person’s removal case has to be closed by the judge. But there is a difference in how a judge can “close” a case, depending on the purpose of the closure.

An IJ may administratively close the case: this is not a true closure of the case. An administrative closure simply takes the case off the active court calendar, and a person would not need to come to court for a while (usually it is done to give a person more time to prepare an application or to resolve some other issues that take a long time.) A person with an “administrative closure”, if leaves the country, will be self-deporting him/herself.

An IJ may terminate the proceedings. This means a complete resolution of the case. The proceedings can be terminated with prejudice (it means that the government will not be able to restart the case based on the same grounds); or without prejudice (it means the government will be able to reinstate the removal on the same grounds against the person).

Simply put it, one would want the case to be “terminated” instead of administratively closed. Only those with pending asylum applications, who want to keep an opportunity to extend their EADs would probably prefer an administrative closure instead of a termination.

 

If you have questions regarding the Immigration court proceedings, reach out to us at  917-885-2261.

 

TPS Re-Registration Period for HAITI and EL SALVADOR

January 20, 2018

TPS Re-Registration Period for HAITI and EL SALVADOR

Author: New York Immigration Attorney Alena Shautsova

Recently, DHS announced that El Salvador and Haiti will lose TPS protection. It means that hundreds of Haitians and Salvadorians will have to find a different way to stay in the US legally or depart the US.

The US government, however, provided one last extension of TPS for both countries.  TPS for El Salvador is set to expire on September 9, 2019; and for Haiti on July 22, 2019.

It is important that persons who hold TPS currently apply for re-registration timely, not to lose their status before its expiration. the re-registration period for El Salvador  and Haiti is  January 18, 2018 – March 19, 2018. 

Some TPS holders who timely applied for the re-registration for Haitian TPS are still waiting for the decisions on their re-registration applications from 2017. In such cases, a person does not have to submit a new application. But only if the re-registration was applied timely in 2017.

USCIS will issue new EADs with a July 22, 2019 expiration date to eligible Haitian TPS beneficiaries who timely re-register and apply for EADs; the same goes for Salvadorians (the effective expiration day of their EADs would be September 9, 2019).

Existing EADs issued under the TPS designation of Haiti with the expiration date of January 22, 2018, is automatically extended for 180 days, through July 21, 2018. One does not need to apply for a new EAD in order to benefit from this 180-day automatic extension. However, if one wants to obtain a new EAD valid through July 22, 2019, he/she must file an Application for Employment Authorization (Form I–765) and pay the Form I–765 fee.

The same is true for Salvadorians, only their EADs have a different expiration date according to the Federal notices.   DHS automatically extends the validity of EADs issued under the TPS designation of El Salvador for 180 days, through September 5, 2018.

For possible Immigration solutions related to the termination of the TPS status, please visit: https://www.shautsova.com/law-publications/solutions-haiti-tps-holders.html#.WmKglKinE2w.

 

 

 

 

237(h) Waiver May be Available Outside the Entry Restrictions

November 10, 2017

237(h) Waiver May be Available Outside the Entry Restrictions

Author: Green Card Attorney Alena Shautsova

People say that where there are two lawyers,  there are three opinions. And there is a good reason for it. The Immigration law, perhaps, is one of those areas of law where nothing is set in stone, and various courts provide various results in similar situations.

In a recent case coming from the Seventh Circuit Court of Appeals, the Court decided that 237(h) waiver: the only waiver that may be available in marriage fraud cases, may be applied for not only when the fraud was committed at the time of entry. The Court stated that if the charge of removability is related to fraud, then 237(h) waiver can be applied for!

I have to say that when I was reading the decision, I was curious how a man received a green card in the US not once, but twice, and each time it was a “problematic” application, when there are very convincing cases of people who are waiting for the decisions on I 751 for years. Once you keep reading the decision, you will see that this man had a very sympathetic situation after all, but, of course, the misrepresentation part of his testimony where he “forgot” that he was married to someone else can be excused in only very, very “sympathetic” circumstances.

 

EXTENSIONS OF NON-IMMIGRANT PETITIONS WILL BE REVIEWED AS NEW SUBMISSIONS

October 25, 2017

EXTENSIONS OF NON-IMMIGRANT PETITIONS WILL BE REVIEWED AS NEW SUBMISSIONS

Author: Work Visa Immigration Attorney Alena Shautsova

USCIS has recently announced that it will no longer rely on previous approvals when deciding petitions for extensions of certain non-immigrant work visas.

This new policy will affect L1 petitions the most.

The changes

If previously, when the same company would file for an extension of the L1 petition for the same employee, USCIS would generally rely on the first approved petition to determine the validity and sufficiency of the extension request, now, USCIS will consider each request for an extension as a new petition.

Specifically, the new policy states:

“In adjudicating petitions for immigration benefits, including nonimmigrant petition extensions, adjudicators must, in all cases, thoroughly review the petition and supporting evidence to determine eligibility for the benefit sought. The burden of proof in establishing eligibility is, at all times, on the petitioner. The fundamental issue with the April 23, 2004 memorandum is that it appeared to place the burden on USCIS to obtain and review a separate record of proceeding to assess whether the underlying facts in the current proceeding have, in fact, remained the same. Not only did this improperly shift the burden of proof to the agency contrary to INA § 291, but it was also impractical and costly to properly implement, especially when adjudicating premium processing requests.”

It means that a requestor for an extension will have to resubmit all documents that were necessary to qualify the beneficiary initially, plus more documents establishing qualifications for an extension. Such documents may be, but are not limited to: records of payroll, copies of tax returns, bank account statements, contracts, etc. (The large companies have different requirements).

 

Federal Judge Blocks Trump’s Third Travel Ban

October 17, 2017

Federal Judge Blocks Trump’s Third Travel Ban

Author: New York Immigration Lawyer Alena Shautsova

Today, on October 17, 2017, A Federal Judge in Hawaii blocked President’s Trump Third Travel Ban.  The third version of an Executive Order that was supposed to go into effect tomorrow, did not work. The judge stated that, sufficiently, this third executive order suffers from the same drawbacks that the previous two did: they are discriminatory and are too broad.  Interestingly, this Third Ban was supposed to cover North Korea and Venezuela.

What is going to happen next is that the parties are likely to meet again in the US Supreme Court.

So far, the human rights activists have won!

 

 

US Asylum System is Under Attack

October 16, 2017

US Asylum System is Under Attack

Author: US Asylum Attorney Alena Shautsova

The US asylum system has saved the lives of thousands, maybe hundreds of thousands of people who would have been tortured, humiliated, beaten, arrested and deprived of all possible freedoms and rights in their home countries.  The system is structured to have two tracks: an administrative (or affirmative) and a judicial (or defensive). It does not provide any interim benefits, except for an employment authorization after six months from the filing of the first application. It also establishes a crucial deadline: one year since entry, that an applicant has to meet in order to file for asylum in the US.

Yet, many, including Attorney General Jeff Session criticize the system. They state that the US allows too many applicants in, and provides them with an opportunity to “game” the system.

The US Asylum system and many of its parts are built on the International Conventions. The most crucial document here would be the 1951 Refugee Convention.  In 1967 followed its Protocol. It is not only the US, but virtually all the countries in the world that drafted and joined this Convention and the Protocol recognizing one huge issue: there are people in the world who need the protection of countries other than the ones they were born in. It happens that not all world leaders and not all people in the world are playing by the rules. There are places with great evil, and we cannot just turn our backs on brothers and sisters and little children that suffer from deprivation and persecution. Hence, the countries agreed to recognize that status of refugees, people who do not want to, or are unable to, to return to their home countries to some very serious reasons.  Therefore, the US, asylum seekers or Immigration attorneys did not invent “asylum.” It is all based on a long history of humankind and International norms.

What differs from country to country is the way various governments implement the International norms. Some, provide financial benefits to the seekers before their applications are decided. Some, allow only an administrative path, without a judicial review.  Some, are not parties to the Convention at all and there is no opportunity to apply for asylum in those countries at all.

What is different about the US, is that it allows one to claim or apply for asylum at the US border, before they enter the country. The procedure is known as a “credible fear” interview. A person comes to the border, surrenders herself to the border agents and states that she would like to seek asylum in the US. Such a person is usually detained. Then, such a person has an interview with an Immigration officer who determines if such a person has a “credible fear” of returning to their home country. If the answer is positive, the person is freed from the detention (often on bond) and can present her claim in the US Immigration Court. In court, an Immigration Judge decides if such a person’s claim will be granted.

Further, in the US, under the Real ID Act, an asylum seeker must present evidence to corroborate his/her claim or provide sufficient explanation if such evidence is missing.  The government, and the Immigration Judge (“IJ”), both challenge the evidence and make sure that the applicant’s testimony is consistent and credible. If the IJ denies a person’s claim, he/she can file an appeal.

Attorney Gen. Sessions recently stated that the US Asylum system is being gamed. It is unclear what exactly he referred to. The US Asylum system is built partially on International law and partially on principles of due process and access to justice.  To deny asylum seekers a fair and just opportunity to save their lives in the US due to fear of fraud, would be the same as to execute every person charged with a crime without giving them a chance of due process and the presumption of innocence.

Finally, the US has very serious consequences for those who file false asylum claims: if a person is found to file a false asylum claim, he/she will be forever inadmissible into the US.