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Immigration Fraud Waiver 237(a)(1)(H)

March 26, 2015

Immigration Fraud Waiver 237(a)(1)(H)

Author: New York Immigration lawyer Alena Shautsova

Immigration laws are unforgiving to those who the government determined used fraud or misrepresentation to acquire an immigrant visa or adjustment of status. The Immigration Fraud waiver under 237(a)(1)(H) is one of the rare exceptions. 

Immigration fraud occurs when a person makes an intentional misrepresentation of material fact with intent to deceit the person to whom the message is addressed.

A misrepresentation occurs when a person presents facts that are not true. In the content of the discussed waiver, a misrepresentation may be willful or innocent.

As used in INA 212(a)(6)(C)(i), a misrepresentation is an assertion or manifestation not in accordance with the facts. Misrepresentation requires an affirmative act taken by the alien. A misrepresentation can be made in various ways, including in an oral interview or in written applications, or by submitting evidence containing false information.

Due to the broad definition of misrepresentation, and the fact that it can be innocent, a green card holder may be charged with removability based on misrepresentation even when he/she was not aware of the falsity of the information. For example, a person was not aware that he/she had an order of deportation against him/her and answered NO to the question regarding outstanding orders; a person was not aware that the divorce certificate was false and introduced it as a valid proof during an immigrant visa application…

A permanent resident who entered the US using an immigrant visa or who adjust his status in the U.S. may be charged with the ground of removability under INA 237(a)(1)(A) or INA 212(a)(6)(c)(i) if suspected of fraud or misrepresentation in connection with the receipt of IV (immigrant visa) or permanent resident status. The good news, is that in many cases, a person may apply for a 237(a)(1)(H) waiver.

To qualify for the waiver, a person first has to be charged with the mentioned above grounds of removability.

Second, a person has to have a qualified retaliate in the U.S.: a spouse, parent, son or daughter who is a U.S. citizen or LPR. The usual reading of the statute so far is that the relative must be alive at the time of the decision on the waiver and that the qualifying relationship should be in existence. However, at least one court in the 9th circuit held that a son of the deceased USC can qualify for the waiver; and in at least one BIA decision, a divorced applicant was allowed to apply for it.  See Matter of Soretire, 11/20/14, unpublished BIA decision.

Notably, no showing of extreme hardship to the relative is required for this particular waiver.

Third, a person must not be otherwise inadmissible.

This waiver may be helpful to those who gained their permanent resident status without disclosing that were married at the time of the marriage to the USC (bigamy); those who did not disclose that they were married when received a visa as an unmarried son or daughter of the LPR; those who presented false documents at the time of the Immigrant visa interview or adjustment of status; and those conditional resident who the USCIS believes engaged in fraudulent marriage.

Finally, if an applicant is statutory eligible for the waiver, he/she still has to demonstrate that he/she deserves a favorable discretion.  It means that person’s good moral character as well as hardship to the qualifying relative will be considered (however, the level of hardship does not need to rise to the extreme level).

Can one whose waiver was denied appeal the denial in court?

It depends on the grounds for the denial. Although a court does not have jurisdiction to review the discretionary denial of a fraud waiver, it does have jurisdiction to review the statutory eligibility elements under § 237(a)(1)(H) of the Immigration and Nationality Act (INA), 8 U.S.C.S. § 1227(a)(1)(H), as it may review constitutional claims or questions of law. INA § 242(a)(2)(D)8 U.S.C. § 1252(a)(2)(D).

USCIS UPDATES G 28 form and I 864P poverty guidelines

March 16, 2015

USCIS UPDATES G 28 form and I 864P poverty guidelines

Author New York  immigration lawyer Alena Shautsova

USCIS updated its G 28 attorney or representative notice of appearance form. The main new change is that now, the applicant or petitioner can choose who should receive notices regarding immigration filings and documents: the applicant or petitioner or just his/her representative. The change should affect those applying for employment authorization and who would like their attorneys to receive the EAD card. Previously, it was impossible for an attorney to receive an EAD card at attorney’s address.

USCIS also updated I 864P poverty guidelines which establish income limits necessary to sponsor family members into the US. The forms submitted to USCIS prior March 1, 2015 will be considered under the previous guidelines.

Мой работодатель плохо относиться ко мне, a у меня нет легального статуса. Что я могу сделать?

March 5, 2015

Мой работодатель плохо относиться ко мне, a у меня нет легального статуса. Что я могу сделать?

Автор: Русскоговорящий Адвокат США Елена Шевцова

Плохо, когда люди обмануты их начальниками в Америке. Еще более плохо, когда они терпят плохое отношение, издевки и неуплаты, потому что они боятся  быть депортированными или заключенными в тюрьму в связи с отсутствием статуса.

Хорошим является то,  что законы Америки по трудовому праву одинаково защищают тех у кого есть статус и тех у кого его нет. Во  многих случаях при судебном разбирательстве работодатель или его адвокат не смогут даже спросить есть ли у работника статус в Америке, если работник уже нанят работодателем.

Более того, человек решивший пожаловаться на своего работодателя получает защиту от депортации а в некоторых случаях статус постоянного жителя.

Также, при приеме на работу работодатель не имеет права требовать определенные документы подтверждающие право на работу.  Работодатель может предложить список,  из которого работник сам имеет право выбрать какие документы предоставить.

Выше упомянутые законы не защищают работника если при приеме на работу он предоставил лживую информацию.  Если же работодатель не интересовался статусом или закрыл глаза на его отсутствие, ответственность лежит на работодателе.

Задавайте свои вопросы по телефону 917-885-2261.

AUTOMATIC CITIZENSHIP FOR CHILDREN OF US CITIZENS

February 21, 2015

AUTOMATIC CITIZENSHIP FOR CHILDREN OF US CITIZENS

Author: US Citizenship Attorney Alena Shautsova

U.S. Immigration law allows children of the U.S. citizens to automatically receive U.S. citizenship in certain situation.  It is a well-known fact that a child who is born in the US or its territory is a U.S. citizen regardless of citizenship or immigration status of child’s parents. The rules differ, however, in case of the child who is born outside of the US, or when a child’s parent becomes a US citizen prior to the child’s 18th birthday. The USCIS website provides a synopsis of basic qualifications.

For example: A child born outside of the United States automatically becomes a U.S. citizen when all of the following conditions have been met on or after February 27, 2001: 

•The child has at least one parent, including an adoptive parent​  who is a U.S. citizen by birth or through naturalization;​

•The child is under 18 years of age;​

•The child is an LPR; and​

•The child is residing in the United States in the legal and physical custody of the U.S. citizen parent.​ 

A child born abroad through Assisted Reproductive Technology (ART) to a U.S. citizen gestational mother who is not also the genetic mother may acquire U.S. citizenship under ​INA 320​ if:​

•The child’s gestational mother is recognized by the relevant jurisdiction as the child’s legal parent at the time of the child’s birth; and​

•The child meets all other requirements under ​INA 320​, including that the child is residing in the United States in the legal and physical custody of the U.S. citizen parent.

It is important to note that a stepchild who has not been adopted does not qualify for citizenship under this provision.​ Let’s say Juan marries Mary. Juan has a 5  years old  LPR child, and Mary is getting her citizenship a year after the marriage. Mary has not adopted Juan’s child. Mary has a child of her own, Stella. Stella is 17 years old and is an LPR. In this case, Stella will be able to qualify for automatic citizenship, but not Juan’s’ child.

Let’s say that Juan’s child was born in Mexico and Juan is not now and  had never been married to the child’s mother.  It is 2014. The child is 15 years old and Juan has applied and received his citizenship. Is the child a US citizen as well?

The Immigration and Nationality Act provides for the following definition of the word “child”:

(1) The term “child” means an unmarried person under twenty-one years of age who is-
(A) a child born in wedlock;
(B) a stepchild, whether or not born out of wedlock, provided the child had not reached the age of eighteen years at the time the marriage creating the status of stepchild occurred;
(C) a child legitimated under the law of the child’s residence or domicile, or under the law of the father’s residence or domicile, whether in or outside the United States, if such legitimation takes place before the child reaches the age of eighteen years and the child is in the legal custody of the legitimating parent or parents at the time of such legitimation;

So, if look at the point (c)

In a recent BIA decision, the Board concluded that a child born abroad to unmarried parents can be a “child” for purposes of INA section 320(a) if he or she is otherwise eligible and was born in a country or State that had eliminated legal distinctions between children based on the marital status of their parents or had a residence or domicile in such a country or State (including a State within the United States).  This ruling is important because there are still  countries that did not eliminate the distinguish between children born from parents who are married, and those who are not married.

Let’s say that Juan is from the country where the law says that he can ligitimate the child only by marrying the child’s mother, and Juan is still in that country residing with his son. Then, the answer would be NO. The child is not a U.S. citizen.  What if the son moves to the U.S.? Then, yes, the child will be able to become a U.S. citizen (provided the State law does not make a distinction between the children born in marriage and outside of the marriage).

Interestingly, in the past century, the laws have been changing, and in certain situation, a person may be a U.S. citizen when his/her grandparents passed on the citizenship to the person’s parents.

That is why it is advisable that a person consults with an attorney to see if he/she can qualify for citizenship.

USCIS Updates on NEW DACA

February 13, 2015

USCIS Updates on NEW DACA

Author: DACA attorney Alena Shautsova

United Stated Citizenship and Immigration Services (USCIS) has published new questions and answers regarding the New DACA program.

The updates specify when one can apply for DACA in connection with removal proceedings; possibility of the waiver of the application fee;

On February 11, 2015, USCIS updated its Consideration of Deferred Action for Childhood Arrivals (DACA) page to include information on expanded DACA. USCIS will begin to accept requests for consideration of expanded DACA on February 18, 2015. The current revision is on the USCIS website.

Please note that any travel after January 1, 2014 will interrupt continuous residence requirement necessary to obtain DACA.

New Rule on Notices From USCIS

January 29, 2015

New Rule on Notices From USCIS  effective 01/27/2015

Author: New York Immigration attorney Alena Shautsova

United States Citizenship and Immigration Services  published its new rule on notices USCIS issues to applicants and petitions.  Notices are extremely important: they confirm the receipt of an application or petition; valid status in the US or a date for an interview. Currently, the notices are sent  to an applicant or petitioner and a copy is sent to an attorney of record.  USCIS now clarifies its rules in that:

” First, USCIS will clarify that it will send notices only to the applicant or petitioner when the applicant or petitioner is unrepresented. See new 8 CFR 103.2(b)(19)(i). Second, if USCIS has been properly notified that the person or entity filing the benefit request is represented by an attorney or accredited representative recognized by the Department of Justice, Board of Immigration Appeals, USCIS will send notices to the applicant or petitioner who filed the benefit request and to their attorney or accredited representative of record. See new 8 CFR 103.2(b)(19)(ii)(A). Third, if provided for in the applicable form, form instructions, or regulations for a specific benefit request, an applicant or petitioner may request that USCIS send original notices and documents only to the official business address of their attorney or accredited representative, as reflected on a properly executed Notice of Entry of Appearance as Attorney or Accredited Representative, with a courtesy copy being sent to the applicant or petitioner for their records.”

Finally, in case of electronic applications, the person has options: the notices may be sent electronically to both the applicant and the attorney or via mail.

Most importunately, the official documents such as EAD (work authorization card) or permanent resident card currently are being sent to the applicants only unless the applicant or self-petitioner designates  their attorney’s official address as the delivery address.

These rules of notice delivery may seem trivial, however when a notice is not delivered it causes delays, denials and frustration. For more information see http://www.aila.org/content/fileviewer.aspx?docid=50525&linkid=281897

 

 

 

 

Mexican Consulate to Issue Copies of Birth Certificates

January 16, 2015

 

Mexican Consulate to Issue Copies of Birth Certificates

Author: New York Immigration Attorney Alena Shautsova

 

The Mexican government announced that starting today, Mexican consulates in the U.S. will issue copies of birth certificates registered in Mexico. To obtain certified copies, Mexican nationals should visit the nearest consulate, present an official proof of identity, fill out an application and pay a fee of $13 per certified copy, and, if they have it, provide their Clave Única de Registro de Población (CURP). This new initiative should be very helpful to thousands of immigrants with valid DACA and DAPA claims. 

 

A partir del 15 de Enero de este año las Embajadas y los Consulados de México podrán emitir copias certificadas de actas de nacimiento generadas en territorio nacional, en beneficio de todos los mexicanos en el exterior.

Esta medida se da en el marco de las acciones anunciadas por el Presidente Enrique Peña Nieto el pasado 5 de enero, con el objetivo de facilitar a los mexicanos la obtención de sus actas de nacimiento generadas en territorio nacional en cualquier oficialía de registro civil en el país y en las Representaciones de México en el Exterior.

En este sentido, el Consulado General de México en Nueva York convocó a líderes comunitarios mexicanos y medios de comunicación al lanzamiento del programa “Actúa y ven por tu acta”, encabezado por la Embajadora Sandra Fuentes Berain, Cónsul General, quien además dio hizo entrega de la primera copia certificada de Acta de Nacimiento.

Para obtener sus copias certificadas, los mexicanos deberán presentarse en una oficina consular, portar una identificación oficial que acredite que es el titular del acta de nacimiento, proporcionar su Clave Única de Registro de Población (si cuenta con ella), llenar una solicitud y cubrir el pago de derechos correspondientes ($13 dólares por acta).

El gobierno de México invita a todos los mexicanos residentes en el exterior que lo requieran a beneficiarse de este servicio y acudir al Consulado para obtener una copia certificada de su acta.

En caso de que solicite mayor información, comuníquese al Departamento de Prensa del Consulado General de México en Nueva York:

 

Contacto de Prensa:

Gerardo Izzo; gizzo@consulmexny.mx; (212) 217 6471

Gabriela Rodriguez, grodriguez@consulmexny.mx; (212) 217 6470

Laura Celaya; lcelaya@consulmexny.mx; (212) 217 6470

New York City Municipal Identification Card

January 13, 2015

New York City Municipal Identification Card

Author: New York Immigration lawyer Alena Shautsova

New York City is ready to issue municipal Ids to all its residents, regardless of Immigration status.

While the NYC ID card will unlikely to pass the test for Real ID act, its benefits include access to NYC social programs and services. In addition, the card can be used for identification purposes in order to gain access to the City   buildings.

The NYC Id comes with one year free membership at selected museums.

One may read about it at http://www1.nyc.gov/site/idnyc/index.page.

 

TPS FOR SYRIANS

January 6, 2015

TPS FOR SYRIANS

Author: New York Immigration Lawyer Alena Shautsova

The US government announced re-registration of the Temporary Protected Status for the nationals of Syria. In addition, the previously designated TPS has been extended for another 18 months.

It means that newly arrived Syrians can now apply for TPS for the first time, and those who already hold the status, need to apply to renew it.

Please visit official Immigration website for details: http://www.uscis.gov/humanitarian/temporary-protected-status-deferred-enforced-departure/tps-designated-country-syria/temporary-protected-status-designated-country-syria .

I- 9 and E Verify : What Employer Needs to Know

December 29, 2014

I- 9  and E Verify : What Employer Needs to Know

Author: New York Immigration Attorney Alena Shautsova

I-9 form is one of the form used by the US government to verify employment eligibility of a worker. An employer regardless of size must have I-9 forms for each employee. The form has been in use since 1986. For many, an I -9 audit comes as a surprise: employers  claim they have never heard of such a form at all! However, this is a perfect example of ignorance not serving as an excuse..

I-9 form must be filled out for every worker: part I must be filled out no later than the first day of work by the employee and part II no later than the 3rd business day of hire of a new worker.

It is very important that an employer CANNOT ask form an employee to present a particular form of employment eligibility verification. However, an employer can and should point out to the list of documents as per form I-9 from which an employee can choose what forms / documents he/she can wishes to present.  An employer who asks for  a particular proof, can be charged with discrimination and subjected to severe penalties.

Further, once I-9 form is filled out, it should be kept by the employer during the time the employee is working and after he/she stops the work as well. If you are an employer, you must retain the I-9 for 3 years after the date employment begins or 1 year after the date the person’s employment is terminated, whichever is later. 

E-verify is based on I-9 form but is an electronic system that compares the information an employer provides with the Federal databases. E- verify is different from I-9 as it asks for different information and is processed differently. Not every employer has to use E-verify. Most employers have a choice if to use E- verify.

Department  of Homeland Security checks the I-9 forms compliance.  For more information on I-9 forms and I-9 audit, visit http://www.shautsova.com/immigration-usa/i-9-uscis-forms.html.