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Updates on Travel Ban: People v. Government

July 19, 2017

Updates on Travel Ban

Author: New York Immigration attorney Alena Shautsova

Travel Ban’s news is one of the most popular for the past months. It all started with President Trump issuing an order banning nationals of certain predominantly Muslim countries from coming to the United States, even if they held a US green card (permanent residency). Almost immediately, people reacted and filed Federal lawsuits, and in a blink of an eye the issue reached the U.S. Supreme Court.  Through litigation and the U.S. Supreme court ruling, the travel ban was modified, and finally reached its present version which affects all those who do not have any connections with a person or an entity in the U.S. (let’s say visitors for pleasure).  See: https://en.wikipedia.org/wiki/Executive_Order_13769.

The ban currently is in place for nationals of the following countries: Syria (including refugees), Iran, Somalia, Libya, Sudan, Yemen.

Now, I am positive that many of you were following the news regarding the U.S. Supreme Court decision on the travel ban which held that those travelers that have real (or bona fide) relationship with a U.S. entity or person should be able to come to the US.  Right after the decision, the Department of State stated that a parent, a sibling, or a parent in law would be allowed in the US, but nephews, grandparents, cousins will not.

People “pushed back,” and very recently, a Federal court in Hawaii held that grandparents, cousins, aunts and uncles, grandchildren and cousins should be likewise scratched off the travel ban list.  Because an Executive branch of the government must follow the Judicial branch, the travel ban was again modified, and now  the DOS issued another clarification:

“In light of the July 13, 2017 U.S. District Court of Hawaii ruling regarding the definition of “close familial relationship” as that phrase was used in the Supreme Court’s June 26, 2017 order on implementing Section 2(c) of E.O. 13780, a close familial relationship is defined as a parent (including parent-in-law), spouse, fiancé, child, adult son or daughter, son-in-law, daughter-in-law, sibling, grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts and uncles, nephews and nieces, and cousins. For this purpose, “cousins” are limited to first-cousins (i.e., each cousin has a parent who is a sibling of a parent of the other cousin). For all relationships, half or step status is included (e.g., “halfbrother” or “step-sister”). “Close familial relations” does not include any other “extended” family members, such as second-cousins.” See https://travel.state.gov/content/travel/en/news/important-announcement.html.

The Hawaii’s court also allowed refugees who were cleared by the Resettlment agency to come to the US.

The US Supreme Court clarified its decision on July 19, 2017 allowed the Hawaii’s court exemption as it relates to the family members, but blocked the refugees.

The issue is not over yet. The US Supreme Court intends to hear the matter in October if by then, the controversy is still in existence.

 

 

FALSE CLAIM TO US CITIZENSHIP CAN BE EXCUSED

June 20, 2017

FALSE CLAIM TO US CITIZENSHIP CAN BE EXCUSED

Author: US Citizenship attorney Alena Shautsova

Many are already aware that false claim to US citizenship disqualifies them from any and all Immigration benefits in the United States, forever.  Such claims usually appear when one is trying to use a false US citizen passport to enter the United States, claims that he/she is a US citizen on I-9 employment eligibility verification form or fills out a form to obtain a US citizen passport (let’s say, in a postal service)…

However, some claims of US citizenship can be excused and will not be on one’s way to a green card. These are very rare occasions, and they have to fall squarely into an exception.

Specifically, a disqualifying claim to United States citizenship occurred when  (1) when there is direct or circumstantial evidence that a claim was made with subjective intent to obtain a purpose or benefit under the Act or under Federal or State law and(2) the claim actually affects or matters to the purpose or benefit sought. See Matter of Richmond, 26 I&N Dec. 779, 786-787 (BIA 2016). In the past the following “claims” to the US citizenship were recognized as the ones not obstructing a person’s ability to receive a green card: a claim to a US citizenship on an application for a small business loan (Hassan v. Holder, 604 F.3d 915, 928-29 (6th Cir. 2010)). In a 2016 case coming from the Board of Immigration Appeals, it was also recognized that a US citizenship claim during the application for a driver’s license is not the one to prevent one from obtaining a green card. Rodolfo Melendez Manriquez, A089 599 983 (BIA Nov. 25, 2016).

It means that if a person claimed to be a US citizen to “enhance” his /her chances to receive a benefit, but it was not necessary for a person to be an actual citizen to receive such a benefit, then a claim to US citizenship may be excused.

There are some other exceptions to the main rule. See: Claiming US Citizenship.

 

Privacy Laws Change For Non-USC and Non-LPR

April 30, 2017

Privacy Laws  Change For Non-USC and Non-LPR

New York Immigration Lawyer Alena Shautsova

The Trump administration has announced new changes to privacy laws that will affect non US citizens and non permanent residents.  Since 2007, the government, and DHS in particular, extended privacy laws protection enjoyed by USC and LPRs to non-immigrants and immigrants (Privacy Policy Guidance Memorandum 2007-01/Privacy Policy Directive 262-12, DHS Privacy Policy Regarding Collection, Use, Retention, and Dissemination of Information on Non-U.S. Persons). Basically, the agency could not release or share information regarding a specific individual freely. It could be done only in specific situations and when  a subject of record would provide a release.  After new Executive order, the administration is changing its policies to strip non citizens and non LPRs from privacy protection. According to the Memo released on April 27, 2017, “Section 14 of E.O. No. 13,768 requires that “[a]gencies shall, to the extent consistent with applicable law, ensure that their privacy policies exclude persons who are not United States citizens or lawful permanent residents from the protections of the Privacy Act regarding personally identifiable information.” Privacy Policy Guidance Memorandum 2007-01/Privacy Policy Directive 262-12 is inconsistent with Section 14 of E.O. 13,768.”

What does this really mean? If one looks at the Memo in question, he/she will find that its language is rather convoluted and the real meaning is hidden somewhere between the lines.

Analyzing the document as a whole, one can make at lease these two conclusions:

1. No Privacy Act protection means easy exchange of collected data by any and all government participants. Like in a Red Riding Hood, the wolf had big eyes to better see the girl, here, the government opens its volts of data to better see potential deportees.

2.  The government will have free hands with regard to  collection, use, dissemination, or maintenance of personally identifiable information.  The only limitation specified in the DHS Memo is “any sharing of such information outside the agency must be compatible with the purposes for which the information was originally collected.” ” Seeking consent is always a preferable privacy practice, and consent should be sought when practical.” However, it is well known that once information is collected and available, to track the purpose of its usage is extremely hard. It is even harder to prove (for a regular person) that his/her information was mishandled and shared in violation of restrictions. And, I have never heard of a situation where a government official would reach out to a non-immigrant and ask for his/her consent prior to share his info with, let’s say, another consulate…

3. The Memo states that ” People not covered by the Privacy Act or Judicial Redress Act (JRA) (which is non USC or non LPRs) still may obtain access to records consistent with FOIA unless disclosure is prohibited by law or if the agency reasonably foresees that disclosure would harm an interest protected by an exemption.” It is in this line that many practitioners may see a problem: will their clients still be allowed to have copies of the government records pertaining to their full immigration history?

To sum it up, there come significant changes in how the government is going to collect and share information regarding non citizens and non-permanent residents. Perhaps, about citizens and LPRs as well…

 

TPS holders Can Adjust in the 9th Circuit (Alaska, California, Arizona, Hawaii)

March 31, 2017

TPS holders Can Adjust in the 9th Circuit (Alaska, California, Arizona, Hawaii)

 

Author: Immigration lawyer Alena Shautsova

 

TPS or temporary protected status is a form of deferred action. One can receive it, if otherwise is qualified, even if he/she entered the country illegally. There is a long lasting dispute whether those who receive TPS are “inspected and admitted” and can adjust their status to permanent residency.

Now, in Ramirez, et al. v. Brown, et al., 3/31/17, the 9th Circuit court holds that TPS is an admission. In 2013, the 6th Circuit court reached the same conclusion in  Flores v. USCIS.

In analyzing the language of the statute regarding TPS, the court held:

“Employing the traditional canons of statutory construction at step one, we conclude that § 1254a(f)(4) unambiguously treats aliens with TPS as being “admitted” for purposes of adjusting status. Because the statutory language is clear, that ends the inquiry: the agency has no interpretive role to play but must instead follow the congressional mandate. Chevron, 467 U.S. at 842–43 & n.9; see I.N.S. v. Cardoza-Fonseca, 480 U.S. 421, 446 (1987).”

In its decision, the court also mentioned the decision from the 11th Circuit, where the court reached an opposite conclusion (that a TPS recipient cannot adjust). The court stresses, however, that a mere existence of a different opinion does not invalidate their analysis.

 

It seems that now, it would be up to the Supreme Court to decide the issue of the TPS holders, and resolve the split between the courts. Until then, applicants in the 6ht and 9th circuits should be able to receive positive decisions on their I 485 if they are beneficiaries of TPS.

 

The United States Court of Appeals for the Ninth Circuit has jurisdiction over the district courts in the following districts

 

  • District of Alaska.
  • District of Arizona.
  • Central District of California.
  • Eastern District of California.
  • Northern District of California.
  • Southern District of California.
  • District of Hawaii

 

 

The United States Court of Appeals for the Sixth Circuit has jurisdiction over the district courts in the following districts:

 

 

 

Trump Is Said to Sign New Travel Restrictions Order

February 28, 2017

Trump Is Said to Sign New Travel Restrictions Order 

Author: New York Immigration attorney Alena Shautsova

 

It is reported by the Associated Press that Trump is to sign a new Immigration Order restricting travel from certain countries and refugees on this coming Wednesday, March 1, 2017.

The old order was blocked by a Federal Judge, and hence is not being implemented. Trump’s team (as reported) has drafted a new order.

Unfortunately, the source of this news remained anonymous, and the details of the new proposed order are not available.

See: https://apnews.com/642cce00352e483f88cbb0570c632a18/The-Latest:-Trump-to-sign-new-travel-order-on-Wednesday?utm_campaign=SocialFlow&utm_source=Twitter&utm_medium=AP.

The restrictions on travel and entry for refugees have been criticized by both republicans and Democrats.  The order prohibiting travel from seven countries was poorly drafted and on its face does not pass constitution standards for which it was blocked by a Federal Judge.  In anticipation of a new order it is recommended to avoid international travel for those who are in the US, and return to the US for all those who are currently outside.

 

 

Obama Immigration Legacy

January 19, 2017

Obama Immigration Legacy

Author: New York Immigration attorney Alena Shautsova

 

While everyone is talking about President-elect possible Immigration policy, I would like to recap on what President Obama did. Even though he was not successful on his promise of comprehensive Immigration reform, his administration did promulgate several executive and administrative actions that liberalized Immigration regulations of 1996, and  helped thousands to achieve their dream of living in America.

  1. DACA or Deferred Action for Childhood Arrivals

 

Implemented in 2012. It was created to help young undocumented residents to stay in the US and work legally. Many could receive an advance parole document that allowed them to travel and get back to the US to cure the entrance without inspection. Currently, still in effect. In 2014, DACA was to be expanded, but the opposition forces sued the government and the new plan together with proposed DAPA are still frozen.

 

  1. I 601A waiver and its expansion

 

I -601A Provisional waiver was implemented in 2013 and allowed those who entered the US without inspection or, let’s say using C1/D or K visas, to receive immigrant visas overseas and return back. The waiver “waived” the unlawful presence bar, and the best part about it: it is possible to file for it and wait for the result of the filing in the United States.

 

  1. New Rules about Work Visas

 

Under the President Obama administration, holders of the work visas and future holders, received good news: automatic extensions of employment authorization in case of re-filing; H4 employment authorizations under certain conditions; 2-year EAD cards for asylum seekers, improved portability rules for employment based immigrants.

 

  1. Parole program for entrepreneurs

 

A very new change: just came into effect parole for business people who will improve and contribute into the US economy. The program designed for start-ups and covers spouses and children of the qualified entrepreneurs.

 

  1. Clarification and expansion of military parole in place program

Parole in place policy was explained and expanded: immediate relatives of military and ex-military members received an opportunity to be “paroled” or allowed to “enter” the US legally without actually leaving the US.

 

  1. And of course, we cannot forget expansion of Federal Immigration benefits for the same-sex couples: one of the biggest and most fought for benefit.
  2. Parole for children of from certain South American countries whose parents are in the US legally; Parole for members of the families of Pilipino World War II veterans.

 

It is quite regretful that during its last days, the Obama administration decided to abolish Cuban parole (wet foot/dry foot) policy. Nevertheless, if to focus on positives, one should admit that in addition to new liberalized regulations, the function of the DHS became more transparent within the past 8 years. I hope that the incoming President will focus on finding reasonable solutions, rather than unreasonable conclusions.

USCIS Clarifies and Expands Immigration Benefits for Military Families

November 24, 2016

USCIS Clarifies and Expands Immigration Benefits for Military Families

Author: NYC Immigration Lawyer Alena Shautsova

USCIS published new memorandum explaining and expanding benefits for military families. Specifically, the memorandum clarifies that adult sons and daughters of former or present military personnel can apply for parole in place.  It is true for deceased  or discharged members of the military as well, as long as the discharge was honorable.

Parole in place is an important benefit that 1). allows to adjust those who have immigration petitions filed by immediate relatives; and 2). allows its holders to apply for an employment authorization.

Importantly, USCIS clarified that relatives of enlistees are also  eligible for these benefits. Of course, each case would be decided on specific facts.

USCIS: ” Because covered military personnel and veterans generally will be U.S. citizens or lawful permanent residents (or, in the case of MAVNI, soon-to-be U.S. citizens or lawful permanent residents), their sons and daughters will often be on paths to lawful permanent resident status and eventual citizenship. See INA § 203(a), 8 U.S.C. § 1153(a). Parole in place or deferred action would therefore serve as a temporary bridge for such sons and daughters while they apply for and await adjudication of their applications for lawful permanent resident status. ”

 

Trump’s Employment Immigration Plans

November 22, 2016

Trump’s Employment Immigration Plans

Author: Employment Immigration Attorney Alena Shautsova

Today President-elect Trump announced that during his first day of presidency, he is going to implement an executive action affecting Employment Immigration. To wit: Trump announced that his team would be working on tightening Employment Immigration laws to make sure that employment places would be saved for U.S. workers opposed to being given to immigrants.

It seems that somehow, President-elect Trump believes that by making it even harder for U.S. employers to employ foreign workers, U.S. workers will benefit from it and will accept employment spaces that somehow are taken from them.

To begin with, I must state that for a foreign worker to start working in the US on an H1B visa (the most common work visa type), the employer must test the market by posting notes to all interested workers and by posting ads regarding the job.  If, and only if, the employer does not find an eligible U.S. worker, an employer can hire a foreigner. But even prior to that, the U.S. laws impose a cap, a limitation on how many foreign workers can be hired at a given year in the United States.

Here is what is really going on: an employer would start going through the process only if the employer already has in  mind a foreign worker he/she needs to hire. An employer who hires a foreigner must pay him/her required wages that often are higher than the going market wage. In other words, an employer (unlike in the case of a US worker) cannot set a wage below required by the Department of Labor. I am positive that if a US worker were available, a worker that meets all the requirements and experience for the job, an employer would not be jumping through the hoops by trying to go through the process that requires money, time and induces an unwanted stress on all involved. By imposing restrictions on the hiring process, US laws limit US employers’ choices in hiring those who are most suitable for the job, impeding an employer’s ability to develop.

It is a different matter that sometimes the H1b process is not real, and a foreigner is “hired” for a position that does not exist just so that a foreigner may benefit from the US Immigration laws. It is an Immigration fraud, but no foreigner, in this case, takes a job from  a US worker: the job never existed, to begin with.

There are other types of Immigration work visas: TN, O, P, R, and L. They come with various restrictions and are used for those workers who either work in specific occupations or possess outstanding qualifications.

Interestingly, Mr. Trump’s wife allegedly came to the US on a work visa.

I am not sure (as it was not announced) about the specific of the coming changes. I hope that these changes would take into consideration that immigrants, and many of them, contribute to the development of the United States. The employer should have a choice who to hire, finding the best, the most hardworking and talented employees.

 

National Visa Center: Processing Times and More

November 16, 2016

National Visa Center: Processing Times and More

Author: New York Immigration attorney Alena Shautsova

National Visa Center  (NVC) is an agency that processes documents of petitioners before an appointment is scheduled in U.S. consulates. Every time somebody from the United States is sponsoring a family member or a worker, NVC would be involved.

Those lucky applicants who have an attorney working for them, would probably not worry about the points that I will be discussing below. However, if you represent yourself, and you are the one who has to deal with the NVC these points might be helpful.

1. Before any process for an immigrant visa would start, the beneficiary has to pay appropriate fees: an affidavit of support fee (currently $125) and an immigrant visa fee (currently $325).  The fees should be paid online. NVC is departing from the practice of collecting the fees by mail.

2. One can find a list of documents that he/she should submit to the NVC on Department of State website: https://travel.state.gov/content/visas/en/immigrate/immigrant-process/documents/Submit_documents.html.

3. All the documents, including an original of the affidavit of support form I 864 should be submitted, preferably, at once. However, it is possible to submit documents gradually.

4. How fast does NVC work? It takes about 10-15 days for the NVC to enter the case into their system once the case is received. It takes about 30 days to review a submission, and about 60 days to schedule an appointment for a complete case.

5. A mailer should use a cover letter provided by the NVC, and if a petitioner is sponsoring multiple beneficiaries, separate packages should be created for each.

It is possible for some applicants from certain countries to submit documents to the NVC via email. For the rest of the countries, NVC accepts documents by mail only.

NVC accepts only copies of the documents. All the originals, an immigrant visa applicant has to bring with him/her to the consulate.

New Form I 131A For Lawful Permanent Residents

September 30, 2016

New Form I 131A For Lawful Permanent Residents

Author: New York Immigration attorney Alena Shautsova

Form 131 is currently used by Immigration for a variety of different applications. For example, if somebody would like to apply for an advance parole, humanitarian parole, a refugee/asylee travel document, or a re-entry permit, they would have to submit their applications using I 131. Also, those who are seeking parole in place, also would have to use the same form.

For a while, there was a confusion when a permanent resident would go abroad and having spent there less than a year would find him/herself in a situation where his/her green card is missing: stolen, destroyed or lost.  Such a person would have to “work” with a US consulate oversees to obtain a boarding foil and pay fees for a new green card.

Now,USCIS issued a new form: I-131A. This form is to be used to apply for a travel document if they are returning from temporary overseas travel of less than one year and their green card has been lost, stolen, or destroyed, or are returning from temporary overseas travel of less than two years and their reentry permit has been lost, stolen, or destroyed. 

For convenience, the fees for the form (the current fee is $360) can be paid online. The form has to be filed with the nearest US consulate, and before making an appointment with a consulate, a person has to print a copy of the receipt for the paid fee.

Hopefully, the new procedure will simplify the process of obtaining a permission to return to the US for those LPRs who are not in possession of valid green cards or re-entry permits.  LPRs who are filing I 131A must submit appropriate evidence, including copies of documents confirming their identity and status. A passport style photo is also a must.

It is important to remember, that if a LPR stayed abroad for longer than a year, and does not possess a re-entry permit, he/she would have to seek a returning resident visa.

Those who are no longer in LPR or conditional resident status, may not use I 131A. For example, if a decision on a pending application was negative, and the person was overseas at this time, he/she will not be able to come back to the US using I-131A.

You may direct your questions to office@shautsova.com.