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VAWA and ILLEGAL ENTRY

October 8, 2017

VAWA and ILLEGAL ENTRY

Author: VAWA Attorney Alena Shautsova

VAWA stands for “Violence Against Women Act” and essentially allows certain non-citizens to obtain a green card by sponsoring themselves if they were in a qualifying relationship with a US citizen or a permanent resident.  So, VAWA provisions may be used not only by married women but by men, children and certain parents.

One of the advantages of VAWA is that not only it allows a person to sponsor her/himself, but it also “erasers” certain grounds of inadmissibilities, and sometimes even works to waive the permanent bar!

For example, a VAWA beneficiary may receive a green card or adjust her status to one of a permanent resident even if she/her entered the US illegally. The VAWA self-petitioner is not required to show a “substantial connection” between the qualifying battery or extreme cruelty and the VAWA self-petitioner’s  unlawful entry. Also, a VAWA beneficiary who spent in the US more than a year illegally and then left the US and returned back illegally may avoid the permanent bar imposed on regular applicants in similar circumstances, if they qualify for a waiver  under INA 212(a)(9)(C)(iii). No waiver is available for non-VAWA petitioners. 

VAWA petition is, however, not helpful for K visa entrants. There is a mistaken approach that if a person entered the US on a K-1 (fiance) visa, he/she will be able to receive a green card if qualifies for I 360. This is not so yet.  I 360 may be granted, and automatically a person will get a deferred action – protection from removal, but not the green card. The adjustment of status for most such persons will be denied.

Now, persons who are abused or battered but do not have the required connection with a US citizen or a permanent resident, cannot benefit from the VAWA laws.  For example, if X had to flee El Salvador due to a violent husband, she will still be required to demonstrate that she has a legal entry or parole into the US before her application for a green card is granted.

 

New Standard for National Interest Waiver (NIW green card)

January 5, 2017

New Standard for National Interest Waiver (NIW green card)

Author: Employment Immigration Attorney Alena Shautsova

National interest waiver is an immigration tool that allows certain qualified individuals to sponsor themselves for a US green card without the need for an employer sponsorship and without labor certification. Subparagraph (A) of section 203(b)(2) of the Act makes immigrant visas available to “qualified immigrants who are members of the professions holding advanced degrees or their equivalent or who because of their exceptional ability in the sciences, arts, or business, will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States.” Under subparagraph (A), immigrant visas are available to such individuals only if their “services in the sciences, arts, professions, or business are sought by an employer in the United States.” Under subparagraph (B) of section 203(b)(2), however, the Secretary of Homeland Security may waive the requirement of a “job offer” (namely, that the beneficiary’s services are sought by a U.S. employer) and, under the applicable regulations, of “a labor certification.” 8 C.F.R. § 204.5(k)(4)(ii).

In short, national interests waiver is just that: it is a confirmation issued by USCIS that an applicant’s  qualifications and proposed work in the US will be in the US’ interests. Over the years, the authorities developed “standards” on how to consider the applications in order to determine if a person meets the requirements. See section 203(b)(2)(B)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(2)(B)(i) (2012). Until recently, the leading case  on point was Matter of New York State Dep’t of Transp. (“NYSDOT”), 22 I&N Dec. 215 (Acting Assoc. Comm’r 1998).  The NYSDOT framework looks first to see if a petitioner has shown that the area of employment is of “substantial intrinsic merit.” Id. at 217. Next, a petitioner must establish that any proposed benefit from the individual’s endeavors will be “national in scope.” Id. Finally, the petitioner must demonstrate that the national interest would be adversely affected if a labor certification were required for the foreign national. Id.

Now, however, the standard was changed and became more relaxed, see Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016).

This precedent decision means that USCIS may grant a national interest waiver if the petitioner demonstrates: (1) that the foreign national’s proposed endeavor has both substantial merit and national importance; (2) that he or she is well positioned to advance the proposed endeavor; and (3) that, on balance, it would be beneficial to the United States to waive the requirement of a job offer and thus of a labor certification.

It the third part of the test that was significantly allowing many to obtain the waiver easier.

A typical applicant for a NIW would be a researcher, professor, or an  engineer. There is a special exception for physicians. (The USCIS has set forth the following seven factors which may be considered in defining national interest: Would one’s  employment (1) improve the U.S. economy, (2) improve the wages and working conditions of U.S. workers, (3) improve education and training programs for U.S. children and under-qualified workers, (4) improve health care, (5) provide more affordable housing for young and/or older poorer U.S. residents, (6) improve the environment and make more productive use of natural resources, or (7) did you come to the U.S. at the request of a U.S. Government agency?).

Statute of Limitations For Green Cards Rescission

July 25, 2016

Statute of Limitations For Green Cards Rescission

Author: Green Card Attorney Alena Shautsova

In law, there is a statue of limitations or period during which one can bring a legal action with regard to almost all rights, regulations, incidents, accidents or actions. For example, if you happened to be in a car accident, you have 3 years to sue. If you became a victim of fraud, you have 6 years to sue your offender.

Now, believe it or not, there is  a statue of limitations as to how long the government can wait before taking your green card from you if it was issued in error. The bad news is that there is only one Circuit Federal Court in the whole United States which follows this five-year statute.

This Court is the Court for the 3rd Circuit, and it covers New Jersey! Only this Circuit court held that  the government cannot take someone’s green card away if the government issued it in error after five years passed since the issuance under 8 U.S.C. § 1256(a):

 

If, at any time within five years after the status of a person has been otherwise adjusted under the provisions of section 1255 or 1259 of this title or any other provision of law to that of an alien lawfully admitted for permanent residence, it shall appear to the satisfaction of the Attorney General that the person was not in fact eligible for such adjustment of status, the Attorney General shall rescind the action taken granting an adjustment of status to such person and cancelling removal in the case of such person if that occurred and the person shall thereupon be subject to all provisions of this chapter to the same extent as if the adjustment of status had not been made. Nothing in this subsection shall require the Attorney General to rescind the alien’s status prior to commencement of procedures to remove the alien under section 1229a of this title, and an order of removal issued by an immigration judge shall be sufficient to rescind the alien’s status.

Interestingly enough, there is no time limitation on when the government may start deportation or removal proceedings against a person, so in reality, if the government really wants to take the green card or lawful permanent status away, it may “find” a valid basis for removal, and very often such a basis is determined to be fraud.

Moreover, if a person became a U.S. citizen, and the government still has time to rescind its decision regarding the person’s permanent resident status, the person would lose the citizenship as well.  In reality, however, just like with the rescinding or removal of a person in  permanent resident status, the government is not bound by the five-year statute and often, naturalized citizens of many years, and decades may lose their citizenship if a mistake is uncovered.

To rescind one’s LPR status, the government would:

1. Would send a notice with intent to rescind

2. A LPR has 30 days to contest the notice and then there will be a hearing with the Immigration Judge. The result of the hearing is appealable.

If a LPR does not respond to the notice within 30 days, he will not be afforded a hearing with  an Immigration judge. Important: a request for more time is not a request for hearing! See Ali v. Reno, 22 F 3d 44 (2n Cir. 1994).

3. The government has to prove their case by clear, convincing and unequivocal evidence.

If you  receive a notice of intent to rescind your LPR status, call an attorney right away. You can reach us at 917-885-2261.

 

 

 

 

MOTHER’S DAY: HOW TO HELP YOUR MOM TO STAY/COME TO THE US

May 10, 2016

MOTHER’S DAY: HOW TO HELP YOUR MOM TO STAY  OR COME TO THE US

Author: New York Immigration lawyer Alena Shautsova

A mother is the dearest, the dearest and the most loving person… I cannot describe and count how many inquiries I receive from children of all ages who would like their moms to live with them in the United States.

Let me help you a little bit in clarifying certain important points.

1. Only US citizens have a right to sponsor their  mothers.  Unfortunately, U.S. permanent residents or green card holders cannot sponsor their mothers (or fathers) into the US

2. To sponsor your mother (or father) you need to be 21 years old

3. To sponsor your mother (or father) you need to be able to execute an affidavit of support or find a joint sponsor

4. It is possible to sponsor a parent who came to the US using a visa or a parole, even if now their status had expired

5. A parent who entered the country illegally usually cannot get a green card without leaving the United States, unless he/she qualifies for Parole in Place, or 245(i) INA exception, or some other exception

6. A parent who came to the US via visa but did not state on application that the child was already in the Unites States, will need a waiver to get an Immigration benefit in the United States, including a green card

7. Finally, a parent who has been abused, may self-petition using form I-360

8. All petitions for parents (apart from self petitions) start with filing I-130 forms (and sometimes together with I-485 form, if applicable)

It will be necessary to prove that parent is the parent of the child. In most cases, it is easy by submitting a copy of the birth certificate. Sometimes, USCIS will demand a DNA test…

Finally, it is possible to sponsor a step-parent if the marriage of the parents occurred before child’s 18th birthday. A child who was adopted or received a SIJ status cannot sponsor his/parents if the adoption of SIJ became the basis for the child’s Immigration benefits in the US.

 

I hope these simple facts would help a little bit when you think about how you can help your mom. Remember: do your research and consult with an attorney. Many situations have solutions!

How to Get Citizenship

April 15, 2013

How to get citizenship is a question of many immigrants. The immigration reform drafters are also discussing paths for citizenship for undocumented workers. However, no matter what they will decide, to get citizenship, one have to first obtain a green card or permanent resident status. Provided, of course, the laws will not be drastically changed in the nearest future.

The only way to get citizenship without obtaining permanent resident status first, is by being born on the US territory or by being born to or being adopted by the US citizens (provided other conditions for automatic citizenship are met).
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