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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.

 

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.

 

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?).

CANCELLATION OF REMOVAL: NTA, STOP TIME RULE

October 19, 2015

CANCELLATION OF REMOVAL: NTA, STOP TIME RULE

Author:   New York Deportation Attorney Alena Shautsova
Cancellation of Removal is an often overlooked form of relief from deportation. It also may be used by someone who has been in the U.S.  for a long time  without inspection or admission to receive a green card in the U.S.  In the last case scenario, a person first would have to ask the U.S. government to place him/her into removal proceedings and only then he/she will have a chance to apply for cancellation.

Cancellation of removal as a form of relief may be of several “kinds” : for permanent residents, for non-permanent residents; for VAWA beneficiaries; for  certain persons covered by  the Nicaraguan Adjustment and Central American Relief Act of 1997. Each “kind” requires that certain qualifications be met.

One of the common “features” of this form of relief, is that an applicant has to accumulate  certain amount of time in the U.S. This time usually runs from the person’s entry into the US, and can be stopped not only due to a departure, but due to certain events that have legal consequences. For example: an arrest or commitment of a crime by the applicant or  service of removal/deportation documents.

Since cancellation of removal is a desirable and often the only form of relief an applicant can hope for, there started to develop a body of case law that challenges various limitations and restrictions that might be applied to the applicant. Specifically,  the advocates posed a question of whether a service of deficient on its face notice to appear in removal proceedings may serve as a “stop time” event. For example, quite often a person receives a notice to appear issued by ICE that has “TBD” in place of a date and time of the hearing in Immigration court.  Can such a document, that has been issued but not filed with the court have sufficient legal weight to eliminate one’s chance for cancellation? It is an interesting question, because in practice, such issued notices may rest on shelves for years before they are eventually filed with the court, and the person, subject of such a notice, naturally, would like to the “wait” time to be counted towards the accrual of the necessary period.  (Service of an NTA cuts off the accrual of continuous presence, under a provision known
as the “stop-time” rule. 8 U.S.C. § 1229b(b)(1)(A).)

Unfortunately for the applicants, many Circuit Federal courts held that the Notice to appear served on the applicant does not have to have all the specifics in order to alert the applicant that the government is initiating removal proceedings against him/her, and even an incomplete notice will nevertheless stop the cancellation or removal clock.  See Guaman-Yuqui v. Lynch, 786 F.3d 235, 238–40 (2d Cir. 2015) (per curiam); Gonzalez- Garcia v. Holder, 770 F.3d 431, 433–35 (6th Cir. 2014); Yi Di Wang v. Holder, 759 F.3d 670, 673–75 (7th Cir. 2014); Urbina v. Holder, 745 F.3d 736, 739–40 (4th Cir. 2014).

However, there remain one “loophole” out of this catastrophe. If the government agrees to retract the notice, then the “time” can be saved. However, this requires government cooperation and discretion. The BIA held that a notice to appear (NTA) that was served but never resulted in removal proceedings does not have “stop-time” effect for purposes of establishing eligibility for cancellation of removal pursuant to section 240A(d)(1) of the INA. Matter of Ordaz, 26 I&N Dec. 637 (BIA 2015).

 

 

 

 

NEW VISA BULLETIN PROVIDES FASTER VISAS AND AOS PROCEDURES

September 12, 2015

NEW VISA BULLETIN PROVIDES FASTER VISAS AND AOS PROCEDURES

Author: New York Immigration Lawyer Alena Shautsova

There are new changes to the most complicated and slowest immigration process in employment and family preferences categories : the Department of State and Immigration authorities are revising the way Immigrant visas are counted and the timing when one can file his/her applications for the visas.

From now on, the visa bulletin will provide for two different dates:

  •  Dates for Filing Applications (earliest dates when applicants may be able to apply); and
  • Application Final Action Dates (dates when visas may finally be issued).

The significance of the new changes will primarily affect those who are in the U.S. waiting to file an application for adjustment of status.  An applicant for adjustment of status may also submit (with no additional charge) an application for employment authorization. In addition, often such applicants may submit an application for a travel permit, and plus,  when the adjustment of status application is pending , the applicant is considered to be “legal.”

Here is a reference to the USCIS clarifications regarding the new procedure: http://www.uscis.gov/visabulletininfo.

Simple comparison of the charts  of October 2015 visa bulletin reveals that in average  an applicant  in a preference family category will be able to apply for adjustment of status,  approximately a year earlier than previously.

The most important issue here is the implementation of the new rule, and hopefully, absence of new lawsuits against its makers…

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.

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

 

 

 

 

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.

 

Glitches in USCIS System

December 4, 2014

Glitches in USCIS System

Author: New York Immigration Lawyer

USCIS stands for the United States Citizenship and Immigration Services and is a government body that accepts and processes all petitions and applications related to any and all immigration benefits.

The process of communication with USCIS boils down to exchange of papers and on rare occasions, includes phone calls and infopass appointments.

That is why it is very important to submit correctly filled out forms; timely respond  to request of more evidence and organize the papers in the most convenient way for the adjudicator.

In cases that do not require an interview, the petitioner or applicant will never meet the person who makes a decision on his/her case. However, often, an applicant or an attorney would receive correspondence from the adjudicator: request for more evidence; notice of intend to deny, etc. Often such notices are mere duplicates of the instructions for the form submitted; sometimes a person gets a notice twice; or receives something that does not make a sense at all.

Recently, USCIS revealed that some of such notices are sent automatically due to the “glitches” in their system.  For the past year, the glitches are to blame for RFEs for I 864 affidavit of support form; double notices for fingerprint appointments and receipts of filing with the RFE in it (this one is a hybrid, a new “monster”  created by glitches).

The unfortunate thing is that an attorney or petitioner/applicant still has to address these babies of the glitches even if they do not make any sense, because, if for example, an attorney fails to respond to an RFE, the case almost surely will be denied on the basis of failure to response to an RFE, even if the RFE itself did not make any sense.

Glitches or not, submission to the USCIS is a serious matter, and should not be taken lightly as any mishap will result in frustration, loss of money and time!