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US Asylum Procedure Changes

July 15, 2019

US Asylum Procedure Changes

Author: Asylum USA Lawyer Alena Shautsova

Asylum is the area of Immigration law that is undergoing rapid and vast changes. Just recently the Trump Administration announced that it will tighten the rules of qualifying for asylum again: now, a person who was traveling through other countries on the way to the US will be disqualified from asylum in the US unless narrow exceptions apply.

These are the exceptions:

  1. A person was trafficked into the US
  2. If the country the migrant passed through did not sign one of the major international treaties that govern how refugees are managed: 1951 Convention on Status of Refugees, 1967 Protocol; and CAT convention.
  3. If an asylum-seeker sought protection in a country but was denied.

The new regulations govern those who enter or attempt to enter the US at the “southern border”.

Notably, people who will be barred from requesting asylum due to these new regulations may still apply for withholding of removal or CAT. However, the screening for these applications will use a higher standard of fear than asylum. A negative finding of reasonable fear will be subject to a court’s review.

 

As a result of these new changes, more people, and almost all Central American families will be barred from claiming asylum in the US. They will also be subject to expedited removal proceedings: removal proceedings where one does not see a judge and the removal order is issued at the border by the government agents. An expedited removal order bars one from coming back to the US for 5 years. A person who disobeys such an order and enters the US illegally will be subject to a permanent bar.

Important Changes in Green Card Medical Exam Acceptance Policy

February 21, 2019

Important Changes in Green Card Medical Exam Acceptance Policy

Author: New York Immigration Attorney Alena Shautsova

An application for adjustment of status will not be approved if an applicant does not present a valid I693 form, medical exam. The medical exam itself is a pretty basic examination of one’s health condition, and even if a person has certain health issues, there is a waiver available. But what is hard is to comply correctly with constantly changing requirements for the form submission. 

Starting November 1, 2018, all forms I 693 will be valid only if the doctors signed them within 60 days of the submission of the form to USCIS and USCIS adjudicated the case within 2 years of the signature.

Note: the form I693 does not have to be filed together with the AOS package. It can be brought to the interview or submitted after a request for more evidence. 

If the I 693 form was submitted before November 1, 2018, then the form would be valid if

  • The civil surgeon signs Form I-693 more than 60 days before the applicant files the underlying benefit application with USCIS, but the applicant submits Form I-693 to USCIS no more than one year after the civil surgeon signed Form I-693; and USCIS issues a decision on the underlying benefit application no more than one year after the date the applicant submitted Form I-693 to USCIS.

OR

  • The civil surgeon signs Form I-693 no more than 60 days before the applicant files the underlying benefit application with USCIS; and USCIS issues a decision on the underlying benefit application no more than two years after the date of the civil surgeon’s signature.

OR

  • The civil surgeon signs Form I-693, and the applicant submits Form I-693, after the applicant files the benefit application with USCIS; and USCIS issues a decision on the underlying benefit application no more than two years after the date of the civil surgeon’s signature.

In all cases, a Form I-693 submitted to USCIS more than one year after the date of the civil surgeon’s signature is insufficient for evidentiary purposes as of the time of its submission to USCIS.

The best practice is to obtain the form at the interview: since the notice for the interview comes early (about a month before the interview), it is usually enough time to obtain the form and bring to the interview. 

If you have questions regarding AOS procedures in the US, you can book a consultation here: https://www.shautsova.com/appointments/immigration-lawyer-request.html 

What is Happening with DACA?

August 23, 2018

What is Happening with DACA?

Author: New York Immigration Attorney Alena Shautsova

DACA was restored….not so fast. On August 17, 2018 the same court that previously ordered to restore the program fully, including the part of it that used to provide advance parole was again stayed by the same court. NAACP v. Trump, 8/17/18.

What happened was that the government decided to appeal Court’s August 3rd order regarding the full restoration of the program, and filed a motion to clarify the order and motion to stay. The Plaintiffs in the case agreed that the stay will be appropriate with regard to the new applications, hence the stay was granted. 

It means that those who hold DACA cards that are expiring will be able to file the renewal applications, but no new applications and no applications for advance parole will be accepted. 

 

 

New Policy Regarding Unlawful Presence for F, M and J Visa Holders

August 13, 2018

New Policy Regarding Unlawful Presence for F, M and J Visa Holders

Author: US Visa Attorney Alena Shautsova

Recently, Trump administration started implementing new Immigration policies which construe Immigration laws stricter and with greater negative consequences for the non-residents. For example, several months ago, USCIS announced that the D/S (duration of status) exception of unlawful presence for M, F and J students will be abolished. Meaning, that these visa holders will start accumulating unlawful presence as soon as their program/status expires, and not only when a judge or USCIS determined that their status was “stopped.”  This new policy announcement was in conflict with the existing law allowing F and M  students to apply for reinstatement of status within 5 months of loss of such status, which would negate any determination of “unlawful presence.”

As a result, USCIS eventually changed its policy and the final version of it states that no unlawful presence will be accumulated if the person in F or M status filed a subsequently approved application for reinstatement of status. The new policy is as such:

F, J, or M nonimmigrants who failed to maintain their nonimmigrant status7 before August 9, 2018 start accruing unlawful presence based on that failure on August 9, 2018,8 unless the alien had already started accruing unlawful presence on the earliest of the following:

  • The day after DHS denied the request for an immigration benefit, if DHS made a formal finding that the alien violated his or her nonimmigrant status while adjudicating a request for another immigration benefit;
  • The day after the Form I-94, Arrival/Departure Record, expired, if the F, J, or M nonimmigrant was admitted for a date certain; or
  • The day after an immigration judge ordered the alien excluded, deported or removed (whether or not the decision is appealed).

 

F, J, or M nonimmigrants who failed to maintain nonimmigrant status on or after August 9, 2018 An F, J, or M nonimmigrant begin accruing unlawful presence, due to a failure to maintain his or her status on or after August 9, 2018, on the earliest of any of the following:

  • The day after the F, J, or M nonimmigrant no longer pursues the course of study or the authorized activity or the day after he or she engages in an unauthorized activity;
  • The day after completing the course of study or program (including any authorized practical training plus any authorized grace period, as outlined in 8 CFR 214.2);
  • The day after the Form I-94 expires, if the F, J, or M nonimmigrant was admitted for a date certain; or
  • The day after an immigration judge orders the alien excluded, deported, or removed (whether or not the decision is appealed).

Significantly, nonimmigrants who are not issued a Form I-94, Arrival/Departure Record, are treated as nonimmigrants admitted for D/S (as addressed in Chapter 40.9.2(b)(1)(E)(ii)) for purposes of determining unlawful presence.

Updates on Trump Executive Order Regarding Family Separation

June 20, 2018

 

 

Updates on Trump Executive Order Regarding Family Separation

Why Trump is digging in on separating families at the border

Author: New York Immigration lawyer Alena Shautsova

Trump, as promised, signed an Executive Order stopping Family separation on the Southern Border. The Order, however, protects families from separation for 20 days only. In addition, the “zero tolerance” policy stays in place. 

The order directs other agencies, including the Pentagon, to take steps to find places to house family units.
The order specifies that migrants entering the US with children will not be kept together if there’s a fear for the child’s welfare. Families will also be prioritized in the adjudication process.
 
It is anticipated that the order will be challenged. It presents a new ground to challenge prolonged family detention. 

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.

 

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?).