Immigration To The USA, Uncategorized, USCIS

Delivering Solutions For Your Future

Immigration in America, USA flag

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!

 

 

 

DMV Denial of License

October 21, 2014

DMV Denial of License

New York Immigration lawyer Alena Shautsova

Have you recently moved from another state and had difficulties getting NY driver’s license? Were you totally confused? Were you blamed you are not a US citizen?

It happened to my client: a born US citizen who has spent several years in a different state, and when she came back to NY and decided to apply for NY driver’s license and report a change of her address, a lady at the DMV Manhattan office told her that …. she needs to present “more proof” that she in fact was a US citizen… hmm

My client actually presented a social security card; different state ID card; a US birth certificate; bank statements from different banks and utility bills. According to the DMV point system table she had enough points to get her NYS driver’s license.  Nevertheless, the clerk told her to apply for a US passport and come back…

The question was: did the DMV clerks look at their own point table? Or is it just anther document issued to confuse everybody and make people’s life more difficult?

This client is a US citizen, and eventually, after visiting a different DMV  location, she was able to get her license.

Many non-citizens, however, experience the same issue. The government passed the Real ID act which requires the DMV offices to check for the lawful immigrant status before issuing an ID to the applicant. However, DMV clerks are not attorneys and often they lack training to ascertain if a person is in fact in lawful immigration status or status that allows a person to receive a state ID or driver’s license.  For example, another client of mine, an applicant for asylum was denied Chicago State ID because the clerk there decided that his documents showing pending case with the Immigration Court were not sufficient to prove authorized stay in the US…

At the same time, there are people without lawful immigration status who were able successfully to extend their 8 years DMV licenses even after the Real ID act…

Recently, New York City voted to issue Id-s to everybody, regardless of their immigration status.

Maybe, it is time to change the rules?

What Happens if I 751 Petition Filed Late?

October 14, 2014

What Happens if I 751 Petition Filed Late ?

Author: New York Immigration lawyer Alena Shautsova

I-751 petition is an Immigration form that is sued to remove the condition from permanent residency for those non-citizens whose marriage with a USC was younger than 2 years old at the time adjudication of adjustment of status application or issuance of an immigrant visa.

I-751 must be filed within 90 days prior to the second anniversary of the conditional residency.  Sometimes, the petition is submitted late. A jointly filed I-751 petition filed after the second anniversary of the CPR’s admission or adjustment may be considered only if the CPR is able to demonstrate good cause and extenuating circumstances for the failure to timely file. The instructions to the Form I-751 clearly state that a CPR may file a petition untimely only if he or she includes a written explanation for his or her failure to timely file and a request that USCIS excuse the late filing. The law provides for broad discretion as to what constitutes good cause and extenuating circumstances. Some examples of what constitutes good cause and extenuating circumstances may include but are not limited to: hospitalization, long term illness, death of a family member, the recent birth of a child (particularly if there were complications), and a family member on active duty with the U.S. military.

Please note that there is no limit as to how many I 751 petitions can be filed.

Those filers who request  a waiver from joint filing, also can file multiple petitions. If an immigration officer encounters a waiver request petition subsequent to the denial of a previous waiver request petition based on the same ground (termination of a marriage entered in good faith, extreme hardship, or battery or extreme cruelty), the he/she  will review the new petition to determine if the applicant has presented additional evidence different from the first petition. If a waiver request I-751 petition filed subsequently to a previously denied waiver request petition is based on a different ground than the previous petition, the immigration officer will evaluate the new petition separately from the previous denial.

If the petition is denied, then the USCIS has to issue a Notice to Appear, because person’s conditional resident status gets terminated.

Also, sometimes it is apparent the couple will separate or will file for divorce.  Nevertheless, the non-citizen still has to file I 751 petition, sometimes prior to the divorce proceedings being finalized. If a CPR files a waiver petition based on termination of marriage, but the CPR is legally separated or in pending divorce or annulment proceedings, USCIS shall issue an RFE requesting documents
terminating the marriage. If the CPR provides within the allotted 87 days responsive information, the service center shall adjudicate the petition on the merits. Otherwise, the I-751 will be denied.

It is always a good idea to consult with an attorney prior to filing of I 751, or if after a joint filing, the couple separated.  Denial of the I 751 petition leads to the removal proceedings and can be avoided if mistakes are corrected early.

 

 

 

RELIEF FOR CITIZENS OF EBOLA AFFECTED COUNTRIES

August 15, 2014

RELIEF FOR CITIZENS OF EBOLA AFFECTED COUNTRIES

Ebola Outbreak-related Immigration Relief Measures to Nationals of Guinea, Liberia and Sierra Leone Currently in the United States

Release Date: August 15, 2014 by USCIS

U.S. Citizenship and Immigration Services (USCIS) is closely monitoring the Ebola outbreak in West Africa. USCIS offers relief measures to nationals of those three countries who are currently in the United States.

Immigration relief measures that may be available if requested include:

  • Change or extension of nonimmigrant status for an individual currently in the United States, even if the request is filed after the authorized period of admission has expired;
  • Extension of certain grants of parole made by USCIS;
  • Expedited adjudication and approval, where possible, of requests for off-campus employment authorization for F-1 students experiencing severe economic hardship;
  • Expedited processing of immigrant petitions for immediate relatives (currently in the United States) of U.S. citizens;
  • Expedited adjudication of employment authorization applications, where appropriate; and
  • Consideration for waiver of fees associated with USCIS benefit applications.

To learn more about how USCIS provides assistance to customers affected by unforeseen circumstances in their home country, visit www.uscis.gov/humanitarian/special-situations.

DHS Website for Students

July 9, 2014

DHS New Website For Students

“The Department of Homeland Security (DHS) launched an enhanced Study in the Stateswebsite Monday with four new features. The features enable the Student and Exchange Visitor Program (SEVP), housed within U.S. Immigration and Customs Enforcement’s (ICE) Homeland Security Investigations (HSI), to convey pertinent information to stakeholders about the international student process in a clear and interactive manner.

The new features include:

  • An interactive glossary
  • An “Ask a Question” section
  • An enhanced School Search page
  • A mobile-ready version of Study in the States

“Being an international student is a complex process that involves several government agencies, and the new Study in the States tools will help students and schools easily find the latest news, information, interactive guides and videos they need,” said SEVP Director Lou Farrell.

The revamped site also features streamlined navigation and a blog geared to international students and school officials. Users can translate the site into multiple languages.

The Study in the States website serves as an information hub for the international student community. It brings together the various federal agencies that play a role in implementing our student visa and exchange visitor programs, including ICE, U.S. Citizenship and Immigration Services (USCIS) and U.S. Customs and Border Protection (CBP).

Study in the Stateswas launched by former Homeland Security Secretary Janet Napolitano in 2011, as part of a larger DHS initiative to enhance our nation’s economic, scientific and technological competitiveness by finding new ways to encourage the most talented international students to study and learn about expanded post-graduate opportunities in the United States. This initiative includes a focus on streamlining the student visa process, enhancing coordination among government agencies and keeping international students better informed about student visa rules and regulations.

SEVP monitors approximately one million international students pursuing academic or vocational studies (F and M visa holders) in the United States and their dependents. It also certifies schools and programs that enroll these students. The U.S. Department of State monitors exchange visitors (J visa holders) and their dependents, and oversees exchange visitor programs.

Both use the Student and Exchange Visitor Information System (SEVIS) to protect national security by ensuring that students, visitors and schools comply with U.S. laws. SEVP also collects and shares SEVIS information with government partners, including CBP and USCIS, so only legitimate international students and exchange visitors gain entry into the United States.

HSI reviews potential SEVIS records for potential violations and refers cases with potential national security or public safety concerns to its field offices for further investigation. Additionally, SEVP’s Analysis and Operations Center reviews student and school records for administrative compliance with federal regulations related to studying in the United States.”

Crime of Moral Turpitude in Immigration Court and Record of Conviction

February 25, 2014

Author: Criminal Immigration attorney Alena Shautsova

Crime of Moral Turpitude in Immigration Court and Record of Conviction

Conviction of crime of moral turpitude may cause a permanent resident to be deportable if committed within 5 years from the date of admission.  (Date of admission is the date when an alien was admitted to the US or paroled, but does not restart when an immigrant adjusts his or her status as per Matter of ALYAZJI, 25 I&N Dec. 397 (BIA 2011)).

However, what a crime of moral turpitude is, is decided in almost every case separately. Why? Because the term of “crime of moral turpitude” is a term of art.  The Immigration and Nationality act does not provide a definition to it, and courts look at the conviction to determine whether  a particular offense falls under the category of a CMIT.

In doing so, the courts follow the following analysis: first, they look at whether the statute a person was convicted of is divisible or not divisible. A statute is not divisible when it describes only one way to commit a crime. If the statute sets out a list of alternative ways to commit the crime, and where some of these “sub-violations” categorically meet the federal standard while others do not necessarily meet this federal standard, then the statute is divisible.  A statute categorically meets federal standard when every violation of a particular criminal statute meets the generic federal definition.

If a non divisible State statute mimics the Federal definition, there is no reason to look at the record of conviction: the person will be found guilty of crime of moral turpitude for Immigration purposes. If not, the State statue includes acts that will not be punished under the Federal law, then the person will be “off” federal hook for Immigration purposes.

As for divisible statute: most likely the court will look at the record of conviction, which consists of criminal charge, the plea agreement, and any plea or sentencing colloquy. The record of conviction does not include arrest reports, the pre-sentence investigation, the testimony of witnesses, etc. Shepard v. U.S., 544 U.S. 13 (2005); U.S. v. Kovac, 367 F.3d 1116, 1120 (9th Cir. 2004).

In addition, currently, in several Circuits the courts are permitted to look beyond the record of conviction to see if the person committed a CMIT under the Matter of Silva-Trevino.  This might present a problem for an immigrant who, essentially, will have to be re-tried in Immigration court for the same conduct he was tried in criminal court in. The court may look at any necessary and appropriate evidence to determine whether the foreign national’s conduct did, in fact, involve moral turpitude.

If you have questions regarding Immigration court proceedings, call office of Alena Shautsova 917-885-2261.

PAROLE IN PLACE: NEW IMMIGRATION POLICY

November 21, 2013

PAROLE IN PLACE FOR MILITARY FAMILIES

Who is eligible?

Spouses, Children and Parents of

  • Active duty Members of the U.S. Armed Forces
  • Individuals in the Selected Reserve of the Ready Reserve
  • Individuals previously served in the U.S. Armed Forces or Selected Reserve of the Ready Reserve

The eligible individuals should not have criminal convictions and should submit the following documents:

  • Application for Parole on USCIS form I 131
  • Evidence of the family relationship
  • Evidence of the family member  belongs to the eligible group of the U.S. Armed Forces
  • Evidence of the additional favorable factors

Call Alena Shautsova, New York Immigration lawyer to get FREE PHONE CONSULTATION REGARDING PAROLE IN PLACE RELIEF: 917-885-2261