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Trump Signs Proclamation To Revoke Visas of Certain Chinse National and Prevent Their Entry Into The US

May 31, 2020
New Immigration Restrictions For Chinese Students and Researchers

Author: NYC Immigration lawyer Alena Shautsova

On May 29, 2020, President Trump issued another proclamation related to the travel restrictions by citizens of China. Trump used its authority under the Immigration and Nationality Act Section 212(f) to limit the entry of non-citizens into the US. In addition, the Proclamation also calls for revocation of visas of those persons who are currently in the United States and who fall under the Proclamation’s frames. However, unlike previous proclamations, this one does not have a time limit and will remain in effect until revoked by the President.

According to the new proclamation, citizens of China seeking to enter the United States for graduate studies and higher, students and researchers will be prohibited to come to the US if they:

— receive funding from or who are currently employed by, study at, or conduct research at or on behalf of; or

— have been employed by, studied at, or conducted research at or on behalf of, an entity in China that implements or supports the PRC’s military-civil fusion strategy (MCF).

For an explanation of the MCF please see the Department of State’s website: https://bit.ly/3eyTYB3 . According to DOS: “Key technologies being targeted under MCF include quantum computing, big data, semiconductors, 5G, advanced nuclear technology, aerospace technology, and AI. The PRC specifically seeks to exploit the inherent ‘dual-use’ nature of many of these technologies, which have both military and civilian applications.”

The Proclamation provides for generous exeptions, it does not apply to:

–Undergraduate students;

— Lawful permanent residents of the United States;

–The spouse of a United States citizen or lawful permanent resident;

— A foreign national who is a member of the United States Armed Forces and any foreign national who is a spouse or child of a member of the United States Armed Forces;

— A foreign national whose travel falls within the scope of section 11 of the United Nations Headquarters Agreement (such as a PRC U.N. representative or expert performing a U.N. mission) or who would otherwise be allowed entry into the United States pursuant to United States obligations under applicable international agreements;

–A foreign national who is studying or conducting research in a field involving information that would not contribute to the PRC’s military-civil fusion strategy, as determined by the Secretary of State and the Secretary of Homeland Security, in consultation with the appropriate executive departments and agencies;

— A foreign national whose entry would further United States law enforcement objectives, as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees, based on a recommendation of the Attorney General or his designee; or

— A foreign national whose entry would be in the national interest, as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees.

The Proclamation also does not apply to asylum seekers.

The Proclamation also states that within the next 60 days, more restrictions may follow that are designed to prevent Chinese nationals from acquiring certain sensitive technology.

The Proclamation does not address the EB5 investor’s program or EB1 self-petition program that allow citizens of China to immigrate to the United States. Nor does it address any work-related or family-related immigrant visas.

It is unclear how the candidates for visa revocation will be determined and if there will be any appeal process in case of erroneous determination.

US Immigration Public Charge Chart Explaining Status and Benefits

May 6, 2020

Author: NYC Immigration Lawyer Alena Shautsova

US Public Charge Rule is confusing and complex enough even for a seasoned Immigration practitioner. Public Charge test applies for certain but not all immigration filings/ benefits. For example, VAWA, asylum and refuge seekers are exempt from the public charge test, but most employment and family-based applicants are not. Also not all public benefits would count for the public charge purposes test.

Currently, the test is being used in connection with the adjustment of status filings, filings for extension and change of status and for Immigrant visa filings. Depending on the location of the applicant, the person may have to submit form I 944 (in the US) or form DS5540 (outside the US). Please note that not all the consulates are collecting DS 5540 at this time. Consulates may not even require the form to be submitted as they can ask the applicant at the interview all relevant questions. Dorm DS 5540 cannot be submitted online at this time.

Below you will find an invaluable table composed by the Empire Justice Center that explains in detail which benefits count towards public charge for which immigration filings.

Medical Hardship for Cancellation of Removal

March 31, 2020

Author: NYC Immigration lawyer Alena Shautsova

View our video on the issue:

Best New York Immigration Lawyer
NYC Immigration lawyer
https://www.youtube.com/watch?v=66EnHipb0Ew&t=30s

Establishing medical hardship for the cancellation of removal cases is one of the most important burdens of the person in removal proceedings.

Recently, the Board of Immigration Appeals issued a decision in the Matter of J-J-G, specifying a standard an applicant for cancellation of removal must meet in connection when trying to establish medical hardship to a qualifying relative. The decision specifically addresses a situation where the qualifying relative is argued to have to accompany the applicant in case of his/her removal.

Specifically, the BIA stated that the person who is trying to show that the relative will suffer exceptional and extremely unusual hardship in case of his/her removal must present evidence that the adequate medical help for the serious medical condition is not reasonably available in the country at issue.

The BIA emphasized that general evidence regarding the lesser qualify of medical care and lesser opportunities in the country at issue is insufficient to meet the requireed standard.

As such, the BIA ordered the respondent, a native of Guatemala, with five US citizen children to be removed to Guatemala! From reading the decision, it is apparent that the result was due to lack of preparation and absence of specific evidence addressing the issue of the cost and availability of the treatment for the medical condition for the qualified relative. Nevertheless, the decision will have a grave impact on thousands of the cancellation of removal applications. The text of the decision can be found here.

Coronavirus Update on US Visa Processing and International Travel

March 19, 2020

Author: New York Immigration Lawyer Alena Shautsova

If you feel that the news gets old the minute it is published, you are right! The US government just announced that it suspends US visa processing, and the US Government issued a warning against all international travel. Do not get stuck overseas!

SUSPENSION OF ROUTINE VISA SERVICES

In response to worldwide challenges related to the outbreak of COVID-19, the Department of State is suspending routine visa services in most countries worldwide.  Embassies and consulates in these countries will cancel all routine immigrant and nonimmigrant visa appointments as of March 18, 2020.  Check the website of the embassy or consulate for its current operating status.  As resources allow, embassies and consulates will continue to provide urgent and emergency visa services.

Please see: https://travel.state.gov/content/travel/en/News/visas-news/suspension-of-routine-visa-services.html

GLOBAL LEVEL 4

The Department of State advises U.S. citizens to avoid all international travel due to the global impact of COVID-19.  In countries where commercial departure options remain available, U.S. citizens who live in the United States should arrange for immediate return to the United States, unless they are prepared to remain abroad for an indefinite period.  U.S. citizens who live abroad should avoid all international travel.  Many countries are experiencing COVID-19 outbreaks and implementing travel restrictions and mandatory quarantines, closing borders, and prohibiting non-citizens from entry with little advance notice.  Airlines have cancelled many international flights and several cruise operators have suspended operations or cancelled trips.  If you choose to travel internationally, your travel plans may be severely disrupted, and you may be forced to remain outside of the United States for an indefinite timeframe.

Please see: https://travel.state.gov/content/travel/en/traveladvisories/ea/travel-advisory-alert-global-level-4-health-advisory-issue.html

What To Do It Your Visa Expires Now and You Cannot Leave the US

March 16, 2020

Author: New York Immigration Lawyer Alena Shautsova

On April 13, 2020 USCIS published guidelines on status extensions and confirmation that it may pardon extension requests filed after the expiration of the initial authorization period:

“Generally, nonimmigrants must depart the United States before their authorized period of admission expires. However, we recognize that nonimmigrants may unexpectedly remain in the United States beyond their authorized period of stay due to COVID-19. Should this occur, the following options are available for nonimmigrants: 

Apply for an Extension. Most nonimmigrants can mitigate the immigration consequences of COVID-19 by timely filing an application for extension of stay (EOS) or change in status (COS). U.S. Citizenship and Immigration Services continues to accept and process applications and petitions, and many of our forms are available for online filing. 

If You File in a Timely Manner. Nonimmigrants generally do not accrue unlawful presence while the timely-filed, non-frivolous EOS/COS application is pending.  Where applicable, employment authorization with the same employer, subject to the same terms and conditions of the prior approval, is automatically extended for up to 240 days after I-94 expiration when an extension of stay request is filed on time.

Flexibility for Late Applications. USCIS reminds petitioners and applicants that it can consider delays caused by the COVID-19 pandemic when deciding whether to excuse delays in filing documents based on extraordinary circumstances.  

Under current regulations and as noted on our Special Situations page, if a petitioner or applicant files an extension of stay or change of status request (on Forms I-129 or I-539) after the authorized period of admission expires, USCIS, in its discretion, may excuse the failure to file on time if it was due to extraordinary circumstances beyond their control, such as those that may be caused by COVID-19. The length of delay must be commensurate with the circumstances. The petitioner or applicant must submit credible evidence to support their request, which USCIS will evaluate on a case-by-case basis. These special situations have been used at various times in the past, including for natural disasters and similar crises.

Please see 8 CFR 214.1(c)(4) and 8 CFR 248.1(c) for additional information on late requests to extend or change status. In addition, please see our Form I-129 and Form I-539 pages for specific filing and eligibility requirements for extensions of stay and changes of status.”

USCIS also stated it will exercise its authority for Satisfactory departure:

Flexibility for Visa Waiver Entrants. Visa Waiver Program (VWP) entrants are not eligible to extend their stay or change status. However, under current regulations, if an emergency (such as COVID-19) prevents the departure of a VWP entrant, USCIS in its discretion may grant a period of satisfactory departure for up to 30 days. Please see 8 CFR 217.3(a). For those VWP entrants already granted satisfactory departure and unable to depart within this 30-day period because of COVID-19 related issues, USCIS has the authority to temporarily provide an additional 30-day period of satisfactory departure. To request satisfactory departure from USCIS, a VWP entrant should call the USCIS Contact Center.”   

Friends, family and clients are reaching out to see what they can do now when the US and other countries is canceling most of their flights outside the US and it is not recommended to fly at this time of coronavirus outbreak. The answer will depend on how a person entered the United States: on a visa (sticker in their passport) or he/she entered using Visa Waiver (no sticker in their passport). For those who entered on a visa, it is possible, before the expiration of their authorized stay to file form I-539, application to extend non-immigrant status. A person will be authorized to stay in the United States while their application is pending. Note, that for those who entered on a B1/2 visa/status, the maximum possible time limit for an extension would be six months.

The situation is different for those who entered on the Visa Waiver, as the law does not provide for a possibility to request an extension of stay using form I 539. Below, I quote just received note from the New York Chapter of the American Immigration Lawyers Association:

“Extending ESTA/Visa Waiver Participants (VWP) Periods of Admission due to inability to depart the US related to COVID-19.

ONLY APPLICABLE TO THOSE WHO WERE ADMITTED THROUGH JFK OR NEWARK

Individuals admitted under the VWP/ESTA program who find themselves unable to depart the U.S, before their current period of admission will end because of COVID-19 related issues who were admitted to the U.S. through John F. Kennedy International Airport, NY (JFK) and Newark Liberty International Airport, NJ (only) can contact the Deferred Inspections office at JFK, starting Monday, March 16, 2020, Monday – Friday, 9am to 4pm ET and request Satisfactory Departure for up to 30 days.   Individuals or their attorneys will need to provide the affected individual’s name, Date of Birth (DOB) and passport information at the time of the request.  Individuals and their attorneys may be asked to provide the original departure flight itinerary along with the new flight itinerary.  

Individuals and their attorneys are permitted to request Satisfactory Departure if the individual’s period of stay will expire in 14 days or less from the day he or she contacts JFK Deferred Inspections. If their period of VWP/ESTA admission has expired, the decision to grant satisfactory will be considered on a case by case basis.

To contact JFK Deferred Inspection to make the Satisfactory Departure Request use the numbers below:

(718) 553-3683 or (718) 553-3684  Monday – Friday, 9am to 4pm ET

Please see additional regulatory information about Satisfactory Departure below.  The CBP Liaison Committee is reaching out to CBP HQ to request all ports of entry implement a similar process to JFK and we will provide updated information about additional ports as soon it is available.

You can also let your contacts at other Ports of Entry know that JFK has implemented this mechanism and ask about what can be done for admissions under their jurisdiction. 

 Satisfactory Departure

Ports of entry (including deferred inspection locations) may be contacted by VWP travelers already in the United States who are unable to depart the United States before their authorized period of admission ends.

There is no provision under U.S. law to extend the stay of an alien admitted under the VWP.  The only form of relief for an alien admitted under the VWP who is unable to depart timely due to emergent circumstances is the exercise of Satisfactory Departure. 

Pursuant to Title 8 Code of Federal Regulations (CFR) Section 217.3(a), if an emergency prevents an alien admitted under the VWP from departing the United States within the period of authorized stay, a period of Satisfactory Departure may be granted not to exceed 30 days – provided that the request is made during the period of admission and the alien is still in status at the time of the request.  If departure is made within the period of approved Satisfactory Departure, the alien is regarded as having made a timely departure without overstaying the allowed time.  In emergent circumstances, requests for Satisfactory Departure may be granted if the alien is out of status but can prove the intent was to depart timely – authority to approve these cases is reserved for the Director, Field Operations, unless re-delegated locally.

Requests for Satisfactory Departure are generally adjudicated by U.S. Citizenship and Immigration Services (USCIS).  However, in extraordinary circumstances, CBP may adjudicate requests for Satisfactory Departure.  Many aliens admitted under the VWP may be stranded at U.S airports due to canceled flights.  Where appropriate, CBP should grant Satisfactory Departure if the alien is awaiting a canceled flight and the period of VWP admission is expiring prior to the traveler’s ability to depart. “

List Of European Countries From Which All Travel Is Suspended For 30 days

March 12, 2020

Author: NYC Immigration lawyer Alena Shautsova

In response to the Coronavirus outbreak, the USA decided to suspend the entry into the United States, as immigrants or nonimmigrants, of all aliens who were physically present within the Schengen Area during the 14-day period preceding their entry or attempted entry into the United States. These countries include: Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, and Switzerland.

These countries do not include England. The bar does not affect movement of goods.

The following individuals are not barred from entering the United States:

(i)     any lawful permanent resident of the United States;

(ii)    any alien who is the spouse of a U.S. citizen or lawful permanent resident;

(iii)   any alien who is the parent or legal guardian of a U.S. citizen or lawful permanent resident, provided that the U.S. citizen or lawful permanent resident is unmarried and under the age of 21;

(iv)    any alien who is the sibling of a U.S. citizen or lawful permanent resident, provided that both are unmarried and under the age of 21;

(v)     any alien who is the child, foster child, or ward of a U.S. citizen or lawful permanent resident, or who is a prospective adoptee seeking to enter the United States pursuant to the IR-4 or IH-4 visa classifications;

(vi)    any alien traveling at the invitation of the United States Government for a purpose related to containment or mitigation of the virus;

(vii)   any alien traveling as a nonimmigrant pursuant to a C-1, D, or C-1/D nonimmigrant visa as a crewmember or any alien otherwise traveling to the United States as air or sea crew;

(viii)  any alien

(A)  seeking entry into or transiting the United States pursuant to one of the following visas:  A-1, A-2, C-2, C-3 (as a foreign government official or immediate family member of an official), E-1 (as an employee of TECRO or TECO or the employee’s immediate family members), G-1, G-2, G-3, G-4, NATO-1 through NATO-4, or NATO-6 (or seeking to enter as a nonimmigrant in one of those NATO categories); or

(B)  whose travel falls within the scope of section 11 of the United Nations Headquarters Agreement;

(ix)    any alien whose entry would not pose a significant risk of introducing, transmitting, or spreading the virus, as determined by the Secretary of Health and Human Services, through the CDC Director or his designee;

(x)     any alien whose entry would further important the United States law enforcement objectives, as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees, based on a recommendation of the Attorney General or his designee;

(xi)    any alien whose entry would be in the national interest, as determined by the Secretary of State, the Secretary of Homeland Security, or their designees; or

(xii)   members of the U.S. Armed Forces and spouses and children of members of the U.S. Armed Forces.

(b)  Nothing in this proclamation shall be construed to affect any individual’s eligibility for asylum, withholding of removal, or protection under the regulations issued pursuant to the legislation implementing the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, consistent with the laws and regulations of the United States.

Immigration Court (EOIR) Starts Online Case Status Checks

February 26, 2020

Author: Deportation Defense Attorney Alena Shautsova

US Immigration court system (EOIR) has launched a new online case status check-up system. By putting one’s alien number into an online field, a person can get access to the court’s information system regarding one’s case. The link for the system is: https://portal.eoir.justice.gov/InfoSystem/Form?Language=EN

The test of the system revealed that it will not contain copies of any decisions, but will provide general status of the matter and future hearing dates, which can be handy, especially if you do not want to call 800 phone number: 800-898-7180 (TDD 800-828-1120) . The only issue is that at times when the proceedings were administratively closed, the system states that the case is currently pending without more.

The A number based system is a good option for at times a confusing 800-phone system. However, it does not replace or substitute law requirements that a person in removal proceedings shall receive a notice of the date and time of their hearing. It is especially true nowadays when courts are transitioning from the “status” dockets, converting them by default into Master hearings without sending appropriate notices to the attorneys or persons in removal proceedings.

Coronavirus and Travel to the USA

February 7, 2020
Coronavirus and Travel to the USA

Author: USA Immigration lawyer Alena Shautsova

Coronavirus impacted world travel, including US Immigration and travel. Specifically, the entry of certain persons who have recently traveled to China or coming from China is restricted.

Travel Ban Related to China

On January 31, 2020, President Trump issued a Proclamation suspending entry of certain immigrants and nonimmigrants who were physically present within China, excluding Hong Kong and Macau, 14 days prior to their entry or attempted entry into the United States. The ban became effective at 5:00 pm (ET) on Sunday, February 2, 2020.

Quarantine

In addition, US citizens who are travelling from the affected Hubei province in China within 14 days of arriving to the US will be placed on mandatory quarantine. If persons are returning form other parts of China, outside of Hong Kong, Macau, and the Hubei province, will be subject to monitoring at certain ports of entry, and potentially self-quarantine at home.

Who will not be banned from entering the U.S. if they travelled to China?

The Trump China-related  Proclamation states that it does not affect an individual’s eligibility for asylum, withholding of removal, or protection under the UN Convention against Torture (UNCAT). In addition to U.S. Citizens, the Proclamation does not apply to the following individuals:

  • Lawful permanent residents of the United States;
  • Spouses of a U.S. citizen or lawful permanent resident;
  • Parents or legal guardians of a U.S. citizen or lawful permanent resident, provided that the U.S. citizen or lawful permanent resident is unmarried and under the age of 21;
  • Siblings of a U.S. citizen or lawful permanent resident, provided that both are unmarried and under the age of 21;
  • Children, foster children, or wards of a U.S. citizen or lawful permanent resident, or prospective adoptees seeking to enter the United States pursuant to the IR-4 or IH-4 visa classifications;
  • Foreign nationals traveling to the United States at the invitation of the United States Government for a purpose related to containment or mitigation of the virus;
  • Nonimmigrants under section 101(a)(15)(C) or (D) of the INA, 8 U.S.C. 1101(a)(15)(C) or (D), as a crewmember or any alien otherwise traveling to the United States as air or sea crew;
  • Nonimmigrants on an A-1, A-2, C-2, C-3 (as a foreign government official or immediate family member of an official), G-1, G-2, G-3, G-4, NATO-1 through NATO-4, or NATO-6 visa;
  • Foreign nationals whose entry would not pose a significant risk of introducing, transmitting, or spreading the virus, as determined by the CDC Director, or his designee;
  • Foreign nationals whose entry would further important United States law enforcement objectives, as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees based on a recommendation of the Attorney General or his designee; or
  • Foreign nationals whose entry would be in the national interest, as determined by the Secretary of State, the Secretary of Homeland Security, or their designees.

Lastly, the individuals travelling from China, will be able to land only in the following airports:

  • John F. Kennedy International Airport (JFK) in New York
  • Chicago O’Hare International Airport (ORD) in Illinois
  • San Francisco International Airport (SFO) in California
  • Seattle-Tacoma International Airport (SEA) in Washington
  • Daniel K Inouye International Airport (HNL) in Hawaii,
  • Hartsfield-Jackson Atlanta International Airport (ATL) in Georgia
  • Newark Liberty International Airport (EWR) in New Jersey
  • Dallas/Fort Worth International Airport (DFW) in Texas
  • Detroit Metropolitan Airport (DTW) in Michigan
  • Los Angeles International Airport (LAX) in California, and
  • Washington-Dulles International Airport (IAD) in Virginia

The airlines are under orders not to land the affected aircrafts in any other airports.

To sum up, a person travelling from China will not be able to enter the US if he is a regular non diplomatic non-immigrant in most cases. Those with close ties with the US are expected to be subjected to quarantine. The persons will be able to enter the US in one of the eleven designated airports.  This proclamation shall remain in effect until terminated by the President.  

How long this restriction will be applied for?

The Secretary of Health and Human Services shall, as circumstances warrant and no more than 15 days after the date of this order and every 15 days thereafter, recommend that the President continue, modify, or terminate this proclamation.

USCIS Response to Coronavirus

USCIS announced that it encourages persons who are not feeling well to reschedule their appointments following the instructions in the interview notices. It also stated that it will not penalize those who opt to reschedule their appointments. See more https://www.uscis.gov/news/alerts/uscis-response-2019-coronavirus

B-Ban Or How Babies Became Threat for The US National Security

January 26, 2020
Image result for Baby Banned

Author: New York Immigration Lawyer Alena Shautsova

It is official: pregnant ladies will be denied U.S. tourist visas! This is the essence of the new rule that was published by the U.S. government on January 24, 2020.

“Birth tourism” or entering the U.S. for having access to the best and most reliable medical care has been around for decades. Ladies all over the world, some having to save money for a long time, came to the U.S. to have assurance that the most important day in their lives and in the lives of their new babies would go as smoothly as possible. While I am not in a possession of any official statistics, I know for a fact that to get a B or tourist visa has never been easy: a person would have to show that they had sufficient funds to sustain themselves in the U.S. and had strong ties with their home country… In fact, one of the purposes of the B visa was to seek medical attention/help in the U.S.  Thousands of women used this provision to give birth to the U.S.

It is so happened that the U.S. Constitution provides  every baby who was born in the U.S. (with the exceptions of babies of certain diplomats) U.S. citizenship. Basically, regardless of the babies’ mother’s true intentions: to have safe delivery or to plan for the future Immigration to the U.S., the law works to protect the babies born on U.S. soil. And this very provision and threat of “anchor babies” became the reason why recently the U.S. Administration decided to ban pregnant ladies from coming to the U.S.:

“Permitting short-term visitors with no demonstrable ties to the United States to obtain visas to travel to the United States primarily to obtain U.S. citizenship for a child creates a potential long-term vulnerability for national security.” “ By obtaining a child’s U.S. citizenship through birth tourism, foreign nationals are able to help that child avoid the scrutiny, standards, and procedures that he or she would normally undergo if he or she sought to become a U.S. citizen through naturalization.” In other words, they help newborns!

Hence,  “a consular officer shall deny a B nonimmigrant visa to an alien who he or she has reason to believe intends to travel for this primary purpose. “ says the new rule.

To be fair, the rule tries to address the issue of many women trying to come to the U.S. simply to seek high quality medical care which is often unavailable in their home countries. It says: “ Under the primary purpose test, a consular officer must consider a visa applicant’s primary (or principal) purpose of travel to evaluate the applicant’s eligibility for the requested visa classification. All of a visa applicant’s intended activities in the United States are considered in determining the applicant’s eligibility for a visa under standards set out in INA 212 and 214(b), 8 U.S.C. 1182 and 1184, and other applicable visa eligibility standards. The Department’s FAM guidance to consular officers on this point—that an “alien desiring to come to the United States for one principal, and one or more incidental, purposes should be classified in accordance with the principal purpose”—has remained unchanged for well over 30 years. Compare 9 FAM 41.11 N3.1 (August 30, 1987) with current 9 FAM 402.1-3 (last revised May 21, 2018)”

But if we have to measure on a scale of justice a visit to see a family member vs. delivering a baby, it is obvious that delivering a baby purpose will always outweigh any and all other legitimate purposes for travel. So, it is pretty obvious, that the ladies will not be able to come to the U.S. to give birth anymore. Moreover, if a lady “looks” pregnant she will be denied a visa as well!

While some may be annoyed at the fact that ladies come to the U.S. to give birth in the U.S. hospitals to produce “anchor babies”, I have to respond that for such a baby to be able to sponsor a mother or a father, the baby has to be 21 years old, reside in the U.S. and have sufficient income! Which, in most cases, simply will not be possible. The baby ban will affect not those who are crossing the border or are victims of criminal activities, but those who tried to follow the law and actually applied for a visa, arranged for medical treatment facility and doctors and could demonstrate that they could afford their stay in the U.S.

Can I Travel Abroad If I Have TPS and an Order of Removal?

December 22, 2019

Author: Deportation attorney Alena Shautsova

Beneficiaries of the TPS (temporary protected status) are allowed to obtain advance parole: an authorization that allows them to travel abroad and be paroled back into the United States. Many have used this opportunity to obtain a “paroled” status necessary for adjustment of status under INA section 245 which states that one of the qualifications for adjustment of status is for a person to be inspected and admitted or paroled into the United States…

For some time, TPS holders in removal proceedings and with final orders of removal were able to obtain advance paroles and travel on them as well. According to the author’s information, some USCIS offices were accepting such a return on advance parole as an execution of the order of removal and authorization to come back to the United States, opening the door for such travelers for adjustment of status with USCIS.  Recently, USCIS issued yet another policy closing the door to such an interpretation of the travel on advance parole for the TPS holders with orders of removal/deportation.  

Specifically, the policy states that when the TPS holder travels on advance parole and returns to the US, his/her status does not change; if a TPS holder had an order of removal or deportation, he would still be considered as having an unexecuted order; and if removal/deportation proceedings were pending at the time of travel, they remain pending at the time of return.

Now, for an adjustment of status, a TPS holder without the order or removal, can satisfy the paroled requirement if he/she travels and returns on TPS.  A grant of TPS by itself does not cure an alien’s entry without inspection or constitute an inspection and admission of the alien (in most jurisdictions). If an alien under TPS departs the United States and is admitted or paroled upon return to a port of entry, the alien meets the inspected and admitted or inspected and paroled requirement provided the inspection and parole occurred before he or she filed an adjustment application. The applicant, however, must still meet all other requirements to be eligible for adjustment. 

So, what would you do if you traveled on TPS but you have pending removal proceedings? Perhaps, you may be eligible for an adjustment before the judge. If you have an old removal order: it will be considered unexecuted, and legal analysis will be more complicated depending on circumstances.

If you need a consultation regarding your options, please call 917-885-2261 to book an appointment.