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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.  

USCIS WILL RESUME DEFERRED ACTION PROGRAM

September 20, 2019

Author: New York Immigration Lawyer Alena Shautsova

About a month ago USCIS announced that it would stop the Deferred action program for non-military members. The public reacted by convincing USCIS that the deferred action program should be restored. Several weeks later, USCIS agreed.

What is Deferred Action?

Deferred action is a government’s act to accommodate an individual even though he/she does not have a recourse under the current Immigration law. As a rule, deferred action happens in a form of a parole. It can be parole in place; parole instead of a visa/status. Often, deferred action is granted to a person who is in removal proceedings. But USCIS also practices an affirmative deferred action: the one for individuals who are not in removal proceedings. Government regulations characterize deferred action as “an act of administrative convenience to the government which gives some cases lower priority.” 8 C.F.R. § 274a.12(c)(14).

Who can apply for Deferred Action?

Anyone present in the US with severe medical conditions, when the treatment for those conditions is unavailable in their home countries, may ask USCIS to grant them deferred action in the form of parole which will allow them to stay in the US without accumulating unlawful presence. Also, persons whose countries were affected by serious natural disaster, may likewise apply for deferred action.  During the validity of the deferred action, the person is considered to be safe from removal/deportation.

How to Apply for Deferred Action?

Apparently, there is no centralized, nation-wide procedure for the deferred action. A person would have to submit the request to the local USCIS office. A front desk would take these applications and provide a receipt stamp. An applicant must be out of status in order to file for deferred action.  Applicants will be fingerprinted. There is no application form and there is no application fee. An applicant will have to present evidence of the need to stay in the US, for medical deferred action it would be affidavits, medical records, doctor’s reports. To file, a person typically also would need to present:

  1. Signed written request
  2. Form G325A
  3. Copies of passport, visa, and birth certificate
  4. 2 passport-style photos

Beneficiaries of deferred action can apply for employment authorization. A deferred action may be granted to the person and his/her immediate relatives. A deferred action would typically be granted for a period of two years.

In 2011, the USCIS ombudsman recommended that USCIS adopts unified procedures for adjudicating deferred actions requests. In 2012 USCIS issued a memo U.S. Citizenship & Immigration Servs., Standard Operating Procedures for Handling Deferred Action Requests at USCIS Field Offices 3 n.1 (Mar. 7, 2012) (“USCIS Standard Operating Procedures”). However, the procedure itself still remains largely unknown and varies from office to office.

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.

No Cancellation if Asylum Filing Was Frivolous Says BIA

May 31, 2019

No Cancellation if Asylum Filing Was Frivolous Says BIA

Author: Deportation Lawyer Alena Shautsova

There exists a wrong practice among Immigration law practitioners (fraudsters) to file an asylum claim on behalf of an individual with the purpose of filing for cancellation of removal later in Immigration court. What happens is that people essentially get “tricked” by these practitioners into believing that they can get away with filing a frivolous asylum case and later, when they transferred to court, they will be able to successfully file for a relief with the judge in a different form. At times, people are not even aware they filed for asylum!

Here is a first point: a person has to file for asylum within a year of his/her entry into the US. If you spent here 10 years and more (one of the qualifications for cancellation of removal), chances are you will NOT qualify for asylum unless certain, very narrow exceptions are met.

Second, an asylum application must have merit: you cannot allege that you are afraid of criminal situation in your country general. This is NOT a basis for asylum. It takes months to prepare an asylum application and thoroughly collect all the evidence; if the evidence is not available you must explain why. 

There is a punishment under the law for those who submit  frivolous or fraudulent asylum applications. 

So, within the past years, there were numerous reports of filing for asylum in order to get a cancellation of removal relief: an application for a green card available to be filed in court only. Now, the BIA held that this practice will be sufficiently abolished: if the Immigration judge determines that the asylum application was filed just so that the person could file for cancellation of removal, the proceedings will be DISMISSED! It means that the person will not have a chance to file for cancellation of removal.  See Matter of ANDRADE JASO and CARBAJAL AYALA, 27 I&N Dec. 557 (BIA 2019). 

If one desires to place himself/herself in removal proceedings, even generally not recommended to do so, he/she should request that the government issue a Notice to Appear rather than submit a frivolous asylum case. This approach might come with less success, but will save time, money, and potentially safeguard from civil and criminal penalties. 

 

FOIA: The Importance of Having Your Full Immigration Record

May 20, 2019

FOIA: The Importance of Having Your Full Immigration Record

Author: New York Immigration Attorney Alena Shautsova

FOIA stands for Freedom Of Information Act and is essential for one’s Immigration case. By filing FOIA request, one may not only receive a copy of his/her Immigration file form an Immigration court, Board of Immigration Appeals or USCIS, but also obtain records of one’s interactions with the CBP at the border; receive notes about one’s testimony during his/her Asylum interview and obtain records from the Stokes interview.

A response to FOIA has to be current: if you received a “CD” (the government usually delivers responses to FOIA requests on CDs) in the past but since then had some immigration history: forms filed, a decision made, etc, you need to obtain a “fresh” FOIA response.

One of the most overlooked and underused FOIA requests is an OBIM FOIA: U.S. Office of Biometrics Identity Management (“OBIM,” formerly US-VISIT). Basically, if you would like to receive your files regarding interactions with the Border Patrol officials, you need to file a request for FOIA with OBIM. OBIM requests may be submitted by letter request; Form G-639 by mail, fax, or email; or electronically through the DHS Online Request Form. They should include an original fingerprint card or A-number.

Another important source of information is CBP. A request for records to the CBP may reveal:

Apprehensions and detentions at the border: • Interactions with CBP at the border or in the interior • Form I-94 records • Voluntary return records • Records of entries and exits xi • Expedited removal orders • Advance parole records obtained through CBP.

Unfortunately, the government does not have to disclose all the information. Often,  important information is being withheld according to the provisions allowing the government not to share information that they use for investigation purposes, for example. If, however, an adverse decision is made in one’s case, he/she is entitled to have an opportunity to review and respond to the adverse information in the file.

Finally, often, as a result of the lawsuits, the government is forced to share previously withheld information. What was not available 8 years ago, now, may be available, in other words. If you are seeking to “fix” an old Immigration problem, a FOIA request is a must. It takes several months before you receive a response, but the wait is worth it. Through FOIA you can also obtain copies of lost documents; information regarding old filings that potentially can qualify you for an Immigration benefit; and, of course, information that was filled in the forms which can be checked for accuracy.

If you need assistance in obtaining your files, please call 917-885- 2261 for an appointment.

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 

Changes in New York Criminal Law May Serve As a Basis for Immigration MTR

November 28, 2018

Changes in New York Criminal Law May Serve As a Basis for Immigration MTR

Author: New York Immigration Attorney Alena Shautsova

Recently, New York highest Court, the Court of Appeals held that a defendant facing criminal charges with a risk of deportation should be entitled to a jury trial. Under  State Criminal Procedure regulations  340.40, a criminal defendant may be denied a jury trial for certain offenses. As such, such a person will face a bench trial instead: a trial where a judge without a jury will decide his/her faith.  

This regulations and practice have been found violating immigrants’ rights who may face deportation/removal even for otherwise low-level offenses.  The court held:

“It is now beyond cavil that the penalty of deportation is among the most extreme and that it may, in some circumstances, rival incarceration in its loss of liberty,” Stein wrote. “Accordingly, we hold that a noncitizen defendant charged with a deportable crime is entitled to a jury trial under the Sixth Amendment, notwithstanding that the maximum authorized sentence is a term of imprisonment of six months or less.”

It means that in every case, a careful analysis of the consequences of the potential conviction is required. It also means, that those who were convicted of deportable offenses and now are facing deportation, should be able to file corresponding motions to reopen their cases both in criminal and immigration courts. 

If you have Immigration questions related to criminal convictions, please call our office for a consultation at  917 885 2261.

 

 

Legalization of Marijuana and US Admissibility

October 19, 2018

Legalization of Marijuana and US Admissibility

 

Image result for marijuana fields

Author: US Immigration Attorney Alena Shautsova

US Federal laws prohibit use and distribution of marijuana, and even though on a state level in certain jurisdictions, use of marijuana and its possession would not even cause criminal charges any longer, on a Federal level, and particularly for Immigration purposes, affairs related to it may cause serious problems.

Generally speaking, persons who are involved in manufacturing and distributing of marijuana would be inadmissible in the US. Drug-related offenses are the toughest ones for US Immigration purposes: there is no even a waiver for the most of them. 

But recently, countries started to liberalize their policies to toward marijuana. Specifically, Canada legalized it. Now, a person may be involved in acts that are considered to be legal in their country, but illegal in the US. What will happen if the person is seeking to come to the US?

The answer was recently provided by CBP:

 “A Canadian citizen working in or facilitating the proliferation of the legal marijuana industry in Canada, coming to the U.S. for reasons unrelated to the marijuana industry will generally be admissible to the U.S. however, if a traveler is found to be coming to the U.S. for reason related to the marijuana industry, they may be deemed inadmissible.”

It means that just working for the industry will not make on inadmissible, but if the person is coming, let’s say to explore business opportunities related to the same, he/she will not be able to enter the US.