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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. “

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

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.

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. 

 

Brooklyn DA to Expunge Small Drug Convictions

September 21, 2018

Brooklyn DA to Expunge Small Drug Convictions

 

Foliage Cannabis Marijuana Lush Plants Nat

Author: New  York Immigration Attorney Alena Shautsova

In the light of the general liberalization of laws related to marijuana, Brooklyn DA announced a new program that would permit those convicted in Kings county to apply for an expungement of convictions related to unlawful possession of marijuana.  It should be noted, that on a Federal level, possession of marijuana is still a crime related to a controlled substance, which, depending on the amount, may make a person inadmissible and/or deportable. 

The program by Brooklyn DA to expunge small drug convictions would allow many to clear their records, and potentially, qualify for Immigration benefits they could not qualify previously. The subjects of the convictions could request the convictions to be dismissed. Moreover, those with outstanding summons warrants will be able to vacate their warrants: an outstanding warrant is a red flag for any immigrant, and must be addressed ASAP. 

You can learn more about Brooklyn DA’s programs here: http://brooklynda.org/begin-again/.

If you have Immigration concerns related to convictions, please book a consultation at http://www.shautsova.com.

O Visa Consultation Letters

September 19, 2018

O Visa Consultation Letters

Author: US Visa Attorney Alena Shautsova

To receive an O visa in the US, a petition by a potential employer has to be approved.   O-1 and O-2 nonimmigrant visas are available to individuals with extraordinary ability in science, education, business, athletics, or the arts, and individuals with extraordinary achievement in the motion picture or television industry, and certain essential support personnel. A consultation letter from a U.S. peer group, labor organization, and/or management organization is generally required for petitions in the O visa classification. As a part of the approval process, the employer has to reach out to the designated union/organization and request an opinion: if this union agrees that the subject of the petition is deserving to work in the US in a particular field. Not all the fields, by the way, have such unions.  For example,   the American Federation of Musicians (AFM), issues consultation letters for artists and groups in which instrumentalists make up least 50% of the personnel. Other unions issue consultation letters for artists such as dancers, actors, stage managers, stage technicians, operatic singers, and writers.

In the past, it was the petitioner’s job to reach out to the union and collect the letter/recommendation which could have been positive or “no objections” or negative. 

Recently, due to the fraud concerns, USCIS determined that negative consultation opinions must be sent by the unions to USCIS directly. It is an important change in the process of obtaining an O visa.  This new procedure affects only negative letters, not the positive consultations. 

 

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.