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Family Immigration: Who You Can Sponsor

September 30, 2017

Family Immigration: Who You Can Sponsor

Author: US Immigration Attorney Alena Shautsova

The US Immigration laws contain very specific and strict rules as to which family members can be sponsored (applied for an immigrant visa or green card) by permanent residents (LPR) and US citizens (USC).

All groups of relatives are organized by specific groups, and each group has its own priority. The priority depends on the status of the petitioner (the sponsor) and the age and marital status and familial relationship of the beneficiary. Each group has its own wait time. Only “immediate relatives” of the USC do not have to wait in the line. Parents, spouses, and children under 21 years old of USC are immediate relatives.

WHO CANNOT BE SPONSORED:

The US laws do not allow for sponsorship of uncles, aunts, grandparents, and even stepparents in certain situations. Likewise, friends, very good friends, cousins, aunts and uncles who “were like mothers…fathers…” but actually did not complete the adoption process by the time the person turned 14 years old, also cannot be sponsored.

Permanent residents cannot sponsor their married children, parents or siblings.

US citizens cannot sponsor for a green card their fiances. They can only invite them on a K visa, but will have to complete the process in the US by submitting an application for a green card. Permanent residents cannot invite their fiances at all. They have to be married to the person and apply for an immigrant visa for a spouse of a permanent resident and wait in line for about 2 years.

WHO CAN BE SPONSORED

US citizens can sponsor spouses, children under 21, and parents without additional wait time. Unmarried sons and daughters (over 21); married sons and daughters and siblings may also be sponsored. But for each of these categories, there is an additional wait time after the petition is approved. In case of a sibling immigration, that wait time is about 10-12 years.

LPR can sponsor spouses and children under 21; sons and daughters (over 21 but unmarried olny).

A petition US citizen is filing for his/her parents is good only for parents. Young siblings (little brother or sister) cannot be included in the same petition. In such situations (let’s say a sister is only 10 years old, and would have to stay in China if a mother is sponsored to the US), a mother or father, once they become permanent residents, would have to file for the unmarried, little sister. (Sometimes, it is possible to apply for a parole for a child who would have stayed behind).

A permanent resident may be able to bring his/her family on something called following to join provision, without the need of a separate application/ petition to be filed by the family members if the relationship existed prior to obtaining the permanent residency, and the green card was obtained under certain categories (DV lottery, employment, sibling immigration, etc). There is no statutory time period during which the following-to-join alien must apply for a visa and seek admission into the United States. However, if the principal has died or lost status, or the relationship between the principal and derivative has been terminated, there is no longer a basis to following to join. As an example, a person would no longer qualify as a child following to join upon reaching the age of 21 years (unless they qualify for the benefits of the Child Status Protection Act, see 9 FAM 502.1-1(D)) or by entering into a marriage. There is no requirement that the following-to-join alien must take up residence with the principal alien in order to qualify for the visa. (See 9 FAM 502.1-1(C)(2).) The term “following to join” also applies to a spouse or child following to join a principal alien who has adjusted status in the United States.

If you have quesitons regarding sponsorship ofr various family members, please contact us at office@shautsova.com or 917-885-2261.

Immigration To The USA, USCIS

Republicans Propose a Bill to Help DACA Kids

September 26, 2017

Republicans Propose a Bill to Help DACA Kids

Author: New York Immigration Attorney Alena Shautsova

On September 25, 2017, Senators Thom Tillis (R-NC), James Lankford (R-OK), and Orrin Hatch (R-UT) introduced the SUCCEED Act. It is a new law that aims to solve DACA kids’ challenge. The Succeed Act would authorize cancellation or removal and adjustment of status for children known as “Dreamers.”

The proposed law authorizes the government to grant cancellation of removal for those kids who qualified for DACA benefits with a benefit of CONDITIONAL PERMANENT RESIDENCY. The young person has to either earn a high school degree or be enrolled in an educational institution or has served or be enlisted in the US Armed Forces. In addition, the person should not have certain inadmissibility or deportability grounds be applicable to him/her; should have paid his/her taxes; should not have any felony convictions; a significant misdemeanor; or criminal convictions totaling in incarceration for at least 1 year. The applicant should not have an order of removal/deportation unless he/she remained in the US legally after such an order, or the order was issued before the person’s 18th birthday.

The Act also proclaims that a person who violated the conditions of such residency will be ineligible for any other Immigration relief except for Withholding of removal and Relief under CAT.

This conditional residence status can be terminated if a person is not working for at least 1 year while not attending a school; if he/she became a public charge; gained status as a result of fraud or misrepresentation; etc. If such conditional status is terminated, a person will be subject to an expedited removal.

Only after 10 years, a person will be able to apply for the actual green card, the one without the condition. And once such a person is a permanent residence for 5 years, he/she will be able to apply for citizenship.

This proposal is not the law yet. It is just a proposal that might be a possible solution for the DACA beneficiaries.

Immigration To The USA, USCIS

Interviews for Green Card Process Will be More Frequent

August 29, 2017

Interviews for Green Card Process Will be More Frequent

Author: New York Immigration Attorney Alena Shautsova

Several months after President Trump took office, it can be said that Immigration enforcement is steering in the direction of tightening the rules and enforcement. So far, the regulations and laws have not been changed much, but was is changing is the way the laws and regulations are administrated.

For example, USCIS has recently announced that it will start calling for interview all employment based green card applicants, as well as derivative asylum applicants ( form I 730). Previously, such applications were decided on paper without meeting of the applicants. Now, an interview will be a must. In addition, USCIS stated that it will also expand the interview for other types of permanent resident applications.

Another change that came is that now, advance parole (form I 131) has to be applied for and received in the United States. If a person leaves the United States prior to receiving the approval, such an application will be considered abandoned.

President Trump administration is also likely to end DACA program. It is unclear how this program will be ended: with or without a grace period, with or without referring all beneficiaries to ICE…

It means, that now then ever, an applicant will have to gt prepared for the interview to make sure that he/she will be able to overcome any and all doubts an officer have and prove his/her eligibility. A preparation for an interview starts with reviewing of the eligibility requirements, documents, and of course, a consultation with an attorney who will try to foresee and prevent likely issues. It is important to choose an attorney who is familiar with the recent USCIS “trends” and who can advocate for her client zealously.

Asylum in USA, Immigration To The USA, USCIS

No More Parole for Children from Central America

August 17, 2017

No More Parole for Children from Central America

Attorney: Immigration Attorney Alena Shautsova

On December 1, 2014, DHS and the U.S. Department of State (DOS) announced that the U.S. Government would allow certain minors in El Salvador, Guatemala, and Honduras to be considered for refugee status in the United States. The program helped children to come to the United States if a qualifying parent was present in the US in a legal status. At some point the program was expanded and helped to come (1) The in-country biological parent of a qualifying child who is not legally married to the qualifying parent in the United States may apply, and the unmarried and under 21 years of age children and/or legal spouse of the in-country parent can also be included as derivatives of the in-country parent; (2) the caregiver of a qualifying child who is related to either the qualifying parent in the United States or the qualifying child may apply, and the unmarried and under 21 years of age children and/or legal spouse of the caregiver can also be included as derivatives of the caregiver; (3) the married and/or 21 years of age or older children of the qualifying parent (who is lawfully present in the United States) may apply, and (4) the unmarried and under 21 years of age children and legal spouse of the married and/or 21 years of age or older child can also be included as derivatives.

On August 16, 2017, the new administration cancelled the program. All those who were pre-qualified while in their country of origin will be notified that their registration would be terminated. This decision affects those who have not yet traveled to the United States. Those who were already paroled into the US, may remain here, their parole would not be terminated, and they will be allowed to submit form I 131 to be re -paroled while in the United States.

For those who got left behind overseas: they still may try regular Humanitarian parole route. More information on humanitarian parole may be found here: http://www.russianspeakinglawyerny.com/humanitarian-parole/.

If you have questions regarding parole procedure and qualifications, call our office 917-885-2261.

Immigration To The USA, USCIS

Updates on Travel Ban: People v. Government

July 19, 2017

Updates on Travel Ban

Author: New York Immigration attorney Alena Shautsova

Travel Ban’s news is one of the most popular for the past months. It all started with President Trump issuing an order banning nationals of certain predominantly Muslim countries from coming to the United States, even if they held a US green card (permanent residency). Almost immediately, people reacted and filed Federal lawsuits, and in a blink of an eye the issue reached the U.S. Supreme Court. Through litigation and the U.S. Supreme court ruling, the travel ban was modified, and finally reached its present version which affects all those who do not have any connections with a person or an entity in the U.S. (let’s say visitors for pleasure). See: https://en.wikipedia.org/wiki/Executive_Order_13769.

The ban currently is in place for nationals of the following countries: Syria (including refugees), Iran, Somalia, Libya, Sudan, Yemen.

Now, I am positive that many of you were following the news regarding the U.S. Supreme Court decision on the travel ban which held that those travelers that have real (or bona fide) relationship with a U.S. entity or person should be able to come to the US. Right after the decision, the Department of State stated that a parent, a sibling, or a parent in law would be allowed in the US, but nephews, grandparents, cousins will not.

People “pushed back,” and very recently, a Federal court in Hawaii held that grandparents, cousins, aunts and uncles, grandchildren and cousins should be likewise scratched off the travel ban list. Because an Executive branch of the government must follow the Judicial branch, the travel ban was again modified, and now the DOS issued another clarification:

“In light of the July 13, 2017 U.S. District Court of Hawaii ruling regarding the definition of “close familial relationship” as that phrase was used in the Supreme Court’s June 26, 2017 order on implementing Section 2(c) of E.O. 13780, a close familial relationship is defined as a parent (including parent-in-law), spouse, fiancé, child, adult son or daughter, son-in-law, daughter-in-law, sibling, grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts and uncles, nephews and nieces, and cousins. For this purpose, “cousins” are limited to first-cousins (i.e., each cousin has a parent who is a sibling of a parent of the other cousin). For all relationships, half or step status is included (e.g., “halfbrother” or “step-sister”). “Close familial relations” does not include any other “extended” family members, such as second-cousins.” See https://travel.state.gov/content/travel/en/news/important-announcement.html.

The Hawaii’s court also allowed refugees who were cleared by the Resettlment agency to come to the US.

The US Supreme Court clarified its decision on July 19, 2017 allowed the Hawaii’s court exemption as it relates to the family members, but blocked the refugees.

The issue is not over yet. The US Supreme Court intends to hear the matter in October if by then, the controversy is still in existence.

Immigration To The USA, USCIS

FALSE CLAIM TO US CITIZENSHIP CAN BE EXCUSED

June 20, 2017

FALSE CLAIM TO US CITIZENSHIP CAN BE EXCUSED

Author: US Citizenship attorney Alena Shautsova

Many are already aware that false claim to US citizenship disqualifies them from any and all Immigration benefits in the United States, forever. Such claims usually appear when one is trying to use a false US citizen passport to enter the United States, claims that he/she is a US citizen on I-9 employment eligibility verification form or fills out a form to obtain a US citizen passport (let’s say, in a postal service)…

However, some claims of US citizenship can be excused and will not be on one’s way to a green card. These are very rare occasions, and they have to fall squarely into an exception.

Specifically, a disqualifying claim to United States citizenship occurred when (1) when there is direct or circumstantial evidence that a claim was made with subjective intent to obtain a purpose or benefit under the Act or under Federal or State law and(2) the claim actually affects or matters to the purpose or benefit sought. See Matter of Richmond, 26 I&N Dec. 779, 786-787 (BIA 2016). In the past the following “claims” to the US citizenship were recognized as the ones not obstructing a person’s ability to receive a green card: a claim to a US citizenship on an application for a small business loan (Hassan v. Holder, 604 F.3d 915, 928-29 (6th Cir. 2010)). In a 2016 case coming from the Board of Immigration Appeals, it was also recognized that a US citizenship claim during the application for a driver’s license is not the one to prevent one from obtaining a green card. Rodolfo Melendez Manriquez, A089 599 983 (BIA Nov. 25, 2016).

It means that if a person claimed to be a US citizen to “enhance” his /her chances to receive a benefit, but it was not necessary for a person to be an actual citizen to receive such a benefit, then a claim to US citizenship may be excused.

There are some other exceptions to the main rule. See: Claiming US Citizenship.

Immigration To The USA

Incorrect Translation in Immigration Proceedings Can Cost you a Green Card

June 7, 2017

Incorrect Translation in Immigration Proceedings Can Cost you a Green Card

Author: New York Immigration Attorney Alena Shautsova

Any person applying for US Immigration benefits (apart from those who are filing for citizenship without any waivers) can bring an interpreter with himself/herself for an interview. When choosing an interpreter, one has to keep in mind that the quality of the interpretation often will affect the results.

I have once attended an interview for asylum when an interpreter that a client insisted on bringing with her, could not translate accurately the name of the month when the events occurred. The “controlling” interpreter who should have corrected the one in the room (during an asylum interview, the government turns on a telephonic system when a government interpreter is listening to the interpreter the applicant invited and corrects or at least is supposed to correct all inaccurate translations). I did not speak the language and could not catch the mistake until another client, who happened to use the same interpreter but who also knew a little bit of English realized that the interpreter had very basic knowledge of the language he claimed to be proficient in. I have seen translations of documents that incorrectly omit the most important part of the document (I happened to speak both languages and could notice the mistake).

When a mistake is caught early enough, it is possible to correct it, but sometimes a mistake can ruin a person’s chance for relief completely. It happens because the government would try to argue that the person is lying when testifies inaccurately, or a person’s testimony can be translated to have a very different meaning than the person intended to give it to; or a judge may come to a different conclusion based on an incorrect testimony.

There is a recent case coming form the Board of Immigration Appeals that discusses a situation that arose during the Immigration Bond proceedings. The stakes during the Bond proceedings are serious: if a judge determines a person does not deserve a bond, the person will remain in jail until her Immigration case is decided. In the case at issue, the judge denied the bond. The Immigration Judge relied on the interpreter’s translation of the phrase, finding that when asked why he drove after drinking the respondent answered “that it seemed easy.” The person’s answer, however, was supposed to have been translated differently than it was: the interpreter translated person’s statement in Spanish, “Se me hizo facil” as “that it seemed easy,” but the phrase is a Mexican idiomatic expression which should be translated as “I didn’t think about it” or “I didn’t really think about the consequences.” Luckily for the person, the Board of Immigration Appeals agreed with him and now his request for bond will be re-evaluated. Matter of Hernandez, 8/4/16 BIA.

But it is not always the case. It means that when preparing your documents, you need to make sure you utilize professional services, that would not allow a sloppy job to interfere with your case.

Immigration To The USA, USCIS

Privacy Laws Change For Non-USC and Non-LPR

April 30, 2017

Privacy Laws Change For Non-USC and Non-LPR

New York Immigration Lawyer Alena Shautsova

The Trump administration has announced new changes to privacy laws that will affect non US citizens and non permanent residents. Since 2007, the government, and DHS in particular, extended privacy laws protection enjoyed by USC and LPRs to non-immigrants and immigrants (Privacy Policy Guidance Memorandum 2007-01/Privacy Policy Directive 262-12, DHS Privacy Policy Regarding Collection, Use, Retention, and Dissemination of Information on Non-U.S. Persons). Basically, the agency could not release or share information regarding a specific individual freely. It could be done only in specific situations and when a subject of record would provide a release. After new Executive order, the administration is changing its policies to strip non citizens and non LPRs from privacy protection. According to the Memo released on April 27, 2017, “Section 14 of E.O. No. 13,768 requires that “[a]gencies shall, to the extent consistent with applicable law, ensure that their privacy policies exclude persons who are not United States citizens or lawful permanent residents from the protections of the Privacy Act regarding personally identifiable information.” Privacy Policy Guidance Memorandum 2007-01/Privacy Policy Directive 262-12 is inconsistent with Section 14 of E.O. 13,768.”

What does this really mean? If one looks at the Memo in question, he/she will find that its language is rather convoluted and the real meaning is hidden somewhere between the lines.

Analyzing the document as a whole, one can make at lease these two conclusions:

1. No Privacy Act protection means easy exchange of collected data by any and all government participants. Like in a Red Riding Hood, the wolf had big eyes to better see the girl, here, the government opens its volts of data to better see potential deportees.

2. The government will have free hands with regard to collection, use, dissemination, or maintenance of personally identifiable information. The only limitation specified in the DHS Memo is “any sharing of such information outside the agency must be compatible with the purposes for which the information was originally collected.” ” Seeking consent is always a preferable privacy practice, and consent should be sought when practical.” However, it is well known that once information is collected and available, to track the purpose of its usage is extremely hard. It is even harder to prove (for a regular person) that his/her information was mishandled and shared in violation of restrictions. And, I have never heard of a situation where a government official would reach out to a non-immigrant and ask for his/her consent prior to share his info with, let’s say, another consulate…

3. The Memo states that ” People not covered by the Privacy Act or Judicial Redress Act (JRA) (which is non USC or non LPRs) still may obtain access to records consistent with FOIA unless disclosure is prohibited by law or if the agency reasonably foresees that disclosure would harm an interest protected by an exemption.” It is in this line that many practitioners may see a problem: will their clients still be allowed to have copies of the government records pertaining to their full immigration history?

To sum it up, there come significant changes in how the government is going to collect and share information regarding non citizens and non-permanent residents. Perhaps, about citizens and LPRs as well…

Immigration To The USA, USCIS

TPS holders Can Adjust in the 9th Circuit (Alaska, California, Arizona, Hawaii)

March 31, 2017

TPS holders Can Adjust in the 9^th Circuit (Alaska, California, Arizona, Hawaii)

Author: Immigration lawyer Alena Shautsova

TPS or temporary protected status is a form of deferred action. One can receive it, if otherwise is qualified, even if he/she entered the country illegally. There is a long lasting dispute whether those who receive TPS are “inspected and admitted” and can adjust their status to permanent residency.

Now, in Ramirez, et al. v. Brown, et al., 3/31/17, the 9^th Circuit court holds that TPS is an admission. In 2013, the 6^th Circuit court reached the same conclusion in Flores v. USCIS.

In analyzing the language of the statute regarding TPS, the court held:

“Employing the traditional canons of statutory construction at step one, we conclude that § 1254a(f)(4) unambiguously treats aliens with TPS as being “admitted” for purposes of adjusting status. Because the statutory language is clear, that ends the inquiry: the agency has no interpretive role to play but must instead follow the congressional mandate. Chevron, 467 U.S. at 842–43 & n.9; see I.N.S. v. Cardoza-Fonseca, 480 U.S. 421, 446 (1987).”

In its decision, the court also mentioned the decision from the 11^th Circuit, where the court reached an opposite conclusion (that a TPS recipient cannot adjust). The court stresses, however, that a mere existence of a different opinion does not invalidate their analysis.

It seems that now, it would be up to the Supreme Court to decide the issue of the TPS holders, and resolve the split between the courts. Until then, applicants in the 6ht and 9^th circuits should be able to receive positive decisions on their I 485 if they are beneficiaries of TPS.

The United States Court of Appeals for the Ninth Circuit has jurisdiction over the district courts in the following districts

District of Alaska.
District of Arizona.
Central District of California.
Eastern District of California.
Northern District of California.
Southern District of California.
District of Hawaii

The United States Court of Appeals for the Sixth Circuit has jurisdiction over the district courts in the following districts:

Employment Immigration, Immigration To The USA

No Premium Processing for H1B This Year

March 4, 2017

No Premium Processing for H1B This Year

Author: Employment Immigration Attorney

USCIS has just announced that this 2017 year will go without premium processing for all H1B filings. The suspension will start on April 3, 2017 (the first day when cap H1B petitions will be accepted for FY2018 ) and will last for at least 6 months according to USCIS.

It is important to know this, because many, when submit their H1B petitions provide only one, combined check for H1B petition and premium processing. USCIS announced that in such cases it will reject the entire filing for the incorrect fee. It means that a person may loose his/her change for the H1B completely if the petition is rejected (including for the reason of an incorrect fee).

Those who submit their petition before April 3, 2017, will be able to still take advantage of the premium processing.

However, in extraordinary circumstances, petitioners may ask to expedite the processing of the H1B petitions. For example, USCIS may grant a request to expedite in case regular processing may cause:

Severe financial loss to company or person;
Emergency situation;
Humanitarian reasons;
Nonprofit organization whose request is in furtherance of the cultural and social interests of the United States;
Department of Defense or national interest situation (These particular expedite requests must come from an official U.S. government entity and state that delay will be detrimental to the government.);
USCIS error; or
Compelling interest of USCIS.

It means that requests to expedite will be considered on case by case basis only for H1B petitions this year, and significant amount of work will be needed to prove the meeting of the enumerated criteria (opposed to paying additional fee for premium processing).

USCIS says that the change in premium processing will actually help to process long pending petitions and improve the consideration of the petitions all together. Perhaps, it is a better solution than redundant, unfounded RFEs that were issued in the past to slow down the premium processing requests. At least, one would not lose their paid fees this way. At the same time, lack of premium processing may negatively affect those waiting to change their status or those who have other “legal” issues that require fast answer on petitions.

Those who are considering changing employers, or filing cap exempt H1B petitioners and are counting on premium processing, should file their documents before April 3, 2017. Rules regarding expedited requests can be found here: https://www.uscis.gov/forms/expedite-criteria.