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Immigration To The USA, USCIS

TIPS ON WORKING WITH NVC

January 18, 2016

TIPS ON WORKING WITH NVC

Author: New York Immigration attorney Alena Shautsova

Once an Immigrant petition is approved, the NVC receives the file and acts as middle man between the petitioner and the consulate. It collects the fees, documents and more information before it schedules an interview for the visa applicant. The NVC process in itself can be quite frustrating, and not only for those petitioners and applicants who do not have an attorney. The Q&A below intend to help pro-se petitioners with the process.

 

  1. Why and how NVC terminates the petition?

The termination process is only entered after the priority date becomes current. A notice is given to applicants explaining that if the NVC does not hear from a representative of the case for a period of one year the case will be terminated and the individual will be required to resubmit the case again with additional filing fees, if applicable. However, the period of one year only starts after the priority date becomes current.

  1. How can I know if an approved I-130 is still valid?

Here, it is wise to have an attorney, because attorneys have a special way to communicate with the NVC: When determining whether or not an I-130 is still valid after being sent to the NVC the fastest way to do so is by emailing NVCattorney@state.gov or by calling the NVC directly.

If a response is not procured within 15 days after sending an email to NVCattorney@state.gov you may send a second follow up email. If after an additional 15 days you still do not receive a response you may send a third follow email with subject line “Attention PI Supervisor,” the supervisor will then respond within 5-7 business days.

  1. NVC collected the documents and did not mention about any issues, but the visa was denied, why?

When discussing a Nonimmigrant Visa, the NVC is authorized to answer questions regarding the general NIV application process, status of the application, whether or not the case was refused or requires additional information. The NVC cannot advise an applicant if they are eligible for a specific nonimmigrant visa.

  1. I had to submit an I 601A waiver. The decision on the waiver takes a long time. Will my petition be terminated?

When waiting for an I-601A response from USCIS the one year termination process will no longer be in effect. If you receive a letter stating the I-130 application has been terminated while I-601A waiver is pending, contact an attorney immediately or NVC directly to resolve the situation.

  1. Do I have to file with the NVC a letter from employer to show my current income?

When submitting an I-864 Affidavit of Support, an employer letter is not required from the petitioner when evidence of previously filed taxes are more than sufficient. If it is not possible to get a letter from your employer as to your current income contact, your attorney or NVC as soon as possible to avoid further delays in your case.

Immigration To The USA, USCIS

Parole After DACA

December 5, 2015

Parole After DACA

Author: New York Immigration lawyer Alena Shautsova

DACA or Deferred Action for Childhood Arrivals is a form of prosecutorial discretion that allows a person who came to the US before reaching the age of 16, and who is otherwise eligible, to receive an employment authorization in the United States and  be temporary protected from removal/deportation.

One of the most important benefits of DACA is a possibility of receiving permission to travel outside of the US and  be paroled back into the US. The parole cures illegal entry bar to adjustment of status and hence, those DACA beneficiaries who have a US citizen immediate relative (a spouse, for example)  are able to receive green cards in the US without a waiver, provided they were paroled into the US. This parole requires international travel, and is different from Parole in Place program offered to relatives of the US military members. PIP (Parole in Place) does not require  an international travel.

To receive permission for  international travel, a DACA beneficiary has to file form I 131 and pay an applicable fee. The most important part here, however, is that not any reason for travel is sufficient for USCIS to grant the request. For example, if a person simply would like to go on vacation overseas, this would not qualify as a valid reason. An example of valid reasons would be: to visit a relative in a foreign country; to receive medical treatment; to attend a funeral; other urgent and emergent situations

It is desirable that an applicant confirms the reason with valid documents and an affidavit explaining the need for travel.

It is also possible to expedite request for the advance parole. USCIS has its own criteria for emergent travel.  It is advisable that a person who is seeking to receive an advance parole consults with a legal professional prior to submitting his/her application to avoid delays and denials.

You may submit questions regarding parole through a.shautsova@gmail.com or by calling our office at 917-885-2261.

 

Employment Immigration, Immigration To The USA, USCIS

HOW TO EXPEDITE EAD APPLICATION

November 19, 2015

HOW TO EXPEDITE  EAD APPLICATION

Author: New York Immigration attorney Alena Shautsova

Generally, an  employment authorization should be issued within 90 days of submission of the  complete application package.  An applicant with pending asylum application, should receive an EAD card within 30 days of filing I-765 form. An applicant for adjustment of status, usually receives an EAD within 45 days.

However, often, applicants experience delays.  Delays maybe caused by the processing delays by USCIS, or by the applicant when he/she failed to submit all necessary evidence.

If an EAD application has been pending for more than 75 days, an applicant should call USCIS and inquire about the status of the case, and also make an info pass appointment and go to a local USCIS office.

It should be noted that USCIS does not issue Interim EADs anymore, and somebody without a valid employment authorization cannot accept/continue his/her employment.  A person may file for a renewal of the EAD as soon as 120 days before its expiration.

The EAD clock will be reset if  an applicant failed to attach initial evidence, and will be stopped if an applicant failed to attach evidence requested by USCIS. For example, if an applicant failed to attach initial evidence, and  USCIS informed the applicant about it on the 30th day of the EAD application being pending, the clock will be  reset to 0 once the evidence is received.

The instructions to the EAD application  form and the form itself are available at http://www.uscis.gov/i-765.

Immigration To The USA, USCIS

F-1 NEPALI STUDENTS EAD

November 10, 2015

F-1 NEPALI STUDENTS EAD

Author: New York Immigration attorney Alena Shautsova

The devastating earthquake in Nepal   and its consequences affected its citizens all round the world. The U.S. government first announced that Nepali nationals will be able to apply for  TPS status in the U.S..

Now, the DHS announced that F-1 Nepali students will be able to qualify for employment authorization easier: as long as Nepali students would maintain minimum  full course requirement and experience severer economic hardship. Specifically, undergraduate students who receive on-campus or off-campus employment authorization under this notice must remain registered for a minimum of six credit hours of instruction per academic semester. A graduate-level F–1 student who receives on-campus or off-campus employment authorization under this notice must remain registered for a minimum of three credit hours of instruction per academic semester. See 8 CFR 214.2(f)(5)(v).

Other requirements that Nepali student must meet:
(1) An applicant should be a  citizen of Nepal;
(2) An applicant should be lawfully present in the United
States in F–1 nonimmigrant status on April 25, 2015, under section 101(a (15)(F)(i) of the Immigration and Nationality Act (INA), 8 U.S.C. 1101(a)(15)(F)(i);
(3) An applicant should be enrolled in a school that is Student and Exchange Visitor Program (SEVP)-certified for enrollment for F–1 students;
(4) An applicant should be  currently maintaining F–1 status; and
(5) should experience severe economic hardship as a direct result of the damage caused by the earthquake of April 25, 2015.

Those who already hold an employment authorization, will be able to benefit from the new changes as well. These changes will remain in effect (as of now) until December 24, 2016.

For more information, please contact our office at 917-885-2261.

Deportation, USCIS, Visas

I-751 Petition, Questions and Answers

October 11, 2015

I-751 Petition, Questions and Answers

Author: Green Card Attorney Alena Shautsova

A conditional permanent resident has to file a petition to remove condition from the residency within 90 day period prior to the second anniversary of his/her status.

LATE FILING

The joint petition (when spouses are still living together) must be filed within the 90 days period, and if it is not, the couple has to present a very good excuse for missing the deadline, otherwise the petition will be rejected.

The petition that contains request for a waiver, on the other hand, can be filed at any time. For example A, conditional permanent resident (CPR), divorced from a USC (a U.S. citizen) just a year after A become a CPR. “A “ does not need to wait to file her petition. Another example, A is a battered spouse. She is still married to a USC who has been abusive. A missed her deadline and her conditional permanent resident card expired. “A” can still file the I 751 petition, even if the deadline is missed.

What is not a good excuse for late filing of the joint petition? Being abroad is not an excuse for late filing of the joint petition. The couple who are abroad must file the petition within the 90 day period prior to the second anniversary of the green card status.

DOES THE STATUS REALLY EXPIRE?

The warning notices say that if the a conditional permanent resident does not file the petition to remove condition timely, his/her status automatically expires. What really expires is the card itself. The status does not expire, despite the warning. In fact, the USCIS or an Immigration judge has to terminate the status in order for “A” to start the process again with a new USC-spouse. It also means that “A” technically will remain a permanent resident, but a conditional one and prior to undertaking any other Immigration steps, she would have to submit an I-751 petition, even if it will be filed late in order to get a finality for her situation. In this case, if the petition is denied, then the status will be terminated. (Does not apply to those seeking adjustment as refugees or asylees).

DO I INCLUDE CHILDREN IN MY I -751?

Yes, dependent children, those who receive their green card with their parents within 90 days of the parent’s conditional green card or, as often it happens, on the same day, must be included in the I -751 form. What do to if the child turns 21 by the time I-751 should be filed? The answer is : file the petition including that child. The statute that talks about removal of the condition for dependents refers children and sons and daughters, meaning, that under INA, I-751 properly included with the parents should receive their permanent resident status as well. See also Caprio v. Holder, 592 F.3d 1091 (10th Cir. 2010).

Finally, most common question: I was married to the U.S. citizen, and now we are divorced. Did I lose my status? The answer is NO, you did not lose your status. All you need to do is to file I -751 by yourself. It may be a little bit more challenging, as you need to show that you had a real marriage, but it is possible. If you are successful, you will receive a permanent green card.

FUN FACT: One can submit an unlimited number of I 751 petitions.

Immigration To The USA, USCIS

XXX-Men: They Do Exist!

September 29, 2015

XXX-Men: They Do Exist!

Author: USA Asylum Attorney

Many of us accept the fact that we are citizens of certain countries as a natural “feature “of our lives. Of course, some people would like to change their citizenship; some would like to be citizens of more than one country, some would like to give up their U.S. citizenship… but almost all of us do have that thing that is called “citizenship.”

This is not the case for everybody. One may be surprised to find out that there are people among us who are not citizens of any country. One can only imagine what those people have to go through. What do they put in the forms as their “citizenship”? How do these people travel? Can they claim asylum at all? (One who claims an asylum has to show that he will be persecuted in a particular country…)

How  does a person become stateless?

It depends. It may happen due the change in the law. For example, after the Soviet Union broke apart, former USSR republics had to announce special laws proclaiming their residents to be citizens of the new formed countries. But some republics refused to accept certain residents into their new citizenship. As a result, in countries like Estonia, there are people who got “stuck” in limbo: they cannot claim to be citizens of places where they did not reside, and Estonia prohibited them to become citizens of Estonia. These persons became people with XXX nationality (not a joke, this is what stateless people have to put down as their citizenship). Unfortunately, an act of the country’s government that causes some people to lose their citizenship is not considered a basis for asylum. Previous attempts by persons with no citizenship due to change in the laws to file asylum in the US on this ground were not successful.

In fact, the problem of people of XXX nationality is not a new one. The International community have been discussing it on the highest level for decades. There is even an International convention on Status of Stateless Persons of 1954! It addresses and helps to resolve many issues that stateless person has to deal with it while trying to establish residence in a particular territory or travel. It also requires that basic human rights be afforded to stateless people to the same extent the citizens of the country of their residence may enjoy them. One of the most important provisions of the convention and its supplements, is that the countries-signatories to the Convention will issue identity and travel documents to the stateless persons which would allow them to function in the society (imagine, trying to find a job without an ID), and travel internationally.

While the Convention at issue is a great instrument to resolve this puzzle, the problem is that not all of the countries in the world have joined it. The United States or Russia for example, are not parties to this Convention.

Let’s take a look at some of the pledges the U.S. made during the Ministerial Intergovernmental Event on Refugees and Stateless Persons in 2011 available at http://www.unhcr.org/4ff55a319.pdf:

PLEDGES

“Bars to Admissibility and Asylum Eligibility

The U.S. Government pledges to:

  • •Significantly reduce, through the issuance and application of exemptions to exclusion based on national security grounds, cases that are on hold for a review of eligibility for an exemption to exclusion by the end of fiscal year 2012;

 

  • Undertake a review, to be completed by the end of calendar year

2012, to examine current interpretations of the terms under the

national security exclusion grounds, for example, the meaning of

material support, to better ensure that those in need of protection

retain eligibility for it;

 

Work with Congress to eliminate the one-year filing deadline for

submission of asylum applications.

 

Statelessness among Women and Children

The U.S. Government pledges to:

 

  • Focus U.S. diplomacy on preventing and resolving statelessness among women and children, including efforts to raise global awareness about discrimination against women in nationality laws and to mobilize governments to repeal nationality laws that discriminate against women;

 

  • Promote a child’s right to nationality through multilateral and bilateral engagement, including efforts to promote universal birth registration.

 

Statelessness and Citizenship

The U.S. Government pledges to:

 

  • Actively work with Congress to introduce legislation that provides a mechanism for stateless persons in the United States to obtain permanent residency and eventually citizenship;

 

  • Consider the revision of administrative policies to allow the circumstance of stateless persons to inform decision-making regarding their detention, reporting requirements, and opportunity to apply for work authorization.

 

 

It remains everyone’s hope that people who draft these pledges will also follow them.

Immigration To The USA, USCIS

What Is Adjustment of Status?

August 26, 2015

What Is Adjustment of Status?

Author: New York Immigration lawyer Alena Shautsova

Immigration laws of the U.S. allow certain immigrants to apply for an Immigrant visa and become U.S. residents. The regular procedure for this process is administrated through the U.S. consulates when a person is applying from his/her home country for an immigrant visa and a consular officer decides if to grant person’s application.

An intending immigrant (or person who would like to stay in the U.S. permanently) does not qualify for a non-immigrant visa such as an F visa (student visa), B visa (a visa for tourism or pleasure), or an E visa… Some visas are visas of so called duel intent, meaning their purpose can be used for non-immigrant goals, and immigrant goals…

Realizing that some non-immigrants would develop an immigrant intent and basis for immigration while in the U.S., the  Congress created an exception to the regular consular proceedings allowing certain people who are in the U.S. to apply for permanent residency without leaving the country and without submitting a visa application.  This internal process received a name of “adjustment of status” or as many practitioners would call it an “AOS”.

Adjustment of status is a discretionary process.  What does this mean? It means that an applicant does not have a right to become a permanent resident in the U.S. An applicant for adjustment of status has to demonstrate that he/she is statutory eligible (meets all the legal requirements), and there are no bars to adjustment (such as illegal entry, unlawful presence, criminal convictions, accusations of fraud, claims of U.S. citizenship, etc.). However, there is another step for the adjustment. It is discretion by the USCIS to give or not to give the status to the applicant.

Usually, USCIS grants the request if the applicant is a person of good moral character and meets all the usual requirements. However, there are cases when from a pure statutory point of view, a person qualifies for AOS, but gets a denial. There can be various reasons for it, and if there is no legal question involved, but the matter is a one of discretion, even U.S. courts would not be able to save the case… See Mele v. Lynch, 8/19/15 (1St Cir, 13-cv-1917).

That is why it is imperative to understand the importance of the process and significance of all and every submission that ones presents to the USCIS, employers, courts, or anywhere that may have consequences for Immigration process.

Immigration To The USA, USCIS

USCIS UPDATED ITS FORMS

August 17, 2015

USCIS UPDATED ITS FORMS

Author: New York Immigration Attorney Alena Shautsova

USCIS has updated many of its forms. Whenever the updated forms are published, usually USCIS gives applicants and petitioners some additional time before the old forms are stopped being accepted.  The table below presents the currents deadlines for certain new forms, including waiver forms and affidavit of support I-864 forms:

 

Immigration To The USA, USCIS

Humanitarian Parole

July 21, 2015

Humanitarian Parole

Author: New York Immigration lawyer Alena Shautsova

USCIS and CBP are authorized to parole into the US a person who is not qualified for a visa and does not have permanent residency for humanitarian reasons. An application for humanitarian parole has to be filed in the United States. Most often such a relief is used by parents of minor children who have to wait for a long time to immigrate to the US with their parents. Parole is also used for medical emergencies and for other humanitarian reasons or for significant public benefit. One of the reasons for parole can be participation in court hearings during criminal or civil proceedings.

Humanitarian parole is basically a permission to come to the US which is not a visa or a green card. It is a temporary authorization which can be given for the length of the emergency, typically it is given for a year or two. A person who is in the US and still has circumstances which require his/her continuous presence in the US, can ask for re-parole.

The filing procedure is outlined in the instructions to the form I 131. A person requesting the parole has to submit an affidavit of support form and evidence of the necessity for US entry. While a parole is a great opportunity to solve some urgent and difficult situations, it cannot be used to overcome visa or residency requirements. For that reason, every applicant has to provide an explanation as to why humanitarian parole is the best option for him/her.

When the case is approved by USCIS, a consulate overseas is informed and the beneficiary has to comply with the biometrics and/or security checks. A consulate would then issue a boarding foil which will allow the beneficiary to come to the US.

Examples of approved applications for parole include: approval for medical emergency; approval for a minor child of a permanent resident; approval for the TPS holder who neglected to travel on advance parole.

Resources on humanitarian parole:

http://www.uscis.gov/humanitarian/humanitarian-parole

http://www.uscis.gov/humanitarian/humanitarian-parole/questions-answers-humanitarian-parole

http://www.uscis.gov/sites/default/files/USCIS/Resources/Resources%20for%20Congress/Humanitarian%20Parole%20Program.pdf

Immigration To The USA, USCIS

Proving Real or Bona Fide Marriage

June 27, 2015

Proving Real or Bona Fide Marriage

Author: New York Immigration Lawyer Alena Shautsova

If one of spouses in the marriage with a US citizen, is a non citizen who would like to reside in the US based on the marriage, the government will ask the couple to prove that the marriage is real or bona fide. Usually, a citizen spouse would need to submit form I-130 (petition for immediate relative) and attach prove of  couple’s life together. As per instructions to the form, a couple can present joint lease, joint bank accounts, joint utility bills, joint insurance policies, birth certificates of common children, titles to property… and also photos. In case the marriage is new and the couple really does not have much of joint proves, they can still show that their relationship is real by presenting affidavits from persons who are aware of their relationship and who can testify that the marriage in fact is real.

The question remains, however, how much proof is satisfactory.  What to do if the marriage ended and now the non-citizen by him/herself has to show that the marriage was real?

Often, Immigration Judges and USCIS demand paper proof of the marriage which usually, if the couple had a fall out would not exist. (Rarely people who really break up would hold on to common pictures or documents. Rather those who really go through a bitter break up would want to forget everything and anything that used to unite them).  However, the “paper proof” is not the only way one can prove that the marriage was real.  The burden of preponderance of evidence is met where one of the spouses can present  detailed and credible testimony regarding the marital relationship held 7the Circuit Court of Appeals.  See Hernandez v. Lynch, 6/18/15. No. 14-3305 (7th Cir. 2015).

As such, it is important to remember that as long as the non-citizen is found credible as to the circumstances of the marriage, his/her I 751 (petition to remove condition on residency) should be granted.  This is an important reminder to all dealing with I 751 petitions: the government should not increase the burden established by law just because some assume that there should be some “other” evidence of marriage than those provided. The law does not say that any applicant MUST present certain evidence, but rather states that an applicant has to prove the bona fide marriage by the preponderance of evidence.  See 8 U.S.C. § 1186a(c)(4)(B); 8 C.F.R. § 216.5(a)(1)(ii).