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.  

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.

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 

New Policy Regarding Unlawful Presence for F, M and J Visa Holders

Author: US Visa Attorney Alena Shautsova

Recently, Trump administration started implementing new Immigration policies which construe Immigration laws stricter and with greater negative consequences for the non-residents. For example, several months ago, USCIS announced that the D/S (duration of status) exception of unlawful presence for M, F and J students will be abolished. Meaning, that these visa holders will start accumulating unlawful presence as soon as their program/status expires, and not only when a judge or USCIS determined that their status was “stopped.”  This new policy announcement was in conflict with the existing law allowing F and M  students to apply for reinstatement of status within 5 months of loss of such status, which would negate any determination of “unlawful presence.”

As a result, USCIS eventually changed its policy and the final version of it states that no unlawful presence will be accumulated if the person in F or M status filed a subsequently approved application for reinstatement of status. The new policy is as such:

F, J, or M nonimmigrants who failed to maintain their nonimmigrant status7 before August 9, 2018 start accruing unlawful presence based on that failure on August 9, 2018,8 unless the alien had already started accruing unlawful presence on the earliest of the following:

• The day after DHS denied the request for an immigration benefit, if DHS made a formal finding that the alien violated his or her nonimmigrant status while adjudicating a request for another immigration benefit;
• The day after the Form I-94, Arrival/Departure Record, expired, if the F, J, or M nonimmigrant was admitted for a date certain; or
• The day after an immigration judge ordered the alien excluded, deported or removed (whether or not the decision is appealed).

F, J, or M nonimmigrants who failed to maintain nonimmigrant status on or after August 9, 2018 An F, J, or M nonimmigrant begin accruing unlawful presence, due to a failure to maintain his or her status on or after August 9, 2018, on the earliest of any of the following:

• The day after the F, J, or M nonimmigrant no longer pursues the course of study or the authorized activity or the day after he or she engages in an unauthorized activity;
• The day after completing the course of study or program (including any authorized practical training plus any authorized grace period, as outlined in 8 CFR 214.2);
• The day after the Form I-94 expires, if the F, J, or M nonimmigrant was admitted for a date certain; or
• The day after an immigration judge orders the alien excluded, deported, or removed (whether or not the decision is appealed).

Significantly, nonimmigrants who are not issued a Form I-94, Arrival/Departure Record, are treated as nonimmigrants admitted for D/S (as addressed in Chapter 40.9.2(b)(1)(E)(ii)) for purposes of determining unlawful presence.

Updates on Trump Executive Order Regarding Family Separation

Author: New York Immigration lawyer Alena Shautsova

Trump, as promised, signed an Executive Order stopping Family separation on the Southern Border. The Order, however, protects families from separation for 20 days only. In addition, the “zero tolerance” policy stays in place.