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How To Switch From Asylum Pending to Marriage-Based Green Card

April 25, 2021
CHOICES | Office for People With Developmental Disabilities

Author: New York Immigration Lawyer Alena Shautsova

Alena Shautsova, New York Immigration lawyer helps her clients to understand the United States Immigration laws and navigate the complex Immigration system.

There are thousands, or perhaps millions of asylum applications that have been filed in the United States in the past decade. Many of those applications are so-called “affirmative” asylum applications: applications filed before USCIS Asylum office. In the affirmative asylum process, a person may wait for their Asylum interview for years, and in very rare instances decades. At times, during the wait time, a person’s personal situation may change: a person may divorce and remarry, a person may marry, etc. The question many ask is if it is possible to receive a marriage-based green card if a person has “asylum pending status”.

The answer depends on several factors, related to a person’s admissibility because different qualifications are used by USCIS to determine if a person qualifies for asylum and if a person qualifies for adjustment of status based on marriage. When a person files for asylum, it does not matter if he/she crossed the border or entered the United States legally: the manner of entry is not an issue for the asylum qualifications. But it matters a lot for adjustment of the status case: only a person who can demonstrate that he/she was inspected and admitted or inspected and paroled may adjust status in the United States (with some very few exceptions).

Another important consideration to keep in mind is if a person will need waivers for adjustment: for example, a person who files for asylum may qualify for it even if he/she entered the country with fraudulent documents, or has certain criminal convictions. But an applicant for adjustment of status, in a similar situation, may require a waiver, which may be hard to qualify for.

Finally, the marriage must be of course bona fide and with a US citizen due to the fact that the adjustment is possible only if a person maintains non-immigrant lawful status throughout his/her time in the United States. There is only one exception from this rule: it is the adjustment of status for immediate relatives (spouses of US citizens, children of US citizens under 21, and parents of US citizens).

There may be some other important factors to keep in mind while trying to adjust status in the United States, and for that reason, a person should at least consult with an attorney before submitting their Immigration petitions and applications to USCIS.

What if you can adjust and you are married? In this case, if you are still under the jurisdiction of the USCIS (most cases whose interview has not been scheduled yet), you will need to prepare and submit to USCIS the adjustment package (usually, includes forms I 130, I 130A, I 485, I 765, I 864). USCIS will issue the receipts and with time, will call the couple for the interview.

Many are asking: is it possible to withdraw the asylum application in such a situation. Of course, you always have a right to withdraw your asylum application. But you cannot erase it from your history. Normally, a person would wait for the green card to be approved and then would ask USCIS to withdraw or dismiss their asylum case. But each person’s situation is different, and he/she should consult with an attorney prior to submitting the request for withdrawal.

Now, even if you were transferred to court, and you marry a US citizen, you still may have a chance to adjust your status, but the way you submit your applications with USCIS and EOIR (Immigration Court) now will be different. Also, your burden of proof for the real marriage will be higher.

If you need a consultation on how to change your asylum pending status, give us a call at 917 885 2261 to reserve your confidential appointment. (Note, all appointments are subject to a fee).

Block on Asylum Ban Puts Trump on Ice

January 16, 2021

Block on Asylum Ban Puts Trump on Ice

Author: NYC Immigration Lawyer Alena Shautsova

Throughout his time in office, President Trump has been waging war with anyone who dares attempt to claim refugee status in the United States. Whether it has been his policy of detaining and separating children from their families, in what can only be described as concentration camps; or his administration’s attempt to strip asylum seekers of their humanity by detaining them almost indefinitely, after they had passed their ‘credible fear’ interview. Trump’s administration has presided over the purposeful disregard for international law and its moral responsibility to protect those who arrive at its door seeking safety.

If we were to list every legal and regulatory wall erected by this administration we might be here all day. So, let’s skip to Trump’s cherry on top – his almost wholescale ban on asylum claims in July 2020 via changes to the regulations around the so-called ‘credible fear’ screening that new self-referrals are subjected to upon entry to the country.  

Upon entry to the US, an asylum officer from the USCIS conducts an interview designed to identify whether there is a “significant possibility” that the person in question has a “well-founded fear of persecution or harm on account of his or her race, religion, nationality, membership in a particular social group, or political opinion if returned to his or her home country.” Since July, the interpretation of what kind of applicant might meet this set of criteria has been severely narrowed.

Changes made by the Department of Homeland Security’s Chief Executive, Chad Wolf to the regulatory framework governing the interpretation of US law and, consequently,  the operation of ‘credible fear’ interviews, have lead to the denial of almost all asylum cases since July. In a letter to the DHS, Human Rights Watch state that Chad Wolf’s intervention has changed the way that “a particular social group” is defined, putting it at odds with the pre-established legal definition.

Now, when a ‘credible fear’ interview takes place, interrogators no longer understand “a particular social group” in the broader sense in which it was prior understood. Self-referring refugees must be seeking sanctuary from persecution as a consequence of just their race, religion, nationality or political opinion – without consideration of the fact that being part of other types of ‘social groups’ might cause a ‘credible fear’. According to Human Rights Watch, this will weigh heavily against applications from Central America, where, for some, gang culture is a necessary means of existence. It will hamper applicants seeking refuge due to their gender or sexuality. In some parts of Uganda, to be openly gay is to sign a death warrant. After being publicly shamed, a gay man, or woman, can be maimed or murdered. The changes in interpretation as to what should constitute a “particular social group” by law, will mean almost certain deportation for these people back to the snake pit from which they have fled.

Now the U.S. District Court Judge, James Donato has placed a block on the further operation of this rule.

He explained that the regulatory change sought to seriously alter the grounds on which people were able to qualify for asylum. And, if rejected asylum applications did find themselves before a court, the government’s measures had greatly broadened immigration adjudicators’ scope for dismissing their case. Thanks to this administration, winning the possibility of staying in the US has become incredibly unlikely.

Donato’s block was sought on procedural grounds, on the basis that Homeland Security Chief, Chad Wolf wasn’t properly appointed and, therefore, had no legal prerogative to issue the rule. Judge James Donato highlighted the arguments made on the government’s side in prior cases in defense of Wolf’s legitimacy: “In effect, the government keeps crashing the same car into a gate, hoping that someday it might break through.”

With only days until the next President’s inauguration, this rule is likely to be replaced by a more friendly culture at the DHS and USCIS. Joe Biden and his incoming clan have already pledged to raise the ceiling on how many refugees are allowed in from 18,000 per year to 125,000. Biden’s camp has made platitudinal noise about ‘righting wrongs’ and eliminating Trump policy with the finest ‘stroke of a pen.’ This might not be as easy as the Biden Administration thinks. Without swift legislative intervention, change may take some time. The legal and regulatory frameworks have been severely altered. If this administration does all the heavy lifting on immigration policy from the Oval Office, change might be slow and even suffer legal dispute.

Latest Immigration News: Asylum Will Be Denied To Those Transited Through a Third Country

December 18, 2020

Author: NYC Immigration Lawyer Alena Shautsova

Department of Homeland Security and Department of Justice published final rules regarding barring asylum to those who on their way to the United States transited through a different country. The new rule goes into effect on January 19, 2021.

To qualify for asylum, an applicant will have to demonstrate that either he/she filed for asylum or similar protection in one of the countries she transited through on the way to the USA, and received a final judgment of denial; or that the alien is the victim of severe human trafficking; or that all the countries the person transited through are not part to the International treaties protecting refugees: 1951 United Nations Convention Relating to the Status of Refugees or the 1967 Protocol relating to the Status of Refugees.

The rule will be applied to those asylum seekers who enter or attempt to enter the United States across the southern land border. It will be applied to all asylum seekers who do not meet exceptions, including unaccompanied minors. The rule will be used in connection with credible fear screening as well, necessary limiting the number of persons who may qualify to see the judge.

A usual route for someone from Central America would include crossing Guatemala and Mexico. These countries traditionally are not considered safe for asylum seekers, and as a rule, persons who are fleeing violence would not seek protection in Guatemala, where there is a high crime rate and violence of its own.

Note that this rule will not be applied to those entering the US via airports, or by the sea, entering the United States at other borders.

This new rule adds on to the incoming restrictions and modifications for asylum eligibility that will go into effect on January 11, 2021.

If you need help with an asylum case, call us at  917 885 2261 to reserve a confidential consultation.

Documentary Evidence in Asylum Cases

November 11, 2020

Author: US Asylum attorney Alena Shautsova

Alena Shautsova, NYC based, US Asylum attorney helps clients to identify potential evidence in support of their asylum claims and helps to argue that the evidence shall be admissible in cases where the evidence is challenged on the grounds of relevancy, authenticity, or weight.

What evidence can be used in support of one’s asylum claim in the US? This is one of the most popular questions I receive every day from US asylum seekers. The evidence may range from the types: letters, photos, copies of forms, applications, medical records, but also may range in the likelihood of acceptance and weight.

First, one should know that in the US Federal court system there are rules of evidence: that is written rules which all participants of the court process (people, judges, and the prosecutors) should follow. In the “regular” , non-Immigration court, such rules have strict guidelines, for example, hearsay would not be allowed to be used by any of the parties (hearsay is a statement made out of court offered for the truth of the matter asserted. ) But in Immigration court, the same rules are more relaxed, and hearsay are often used by both the respondents (person who is placed in removal proceedings), and prosecutors.

One of the types of evidence we use in asylum cases is documents or documentary evidence. When we work with documents, we need to follow the rules of evidence and be mindful that any documents that can be produced in support of one’s asylum case can be questioned by the prosecutor or the judge on the grounds of authenticity (if it is a real, unaltered document), relevancy (if it relates to the claim), weight (if it contributes to the person’s burden of proof or shall be disregarded as biased),

In support of one’s asylum claim, a person may present a variety of documents: police and medical records, declarations and affidavits by witnesses, family, and friends, country conditions reports, etc. Often, an asylum applicant is afraid that the documents will be leaked to his/her government. But how then the US government can verify the documents without showing them to the authorities of one’s country?

The US government has established criteria for determining when its own investigative documents and reports are reliable, and they have to identify: 1). the investigator and his/her qualifications; 2). the objective and extent of investigation; 3). the methods used to verify the information discovered. Memo. Cooper, G.C. “Confidentiality of Asylum Applications and Overseas Verification of Documents and Application Information.” As such, the U.S. government can and often will investigate the documentary evidence presented by the asylum applicants to verify their authenticity. Often it is done via consular reports.

The standard for documents’ credibility is the same as for the testimony: and any adverse decision must be based on specific, cogent reasons that bear a legitimate nexus to the finding.” Zahedi v. INS, 222 F3d 1157, 1165 (9th Cir. 2000). However, if an applicant present forged documents, that affects his/her credibility in the absence of explanation or rebuttal. The use of fraudulent documents to escape the country of persecution has been recognized as not fatal to one’s asylum claim. Matter of Pula, 19 I&N Dec. 467, 474 (BIA 1987).

Moreover, hearsay documents cannot be the basis for adverse credibility findings. (Consular report that the Russian’s birth certificate did not conform to the Russian records failed DOS’ own standards and lacked the name and title of the investigator, Balachova v. Mukasey, 547 F3d 374, 382-383 (2d Cir. 2008).

Now, the judge may not exclude the documents and then rule that the lack of the documents is a basis for adverse credibility findings. Notably, in the US, a document may be authenticated via various means:

Certification procedure stated in 8 CFR 287.6;

Fed R. Evid. 902(3)

Fed R. Civ. P. 44

An expert may authenticate a document; and

The inherent reliability of the document (business record exception to the hearsay rule, for example).

A common question herein would be: must affidavits be notarized? Notably, no. Affidavits may not be notarized. First, a person may use an exception to the notarization requirements: under the US Federal law, a sworn declaration may have the same weight as a sworn affidavit. But Immigration courts also may accept unsworn letters as authentic statements: an author may be in grave danger and would not risk his/her life going to the notary public to authenticate his/her signature. Note, however, that the judge would be the ultimate ruler regarding the admissibility of the evidence: at least one judge refused to accept letters by friends and family members stating that such letters were not objective. Djadjou v. Holder, 662 F3rd 265, 276 (4th Cir. 2011).

Finally, statements and reports, by both the applicant and the government, may be challenged for factual inaccuracies or because they represent highly unreliable hearsay. Grigoryan v. Barr, 959 F 3d 1233, 1240-43 (9th Cir. 2020).

That is where the skill and knowledge of your attorney may be particularly helpful and may bring that victory which every applicant for asylum is hopeful for.

If you need help with an asylum claim, please call our New York office to reserve a confidential consultation at 917-885-2261.

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.

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.

Unlawful Presence For F, M and J Students

May 25, 2018

Unlawful Presence For F,  M and J Students

Author: New York Immigration Lawyer Alena Shautsova

Major changes are coming to the Immigration filed and how the laws are implemented. For almost two decades, students admitted on F, J, and M programs were admitted for Duration of Status (D/S) and were not acquiring unlawful presence if they overstayed their visas unless an Immigration Judge or a DHS made a determination that their status was terminated. 

Previously, for example,  a J1 student who came on a Work and Travel program and overstayed her visa, would not face the 3/10 year unlawful presence bars if she later left the US and applied for, let’s say an Immigrant visa.  The amount of time that was overstayed would not matter.  Now, however, DHS made it clear, that even those admitted for Duration of Status will be accumulating the unlawful presence time after their authorized stay expires (stay including the authorized periods that are grunted to students after the expiration of their programs which is 60 days for F students and 30 days for J students). 

It means that those who overstay their student visas, dispte the D/S admission will face 3/10 unlawful presence bars and will have to take this into consideration when making decisions about applying for reinstatement, changing status or returning back home.  A person who is subject to an unlawful presence bar must receive a waiver to come back to the US before the ban expires. 

The new calculation of unlawful presence will come into effect on August 9, 2018. Prior to this date, the old rule is in effect. 

USCIS Will Destroy Undelivered Documents

April 3, 2018

USCIS Will Destroy Undelivered Documents

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Author: New York Immigration Lawyer Alena Shautsova

Sad news came today from USCIS: the agency announced that it will start physically destroying documents green card, employment authorizations and travel documents that were marked as “undeliverable” if within 60 days the beneficiary did not contact USCIS.

In my practice, I at times,  get notices from USCIS that the documents it was to deliver to my office somehow were “undeliverable.”  I am not sure where the confusion comes from: from the post office itself or incorrect spelling of addresses, but it does happen. Imagine also, a person after an interview is told that USCIS will make a decision within 90 days.  A person does not expect the green card to arrive earlier than 90 days. A person may not even know that USCIS tried to deliver his/her green card and does not contact USCIS within 60 days…. I just do not see how this new practice will make life easier for anyone. I cannot imagine that anyone who spent time and money on Immigration documents would intentionally fail to contact USCIS within two months period. If people would miss the 60 days deadline, it is likely because they had  no clue that the document was attempted to be mailed to them. Now, on top of waiting for the document, they will find an unpleasant surprise: their documents will be destroyed and they will have to file for the replacement….

 

I 601A Provisional Waiver: Step by Step Guide

March 27, 2018

I 601A Provisional Waiver: Step by Step Guide

Author: Provisional Waiver Attorney Alena Shautsova

A provisional  I 601A waiver waives the unlawful presence bar for those who have certain LPR or USC relatives in the US. An unlawful presence bar applies to all who accumulated unlawful presence in the US, left the US, and now are applying for Immigration benefits from outside the US.  The positive side of this waiver is that  unlike many waivers that can be filed only once the person departed the country, I601A can be filed for while the person is still in the US; and second, recently US relaxed the standard for granting the waiver, and now, the person can win the waiver either by providing that the relative will not be able to move with him/her outside the US (will suffer extreme hardship in case of a move) or that the relative will have extreme hardship in case the immigrant is removed out of the US.

Here are the steps for the waiver:

First Step: An approved Immigrant Petition

A person who is planning on filing for the waiver has to have an approved immigrant petition. It can be I 130, I 140, or even a selection in the DV lottery.

Second Step:

The petition has to the sent for processing to the National Visa Center, and a person has to pay the Immigrant Visa and Affidavit of Support Fees (when necessary)

Third Step:

Submitting I 601A to USCIS with a filing fee and supporting documents. Once the waiver is accepted by USCIS, the clock in the NVC is stopped.

Fourth Step:

Once the waiver is approved, USCIS informs NVC about the approval, the applicant has to submit DS 260 immigrant visa form and supporting documents for the visa. Then he/she has to wait for the visa interview; schedule the medical exam overseas and plan for the departure.

Fifth Step

An applicant will have to travel overseas for their visa interview. A consulate will use an immigrant visa that will be stamped in the passport. Upon arrival to the US, the applicant will have the actual “green card” mailed to the address they left on file with USCIS.

These are the most common steps for those who have never been in court and do not have other inadmissibility issues.

 

New Rule on Notices From USCIS

January 29, 2015

New Rule on Notices From USCIS  effective 01/27/2015

Author: New York Immigration attorney Alena Shautsova

United States Citizenship and Immigration Services  published its new rule on notices USCIS issues to applicants and petitions.  Notices are extremely important: they confirm the receipt of an application or petition; valid status in the US or a date for an interview. Currently, the notices are sent  to an applicant or petitioner and a copy is sent to an attorney of record.  USCIS now clarifies its rules in that:

” First, USCIS will clarify that it will send notices only to the applicant or petitioner when the applicant or petitioner is unrepresented. See new 8 CFR 103.2(b)(19)(i). Second, if USCIS has been properly notified that the person or entity filing the benefit request is represented by an attorney or accredited representative recognized by the Department of Justice, Board of Immigration Appeals, USCIS will send notices to the applicant or petitioner who filed the benefit request and to their attorney or accredited representative of record. See new 8 CFR 103.2(b)(19)(ii)(A). Third, if provided for in the applicable form, form instructions, or regulations for a specific benefit request, an applicant or petitioner may request that USCIS send original notices and documents only to the official business address of their attorney or accredited representative, as reflected on a properly executed Notice of Entry of Appearance as Attorney or Accredited Representative, with a courtesy copy being sent to the applicant or petitioner for their records.”

Finally, in case of electronic applications, the person has options: the notices may be sent electronically to both the applicant and the attorney or via mail.

Most importunately, the official documents such as EAD (work authorization card) or permanent resident card currently are being sent to the applicants only unless the applicant or self-petitioner designates  their attorney’s official address as the delivery address.

These rules of notice delivery may seem trivial, however when a notice is not delivered it causes delays, denials and frustration. For more information see http://www.aila.org/content/fileviewer.aspx?docid=50525&linkid=281897