- Adjustment of Status
- Adoption under Hague Convention
- Advance Parole Importance of
- Birth Certificate-Pakistani-mother’s name missing
- Cancellation of Removal
- Conditions on Temporary Residence-removal of
- Detention by ICE
- Drug Conviction
- Drug Possession-waiver of
- Fraud/Misrepresentation-waiver of
- Freedom of Information Request
- H-1B Employee-Award of Back Wages
- Ineffective Assistance of Counsel
- L-1 Visa
- Marriage-good faith requirement
- National Interest Waiver
- Provisional Stateside Waiver
- Religious worker:
- Removal Order-In Absentia
- Revocation of Green Card
- Selective Service Failure to Register
- Temporary Protected Status
- Unlawful Entry
- Visa Processing-following removal
NATIONAL INTEREST WAIVER GRANTED FOR
RENEWABLE ENERGY SCIENTIST
We are extremely pleased that our Foreign National client who has invented ground-breaking technology for the conversion of waste plastic to liquid fuel energy and has been awarded several patents for the process, has been granted a National Interest Waiver in the Employment-Based (EB2) Immigration Preference category.
This immigration category is reserved for those foreign nationals who have risen to the top of their profession in the sciences, arts, or business and can demonstrate that the national benefit that accrues from their exceptional abilities merit the waiver with or without a petitioning employer.
Posted: June 21, 2015
INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM SUCCESSFUL
ALLOWING FOREIGN NATIONAL TO ADJUST STATUS
Foreign National hired a law firm with limited experience in immigration matters. The firm filed the incorrect application forms with U.S.C.I.S. which were rejected resulting in the Foreign National falling out of legal status. When the firm ultimately filed the correct application forms, the Foreign National was placed in Removal (Deportation) proceedings since she lacked the legal status to adjust her status to that of a Lawful Permanent Resident.
In her Removal proceeding before the Immigration Judge, we, as Foreign National’s new counsel, was able to persuade the Immigration Judge to allow her to adjust status as if she were in legal status due to the serious mistakes that had been made by her previous counsel.
Lawyer’s Note: When retaining anyone to represent you in your immigration matter, it is essential to find out whether that person is, first, a licensed attorney in your state, and second, whether that person, even though a lawyer, has the necessary knowledge and experience to represent you effectively.
Lawyer’s Further Note: In order for an Ineffective Assistance of Counsel claim to be successful, the Foreign National must, with some limited exceptions, file a complaint against the attorney with the appropriate state disciplinary body.
Posted: June 21, 2015
PROVISIONAL STATESIDE WAIVER APPROVED
Foreign national, married to a United States citizen and who entered the U.S. without inspection, applied for and has been granted a Provisional Stateside Waiver. This Waiver allows the Foreign National to obtain lawful permanent residence by being processed for a Green Card through his home country Consulate. We submitted a complete package which met all the standards for the Waiver and so no additional evidence to support the application was requested.
Lawyer’s Note: A Provisional Stateside Waiver is available to a Foreign National who is present in the U.S. unlawfully, is not eligible to adjust status in the United States and is the immediate relative-spouse, parent or child – of a U.S. citizen. The Foreign National must show Extreme Hardship to the U.S. citizen relative if he/she were to be removed from the United States.
The proposed expansion of the Waiver to include relatives of Lawful Permanent Residents pursuant to President Obama’s Executive Action of November 20, 2014, is on hold pending litigation brought against the Obama Administration by twenty-six states.
Posted: May 29, 2015
U.S. RESIDENT WORKING ABROAD GRANTED U.S. CITIZENSHIP ON APPEAL
U.S. Permanent Resident assigned to work abroad has been granted U.S. citizenship on appeal. The Naturalization Application was initially denied on the grounds that the Applicant did not have the required number of days of physical presence in the U.S. during the five-year period preceding his application. However, the case was approved on appeal when the days of actual presence in the U.S. was re-calculated.
Lawyer’s Note: A U.S. resident working abroad must still show that he/she has continued to maintain residence in the U.S. This may be shown by evidence of close family ties in the U.S., maintenance of a home or other property in the U.S. such as bank accounts, an automobile, etc.
It is important to include the days of travel to and from the U.S. as days of actual presence in the U.S. since, in a close case, where a lot of time has been spent abroad, this may make the difference in establishing eligibility for naturalization.
Lawyer’s Additional Note: The U.S. resident may obtain permission to preserve his/her residency before starting to work abroad where the foreign employer is related to a U.S. company that is incorporated in the U.S. and whose stock is traded exclusively on a U.S. stock exchange or is majority owned by a U.S. entity.
Posted: January 16, 2015
ADJUSTMENT OF STATUS GRANTED DESPITE INITIAL UNLAWFUL ENTRY
Foreign National (FN) entered U.S. unlawfully by crossing border undetected. FN later obtains Temporary Protected Status (TPS) based on adverse conditions in his home country and travels outside U.S. with Advance Parole document which permits re-entry into U.S. based on TPS. FN later marries U.S. citizen and files for Adjustment of Status (AOS). AOS is granted despite the initial unlawful entry based on the subsequent lawful entry with the Advance Parole document.
Author’s Note: This case is yet another illustration of how a seemingly huge obstacle to gaining lawful permanent resident status – an unlawful entry- may be overcome by the correct application of the law. The case also illustrates the benefits that can result from being granted Temporary Protected Status.
RELEASE OBTAINED AFTER 19 MONTHS DETENTION BY ICE
Foreign National (FN) who had been living in the U.S. most of his life without legal status, was detained by Immigration and Customs Enforcement (ICE) and placed in Removal proceedings. Her sibling, had however, filed a relative petition on her behalf 27 years earlier which had been approved but without the Foreign National ever pursuing residence. No proof, however, of the petition’s filing or approval could be found.
After many months of a diligent search, including several FOIA requests and appeals, ICE located proof of the Petition’s approval which had been filed under a different A (Alien) number. This document persuaded ICE counsel not only to consent to the FN’s release but to do so under a lower bond. We also determined that the FN was qualified for Temporary Protected Status due to the continued adverse political and economic conditions existing in her native country, a status which allows her to live and work legally in the U.S. as long as such conditions prevail as determined by the U.S. government. Ultimately, she will be able to adjust her status to that of a lawful permanent resident based on the approved relative petition.
Author’s Note: The case demonstrates the importance of persevering to identify all possible avenues of relief from removal even when the circumstances seem hopeless.
RELIGIOUS MINISTER ALLOWED TO ADJUST STATUS AND GAIN LAWFUL PERMANENT RESIDENCE ALTHOUGH NOT ABLE TO FILE RELIGIOUS WORKER PETITION AND ADJUSTMENT APPLICATION CONCURRENTLY.
Religious Minister, who was lawfully present temporarily in the U.S., had a Religious Worker petition filed on her behalf for her permanent residence. Under prior regulations, she was not permitted to apply for adjustment of status until the Religious Worker petition had been approved. When that time came and we filed the adjustment application, U.S.C.I.S. sent a notice of its intent to deny the application on the grounds that the Minister had failed to maintain lawful status.
We argued successfully that the Minister and her family were entitled to benefit from a court order entered in a class action that had challenged the regulation which did not allow the petition and adjustment application to be filed at the same time. Under these regulations, religious workers would frequently fall out of status while waiting for their petitions to be approved.
Lawyer’s Note: The class action mentioned was successful in the U.S. District Court for the Western District of Washington but was overturned by the U.S. Court of Appeals for the Ninth Circuit in Ruiz-Diaz v. U.S., No. 09-35734 (9th Cir., Aug. 20, 2010). This forced U.S.C.I.S. to revert to its prior practice of not allowing the religious worker petition and adjustment application to be filed together at the same time but granted an amnesty to those adjustment applications that were based on a religious worker petition that had been filed before November 9, 2010. We therefore had to persuade U.S.C.I.S. that our client fell within this amnesty period.
SIKH PRIEST OBTAINS APPROVAL OF RELIGIOUS WORKER R-1- VISA PETITION
We successfully petitioned U.S.C.I.S. for approval of an R-1 visa to an internationally recognized Sikh preacher who travels worldwide delivering Katha and Kirtan sermons and hymns, and reciting the Gurbani (special sermon) in Gurdwaras (temples). Approval of the R-1 visa classification will allow a visa application to be made to the U.S. consulate abroad to permit the priest to remain in the U.S. for an initial three-year period, which may be extended for up to six years.
Lawyer’s Note: We utilized Premium Processing, which requires U.S.C.I.S. to adjudicate an R-1 petition within 15 days with payment of an additional fee. U.S.C.I.S. is required to refund the premium fee if it does not respond to (not necessarily decide) the petition within 15 days.
ADJUSTMENT OF STATUS GRANTED AFTER ALMOST SEVEN-YEAR WAIT FOLLOWING GRANT OF ASYLUM
Foreign National was granted asylum based on political persecution in native country and applied for Adjustment of Status based on the approved asylum application. Foreign National was unable, however, to get U.S.C.I.S. to adjudicate the adjustment application after waiting almost six years, and thus sought our help. We were also unable to get any definitive answer from U.S.CI.S., so we asked for the assistance of an AILA Liaison Committee, which also did not get an adequate response. We then made a request for the Foreign National’s file through a Freedom of Information Act (FOIA) request and shortly thereafter, the FN was granted Lawful Permanent Residence.
Lawyer’s Note: Quite often, the easiest and most cost-effective means of obtaining information about one’s immigration background and status is through an FOIA request to the U.S. government. It takes an average of four to six months to get a response to such a request.
U.S. Citizenship Granted Following Civics Examination In Native Language
Naturalization applicant who was long-term permanent resident but not completely fluent in English was able to take and pass the required U.S. civics examination in his native language at our request.
Lawyer’s Note: The Immigration and Nationality Act provides that naturalization applicants age 50 and over and who have been living in the U.S. with Green Cards for at least 20 years or age 55 and over and have had their Green Cards for more than 15 years may take the naturalization test in their native language. Individuals over 65 years old with 20 years as Lawful Permanent Residents are entitled to further “special consideration” by being required to answer only six questions correctly from a pool of 25 easier questions than the usual 100 questions.
Conditions On Temporary Residence Removed Avoiding Removal
Foreign National who gained Conditional (Temporary) Residence through parent’s petition attempted, on her own, to gain permanent residence by filing successive erroneous Forms I-90, all of which unsuccessful, and ultimately causing Foreign National to be placed in Removal proceedings.
We filed the correct form – Form I-751 – which U.S.C.I.S. approved after interviewing the Foreign National and her parent allowing the Foreign National to obtain Lawful Permanent Residence. Removal proceedings will now be terminated.
Lawyer’s Note: Conditional Residence is usually only given for two years, after which a new petition must be filed and approved by U.S.C.I.S. in order to acquire permanent residence. This case illustrates how costly mistakes can be made by simply filing the wrong form with U.S.C.I.S and which can have quite serious consequences, including being placed in Removal proceedings and even being deported.
REMOVAL PROCEEDING TERMINATED SINCE RESPONDENT FOUND TO HAVE ACQUIRED CITIZENSHIP THROUGH PARENT
Respondent was placed in Removal Proceedings after a felony conviction. Respondent’s mother had, however, become a naturalized U.S. citizen when Respondent was under 18 years old. He had also obtained a U.S. Passport, which we submitted in the Removal Proceeding. The government’s counsel and then the Immigration Judge ultimately agreed that Respondent was, indeed, a U.S. citizen and so terminated the proceeding.
Lawyer’s Note: A foreign national may acquire U.S. citizenship derivatively through either a U.S. father or mother so long as either parent was a U.S. citizen before the foreign national’s 18th birthday. However, varying laws apply and may depend upon factors such as the marital status of the foreign national’s parents, the child’s date of birth, the father’s place of residence both before and after the child’s birth, and whether or not paternity has been established. Therefore, it is important that the factual circumstances of each case be carefully examined.
Further Note: The U.S. Supreme Court will soon be deciding whether mothers and fathers may be treated differently under the U.S. constitution in determining how their children may claim derivative citizenship.
TERMINATED H-1B EMPLOYEE AWARDED BACK PAY
H-1B employee (temporary professional worker) was terminated by employer before the expiration of the term of her H-1B visa. Employer failed to notify U.S.C.I.S. of the termination and also failed to offer the terminated employee the return transportation home. We filed a complaint with the Wage and Hour Division of the U.S. Department of Labor, which agreed that the employer had not effected a bona fide termination of the employee. It therefore awarded the terminated employee back pay from the date of the termination up to the date of the new H-1B visa acquired through a new petition filed by a subsequent employer.
Lawyer’s Note: Employers must be careful not to expose themselves to liability under both U.S.C.I.S. and the Department of Labor’s regulations and must strictly comply with these regulations if they ever deem it necessary to terminate an H-1B employee. In addition, there is precedent for the award of back pay for the full unexpired period of the H-1B visa although in this case, the DOL only awarded back pay up to the date of the new H-1B visa as a matter of policy.
L-1A Visa Petition Approved for Latin American Managerial Transferee
An L-1A Visa Petition has been approved for the intra-company transfer of a manager of a relatively small Latin American engineering company that has an affiliate office in New York. The temporary working visa has been awarded for an initial three-year period, which may be extended for incremental periods of up to seven years.
Lawyer’s Note: The firm is especially pleased at this petition approval since the petition was approved in fewer than 30 days without having to respond to any request from U.S.C.I.S. for additional evidence to support the petition. In addition, it shows the firm’s commitment to satisfying the needs of all of our clients – non-immigrants and immigrants alike.
NACARA APPLICANT SUCCESSFUL IN DEFEATING DEPORTATION AND OBTAINING LAWFUL PERMANENT RESIDENT STATUS
Foreign national who entered the U.S. as a child with his family was placed in Deportation proceedings when family’s application for asylum was denied. Family, however, met eligibility requirements for relief under the Nicaraguan Adjustment and Central American Relief Act (NACARA) and all were granted adjustment of status except for foreign national. We persuaded counsel for Immigration and Customs Enforcement (ICE) to join in a motion to reopen the deportation proceedings and thereby obtained a hearing before an Immigration Judge. After we submitted extensive documentation of eligibility for adjustment under NACARA and showed there was no legal basis for treating foreign national differently from his other family members, we ultimately prevailed.
Lawyer’s Note: Since the case was so old, a key to our success was persuading counsel for the government to join in the motion to have the case reopened.
VAWA APPLICANT AND FAMILY GRANTED LAWFUL PERMANENT RESIDENT STATUS
Foreign national who had suffered physical and mental abuse from United States citizen spouse was placed in Removal proceedings after spouse failed to appear for the Adjustment of Status interview. We filed a Petition under the Violence against Women Act of 1994 (VAWA), which was approved and which then formed the basis for seeking Adjustment of Status before the Immigration Judge. Since the foreign national’s children were minors when the VAWA Petition was filed, they also derived lawful residence from their mother’s petition.
CANCELLATION OF REMOVAL GRANTED AFTER SIX-MONTH DETENTION
Foreign national who had lawful permanent resident status in the United States was detained by Immigration and Customs Enforcement (ICE) based on prior criminal convictions, including drug possession. Foreign national was denied bond due to drug convictions but had long residency in and extensive ties to the United States. After being detained for more than six months far from home, an Immigration Judge eventually granted Cancellation of Removal, allowing the foreign national to be reunited with his family.
Lawyer’s Note: ICE denied a parole request which would have allowed the foreign national to be released while his removal case was pending despite the strong equities of the case which made Cancellation of Removal likely to be granted. A request for parole in such circumstances is nevertheless highly recommended.
VAWA PETITION GRANTED TO FAMILY IN REMOVAL PROCEEDINGS
Foreign national and children were all placed in removal proceedings after her abusive U.S. citizen spouse failed to attend interviews scheduled in relation to the petition filed for the family’s permanent residence and he and foreign national separated. We filed a petition under the Violence Against Women Act (VAWA), which was granted by the Vermont Service Center and which now permits the family to adjust status in the proceedings before the Immigration Judge.
A Petitioner who files as an abused spouse must show that he or she has good moral character, failing which the Petition will be denied. U.S.C.I.S. will require a criminal background check of the Petitioner as one the initial steps in establishing a prima facie case.
LAWFUL PERMANENT RESIDENCE GRANTED AFTER REMOVAL TO NATIVE COUNTRY
Foreign national was ordered removed by Immigration Judge and then actually removed to native country following denial of his application for asylum. While Removal proceedings were pending, a visa number became available through a petition filed by his U.S. citizen sibling. The Immigration Judge was presumably unaware that foreign national was eligible to adjust status through his sibling’s petition. We were retained after the removal had already taken place. We immediately requested visa processing through the National Visa Center, which resulted in Immigrant Visas being granted for the foreign national and his entire family.
NATURALIZATION APPLICATION APPROVED AFTE FAILURE TO REGISTER FOR SELECTIVE SERCICE
Resident failed to register with the Selective Service although he had been living in the U.S. as a lawful permanent resident as a young man. His application for Naturalization was denied several times due to this failure, but it was finally approved after the requisite five-year period to show good moral character had passed and we were able to show that his failure to register was not intentional.
Young men living in the U.S. as Lawful Permanent Residents between the ages of 18 and 26 must register with the Selective Service. The intentional failure to do so may lead to the denial of Immigration benefits, most notably the ability to become U.S. citizens. Resident failed to register with the Selective Service although he had been living in the U.S. as a lawful permanent resident as a young man.
REMOVAL DEFEATED DESPITE ALLEGED FRAUD TO OBTAIN GREEN CARD
Government sought to remove lawful permanent resident from U.S. after she applied for U.S. citizenship, claiming that she had obtained her residence fraudulently when she misrepresented her marital status. Resident obtained her residence when she was just a young girl and had gotten married after the petition for her residence was filed. Neither she nor her family knew that her marriage made her ineligible to immigrate.
We were able to persuade both the government and the Immigration Judge that resident did not intentionally misrepresent her marital status at the consular interview but that it was only an innocent error. We argued also that Removal would result in extreme hardship to her U.S. citizen spouse and children. Resident’s lawful permanent resident status was reinstated by the Immigration Judge, allowing her to remain in the United States with her husband and children.
MOTION TO RECONSIDER REVOCATION OF RESIDENCE APPROVAL SUCCESSFUL ALLOWING ADJUSTMENT OF STATUS OF FOREIGN NATIONAL
Approval of Petition for foreign national’s residence was revoked and Removal threatened when the government alleged that petitioning U.S. citizen spouse had falsified his marital status when he obtained U.S. citizenship many years before. U.S. citizen attempted unsuccessfully, on his own, to have the government reconsider its position.
We successfully moved for the case’s reconsideration, showing that there had been no misrepresentation in spouse’s citizenship application. Foreign national then obtained lawful permanent resident status not only for herself but also for her children, who were back waiting in their home country.
REMOVAL DEFEATED DESPITE CONTROLLED SUBSTANCE CONVICTION
Government attempted to remove (deport) permanent resident from the United States, where he had lived for most of his life, based on his conviction for Attempted Possession of a Controlled Substance (cocaine). The government argued that this was an Aggravated Felony, which made him ineligible for any kind of remedy. The Immigration Judge ruled against the resident, finding that he was ineligible for any kind of relief from removal, including Cancellation of Removal.
We appealed to the Board of Immigration Appeals, which returned the case to the Immigration Judge because, among other things, the U.S. Supreme Court clarified that while the case was on appeal, a conviction for conduct which is a felony under state law but only a misdemeanor under the corresponding federal law could not be punishable as an Aggravated Felony under the Immigration law. (Lopez v. Gonzalez, 127 S. Ct., 2006.) The resident ultimately prevailed before the Immigration Judge and was permitted to remain in the United States with his family as a lawful permanent resident.
REMOVAL ORDER ENTERED IN ABSENTIA REOPENED AFTER MORE THAN TWO YEARS AND ADJUSTMENT OF STATUS GRANTED TO VISA WAIVER ENTRANT
Foreign National (FN) left U.S. after spouse had already petitioned for her permanent residence but without first obtaining Advance Parole document. FN was detained when she later attempted to re-enter the U.S. and placed in Removal proceedings. FN left U.S. again before the court date was scheduled, leading to an Order of Deportation being entered in her absence. FN later entered U.S. again under Visa Waiver Program and learned of existence of Removal Order.
We successfully moved to have the Order of Removal reopened before the Immigration Judge, although more than two years had elapsed since its entry, permitting FN to adjust status in the renewed spouse Petition.
After an Application for Adjustment of Status has been filed, one must be careful to obtain a travel document (Advance Parole) before departing the U.S. or else risk the Adjustment Application being considered abandoned and being placed in Removal proceedings upon re-entering the U.S.
GOOD FAITH MARRIAGE FOUND BY IMMIGRATION JUDGE WHERE CONDITIONAL RESIDENT SPOUSE TOLERATED THREATS FROM INCARCERATED EX-SPOUSE
Foreign national who had obtained conditional residence through his marriage was sought to be deported when his U.S. citizen spouse abandoned him to reunite with her previously incarcerated ex-husband. This made him unable to demonstrate adequately to U.S.C.I.S. that his less than two-year marriage had been entered in good faith.
We were able to persuade the Immigration Judge that foreign national’s perseverance in marriage despite continued threats from his wife’s incarcerated ex-husband demonstrated his commitment to his U.S. citizen wife and to the marriage which he entered in good faith. Foreign national was therefore permitted to remain in the United States as a lawful permanent resident.
ALLEGATION OF FALSE CLAIM TO CITIZENSHIP OVERCOME
Foreign national’s Application for Adjustment of Status was denied upon the government’s allegation that he had falsely claimed to be a U.S. citizen when he was arrested for drunk driving.
We filed a Motion to Reconsider, showing that the foreign national had made no such claim and, furthermore, he could have obtained no benefit under any law by making such a claim. The Motion was successful and Adjustment of Status was granted.
Lawyer’s Note: A false claim to U.S. citizenship is extremely serious since, if proved and it was made to obtain a benefit under the Immigration and Nationality Act or any federal or state law, it is a ground of inadmissibility to the U.S. for which no waiver is available.
PERMANENT RESIDENCE GRANTED ALTHOUGH NAME OF MOTHER MISSING FROM PAKISTANI BIRTH CERTIFICATE
U.S. Citizen petitioned to have his Pakistani born children immigrate to U.S. as lawful permanent resident. However, the name of the children’s mother – the Petitioner’s ex-spouse – was missing from their Birth Certificates, the mother could not be located to affirm maternity of the child, and U.S.C.I.S. denied the Petitions despite DNA evidence which established the children’s paternity.
With help from the testimony of Professor Shaul Gabbay of the University of Colorado, an expert in Muslim, Arab and Middle East Societies, we were able to persuade U.S.C.I.S., on appeal, that in certain Muslim cultures, it is not uncommon for the name of the mother to be absent from birth records and that this child was, in fact, the legitimate child of his parents. The Petitions were ultimately approved.
PERMANENT RESIDENCE GRANTED ALTHOUGH NAME OF MOTHER MISSING FROM PAKISTANI BIRTH CERTIFICATE
Minor child who crossed Mexican border unaccompanied was detained, placed in deportation proceedings and transferred into the custody of his uncle in New York. We petitioned the family court to have the minor classified as a juvenile who was eligible to be placed in long-term foster care due to abandonment, and that it was not in the child’s best interest to be returned to his previous country.
The petition was successful, although we also initiated proceedings to have the child’s uncle named as his legal guardian. Armed with the two Orders from the Family Court, we were able to persuade the Immigration Judge to approve the Special Immigrant Juvenile Status Petition, thereby allowing the child to adjust status to that of a lawful permanent resident.
PERMANENT RESIDENCE GRANTED ALTHOUGH NAME OF MOTHER MISSING FROM PAKISTANI BIRTH CERTIFICATE
U.S. citizenship was initially denied to unrepresented foreign national due to prior felony convictions for assault in the second degree and criminal possession of a weapon. State judge had also issued order recommending against deportation and foreign national also obtained certificate of relief against disabilities from the state. Citizenship was denied, although more than 10 years had elapsed since the convictions.
A few years later, when we were retained, we refiled the citizenship application on the foreign national’s behalf and, upon obtaining medical certification that the foreign national was not a danger to herself or anyone else, U.S. citizenship was granted.
Lawyer’s Note: Judicial Recommendations against Deportation (JRADs) were abolished by the Immigration Act of 1990 and so are no longer in use. However, JRADs obtained prior to the law’s rescission may still be effective in certain circumstances.
An unlawful act committed within five years of applying for U.S. citizenship may bar a finding of good moral character, which is required for citizenship to be granted. U.S.C.I.S. has the discretion, however, to consider acts committed outside the five-year period to determine good moral character.