Scott’s New Era Immigration

We often have detained clients who contact our office after signing to be removed from the United States. These clients have often been detained unexpectedly and are tired. Suddenly an ICE Officer appears advising client that their case may be “hopeless”. The ICE officer then provides the option for the client to sign to be removed.

Detained individuals will typically be presented with two different documents when in immigration detention.  An 826 Notice is presented and a 10 page document where a detained individual can agree to waive an attorney and select options including being removed from the United States.   Often, the client signs to be removed, and later regrets this option and reaches out to immigration legal counsel to help them.

The purpose of this short blog article is to provide instructions on what to do when a detained individual in ICE custody seeks to withdraw and retract what he or she signed which has now caused them to be in the process of being physically removed and deported without any legal representation.

Fortunately, if you know anyone in this situation, it is NOT too late to retract and withdraw having signed to be removed from the United States. In order to withdraw what is now a signed Stipulated Order to be deported, however,  one must engage an Immigration attorney to take very swift action.

An Immigration attorney may file a “Motion to Withdraw Stipulated Order” inU.S. Immigration Court.  In order for the motion to be successfully granted, facts are important.  Speaking with Immigration counsel and establishing the facts is essential for the attorney to prepare a well written Motion to Withdraw.  Once the Judge agrees to withdraw the Stipulated Order, a detained or non detained foreign national may move forward in fighting against being removed or deported from the United States.

If you have any questions or concerns, our attorneys are available to meet with you, and you may contact us at info@scottcclaw.com. Or Visit our website at www.scottcclaw.com where our different office telephone numbers are listed for your convenience.

ScottMond Law Firm

www.scottcclaw.com

USCIS News – Reprint Below:

Relief for Nationals from Central America
Stranded in the U.S. Due to Extreme Flooding

Extreme flooding occurring in Central America has led U.S. Citizenship and Immigration
Services (USCIS) to reminding everyone of immigration benefits available upon request to
eligible nationals from countries in that region.

USCIS understands that a natural disaster can affect an individual’s ability to establish or
maintain lawful immigration status. Temporary relief measures available to eligible
nationals from Central American countries that are currently in the U.S. may include:
Approval for a change or extension of non-immigrant status, even in cases where the
request is submitted after an individual’s authorized period of admission has expired.

•  Re-parole of individuals granted parole by USCIS.Extension of certain grants of advance parole and expedited processing of requests for advance parole.

• Expedited adjudication and approval of requests by students with F-1 visas for off-campus employment authorization due to severe economic hardship.

• Expedited processing of immigrant petitions for immediate relatives of U.S. citizens and permanent residents.

• Expedited processing of employment authorization.

• Assistance, in coordination with the Department of State, to permanent residents stranded overseas without documents.

To learn about more options for immigration, you may contact our attorneys at info@scottcclaw.com or call us at one of our offices listed conveniently at  www.scottcclaw.com.

ScottMond Law Firm

www.scottcclaw.com

Many of our readers and clients often ask how to file applications with their consulate overseas.  In this short blog tip we provide basic guidance on filing with your country’s local U.S. Consulate.

The Department of State(DOS) website www.travel.state.gov contains a listing of all the consulates throughout the world.  It is important to go unto the DOS website and follow the instructions for the particular visa which you intend to file with the U.S. consulate.  Each consulate’s customs may also vary.

It is important to note that U.S. consulates no longer accept direct filing such as I-130s unless there is a locale CIS office available in house.     Also, waivers such as, I-601 waivers can only be hand carried to most consulate offices after the consulate clearly indicates and requests the waiver.

Interacting with National Visa Center (NVC), can often be frustrating.  NVC is the division of U.S. Immigration charged with notifying the various consulates overseas of approved U.S. petitions such as I-140s, I-130s, L-1 visas, and other visas in order for interviews to be set at the consulate. To resolve delays with NVC, our attorneys reach out to NVC on a consistent basis in order to keep our clients’ files case file moving along. We also have direct contacts for all the U.S. consulates, and contact them as needed to set up appointments for our clients.

For further information you may contact our law offices at info@scottcclaw.com, or visit our website at www.Scottcclaw.com where our telephone numbers for our different offices are conveniently located.

ScottMond Law Firm

www.scottmondlaw.com

An I-140 is a petition by a U.S. Employer who seeks to sponsor and employ someone who is abroad or a foreign national.  Small, large or new companies may sponsor a foreign national once they can demonstrate an ability to pay the employee. The sponsorship is for a future job since there are very stringent requirements that need to be met before a foreign employee may begin working.

The three essential steps are 1) PERM- Labor Certification; 2) I-140 – Petition for Foreign Worker; and 3) I-485- Application to Adjust status to a U.S. Permanent Resident. The purpose of this short blog article is to point out a common error in the I-140 stage regarding the “Ability to Pay” which can result in a denial of the Petition.

Before an application can be filed with U.S. Citizenship and Immigration Services (“USCIS”), an extensive process called a Labor Certification –PERM must be completed. It is a complex, time sensitive semi-supervised recruitment process to ensure there are no U.S. Citizens or Permanent Residents available and qualified for the position being offered to the beneficiary (foreign national). Once the Department of Labor (“DOL”) is satisfied, they certify the PERM application -Labor Certification.  This certified document must be included in any submission of an I-140 Petition to USCIS.

The date DOL certifies the PERM Labor Certification is considered the “priority date”. This priority date will eventually appear on an I-140 Notice of Action (I-797) issued by USCIS, and is a critical date that governs many critical stages of the process including when a foreign national client becomes eligible to adjust status to a U.S. Permanent Resident.

It is also the critical date when the employer must demonstrate that he or she began having the ability to pay the prevailing wage (determined by the DOL) to the beneficiary. The formal definition of priority dates and ability to pay may be found at 8 CFR 204.5 (d)and(g)(2).

In essence, an employer must carefully plan with an immigration attorney when he or she should begin the process of sponsoring a foreign national, and ensure that the ability to pay will be met by the priority date.  With careful planning and an understanding of different ways an employer can meet the ability to pay requirement, the I-140 petition and I-485 application for Permanent Resident status should be successful.

For additional questions please contact us at info@scottcclaw.com or our telephone numbers are conveniently listed at www.scottcclaw.com

ScottMond Law Firm

Attorneys-at-Law

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On August 18^th, 2011, the current Obama Administration and the Department of Homeland Security (“DHS”) announced the establishment of a high-level joint Department of Homeland Security along with the Department of Justice (“DOJ”) to determine which cases are high priority versus low priority. In distinguishing between these two categories, only high priority cases will cause individuals to be placed into removal proceedings, and low priority cases already in proceedings would be strongly considered for administrative closing by ICE/DHS attorneys.  Closing an  individual’s case currently in deportation or removal  proceedings would also result in the client becoming eligible for work authorization.

Factors in Determining High versus Low Priority

Two  John Morton memorandums (“Morton Memo”) issued by U.S. Immigration and Customs Enforcement on  June 17^th 2011 lay out the detailed factors to be considered in a favorable exercise of prosecutorial discretion .  Essentially, a favorable exercise of discretion would allow clients to terminate proceedings and receive work authorization eventually.  A complex balancing test of factors will be used to determine eligibility.  Daily as immigration attorneys, we are seeing how the following factors are being used to favor our clients with DHS. Below are some of the factors enumerated in the Morton Memo:

•   Long time Permanent residents

•  Minors and the Elderly

•  Individuals who have Been Present Since Childhood

• Individuals with serious disabilities or health issues

• Women Who are Nursing or Pregnant

• Victims of Domestic Violence or other serious crimes

Again, DHS will be weighing the totality of the circumstances in each individual’s case.

Clients with Criminal Record

It is good to know that there is no particular crime that makes any client ineligible for the exercise of prosecutorial discretion.  However, the following activities may cause an individual’s case to be declined a favorable review of discretion:

• Serious felons

• Repeat Offenders

• Individuals with a lengthy criminal record of any kind

• Known Gang Members

Overall, the announcement is very recent. We are just beginning to see how ICE/DHS attorneys are deciding which cases they will close and cease removal and deportation proceedings against our clients.  How long a favorable grant to terminate  will last is not known by anyone, but maybe the Obama Administration.  However, this is truly good news for our clients and anyone facing removal proceedings.  An immigration attorney is essential to guide you through this complex but hopeful temporary relief from removal.

To contact our law office, you may contact us at info@scottcclaw.com or call us at our numbers conveniently listed on our website www.scottcclaw.com.

ScottMond Law Firm

www.scottcclaw.com

Our clients often have questions about how to request their bond back from ICE-Department of Homeland Security after being in Deportation or Removal Immigration Proceedings.  While the immigration attorney is not involved in this process nor influences it, the purpose of this article is to provide some guidance on the issue.

First, it is important to understand that a client will not be able to get back their bond until the their case is actually closed with the U.S. Immigration court AND all terms are complied with.  There are a couple scenarios in which a bond will be granted by a U.S. immigration judge.  First, in case of voluntary departure; and also in the case where a client has a plausible case (relief) in a U.S. immigration court, and the judge deems the client is not a flight risk. The judge in this instance, will grant bond during the litigation of the removal case.  The rules for either of these scenarios slightly vary. However, below are some basic steps for clients to get their bond returned at the very end of an immigration case.

The detained Client or Voluntary Departure Client (“Client”)  had to have choosen an Obligor for their bond. (Client and Obligor are two different parties).  The bond will be returned to the Obligor regardless of which party actually puts up the cash.

Next, Complete form I-210 with ICE/DHS.  In the case of voluntary departure, when Client arrives back to his or her home country submit form I-210.

Finally, Client also sends a copy of the completed Form I-210 to the Obligor in the United States, if applicable. The Obligor will then go to ICE/DHS in the U.S. with the original receipt and completed from I-210 and any other form ICE may require.

Actually qualifying for bond in a U.S. Immigration Court is a complex legal qualification and requires a U.S. immigration attorney. However, the actual procedure of retrieving back bond monies, is best dealt with directly with ICE/DHS. The above is a general guide and will hopefully help assist in successfully retrieving back your bond paid to ICE/DHS.

If you have any questions you may contact us at info@scottcclaw.com or call any of our offices at our telephone numbers conveniently listed at www.scottcclaw.com

ScottMond Law Firm

www.scottcclaw.com

Our law firm files a variety of  U.S. Immigration Waivers for clients who are illegal, out of status, subject to residency requirements, subject to the three or ten year bar,  Conditional Residents whose marriages are ending in divorce, individuals who entered without inspection (“EWI”), or those in need of  a waiver for fraud, crimes, and more. (See below for a list).  The purpose of this article is to provide a couple popular case scenarios to inform clients about how waivers work in general.

Case 1

Foreign national was born inNicaragua05/19/1990.  She entered EWI in 03/2008 and never left. She was arrested without a driver’s license and ICE ended up having a detainer placed on her.  She married a U.S. Citizen (USC) in 05/2012- no children.  The first court date in U.S. Immigration court has been set. What can be done here?

A waiver can be filed for the foreign national, and an I-130 filed by her husband to begin the adjustment of status process. An Immigration Judge will usually grant a continuance (extension) during the adjudication of the I-130.  Then a 212(a)(9)(B)(v) (waiver of Unlawful Presence Ground of Inadmissibility)  may be filed.  Since in this case the foreign national entered without inspection (EWI), she would need to return to her home country to adjudicate the waiver and adjust status after being granted voluntary departure by an immigration judge.  The time out of the country could be a year or less if the proper legal strategy is in place.

Case 2

A 212(h) waiver is a popular waiver for clients who have been convicted of Crime Involving Moral Turpitude (CIMT) which occurred and makes them removable.

For instance, a foreign national could pursue a consular waiver or waiver in court for a CIMT that occurred more than 15 years ago (e.g. theft).  Proof of Rehabilitation, good charter and ensuring that a foreign national client is not a threat to National Security is amongst some of the criteria that must be presented effectively to anImmigration Courtor U.S. Consulate to succeed in gaining a 212(h) waiver.

The area of good character is essential.  Evidence of good character for instance would include donations to church, volunteer involvement in community activities, letters from family members explaining how the applicant for 212(h) waiver helps his family and is an overall asset to society.

The above examples and Waivers in general require experienced U.S. Immigration Attorneys.  Below is a comprehensive list of Waivers we file on behalf of our clients:

U.S. WAIVERS: 

• I-751 Waiver (Marriage Dissolution of Conditional Residents)

• I-601 Waivers

• WAIVERS OF INA 212(e): J-1 visa holders

• Waiver After Prior Waiver of misrepresentation or Fraud in Procuring Visa/Entry-INA §237(a)(1)(H)

• Removal or Deportation: Permission to Reapply for Admission-INA §§212(a)(9)(A)(iii) and 212(a)(9)(CC)(ii)

• Waiver of Unlawful Presence Ground of Inadmissibility-INA §212(d)(12) and 237(a)(3)(C)(ii)

• Waiver for Prostitution, Crimes More Than15 Years Old, Crimes of Moral Turpitude, and Simple Possession of Marijuana-INA §212(h)

• Waiver for Fraud or Misrepresentation-INA §212(i)

• Waiver of Technical Defects in Immigrant Visas- INA§212(k)

• Adjustment of Status Under §245(k)

• Cancellation of Removal for Nonpermanent Residents-§240A(b)

• Cancellation of Removal for Lawful Permanent Residents

• General Waiver for Nonimmigrants-INA §212(d)(3)

• Waivers Under INA §209(c)

If you have any questions about U.S. Immigration Waivers, you may contact our law firm at info@scottcclaw.com.  Or a list of our office telephone numbers may be found at www.scottcclaw.com.

ScottMond Law Firm

www.scottcclaw.com

Asylum

Asylum status may be given to an individual who meets a very strict definition of refugee. A refugee or asylee is defined as any person outside his or her county of nationality (or in the case of a persons having no nationality, their last habitual residence) who, because of a “well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group or political opinion, is unable or unwilling to return to that country, and is unable or unwilling to avail him or herself of the protection of that country. There are conditions where a refugee is also someone still residing in their country which is not discussed in this brief article.

An asylee must apply within one year of arrival in the U.S.  If the foreign national is placed in removal, and has never applied for asylum relief, they must then seek Withholding of Removal or CAT in court which is explained below. Once an individual is granted asylum they will eventually be able to adjust to a Permanent Resident and eventually Citizenship.

Withholding of Removal

While this option is similar to asylum, withholding of removal and CAT (explained below) is available when a foreign national does not meet the criteria for asylum, such as filing within one year. Also, Withholding of Removal/CAT is available if a foreign national is placed in removal or deportation proceedings.

Withholding of Removal found in INA 241(b)(3); 8 CFR 208.16 requires an applicant to demonstrate the following:

An applicant must show a clear probability of harm, or that it is more likely than not that her life or freedom would be threatened (on account of race, religion, nationality, membership in a particular social group, or political opinion) if returned to his or her home country. The standard here is higher than asylum “which is a well founded fear”.

Withholding is mandatory if Attorney General determines that the applicant’s life or freedom would be threatened. While there are important benefits gained such as the applicant’s ability to receive work authorization, this is not an automatic right to remain in the Unite States.  The Department of Homeland Security (“DHS”) may impose conditions, remove the individual to a third country, and/or move to revoke the status. Client cannot apply directly for lawful permanent residency, and client cannot petition to bring family members to the U.S. except certain conditions and exceptions are met.

CAT

CAT, which stands for the United Nations (“UN”) Convention Against Torture (“CAT”) is also available to clients who are in removal proceedings or who have failed to meet the criteria for asylum. Torture is defined as any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

If it is more likely than not that an applicant will be tortured then no State shall expel, return or extradite a person to another State where there are substantial grounds for believing that he or she would be in danger of being subjected to torture.

The above explanation of Asylum, Withholding of Removal and CAT are complex legal arguments which require an experienced immigration attorney to navigate the hurdles and obstacles when an individual is fearful and it is unsafe to return home. If you or someone you know is in serious danger if they return to their home country, you may contact us with your questions or concerns at info@scottcclaw.com or 703.955.7998.

ScottMond Law Firm

The purpose of this article is to discuss the often confusing subject of whether an assault and battery in the State of Virginia is an aggravated felony prohibiting a U.S. non-citizen who is convicted of such a crime from applying for many forms of relief if placed in removal.  Without relief, a non-citizen client will be removed (deported) from the United States.

If you or your loved one are currently charged with assault and battery as a non-citizen of the United States, it is important to discuss with your immigration attorney how to have your case classed as a non-aggravated felon so you may have the needed relief and not be removed.

The terms categorical, and modified categorical approach sounds akin to another language, and it is.  It is the language of immigration removal courts and attorneys when determining the overall immigration consequences of a criminal act by a non-citizen.  Many changes have taken place with the law, in which it is not the purpose of this article to discuss.  What is important to note, however, is that these terms determine how far ICE government attorneys, or the defense removal attorney can “dig” into the prior criminal record to determine if a “crime of violence” or “aggravated felony” has occurred making a non-citizen removable from the United States.

The next important item is to determine who has the burden of proof.  Who ever has the burden of proof has to prove by digging into the criminal records that the crime was not an aggravated felony.  So for instance, if it is the government’s burden of proof to show that a non-citizen’s crime is an aggravated felony, they can start digging into police reports, notes, colloquy, pre-trial notes, sentencing reports and any other item that may be in the court file if it is not clear on the face of the disposition of the case that a crime of violence has not occurred.  In the alternative, if it is the burden of the non-citizen to show that an aggravated felony has not occurred, the attorney for the non-citizen must dig into those same records to sustain the burden.

What does this mean? It is critical to find experienced immigration counsel that understands the importance of researching critical case law in various circuits to avoid devastating consequences with the current above standard to determine whether a non-citizen will be removed in the State of Virginia.  The posture of the case is critical as to how the case is litigated.  Likewise, the non-citizen in removal should feel empowered to go and pull a copy of their entire court file from the court and sit down and discuss it with his or her attorney of choice. If a non-citizen client is detained, it is important for them to have 3rd party who will pull the ENTIRE criminal file, not just the disposition.  Of course, immigration counsel can pull the file as well, but ask for a full copy of the criminal file and review it with your immigration counsel.

If you have questions, or would like to speak with one of our attorneys, we invite you to contact us at info@scottcclaw.com for a fast response, or call us at one of our offices listed on the first page of www. scottcclaw.com.

ScottMond Law Firm

www.scottcclaw.com

The purpose of this article is to hopefully reduce the huge mistake that costs U.S. Permanent Residents and Non-Citizens their right to travel back to their home country. Specifically, if a Permanent Resident or Non-Citizen with a brief criminal history travels abroad they are often faced with the surprise of arriving at the airport back in the United States only to be told by Customs Border and Patrol (CBP) that they are “inadmissible”. In other word, they are banned from reentering the United States.

The reason this is often so surprising to foreign nationals/non-citizens, is that he or she often did hire criminal attorneys and even immigration attorneys to ensure that they would not be “deported” if they plead and/or were convicted of a criminal charge.  A foreign national will then feel confident about the immigration consequences of their actions and rest easy.

However, it is critical that a  foreign national BEFORE travelling abroad consult with an immigration attorney to ensure that although they are not removable from the United States they will not face inadmissibility issues when they attempt to reenter the U.S. after a brief trip abroad.

The Law

Criminal inadmissibility grounds will or may prevent a noncitizen from being able to obtain lawful status in the United Stats; and may also prevent a noncitizen who already has lawful status from being able to return to the U.S from a trip abroad in the future.

Controlled Substance Offenses. Conviction or admitted commission of a controlled Substance Offense, or DHS reason to believe that the individual is a drug trafficker will also trigger inadmissibility.  It is critical to note here that even if there was not a conviction and a noncitizen just verbally admits to a CBP officer that he trafficked drugs at some point the noncitizen will be inadmissible.  This applies to other crimes not only drug trafficking.

Crime Involving Moral Turpitude. Conviction or admitted commission of a Crime Involving Moral Turpitude (CIMT), which category includes a broad range of crimes, including:

• Crimes with an intent to steal or defraud as an element (e.g. theft, forgery)
• Crimes in which bodily harm is caused or threatened by an intentional act, or serious bodily harm is caused or threatened by a reckless act (e.g., murder, rape, some manslaughter/assault crimes)
• Most sex offenses

There is a Petty Offense Exception which it is not the purpose of this article to discuss.

Also, prostitution and commercialized vice makes a noncitizen inadmissible, and conviction of two or more offenses of any type plus aggregate prison sentence of 5 years.

Again, even if a non-citizen has consulted with an immigration attorney in conjunction with criminal counsel and he or she has been told that they will not be removed or deported from the United States this is not enough. Based on pleading or prior conviction(s) of certain crimes a non citizen may be inadmissible back to the United States, FOREVER, after a brief trip abroad. It is imperative that a noncitizen seek an experienced immigration attorney’s advice before travelling abroad.  You may contact one of our immigration attorneys at the information provided below with any questions.

ScottMond Law Firm

Immigration Lawyers Serving Families, Individuals and Businesses

www.scottcclaw.com

info@scottcclaw.com

(703)261.6881 (main office number)

(301)251.4003 (Maryland Office)

(703)966-0907 (emergency client line only)