Scott’s New Era Immigration

Recently, our office has seen an increase in clients who come to our office after being mislead regarding the immigration process of self petitioning for U.S. Permanent resident status.  Specifically, after an I-140 has been filed based the Extraordinary Work or National Interest Waiver (NIW) category, it  unfortunately results in very significant Notice of Intents to Deny (“NOID”) issued by USCIS which if not overcome, may result in the client being placed in Immigration Removal Proceedings.

The purpose of this blog is to briefly outline when a foreign national may be eligible to take advantage of self petitioning, where a United States sponsor is not needed to become a U.S. Permanent Resident.  The following categories are the main individuals who are eligible to self petition:

1. Extraordinary Workers (EB-1 Priority Workers )
2. National Interest Waivers (EB-2)
3. Religious Worker
4. Abused Spouse- VAWA (Domestic Abuse)
5. U visa – Victim of a Crime
6. Death of U.S. Spouse before the application process is complete.
7. Special Immigration Juvenile Visa

The first three categories are based on an individual’s work, occupation and/or contribution to the National interest. The last four are based on particular facts and circumstances. Below are simplified definitions that if you believe you or your family meet the criteria, it is important to consult with an experienced immigration lawyer as you may be eligible to self petition for U.S. Permanent Status.

EB-1 Category:

A foreign national individual with extraordinary ability in sciences, arts, education, business or athletics which has been demonstrated by sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation may self petition. INA Sec. 203(b)(1)(A), 8 U.S.C. Sec. 1153(b)(1)(A).

Outstanding Professors and Researchers

If one is recognized internationally as outstanding in a specific academic area, has 3 years experience in teaching or research in the academic area,(experience in teaching or research while working on advanced degree may be counted if degree is acquired), and the person had full responsibility for the class taught, or the research has been recognized as outstanding in the academic field, he or she may be eligible. 8 C.F.R Sec. 204.5(i)(3)(ii).

Multinational Executives and Managers

INA Sec.203 (b)(1)(C); 8 U.S.C. Sec1153(b)(1)(C) states if you are employed abroad for one year (in last 3 years) by a corporation in a Multinational Executive or Managerial role and ownership and control meets the Federal Regulation guidelines you may be pre-certified and eligible to self petition.

EB-2- National Interest Waiver

If the U.S. government believes it is in the National Interest to waive the mandatory requirement of applicants having a labor certification and job offer, USCIS may do so. This category has stringent requirements to demonstrate that an applicant’s skills, education, experience and talents are in the national interest to waive the needed for a U.S. Sponsor. INA Sec. 203(b)(2)(B); 8 U.S.C. Sec.1153(b)(2)(B).

Special Immigrant Religious Worker

A U.S. Employer or foreign national may file a self petition for one who seeks to enter the United States to be employed full time by a bona fide nonprofit religious organization in the United States (or a bona fide organization that is affiliated with the religious denomination in the United States) to work solely as a minister, religious vocation either in a professional or nonprofessional capacity, or in a religious occupation either in a professional or nonprofessional capacity.

Self-Petitioning Battered or Abused spouse or Child of a U.S. Citizen or Lawful Permanent Resident

One may also self petition for immediate relative or family sponsored immigrant classification if you or someone you know is the spouse of a Permanent Resident or U.S. citizen and have been battered or the subject of extreme cruelty.

U VISA

Generally speaking, U nonimmigrant status is an immigration option for even undocumented immigrant adults or children who have been victims of certain serious crimes and  cooperate in reporting the crime. Eventually, adjustment to a U.S. Permanent Resident Status may occur.

Widow/Widower of a U.S. Citizen

If a foreign national was married to a U.S. citizen who is now deceased and who was a U.S. citizen at the time of death, and the spouse died within the last two years, he or she may eligible to self petition.

Special Immigration Juvenile Visa

If a child is present in the U.S., unmarried and less than 21 years of age, has been declared a dependent upon a juvenile court, or is under the custody of an agency, department of state or juvenile court and it is in the best interest that the minor child not be returned to his or her last habitual residence of his or her parent’s country, the child may self petition.

If you believe that you or someone you know is eligible to self petition you may contact our firm with your questions at info@scottcclaw.com or call us at one of our office telephone numbers conveniently listed at www.scottcclaw.com.

ScottMond Law Firm

www.scottcclaw.com

This week the Obama Administration announced that they will be providing relief to undocumented foreign nationals who must exit the country to gain status in the United States and are subject to three and ten year bars from reentry.  We are very excited to provide the proposed law below which would allow families to reduce there fear and separation anxiety in correcting their loved ones U.S. immigration status.

PROPOSED LAW:

Provisional Waivers of Inadmissibility For Certain Immediate Relatives of U.S. Citizens

AGENCY:  U.S. Citizenship and Immigration Services, Department of Homeland Security.

ACTION:  Notice of intent.

SUMMARY:  U.S. Citizenship and Immigration Services (USCIS) intends to change its current

process for filing and adjudication of certain applications for waivers of inadmissibility filed in

connection with an immediate relative immigrant visa application.  Specifically, USCIS is

considering regulatory changes that will allow certain immediate relatives of U.S. citizens to

request provisional waivers under section 212(a)(9)(B)(v) of the Immigration and Nationality

Act of 1952, as amended (INA or Act), 8 U.S.C. 1182(a)(9)(B)(v), prior to departing the United

States for consular processing of their immigrant visa applications.  An alien would be able to

obtain such a waiver only if a Petition for Alien Relative, Form I-130, is filed by a U.S. citizen

on his or her behalf and that petition has been approved, thereby classifying the alien as an

“immediate relative” for purposes of the immigration laws, and he or she demonstrates that the

denial of the waiver would result in extreme hardship to the alien’s U.S. citizen spouse or parent

“qualifying relative.”  The qualifying relative for purposes of the waiver is not necessarily the

immediate relative who filed the immigrant visa petition on the alien relative’s behalf.

FOR FURTHER INFORMATION CONTACT:  Roselyn Brown-Frei, Office of Policy and

Strategy, U.S. Citizenship and Immigration Services, Department of Homeland Security, 20

Massachusetts Avenue, NW., Washington, DC 20529-2099, telephone (202) 272-1470 (this is 2

not a toll free number).

SUPPLEMENTARY INFORMATION:

I. Background

A. Overview

The proposed process is intended to reduce the time that U.S. citizens are separated from

immediate relatives who are required to remain outside the United States for immigrant visa

application processing and during the adjudication of waivers of inadmissibility.   Through this

change, USCIS does not intend to modify the standard for assessing eligibility for these waivers,

including whether the denial of the waiver would result in extreme hardship to a U.S. citizen

spouse or parent (“qualifying relative”).  For purposes of the waiver under section

212(a)(9)(B)(v) of the Act, a “qualifying relative” is a U.S. citizen spouse or parent or a lawful

permanent resident spouse or parent who would suffer extreme hardship if their relative were not

allowed to immigrate.  For purposes of this provisional waiver program, DHS intends to limit

who may participate in this program to immediate relatives who can demonstrate extreme

hardship to a U.S. citizen spouse or parent.  Even if they obtain a provisional waiver, eligible

aliens who are required to obtain a visa through consular processing would still be required to

depart from the United States to apply for an immigrant visa.  The purpose of the new process is

to reduce the time that U.S. families remain separated while their relative proceeds through the

immigrant visa process.

Certain grounds of inadmissibility can bar aliens from being admitted to the United States

or obtaining an immigrant visa, preventing U.S. citizens from reuniting with their immediate

relatives.  However, the Secretary of Homeland Security, through USCIS, may waive some of

those grounds.  An alien who is subject to one or more grounds of inadmissibility must obtain a 3

waiver, if available, from USCIS before he or she may be issued an immigrant visa by a

Department of State consular officer at a U.S. embassy or consulate overseas.

The bars to admission under section 212(a)(9)(B)(i)(I) and (II) of the INA, 8 U.S.C.

1182(a)(9)(B)(i)(I) and (II), based on accrual of unlawful presence in the United States, comprise

one such ground.  Typically, under current processes, aliens who are immediate relatives of U.S.

citizens applying for immigrant visas at Department of State consular posts must apply for

waivers of unlawful presence while outside the United States after a finding of inadmissibility is

made by a Department of State consular officer in conjunction with their immigrant visa

applications.  As a result, U.S citizen petitioners are often separated for long periods of time

from their immediate relatives who are applying for immigrant visas and have accrued a certain

period of unlawful presence in the United States.  This revised process, which eliminates the

time-consuming interchange between the Department of State and USCIS, would significantly

reduce the amount of time that American families will be separated from their immediate

relatives.  USCIS also believes that efficiencies can be gained through this revised process for

both the U.S. Government and most applicants.

USCIS intends to limit consideration for the provisional waiver to aliens who qualify for

classification as immediate relatives of U.S. citizens, who have a U.S. citizen spouse or parent

who would suffer extreme hardship if the waiver were denied, and for whom the sole basis for

inadmissibility is unlawful presence in the United States of more than 180 days.  USCIS would

grant a provisional waiver if the alien meets the eligibility requirements described in this Notice,

including demonstrating that the applicant’s qualifying U.S. citizen spouse or parent would

suffer extreme hardship and that the applicant warrants a favorable exercise of discretion.  The

provisional waiver would be granted before the alien leaves the United States to attend his or her 4

immigrant visa interview with a consular officer.  The provisional waiver, however, would not

become effective unless and until the alien departs from the United States.  If the alien is

otherwise eligible for the immigrant visa, the consular officer may then approve the issuance of

the visa so that the alien may proceed to immigrate to the United States for permanent residence.

This notice of intent generally describes the proposal that USCIS is considering.  USCIS

will further develop, and ultimately finalize, this proposal through the rulemaking process.  This

effort is consistent with Executive Order 13563’s call for agencies to “consider how best to

promote retrospective analysis of rules that may be outmoded, ineffective, insufficient, or

excessively burdensome, and to modify, streamline, expand, or repeal them in accordance with

what has been learned.”  Do not send an application requesting a provisional waiver under the

procedures under consideration in this notice.  Any application requesting this new process will

be rejected, and the application package returned to the applicant, including any fees, until a final

rule is issued and the change becomes effective.

B. Authority

The Homeland Security Act of 2002, Public Law 107-296, section 102, 116 Stat. 2135, 6

U.S.C. 112, and section 103 of the INA, 8 U.S.C. 1103, charge the Secretary of Homeland

Security with administration and enforcement of the immigration and naturalization laws.  The

Secretary would effectuate these proposed changes under the broad authority to administer the

Department of Homeland Security and the authorities provided under the Homeland Security Act

of 2002, the immigration and nationality laws, and other delegated authority.

C. Grounds of Inadmissibility

U.S. immigration laws provide mechanisms for U.S. citizens to petition for certain family

members for admission to the United States for purposes of family reunification.  At the same 5

time, however, the immigration laws prescribe acts, conditions, and conduct that bar aliens,

including immediate relatives of U.S. citizens, from being admitted to the United States or

obtaining an immigrant visa.  Such acts, conditions, and conduct include certain criminal

offenses, public health concerns, fraud, misrepresentation, failure to possess proper documents,

accrual of more than 180 days of unlawful presence in the United States, and terrorism.  The

grounds of inadmissibility are set forth in section 212(a) of the INA, 8 U.S.C. 1182(a).

The Secretary of Homeland Security has the discretion to waive certain inadmissibility

grounds, upon the filing of a request by an alien who meets the relevant statutory requirements.

If the Secretary, through USCIS, grants such a waiver, the waived ground will no longer bar the

alien’s admission, readmission, or immigrant visa eligibility based on that specific ground of

inadmissibility.

One of the inadmissibility grounds is described in section 212(a)(9)(B)(i) of the Act, 8

U.S.C. 1182(a)(9)(B)(i).  Under part (I) of this provision, an alien who was unlawfully present in

the United States for more than 180 days but less than one year, and who then departs voluntarily

from the United States before the commencement of removal proceedings, will be inadmissible

for three years from the date of departure.  Under part (II) of the same provision, an alien who

was unlawfully present for one year or more and then departs before, during, or after removal

proceedings, will be inadmissible for ten years from the date of the departure.

The three- and ten-year unlawful presence bars do not take effect unless and until an alien

departs from the United States.  By statute, aliens are not considered to be accruing unlawful

presence for purposes of section 212(a)(9)(B)(i) if they fall into certain categories.  For example,

aliens do not accrue unlawful presence while they are under 18 years of age.  See INA section

212(a)(9)(B)(iii)(I), 8 U.S.C. 1182(a)(9)(B)(i)(iii)(I).  Similarly, individuals with pending asylum 6

claims generally are not considered to be accruing unlawful presence while their applications are

pending.  See INA section 212(a)(9)(B)(iii)(II), 8 U.S.C. 1182(a)(9)(B)(i)(iii)(II).  Battered

women and children and victims of a severe form of trafficking in persons are not subject to the

section 212(a)(9)(B)(i) ground of inadmissibility at all if they demonstrate that there was a

substantial connection between their victimization and their unlawful presence.  See INA

212(a)(9)(B)(iii)(IV)-(V), 8 U.S.C. 1182(a)(9)(B)(i)(iii)(IV)-(V).  Aliens who are subject to the

unlawful presence bars must apply for and be granted a waiver in order to receive an immigrant

visa and be admitted to the United States.

The Secretary of Homeland Security has the discretion to waive the three- and ten-year

unlawful presence bars if the alien is seeking admission as an immigrant and if the alien

demonstrates that the denial of his or her admission to the United States would cause “extreme

hardship” to the alien’s qualifying relative.  See INA section 212(a)(9)(B)(v), 8 U.S.C.

1182(a)(9)(B)(v).  The qualifying relative for purposes of the waiver is not necessarily the

relative who filed the immigrant visa petition on the alien relative’s behalf.  For example, an

alien applicant’s U.S. citizen spouse may have filed the immigrant visa petition on the

applicant’s behalf, but the applicant’s unlawful presence waiver application may be based on

extreme hardship to the applicant’s U.S. citizen parent.  Because the granting of a waiver is

discretionary, the alien also must establish that he or she merits a favorable exercise of

discretion.

D. Current Process and Problems

An alien who must apply for permanent residence through consular immigrant visa

processing outside the United States must appear for an interview with a Department of State

consular officer abroad.  Currently, if the consular officer determines that the alien is subject to 7

the three- or ten-year bar, the consular officer advises the alien that he or she is eligible to apply

for a section 212(a)(9)(B)(v) waiver by filing a Form I-601, Application for Waiver of Grounds

of Inadmissibility, with USCIS.  Under current rules, an individual is not permitted to apply for

the section 212(a)(9)(B)(v) waiver before the consular officer has made the inadmissibility

determination.

Once the Form I-601 is filed, in most cases, the file is transferred from the Department of

State to USCIS.  USCIS adjudicates that waiver request while the alien remains outside the

United States and awaits a decision.  If USCIS approves the waiver, USCIS notifies the

Department of State, and the Department of State may then issue the immigrant visa if the

applicant is otherwise eligible.  If the waiver is denied, the alien may appeal the decision to the

USCIS Administrative Appeals Office and, if the denial is upheld, the alien must remain outside

the United States for three or ten years before being able to reapply for an immigrant visa.

However, a denial does not preclude the alien from filing another Form I-601 in the future.

The three- and ten-year unlawful presence bars under section 212(a)(9)(B)(i)(I) and (II)

of the Act do not apply unless and until the applicant departs from the United States.  At the

same time, many aliens who would trigger these bars if they depart from the United States are,

for other reasons, statutorily ineligible to apply for adjustment of status to lawful permanent

residence while remaining in the United States.  Consequently, they must depart to regularize

their immigration status by applying for their immigrant visas at a U.S. embassy or consulate

abroad.  The action required to regularize the status of an alien, departure from the United States,

therefore is the very action that triggers the section 212(a)(9)(B)(i) inadmissibility that bars that

alien from obtaining the immigrant visa.

II. Proposed Waiver Process 8

A. Proposed Process

The proposed change would create a more streamlined and efficient process for waiver

applicants whose sole inadmissibility ground is unlawful presence, while simultaneously

minimizing family separation.  If the waiver determination, with respect to unlawful presence,

were made in advance of the immigrant visa interview and the applicant otherwise were eligible

for the immigrant visa, the consular officer could simply issue the immigrant visa at the time of

the visa interview.  The new process thus will reduce the movement of the case back and forth

between the Department of State and USCIS, which significantly prolongs the overall process

and increases the time that U.S. citizens are separated from their immediate family members.

Additionally, the new process would reduce U.S. Government costs associated with the

movement of cases, and provide a more efficient visa process overall.

B. Affected Visa Categories

USCIS intends to limit this process change to aliens who are immediate relatives of U.S.

citizens, as defined in section 201(b)(2)(A)(i) of the Act, 8 U.S.C. 1151(b)(2)(A)(i), who must

depart from the United States to obtain immigrant visas, and whose U.S. citizen spouse or parent

would suffer extreme hardship if the applicant were denied admission to the United States.  The

term “immediate relative” means the spouse, parent or child (unmarried and under 21 years old)

of a U.S. citizen, except that, in the case of a parent, the U.S. citizen son or daughter petitioning

for an immigrant visa must be at least 21 years old.  Certain self-petitioners (i.e.,

widows/widowers of U.S. citizen and their minor unmarried children) may also be considered

immediate relatives.  See INA 201(b)(2)(A)(i), 8 U.S.C. 1151(b)(2)(A)(i).  Individuals applying

for a waiver must also establish that the grant of the provisional waiver is warranted as a matter

of discretion. 9

Because the focus on family unification of U.S. citizens and their immediate relatives is

consistent with Congress’ prioritization in the immigration laws, USCIS has identified

immediate relatives of U.S. citizens as the class of aliens to consider for this procedural change.

In addition, Congress did not set an annual limitation for the number of immediate relatives of

U.S. citizens admitted to the United States.  Therefore, these relatives always have an immigrant

visa immediately available, and the visa thus can be processed immediately upon approval.

C. Ground of Inadmissibility Considered for Provisional Waiver

USCIS intends to further limit this procedural change to waivers filed by immediate

relatives of U.S. citizens whose only ground of inadmissibility is the three- or ten-year unlawful

presence bar under section 212(a)(9)(B)(i)(I) or (II) of the Act, 8 U.S.C. 1182(a)(9)(B)(i)(I) or

(II).  Aliens who require waivers for one or more additional grounds of inadmissibility, such as

fraud or willful misrepresentation (section 212(i) waiver) or certain criminal offenses (section

212(h) waiver), in conjunction with their immigrant visa applications must continue to file a

Form I-601 while outside of the United States in accordance with the existing process.

To qualify for the provisional waiver process, an applicant must establish not only that he

or she is the immediate relative of a U.S. citizen, but also that denial of the waiver would result

in extreme hardship to a qualifying relative.  The qualifying relative must be a U.S. citizen

spouse or parent but does not need to be the U.S. citizen petitioner.  Only extreme hardship from

the denial of a waiver to a qualifying U.S. citizen relative makes an alien eligible for the

provisional waiver process; extreme hardship to the alien himself or herself as a result of denial

does not make the alien eligible.  An alien whose waiver application is based on extreme

hardship to a lawful permanent resident spouse or parent must continue to apply for the waiver

from outside the United States in accordance with existing procedures.  Eligible aliens, 10

furthermore, must be the beneficiaries of petitions classifying them as immediate relatives of

U.S. citizens, and thus have visas immediately available.  Because the granting of a waiver is

discretionary, eligible aliens also must establish that they merit a favorable exercise of discretion.

The standard for assessing whether denial of the waiver would result in extreme hardship to the

U.S. citizen spouse or parent of such aliens will remain unchanged.

D. Adjudication and Decisions

After filing the Form I-601 with USCIS, DHS envisions that an alien seeking a

provisional waiver would be required to undergo biometrics collection.  USCIS would deny the

application for a provisional waiver if other possible grounds of inadmissibility are found or arise

during adjudication.

If the application is approved, USCIS would notify the Department of State and the alien

of the provisional approval.  In all instances, a Department of State consular officer would make

the formal inadmissibility finding during or following the immigrant visa interview abroad, and

if no other grounds of inadmissibility arise, the provisional waiver under section 212(a)(9)(B)(v)

of the Act granted by USCIS would facilitate immigrant visa issuance.  If, however, the consular

officer finds during adjudication of the immigrant visa application that the individual is subject

to another ground of inadmissibility that can be waived, the alien would need to file another

waiver application with USCIS.

This process would not alter the requirement that an alien depart from the United States

to apply for an immigrant visa.  An alien who receives a provisional waiver under section

212(a)(9)(B)(v) of the Act for the three- or ten-year bar under section 212(a)(9)(B)(i)(I) or (II) of

the Act would not gain the benefit of such waiver unless he or she departs from the United

States.  The departure from the United States would have to take place to activate the provisional 11

waiver under section 212(a)(9)(B)(v) of the Act.

E. Excluded Visa Categories

Aliens who would not be eligible for this provisional waiver adjudication process and

aliens who are denied provisional approval of their waiver requests would continue to follow

current agency processes for filing and adjudication of waiver requests.  Aliens who fall under

any other family- or employment-based or other visa category or whose section 212(a)(9)(B)(v)

waiver eligibility would be based on extreme hardship to a lawful permanent resident alien

relative would not be considered for provisional waivers.  Aliens who are subject to other

grounds of inadmissibility or removal also would not be considered for provisional waivers.

Further, aliens with waiver applications under section 212(a)(9)(B)(v) of the Act currently

pending in either administrative or judicial proceedings would not qualify for this new process.

III.  Conclusion

This document outlines the key elements of USCIS’s proposed change to its current

process for filing and adjudication of waivers of inadmissibility for unlawful presence for

immediate relative of U.S. citizens.  The focus on family unification of U.S. citizens and their

immediate relatives is consistent with Congress’s prioritization in the immigration laws; the new

process will reduce the movement of the case back and forth between the Department of State

and USCIS, which significantly prolongs the overall process and increases the time that U.S.

citizens are separated from their immediate family members.  The proposed change would affect

only when and where certain aliens can apply for waivers of the unlawful presence grounds of

inadmissibility; it would not change the extreme hardship standard for evaluating eligibility for

the waiver nor would it change whether aliens subject to these grounds of inadmissibility must

depart the U.S. to apply for their immigrant visas.  USCIS plans to effectuate this proposal 12

through the regulatory process.  USCIS will issue a proposed rulemaking that will explain the

proposal in further detail and that will invite comment from all interested parties.  Note:  Do not

send an application requesting a provisional waiver under the procedures under consideration in

this notice.  Any application requesting this new process will be rejected and the application

package returned to the applicant, including any fees, until a final rule is issued and the change

becomes effective.

_____________________________

Janet Napolitano,

Secretary of Homeland Security.

[FR Doc. 2012-140 Filed 01/06/2012 at 8:45 am; Publication Date: 01/09/2012]

The above law is ONLY proposed. Please contact us at info@scottcclaw.com if you have any questions or call us at one of our telephone numbers conveniently listed at www.scottcclaw.com.

ScottMond Law Firm

Scottcclaw.com

The answer is “Yes”.  Section 245(i) of the Immigration and Nationality Act (INA) states the following:

You may be eligible to receive a green card through Section 245(i) if you:

• Are the beneficiary of a qualified immigrant petition (Form I-130 or I-140) or application for labor certification (Form ETA-750) filed on or before April 30, 2001
• Were physically present in the United States on December 21, 2000, if you are the principal beneficiary and the petition was filed between January 15, 1998, and April 30, 2001
• Are currently the beneficiary of a qualifying immigrant petition (either the original Form I-130 or I-140 through which you are grandfathered or through a subsequently filed immigrant petition)
• Have a visa immediately available to you
• Are admissible to the United States

The above law provision is referred to as “grandfathering”, and is a very powerful way for a foreign national to adjust status to a U.S. Permanent Resident as soon as possible.

For instance, if a client (foreign national) had a 2001 I-130 petition filed by her spouse, and it was later denied due to divorce; if she then remarries her husband or a new husband, the priority date of the original I-130 may be considered. This would allow a visa number to possibly be immediately available.

The law is complex in this area and requires an experienced Immigration attorney to evaluate eligibility. However, if the person was divorced and the original marriage was valid, then the fact that the original application was denied does not preclude it from being a grandfathering petition.  The grandfathering petition must have been timely, meritorious in fact, and non-frivolous.

A copy of the original denial documents and proof of presence in the U.S. before 2000 filed along with a new petition, may allow a foreign national to adjust status quickly based on the more recent priority date which is controlled by the Visa Bulletin issued by the Department of State.

If you have any questions regarding grandfathering you may contact our law firm at info@scottcclaw.com. Or our office telephone numbers are conveniently listed at www.scottcclaw.com

ScottMond Law Firm

www.scottcclaw.com

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