Scott’s New Era Immigration

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

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 concept of a detainer is often hard to comprehend and accept.  What it means to an individual who is incarcerated in State custody, and his family is overwhelming and causes great grief when not immediately placed in perspective.  Not being able to get bond, or be released from jail after serving time is the harsh consequence of a detainer.

Overall, a detainer is placed by the federal government on a foreign national/non-citizen so that the state will hold them for a period as the federal government has a legal interest in the detained individual.

We hope by providing the following guidance directly from U.S. Immigration and Customs Enforcement (“ICE”) that our reader’s will better grasp the process of a detainer, and have some comfort.

Definition of Detainer: A detainer, issued on form I-247 is a notice that ICE issues to a Federal, State, and local law enforcement agency (“LEA”) to inform the LEA that ICE intends to assume custody of an individual in the LEA’s custody.  An immigration detainer may serve three key functions.

• Notify and LEA or jail that ICE intends to arrest or remove an alien in the LEA’s custody once the alien is no longest subject to the LEA’s detention;
• Request information from an LEA  or jail about an alien’s impending release so ICE may assume custody before the alien is released from LEA’s custody; and
• Request that the LEA maintain custody of an alien who would otherwise be released for a period not to exceed 48 hours (excluding Saturdays, Sundays, and holidays to provide ICE time to assume custody.

As a general matter, immigration officers should not issue detainers against an alien charged only with a traffic-related misdemeanor unless or until the alien is convicted, unless:

• The alien has a prior criminal conviction;
• The alien previously has been excluded, deported, or removed from the United States or allowed to voluntarily return to his or her country of nationality;
• The alien is the subject of an outstanding immigration warrant or is the subject of a final order;
• The alien is part of an existing criminal investigation;
• An articulable reason exists to believe that the alien presents a danger to national security or a genuine risk to public safety; or
• The traffic-related misdemeanor involved driving under the influence of alcohol or drugs, physical injury to a person or property, or flight from the scene of an accident.

Immigration officers should not issue a detainer unless an LEA or jail has exercised its independent authority to arrest the alien.  Immigration officers shall not issue detainers for aliens who have been temporarily detained by the LEA (i.e. roadside or Terry stops) but not arrested. This policy, however, does not preclude temporary detention of an alien by the LEA or jail while ICE responds to the scene.

Immigration officers are expected to make arrangements to assume custody of an alien who is the subject of a detainer in a timely manner and without unnecessary delay. Although a detainer serves to request that an LEA or jail temporarily detain an alien for a period not to exceed 48 hours from the time the LEA or jail otherwise would have released the alien (excluding Saturdays, Sundays, and holidays) to permit ICE to assume custody of the alien, immigration officers should avoid relying on that hold period.  If at any time after a detainer is issued, ICE determines it will not assume custody of the alien, the detainer should be withdrawn or rescinded and the LEA notified.

ICE shall timely assume custody of the alien if ICE has opted to lodge a detainer against an alien if any of the following categories:

• aliens who are subject to removal based upon certain criminal or security-related grounds set form in INAQ §236(c);
• Aliens who are with the “removal period,” as defined in INA §241(a)(2); and aliens who have been arrested for controlled substance offenses under INA §287(d).

Immigration officers shall take particular care when issuing a detainer against a lawful permanent resident (LPR) as some grounds of removability hinge on a conviction, while others do not (e.g. removability pursuant to INA §237(a)(4) and INA §237(a)(4) and INA §237(a)(1)(E).).  Although in certain instances ICE may hold LPRs for up to 48 hours to make charging determinations, immigration officers should exercise such authority judiciously and seek advice of counsel for guidance if the LPR has not been convicted of a crime.

The above guidance from U.S. Immigration and Customs Enforcement (ICE) is the general standard.  An attorney should be contacted ASAP  to ensure that your loved one is not moved out of state, to protect his or her rights, and to ensure that ICE is following it’s own guidelines and mandates.

Please contact our office with your questions or concerns. One of our attorneys will be happy to speak with you.

ScottMond Law Firm

(703)261.6881 or (202)296.0122

On August 20^th, 2010 U.S. Immigration Customs and Enforcement (“ICE”) issued a memorandum from Assistant Secretary John Morton that will make a non-citizen or alien who is placed in removal proceedings eligible for relief if they have a pending Petition for Alien Relative (“Form I-130 or petition”).

Basically, ICE and United States Citizenship and Immigration Services (“ USCIS”) will now work more efficiently together so that non-citizens placed in removal will either have his and/or her case expedited or dismissed without prejudice.  This would occur once ICE verifies that the individual is indeed eligible for the relief.

Detained individuals or aliens eligible for I-130 relief would seek to complete the adjudication of all applications and petitions referred by ICE within 30 days for detained aliens.  Once their are no adverse factors there should be prompt move to dismiss proceedings before the Executive Office of Immigration Review ( “EOIR”).

Undetained individuals or aliens would have their cases adjudicated within 45 days.   Where an underlying application or petition exists and ICE determines eligibility for relief from removal, the case should also be promptly dismissed with EOIR.

The memorandum sums up the standard of review as follows:

Only removal cases that meet the following criteria will be considered for dismissal:

• The alien must be the subject of an application or petition filed with USCIS to include a current priority date, if required, for adjust of status;
• The alien appears eligible for relief as a matter of law and in the exercise of discretion;
• The alien must preset a completed Application to register Permanent Residence or Adjust Stats (Form I-485), if required; and
• The alien beneficiary must be statutorily eligible for adjustment of status ( a waiver must be available for any ground of inadmissibility).

For more information you may contact our office at info@scottcclaw.com or call (703)955.7998.

ScottMond Law Firm

www.scottcclaw.com

Your flight has just landed safely, your relaxed and ready to settle down from the hassles of travel, then suddenly you as a non-citizen are met with a surprise from Customs Borders and Patrol (CBP) called “Deferred Inspection”.

Once you are not a Citizen of the United States, and you intend to return to the U.S. after being overseas for even a brief visit, CBP redetermines and revaluates if you are eligible for entry into the United States.  It is important to note that this includes U.S. Permanent Residents, no matter how long they have resided in the United States. There are a number of reasons why entry may be denied.  A deferred inspection is granted to allow non citizens temporary admission into the United States to prove that they are eligible for entry if they produce the required documentation and evidence requested by CBP.  CBP provides a date and meeting time in which the individual would be required to come back to the airport.  An attorney should accompany the individual.  A reputable immigration attorney will be allowed into the deferred inspection meeting, despite the federal regulations not giving the non-citizen an explicit “right to counsel or an attorney”.  It is a mistake to attend this meeting without legal counsel.

A few reasons why a non citizen individual may be not be admitted into the United States is listed below:

• Any criminal history, even if no conviction has taken place.
• Questioning the underlying basis of a visa
• Abandonment of Permanent Resident Status. If individuals have had very extensive or lengthy visits, CBP could question if status has been abandoned.

Recently a client came into our office and she was given a deferred inspection because her H1B visa was being questioned based on the legitimacy of the underlying company.  If the company was found to have immigration issues, the visa would have been revoked.

We have had numerous clients who believed that because they were Permanent Residents of the United States, they could never lose their status.  However, due to major changes in immigration law this is farthest from the truth.  Permanent residents are always under the possibility of having status revoked for a variety of reasons we do not explain in detail in this article.  However, it is highly recommended that if a U.S. permanent resident has any questions or issues regarding any problems that have arisen over the course of his or her residency, they should not hesitate to get legal counsel regarding immigration consequences.

The good news is that deferred inspection allows a non-citizen to address any lingering issues upfront which could pop up later in a citizenship application, or simple renewal of one’s green card.  CBP’s decision to grant entry to the United States and success in a deferred inspection is usually binding for the future, and lays to rest any lingering issues.  The non-citizen can be at rest with their status and freely interact with the Department of Homeland Security at various levels whenever needed, including future travel.

If you have any questions, we invite you to contact me at info@scottcclaw.com or 703.261.6881/202.296.0122 .

Glendia Rice-Mondesir

Attorney-at-law