Instant Citizenship

You have probably heard about the story of a famous Filipino actor who became an “instant” U.S. citizen. His case caught the imagination of so many Filipinos. Suddenly, they began building their family tree, wondering if the branches would lead back to America. But more than the desire to go to America, there is really something wonderfully exciting about learning your true heritage.

 

A few weeks ago, a nice young couple and their cute little daughter stepped into my office. They were sent by a dear friend from the Philippines. My friend’s note asked me to see what I can do to help Tony get his green card faster. His mother petitioned him in 2000 under the FB-3 category as a married son of a U.S. citizen. When I checked the current visa bulletin, it showed that Tony still has to wait another 10 years or so. Nothing can be done but to wait, I told Tony. During our conversation, I uncovered other interesting facts. His mother became a U.S. citizen not by naturalization but by being recognized as one. In fact, her certificate of Citizenship said that she became a U.S. citizen since birth in 1934. Digging deeper, I also learned that her mother has never left the Philippines until she came to the U.S. in 2000. Tony was amused with the so many questions I was asking him, when all he wanted was to find a way to speed up his immigrant petition.

I told Tony that he may have a chance of becoming an “Instant Citizen”, but that his mother seemed to lack the required presence in the U.S. I explained to him that under the law, he can derive U.S. citizenship from a U.S. citizen parent but only if before he was born, his parent had physically resided in the U.S. for 5 years, 2 of which was after the age of 14. I let him in a little known fact – the Philippines is considered an “outlying possession” of the U.S. from 1899 until July 4, 1946. Thus, if during that period, his mother resided in the Philippines for 5 years, 2 of which was after his mother turned 14, then Tony would have a shot at instant citizenship. Too bad his mother turned 14 in 1948, after the Philippines had ceased to be an outlying possession of the U.S. and, therefore, his mother could not have satisfied the residency requirement.

As is typical in my meetings with clients, our conversation turned casual. Then, at one point, Tony narrated to me that during his father’s funeral, another woman showed up claiming to be his father’s first wife. Was it true, I asked? He told me that they investigated and was able to get a copy of the marriage contract between his father and the woman from the National Statistics Office. It turned out that his father had married the other woman a year earlier. That’s it, I exclaimed to Tony and his pretty wife. If we can prove that your parents’ marriage is bigamous, that makes you an illegitimate child. They seemed amused that something good would come out of Tony’s illegitimacy.

I explained to Tony that the case of an illegitimate child of an American mother presents an exceptional case because only one year of physical residence is required for the mother. Since his mother was born in the Philippines in 1934 and was physically present there at least until 1946, then she satisfies the one year requirement. It would have been different if it was his father who was the American, because the law would still require the 5 years/2years physical residence. The one year requirement favors only the illegitimate children of American mothers.

The law in point is Sec. 309 (c) of the Immigration and Nationality Act, which states that “a person born, after December 23, 1952, outside the United States and out of wedlock shall be held to have acquired at birth the nationality status of his mother, if the mother had the nationality of the United States at the time of such person’s birth, and if the mother had previously been physically present in the United States or one of its outlying possessions for a continuous period of one year.” As mentioned, Tony’s mother has been a U.S. citizen since 1934 and physically resided in the Philippines as an outlying possession of the U.S. from her birth in 1934 until the Philippines ceased to be an outlying possession of the U.S. in 1946. She satisfies the physical presence requirement of at least a year prior to Tony’s birth. For his part, Tony was born in 1964.

But how about the fact that Tony’s birth certificate indicates that he is legitimate and that his parents were married in 1958? Does he still need to go to court to annul his parents’ marriage and then to correct his birth certificate? At this point, our knowledge of Philippine laws comes very handy. Article 80 of the Philippine Civil Code states that bigamous marriages are void from the beginning. This means that they do not legally exist at all. Other provisions of the same Civil Code imply that there is no need for a court declaration before bigamous marriages can be considered as void. In other words, Tony does not need to go to court. All he needs are proper documentation to prove the fact that his father was already married when he married Tony’s mother in 1958.

Tony may not be an actor, but he is on his way to sharing the famous star’s luck. We are sure that because of our colorful history, countless other Filipinos have yet to learn and claim their birthright as U.S. citizens. So, if you have American blood running through your veins, and you believe that your case is somehow similar to Tony’s, we encourage you to immediately consult an immigration attorney.

Can’t Buy Me Love – Overcoming the Sham Marriage Visa Denial

Permanent Residence Through Marriage

 

Although marriage to a U.S. citizen is still the most common way to get U.S. permanent residence (also known as a “green card”), by no means does it guarantee that permanent residence will be granted. I have had a number of calls recently from distressed U.S. citizens. Each had petitioned for their foreign national spouse. The I-130 petition was initially approved, but at the immigrant visa interview held at the U.S. Embassy or Consulate, the relationship came into question. Essentially, the Consular Officer did not believe that the couple had a bona fide marriage. The Consular Officer denied the visa and sent the case back to the U.S. Citizenship and Immigration Services (“USCIS”) in the United States for the I-130 petition to be revoked. This happened after waiting many months for the petition and immigrant visa application to be processed.

The accusation of a sham marriage can be very difficult to overcome. The foreign national spouse often lives outside the U.S. Due to personal and financial obligations, which require the U.S. citizen spouse to remain in the U.S., the couple may have spent very little time together. Consequently, there will not be many photographs of the couple together, and there will not be many people to attest to the fact that the couple’s marriage is bona fide because they have not spent time with the couple. Additionally, because the two spouses live apart, they will likely not have a joint mortgage or lease and will not have joint utility bills. In fact, they might not have any commingled assets at all.

In this world of ever-improving technology, less people rely on old-fashioned, hand-written letters and paper greeting cards. Instead, they e-mail, send e-cards and instant message. If the e-mails and e-cards are not saved, it will be very difficult to show that the two spouses have corresponded with one another.

It is worse yet if the spouse, who is living abroad, does not have access to a computer. The couple may not write at all. Rather, they call each other. However, in this day in age, chances are the phone calls have been made with either a cell phone or a calling card. In either case, it is likely that the caller does not have records of the calls he or she made. Thus, there is no way for the couple to prove that they have been keeping in contact by phone.

In those cases where the immigrant visa is denied, it may be necessary for the U.S. citizen spouse to spend additional time with the foreign national spouse before he or she responds to the USCIS’ notice of intent to revoke the I-130 petition. During the time spent together, additional evidence that the couple married in good faith can be collected. If spending additional time together is simply not an option, the couple must make every effort to document their correspondence and phone calls. They should also try to collect as many affidavits as possible from people who know that the couple married for mutual love and respect. If the I-130 petition is revoked, a new I-130 petition will need to be filed once sufficient evidence of the bona fide relationship is collected.

Before filing an I-130 petition, I always advise my marriage-based clients to collect as much documentation as possible showing that they married in good faith. Such documentation includes joint bank account statements, evidence of joint ownership of property, utility bills in both names, joint tax returns, and birth certificates of children born to the union, to name a few examples. I provide my clients with a list of the documents, which the USCIS and/or the consular post will want to see. Then, the I-130 petition is filed with the documentation collected by my clients.

If the foreign national spouse was previously married to a U.S. citizen or U.S. permanent resident, whether or not that prior spouse filed an I-130 petition on behalf of the foreign national, it is a very good idea to submit evidence that the prior marriage was also bona fide. Likewise, if the U.S. citizen spouse was previously married to a different foreign national and filed an I-130 petition for that foreign national, it is a good idea to submit evidence that it was a bona fide marriage.

 

Fighting Immigration Delays – Mandamus Actions

Occasionally, United States Citizenship and Immigration Services delays in making a decision regarding the status of an application or green card. In these cases a ‘writ of mandamus’ can be filed to force a decision on your case. The Mandamus Act says that a writ of Mandamus.

 

Title 28 U.S.C. § 1361. Action to compel an officer of the United States to perform his duty. The district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.

It is important to remember that the writ does compel the government to take action, but the court cannot compel the agency to exercise its discretion in a particular manner, nor can it grant the relief the plaintiff is seeking from the agency.
A writ of mandamus is a viable fall-back option but you do not want to file a writ if you have any reason to think that USCIS might deny your application.

Any mandamus plaintiff must establish that:
1. He or she has a clear right to the relief requested;
2. The defendant has a clear duty to perform the act in question; and
3. No other adequate remedy is available.

Writs of mandamus are issued when a decision on an application has taken longer than expected. Most delays on applications come from the various background checks that the USCIS requires from each immigrant. These FBI “name checks” or “security checks” can cause an application to become stagnant in the system for years.
Once a person is stuck in this FBI name check delay, a Writ of Mandamus may be the quickest solution for USCIS to take action on long-delayed applications for immigration benefits.

 

Cancellation of Removal for Non-Permanent Residents

Cancellation of removal for non permanent residents under INA § 240A(b)(1) is a form of discretionary relief that is granted by an immigration judge once removal proceedings have commenced.

 

To be eligible for this relief, the individual must prove the following:

1. They have been physically present in the United States continuously for 10 years immediately preceding their application for relief;

2. Have been a person of good moral character;

3. Have not been convicted of any crimes that would make him/her inadmissible or removable; and

4. Their removal would result in exceptional and extremely unusual hardship to his/her United States citizen or lawful permanent resident spouse, parent, or child. § 240A(b)(1).

Congress requires the showing of “exceptional and extremely unusual hardship” to emphasize that the alien must provide evidence of harm to his/her United States citizen or lawful permanent resident spouse, parent, or child that is substantially beyond that which would be ordinarily expected to result from an alien’s removal. The Board of Immigration said that “in deciding a cancellation of removal claim, consideration should be given to the age, health, and circumstances of the qualifying family members, including the lower standard of living or adverse country conditions in the country of return might affect those relatives.”

The Board also stated that “the hardship standard is not so restrictive that only a handful of applicants, such as those who have a qualifying relative with a serious medical condition, will qualify for relief.” They went on to provide a case example and decision that “[g]iven the unusual facts presented in [the] case, we find that the adult respondent has shown her United States citizen children will suffer exceptional and extremely unusual hardship if she is removed from the United States.” Essentially the mother in this case was eligible for relief because her deportation would have resulted in exceptional and extremely unusual hardship for her minor children.

As it is, the exceptional and extremely unusual hardship standard is difficult to meet for non permanent resident aliens seeking the relief of cancellation of removal. This burden is lessened if the non permanent residents seeking relief had been battered or suffered abuse at the hands of their U.S. citizen spouses or parents. In 1994, Congress passed the Violence Against Women Act (VAWA), which affords cancellation of removal as a defense to removal and has less rigid requirements if the applicant had been battered or abused.

To be eligible, the applicant must:

1. Have been battered or subjected to extreme cruelty in the United States by a united States citizen or lawful permanent resident spouse or parent, or is the parent in common with the abuser and the child has suffered abuse;

2. Have been physically present in the United States continuously for at least three years;

3. Has not been convicted of an aggravated felony;

4. Is not inadmissible or otherwise removable due to criminal, document or marriage fraud, or security grounds; and

5. The removal would result in extreme hardship to the applicant, the applicant’s child, or the applicant’s parent.

INA §240A(b)(2).

In order to qualify for cancellation of removal under VAWA, the abuse must rise to the level of battery or extreme cruelty. Under the Federal Code of Regulation, battery and extreme cruelty are defined as “being the victim of any act or threatened act of violence, including any forceful detention, which results or threatens to result in physical or mental injury. Psychological or sexual abuse or exploitation, including rape, molestation, incest (if the victim is a minor), or forced prostitution shall be considered acts of violence.” 8 C.F.R, §204.2(c)(1)(vi).

 

How Do I Qualify for Prosecutorial Discretion in My Immigration Case?

In many cases, pursing prosecutorial discretion is a last-ditch effort to avoid being removed from the country. This pursuit asks the United States Immigration and Customs Enforcement use its discretion to the benefit of the immigrant.

Purpose of Prosecutorial Discretion

The purpose of prosecutorial discretion in this context is to help ICE to pursue the cases and use its resources that put the country at the greatest degree of risk. Like every governmental agency, ICE has limited resources at its disposal. Prosecutorial discretion helps ICE to focus on the cases that have the greatest impact.

Recent History of Prosecutorial Discretion

In July 2011, John Morton, the director of ICE at the time, sent an internal memo to all ICE officials, asking them to utilize their discretion in cases. The memo emphasized the need for ICE officials to focus on cases that would promote national security, promote border security, promote public safety and maintain the integrity of the immigration system.

Shortly thereafter, on August 18, 2011, the Department of Homeland Security revealed that it would establish new guidelines across all immigration agencies to ensure that it was most heavily enforcing cases that involved the removal of individuals who posed the greatest risk to the country. Additionally, the Department of Homeland Security stated that it would allow individuals in low-priority cases to request prosecutorial discretion. Additionally, the department created a joint committee with the help of the Department of Justice to review cases that involved individuals who were in removal proceedings to determine which cases were high priority and which were low priority.

Ways that Prosecutorial Discretion Can Be Used

Prosecutorial discretion means different things in different cases. In some cases, prosecutorial discretion may be utilized by cancelling a notice of detainer or notice to appear, dismissing a proceeding, granting deferred action or joining in a motion to grant relief.

Low Priority

One way to be qualified for prosecutorial discretion is to demonstrate that you are part of a low-priority case that should not be pursued because there are higher priority cases that require ICE’s attention. Low priority cases were also identified in a Morton memo dated June 17, 2011. These cases involve individuals who have been detained who are not criminals, individuals who have been in the United States since they were children, individuals who are veterans or relatives of veterans, individuals who have serious health issues, individuals who have strong ties to the community, individuals who are caregivers or individuals who are victims of crime.

Factors

ICE officers a number of factors to help determine whether a person may qualify for prosecutorial discretion. For example, the amount of time that the individual has been present in the United States, especially while in legal status, is one important factor. Additionally, ICE can consider how the individual came to be in the country and how he or she entered the country. This factor weighs more heavily if the individual came to the United States as a child. More consideration is given to individuals who have acquired from a high school in the United States or who have pursued or who are pursuing a college degree. Additionally, the person’s immigration history is evaluated, including whether or not the individual has been removed previously or if there is an existing order of removal. The individual’s criminal history is evaluated, including the existence of any arrests, previous convictions or an outstanding arrest warrant.

ICE officials can also assess the relationships between the immigrant and family members, such as whether the individual has a spouse, child or parent who is a United States citizen or permanent resident. If the individual is pregnant or nursing, this is also considered. Additionally, if the individual has a spouse who suffers from a severe mental or physical illness, this factor can be considered. Likewise, if the individual is a caretaker for an individual with a mental or physical impairment, this factor can also be considered. If the individual is likely to be granted some type of legal status due to a family relationship, this factor is also considered.

Information related to the individual’s home country is also assessed. For example, one important factor is whether the individual is likely to be unable to be removed due to his or her nationality, ICE may choose to exercise prosecutorial discretion. The same may occur if the individual is likely to be granted asylum or other status due to being a victim of a crime.

These are not all of the potential factors that ICE can consider. An immigration attorney may be able to write a letter to the ICE officer in charge of your case to request prosecutorial discretion be exercised.

L-1 Visa Denial: Three Reasons to Appeal in Federal District Court

When an L-1 Visa is denied by USCIS, you may have the option of skipping an administrative appeal to the AAO, and file a petition for review with a Federal District Court under the Administrative Procedure Act.

 

The L-1 Visa is designed for intra-company personnel’s transfer within branches of a multinational company. The main requirement for the L-1 Visa is that the beneficiary has been employed from the company abroad for at least one of the three years preceding the Visa petition.

There are two types of L-1 Visa: the L-1A, for Manager and Executives, and the L-1B, for specialized employees of the company.
The L-1 is a very desirable Visa, because:
• it does not require for a beneficiary to have any particular academic qualification;
• it allows “dual intent”, meaning that an L-1 Visa holder is allowed to seek permanent resident status;
• unlike the H-1B Visa; it is not subject to annual caps.

On the other hand, it has become increasingly more complicated in the past few years to obtain L-1 Visas.
L-1A Visas are generally denied due to insufficient staffing of the U.S. Company. It is important to note that immigration laws do not require a minimum number of employees that an L-1A beneficiary is supposed to supervise, and often USCIS abuses of its discretion.

On the other hands, L-1B Visas are often denied (denial rate is around 80%) for the reason that USCIS claims that the type of work is not “specialized” to a level required by federal law.

When an L-1 petition is denied by USCIS, an appeal can be filed with the Administrative Appeals Office (AAO). However, I strongly believe that, in most cases, there are at least three compelling reason to skip an administrative appeal, and to go directly to a Federal District Court.

First, the AAO has become extremely slow in adjudicating appeals of Visa denials. In my experience, you will not get a response in less than 6-8 months. It is hard to believe that any multinational company can wait this long to know whether they can transfer an employee to the United States branch.

Second, although Federal Court review is very limited, most denial decisions by USCIS are irrational, arbitrary, and capricious, falling within the scope of the judicial review provided by the Administrative Procedure Act (APA). This is especially true in L-1B Visas. Besides very few instances, USCIS simply does not have the expertise to establish whether a job description involves “specialized” or “advanced” knowledge of the company’s product or procedures. As a result, USCIS often denies L-1B Visa petitions by simply ignoring the evidence submitted, or by giving it an improper and irrational meaning.

Last, by filing an appeal in Federal District Court, you will have an opportunity to present your case to a judge, discussing at length the specific facts of your case. Besides the timing, (the U.S. has 60 days to file a responsive pleading) it is also important to note that the Federal Government may not have always a strong interest in litigating Visa appeals matters.

Of course, many will ask: how it is possible to skip the Administrative Appeal Office?

As said before, Federal Court review of Visa denials is limited by the APA.
The Supreme Court has ruled that in cases seeking judicial review pursuant to the APA, a plaintiff is not required to exhaust non-mandatory administrative remedies. Darby v. Cisneros, 509 U.S. 137 (1993).

The Supreme Court based its decision on the language of 5 U.S.C. § 704, which states that an agency decision is deemed final, and therefore immediately subject to judicial review, despite the possibility of any form of reconsideration or appeal, unless an appeal is mandatory or “required by rule” where the rule also makes the agency decision “inoperative” pending the outcome of the appeal. Id.

Darby ‘s interpretation of 5 U.S.C. § 704 was cited with approval in a recent First Circuit decision, Nkihtaqmikon v. Impson, 585 F.3d 495, 498–99 (1st Cir.2009).

Applying the Darby doctrine to the immigration context, an appeal is not required prior to seeking judicial review if: (1) there is no statute or regulation that mandates an appeal to the AAO, or, (2) even if there is such a statute or regulation, it does not stay the agency decision pending the outcome of the appeal.

The INA does not require an appeal to the Administrative Appeals Office. Further, the regulations governing L–1 visas plainly state that an appeal from a USCIS decision is optional, not mandatory. Under 8 C.F.R. § 214.2(l)(10), a petition denied in whole or in part may be appealed under 8 C.F.R. part 103. Olamide Olorunniyo Ore v. Clinton, 675 F. Supp. 2d 217, 223-24 (D. Mass. 2009).

 

How Do I Qualify for Asylum?

Individuals who are presently in the United States who legitimately fear persecution in their home country may apply for asylum. However, before asylum is granted, an applicant must follow several requirements and meet eligibility guidelines.

 

Physical Presence

The key difference between asylum and status as a refugee is physical presence. While individuals can apply for refugee status while outside the United States, the same does not apply to applicants for asylum. The individual must already be in the United States or make an application at a point of entry. Legal status is not necessary for a person to be approved for asylum.

Timing Requirement

Generally, a person must apply for asylum within a year’s time of their most recent arrival in the United States. However, a person can be in the country longer if he or she can show that extraordinary circumstances directly related to the individual’s lack of filing within a year arose. Additionally, if material circumstances that affect the person’s eligibility for asylum have changed, the individual may be able to apply even if a year has passed. These types of circumstances include changes in the individual’s own circumstances, his or her home country or other events. However, under any scenario, an individual must apply within a reasonable period of time, given the particular circumstances.

Restrictions

A person who has applied for asylum and been denied by an immigration judge or the Board of Immigration Appeals is barred from applying for this status unless the individual can show changed circumstances, as explained above. Additionally, if a person can move to another country that will be safe for him or her and the third country agrees to this arrangement, asylum will not be granted.

The Attorney General can also refuse to grant asylum to an applicant for a variety of reasons, such as if the applicant was involved in persecuting others, was convicted of a serious crime, is considered a threat to national security or participated in terroristic activity. If the Attorney General determines not to grant asylum due to these reasons, there is no judicial review of the decision.

Credible Fear Hearings

Individuals who are stopped at the border may have to attend a hearing in which they describe their circumstances so that immigration officials can determine whether they have a credible fear of returning to their home county.

This process helps asylum officers quickly dispose of cases that are likely not to be approved. The officer who hears your story does not have the authority to approve your asylum request but only to determine whether your fears seem credible.

Form I-589

For individuals who apply for asylum who have made it past the border and were not detained there, the possibility to file Form I-589 is an available option. This application requires you to submit an affidavit in which you describe the facts involved in your case. You may also submit evidence that helps substantiate your claim, such as membership cards or documents that show that you are part of a particular group that is being persecuted, medical records that show that you were harmed or tortured and newspaper articles.

Asylum Interview

After submitting your application for asylum, you will be required to attend an asylum interview. Here, you will need to be prepared to discuss information in your application, affidavit and background.

Legal Test

In order to be approved for asylum, you must be able to demonstrate that you are unable or unwilling to return the country from which you hail due to your fear of persecution or previous persecution and your persecution is tied to certain characteristics, such as being part of a particular social group or political opinion.

This last basis is the most difficult to define and new case law continues to be established as more groups are recognized. Persecution may include significant harms such as being imprisoned or tortured, fired at for protesting, being targeted for genocide. Forced sterilization or abortion is specifically laid out in the immigration code. Additionally, a denial of basic human rights may qualify a person for asylum. A person may also qualify for asylum if they were harassed, oppressed or caused to suffer from physical or psychological harm.

Legal Assistance

Because an asylum case can move quite quickly, it is important to contact an immigration lawyer as quickly as possible so that he or she can help you properly prepare for your case.

 

Employment-Based Permanent Residence Process

One method of obtaining permanent residency in the U.S. is through the Employment-Based Permanent Residence Process (“EBPRP”) or in other words: through an employer. Once you have an employer that is interested in your skills and in sponsoring you, then the EBPRP may begin. Obtaining your permanent residence through an employer usually takes three (3) phases: Labor certification; Immigrant visa petition; and application for permanent residence.

 

The first is handled through the U.S. Department of Labor (“DOL”) and the latter two (2) are processed through the U.S. Citizenship and Immigration Services (“USCIS”), although permanent residency may also be applied for at a U.S. consulate. We will discuss each phase in detail in this article.

Labor Certification:

During this phase, the employer is required to conduct a labor market test to prove that there are no minimally qualified, willing, able U.S. workers to perform the position on a long-term, “permanent”. The recruitment protocol must follow the guidelines set forth in 20 C.F.R. § 656.17(e). After conducting a successful recruitment the employer may then file an online ETA 9089 Application for Permanent Employment Certification (“Labor Certification Application”) with DOL. DOL may approve the application, audit the application or deny it. Please note that audits may happen anytime within the five (5) years following the filing of the Labor Certification Application. This means the employer must keep the originals and copies of all recruitment steps for five (5) years beginning on the date the Labor Certification Application was filed.

This phase, from filing the first step (the Prevailing Wage Determination) to the last step (filing the Labor Certification Application), typically takes between four (4) months to six (6) months. Approval could take up to 6 months depending on an audit request. Only cases falling under the EB-3 category and the EB-2 category (unless a National Interest Waiver is received) require a Labor Certification.

Immigrant Visa Petition:

The second phase is the employer’s petition filed with the USCIS, with evidence that the sponsored person meets the minimum requirements for the sponsored position, and evidence that the employer has the ability to pay the prevailing wage.

Once the Immigrant Visa Petition is filed, this phase typically takes about five (5) to six (6) months for USCIS to process unless premium processing is used, in which case the processing time is cut to fifteen (15) days. The government can request additional evidence before making a decision on the petition, which may prolong this phase.

Application for Permanent Residence:

Once the Immigrant Visa Petition has been approved and the alien employee’s Priority Date (the date the Labor Certification Application was filed) is current, he or she may apply for permanent resident status. To check whether an alien employee’s priority date is current, please contact our offices so we can walk you through how to perform a simple check on-line.

The actual application for permanent resident status consists of the alien employee’s application on Form I-485, submitted with personal information and documentation, along with the results of a physical exam.

The Priority Date is also relevant after filing for permanent residence. Once USCIS completes processing of the application, it must again check the Priority Date chart. In some cases, the applicant’s place in line may permit an application, but during the processing of the case, the Priority Date may retrogress and move backwards.

In those instances, the alien employee and USCIS must wait until the dates advance adequately before approving the application and issuing permanent resident status. Once the alien employee is granted permanent residence status, he or she may live and work in the U.S.

This last phase may take years to finalize as it depends on the Priority Date and how quickly USCIS is processing applications.

Special Immigrant Juveniles Status (SIJS) Eligibility & Process

Special Immigrant Juveniles Status, commonly known as SIJS, is a federal law that allows certain undocumented children to get legal permanent residency in the United States. Below, we discuss this complex immigration process and the requirements in detail.

 

In order to be eligible for SIJS, the following requirements must be met:

1. There must be an action by a state family or juvenile court;

2. Apply for Special Immigrant Juvenile Status;

3. Apply for adjustment of status to that of lawful permanent residency;

Action by a state family or juvenile court: The court must be one that has the authority to decide the custody and care of children, usually family court or juvenile court. The court must find that the child has been “abused, abandoned, or neglected” by one or both of the child’s parents. The court must find that because of one of these reasons, or a similar reason, the child cannot be reunited with one or both parents. The effect is that the child must be made a dependent of the court or be legally placed with a state agency, a private agency, or a private person. The private person may be one of the parents. A child is eligible for SIJS as long as he or she cannot be reunited with at least one parent. The court must also find that it is not in the child’s best interest to return to his or her home country or the last country he or she lived.

Apply for Special Immigrant Juvenile Status through USCIS:

USCIS has the following requirements to apply for SIJS:

1. Must be under 21 years old on the date of filing the Form I-360; A child must be under 21 years old when the SIJS application is filed. A child does not need to be under 21 years old when a decision is made by USCIS. A child is “locked” into their age when they file the Form I-360 so that they can be eligible for SIJS even if they are over the age of 21 years old by the time a decision is made by USCIS.

2. The state court order must still be in effect at the time of filing the Form I-360 and when USCIS makes a decision on the application; Some states have different ages when a person is no longer considered a child or juvenile. For Texas, a person is no longer considered a child or juvenile after the age of 18. This means that an order by a state court would only be in effect until a child reaches 18 years old. Historically, USCIS required that the state court order be in effect until the entire immigration process was complete.

This means that, in Texas, a child must be 18 years or younger by the time USCIS had made a decision on both the SIJS and the adjustment of status. Recently however, there has been legislation that protects children from “aging out.” This means that a child is “locked” into their age at the time the Form I-360 is filed. This change is very recent, however, and a child should seek SIJS and adjustment of status as quickly as possible, while the state court order is still in effect.

3. The child may not be married at the time the Form I-360 is filed or at the time USCIS makes a decision on the application; Divorce, annulment, death of a spouse, and having children of his or her own will not bar a child from being eligible for SIJS.

4. The child must be inside the United States at the time of filing the Form I-360. Apply for adjustment of status to that of legal permanent residency: In order to adjust his or her status from SIJS to legal permanent resident (also known as green card status), the child must meet the same requirements as any other person attempting to adjust their status or get a green card.

Advantages and disadvantages of SIJS

There are both advantages and disadvantages to seeking SIJS. The greatest benefit to SIJS is that it creates a path to citizenship. After attaining SIJS, a child can apply to adjust his or her status to legal permanent residency and he or she can eventually become a naturalized U.S. citizen. Additionally, a child can apply for work authorization if they have SIJS. In Texas, a child can work as young as 14 years old in certain fields. This means that a child can receive work authorization to work in the United States even before he or she has adjusted their status to legal permanent residency.

There are, however, a couple of disadvantages. A child with SIJS can never apply for a green card for his or her parents. A child can eventually petition for his or her brothers and sisters, but only after becoming a United States citizen. This means that a child can only petition for his or her siblings after they a given a state court order, SIJS has been granted, he or she has adjusted their status to legal permanent resident, and they have gone through the naturalization process to become a United States citizen.

You can find all the documents and information you might need to become familiar with this process on the U.S. Citizenship and Immigration Services website. However, we highly recommend seeking the advice of an attorney who is familiar with immigration law, it’s complexities and this process in particular.

 

Immigration Consequences of a DUI

While many individuals are aware of the serious consequences of receiving a DUI, these consequences are even graver for non-citizens. In addition to the same consequences of possible jail time, fines and a loss of driving privileges, a non-citizen’s conviction of a DUI may result in a finding that he or she is inadmissible or is removable.

 

Types of Consequences

The type of immigration proceedings that the immigrant is going through make a big difference as to how a conviction will impact him or her. For example, if the individual is pursuing adjustment of status to acquire permanent resident status, his or her application may be denied. Similarly, a person who is applying for naturalization may be found to have bad moral character. For an individual who has not been in immigration proceedings, an argument may be made to have this individual removed from the United States.

Moral Turpitude

According to the Immigration and Nationality Act, a non-citizen may be deported from the United States if he or she is convicted of a crime of moral turpitude. Even if a person is convicted of multiple misdemeanor or felony DUI offenses, this crime is not usually considered one that involves moral turpitude. In order for a DUI to be considered a crime of moral turpitude, it must contain other elements, such as knowingly driving on a suspended license.

Aggravated Felony

Additionally, the Immigration and Nationality Act states that a non-citizen can be deported from the United States if he or she is convicted of an aggravated felony. This is defined as a crime of violence that has an imprisonment term of one year or more. For some time, there was disagreement as to whether a DUI charge could be considered an aggravated felony. However, in Leocal v. Ashcroft, a 2004 case before the United States Supreme Court, the justices ruled that a DUI is not a crime of violence and not an aggravated felony. This holding resulted even though the non-citizen received a sentence of more than one year.

When DUI Can Be Grounds for Inadmissibility or Removal

If a DUI constitutes a controlled substances conviction, it can be grounds for a finding of an immigrant being inadmissible or removable. This can occur when the person was under the influence of drugs and not alcohol at the time of arrest. However, one important note is that the crime must be construed as a controlled substances conviction under federal, and not state, law. State-defined controlled substances may be different from those on the federal list. The record of conviction may identify the substance that was involved. Immigration attorneys may recommend that a client avoid accepting a plea bargain that is considered to be under a controlled substances act or by asking that alcohol be listed in the conviction record.

Evidence of Alcoholism

The Immigration and Nationality Act also allows a non-citizen to be found inadmissible or removal if there is evidence of alcoholism. While a single DUI conviction is likely not strong enough to raise this inference, multiple convictions of DUI may be used to demonstrate this evidence. Likewise, a conviction for a DUI that resulted in bodily injury can also be considered as evidence that the individual has a dangerous health condition that is medical grounds of inadmissibility. This is the case when the individual’s physical or mental disorder causes a threat to the property, safety or welfare of the individual or others.

Good Moral Character

Individuals who apply for naturalization must undergo a naturalization interview. The Bureau of Citizenship and Immigration Services can consider any criminal conviction as it determines whether a citizen applicant has good moral character. Additionally, if the conviction caused the individual to be placed on probation, he or she is ineligible to naturalize until his or her probation has terminated. However, the individual can apply after his or her probation has ended. By establishing an individual’s good moral character, rehabilitation and other positive factors, an individual may be able to overcome a discretionary finding that he or she lacks good moral character. For example, the petitioner may be able to show that a significant period of time has occurred without further incident, a steady work history and only one conviction demonstrate good moral character.

Discretionary Benefits

Additionally, a DUI can establish a negative discretionary factor. In this manner, it may cause a person to be denied discretionary immigration benefits.