Immigration Reform 2013

Affidavit of Support and the 40 qualifying quarters of work

The Affidavit of Support: Do I need it?

 

Question: I have already worked in the United States for some time. Does my sponsor still need to submit the affidavit of support?

 

Answer: Under INA §212(a)(4)(C), an alien who seeks permanent residence as an immediate relative or as a family preference immigrant is inadmissible as an alien likely to become a public charge, unless the visa petitioner submits an affidavit of support (INS Form I-864) that meets the requirements of §213A. This requirement also applies to employment-based immigrants, if a relative either filed the Form I-140, or has a significant ownership interest in the firm that did file the Form I-140. Section 213A(a)(3)(A), however, provides that the obligations under a Form I-864 terminate once the sponsored alien has worked, or can be credited with, 40 qualifying quarters of coverage, as defined under title II of the Social Security Act. The affidavit of support regulation reflects this provision.

 

Question: Assuming that I can show that I have worked 40 qualifying quarters, is an affidavit of support still required if, at the time I seek permanent residence through admission or adjustment of status, I am able to show that I have already has worked, or can be credited with, 40 qualifying quarters of coverage?

Answer: The policy of the Service is that an affidavit of support is not required if, at the time you seek permanent residence through admission or adjustment of status, you can show that you have already worked, or can be credited with, 40 qualifying quarters of coverage.

The basis for this policy is that it represents the most reasonable interpretation of this requirement. The obligations under the Form I-864 come into force when the sponsored alien acquires permanent residence. But if, at that time, the sponsored alien already has worked, or can be credited with, 40 qualifying quarters of coverage, then the obligation will expire at the very moment that it begins. Requiring the affidavit of support in this situation, therefore, would serve no purpose.

Question: What if my parent has qualifying quarters of work, but I don’t. Is there anything that can be done?

Answer: INA §213A(a)(3)(B), specifies how an you can be credited with qualifying quarters worked by someone else. If you can claim qualifying quarters worked by a parent, you may claim all the qualifying quarters worked by the parent before the your eighteenth birthday. Note that the statute does not require the parent-child relationship to have existed when the parent works the qualifying quarters. So you can claim even those of the parent’s qualifying quarters that the parent worked before your birth or adoption. You can also claim qualifying quarters worked by a spouse. However, you may only claim those quarters that the spouse worked during the marriage. It must also be the case either you are still married to the person who worked the qualifying quarters, or that that person is dead.

Question: What if I received public assistance?

Answer: You may not claim any qualifying quarter of coverage worked after December 31, 1996, if the person you worked that qualifying quarter – whether it was you, a spouse or a parent, if you have received any Federal means-tested benefit during the same period.

 

Will my brother who has mental competency issues be deported?

 

Question: My brother is in deportation proceedings, but he has mental competency issues. Will he be deported?

 

Answer: Until recently, attorneys and immigration judges had limited guidance about safeguards that

might be available to ensure a fair hearing in immigration court for noncitizens with mental

competency issues. As a result, many such individuals have been ordered deported without

access to counsel or any assessment of their abilities. Others have languished in jail indefinitely

while immigration judges delayed proceedings in the hope that they would find representation or

that their conditions would improve. Extended stays in detention centers, however, have instead

caused people’s conditions to deteriorate, at times resulting in psychosis and catatonia. The lack

of protections has even led to mistaken deportations of U.S. citizens who were unable to prove

their nationalities without assistance.

 

In May 2011, the Board of Immigration Appeals (BIA) issued a precedent decision setting forth

a framework for immigration judges to follow when hearing cases involving respondents with

mental competency issues. The case is known as Matter of M-A-M.

 

Question: What statutory protections apply to respondents who lack mental competency?

 

Answer: Under the Immigration and Nationality Act (INA), the Attorney General “shall prescribe

safeguards to protect the rights and privileges” of respondents for whom it is “impracticable” to

be present at removal proceedings by reason of mental incompetency. Some courts have construed this provision to protect incompetent respondents able to make a physical appearance, but unable to meaningfully participate without representation. Because competency issues may stem from both physical and psychological conditions, which give rise to a broad spectrum of capabilities and needs, the procedural safeguards will differ from case to case.

 

Question: What protections are persons with mentally incompetency issues given?

 

Answer: Of the extensive regulations that govern the conduct of removal proceedings, only a handful

address the subject of mental competency. Service of a Notice to Appear upon the person with whom a mentally incompetent respondent providing that an attorney, legal representative, legal guardian, near

relative, or friend may “appear on behalf of” a respondent whose mental incompetency makes it

“impracticable” for him or her to “be present” at a hearing; permitting an immigration judge to waive the presence of a mentally incompetent respondent who is represented by an individual from one of the preceding categories); prohibiting an immigration judge from accepting an admission of removability from an incompetent respondent unless accompanied by an attorney, legal representative, near relative,

legal guardian, or friend, and requiring a “hearing on the issues”. In each case, the regulations

require immigration judges to determine whether a respondent is “incompetent” — without

defining that term — but do not provide any meaningful guidance either for determining

competency for particular purposes or for guaranteeing due process for a respondent who lacks

competency to proceed. That is why the new case from the BIA came out in order to clarify and make law on this issue so it is not as ambiguous.

 

Question: OK. What exactly does the new case rule on this matter?

 

Answer: In its precedential decision, Matter of M-A-M-, the Board of Immigration Appeals, for the first time, set forth a test for immigration judges to assess a respondent’s ability to participate in a removal hearing. According to M-A-M-, the decisive factors are whether the respondent understands the nature and object of the proceedings, can consult with the attorney or representative (if there is one), and has a reasonable opportunity to examine adverse evidence, present favorable evidence, and cross-examine government witnesses.

 

Noting that a respondent is presumed to be competent, the Board explained that an immigration

judge need not apply the M-A-M- test in the absence of any “indicia of mental incompetency.”

However, such indicia may derive from observations of the respondent’s functioning

and behavior by the immigration judge or either party, testimonial evidence, or documentation

submitted as part of the record. Potential indicators of serious mental disorders, which may give rise to competency issues, include difficulty communicating thoughts completely or coherently, perseveration, overly simplistic or concrete thinking, words or actions that do not make sense or suggest that the person is experiencing hallucinations or an altered version of reality, memory impairment, disorientation, an altered level of consciousness or wakefulness, or a high level of distraction, inattention or confusion.

 

Some respondents who cannot represent themselves in removal proceedings due to competency issues may still have the ability to consent to representation, to assist in their defense, or to stand trial. A mental health diagnosis or diagnosis of developmental disability or has been previously

labeled “incompetent” does not mean that he or she is currently incompetent. Because mental

competency may vary over time, the BIA instructed immigration judges to consider “indicia of

incompetency” throughout the duration of removal proceedings.

 

Question: If the Judge finds that the person in removal proceedings has some elements of being incompetent, what must the Judge do?

 

Answer: When indicia of incompetency are present, an immigration judge must determine whether a

respondent is sufficiently competent to proceed without safeguards.Even if a respondent has been pronounced mentally competent, procedural safeguards may be necessary to ensure a fair hearing in immigration court if, for example, a respondent has a significant history of mental illness, is experiencing an acute aggravation of mental illness, or if the respondent’s condition has changed significantly since competency was determined. By the same token, certain mental impairments would not necessarily preclude meaningful participation in immigration proceedings without safeguards.

The BIA emphasized that measures needed to assess competency will vary from case to case.

For example, an immigration judge could ask the respondent basic questions to assess his or her

ability to understand the nature and object of the proceedings, grant a continuance to enable the

parties to collect relevant documentary evidence, solicit testimony from family or close friends,

or order a mental competency evaluation. When the assessment has been completed, the immigration judge must articulate his or her reasoning and decision regarding the respondent’s competency on the record.

 

Of course, the Immigration Judge is neither a psychologist or a psychiatrist and is not trained in whether a person has a mental illness. This is why it would definitely be advisable to bring in one of these professionals as an expert witness and to submit reports of the mental condition on behalf of a detailed analysis made on behalf of the respondent.

L-1 Specialized Knowledge Employee

Question: I understand that I can try to get a person who has specialized knowledge to come over in my company which was previously approved under an L-1 Visa. Can you let me know the specifics?

Answer: The statutory language defining “specialized knowledge” is not simple or clear. Specialized knowledge is a foreign national that is considered to be serving in a capacity involving specialized knowledge with respect to a company if the alien has a special knowledge of the company product and its application in international markets or has an advanced level of knowledge of processes and procedures of the company.

The phrase “specialized knowledge” is not otherwise defined in the law, and there have been few administrative or judicial opinions interpreting it. The DHS/AAO noted, “the definition is less than clear, since it contains undefined, relativistic terms and elements of circular reasoning.” A decision by a District Court in Washington, D.C. was even more critical: “Simply put, specialized knowledge is a relative and empty idea which cannot have a plain meaning.”

Given the relative lack of statutory clarity or interpretative guidance, determinations as to specialized knowledge by necessity will often depend on the consular officer’s expertise in the context of the specific case’s circumstances. It will also depend on how detailed the L-1 Specialized Knowledge Petition is put together. Again, this has been noted by the AAO: “By deleting this element in the ultimate statutory definition and further emphasizing the relativistic aspects of “special knowledge,” Congress created a standard that requires USCIS to make a factual determination that can only be determined on a case-by-case basis, based on the agency’s expertise and discretion. Rather than a bright-line standard that would support a more rigid application of the law, Congress gave legacy INS a more flexible standard that requires adjudication based on the facts and circumstances of each individual case.

Question: In other words, it is difficult to define. However, what standards can the adjudicator use?

Answer: When putting the petition together, show the proprietary nature of the knowledge – While it is not strictly required that specialized knowledge involve knowledge of procedures or techniques proprietary to the petitioning company, the possession of significant proprietary knowledge can in itself meet the specialized knowledge requirement. This is expressly stated in INA 214(c)(2), which makes reference to “special knowledge of the company product and its application in international markets” or “advanced level of knowledge of processes and procedures of the company.”

Show that the L requirement when it “would be difficult to impart to another without significant economic inconvenience.” This knowledge can be acquired through on-the-job training. In other words, if everyone is specialized, then no one is. The legislative history indicates that the specialized knowledge requirement was intended for “key” personnel. While it could be true in a small company that all experienced employees are “key,” for a larger company there should be a distinction between “key” and normal personnel. This could be made based on length of experience, level of knowledge, or level of responsibility – e.g., the person has been made responsible for more complicated and/or sensitive projects. If a company is claiming that all the employees working on technical issues should be considered to have specialized knowledge, the company is probably employing too low a standard. On the other hand, there is no legal basis to require any specific limit on the number of employees that can be considered key. As indicated, for a small company, all employees with responsible positions may be key. A large company can have a large number of key employees who would meet the specialized knowledge criteria, but there should be a distinction between those employees and ordinary skilled workers.

Question: What else should be shown?

Answer: Try to show that what the L-1 specialized employee knows is “more than ordinary” – The use in the INA of the terms “special” and “advanced” implies that the employee has more skills or knowledge than the ordinary employee. This does not require an “extraordinary” level of skills, merely more than that of the ordinary employee in the company or the field. This could involve knowledge of special company projects or greater than normal experience and/or knowledge of software techniques.

Therefore, as with many other types of petitions, it must be heavily documented and properly prepared.

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Brian D. Lerner is a Certified Specialist in Immigration and Nationality Law by the California Bar Board of Legal Specialization and he is admitted to the United States Supreme Court, the California Supreme Court and the U.S. Courts of Appeals for the 11th, 10th, 9th, 8th, 6th, 5th, 4th, 3rd, 2nd and 1st Circuits. Mr. Lerner handles all types of immigration cases, but does a significant amount of deportation cases. As a deportation attorney, he is able to apply for many types of relief in Immigration Court, such as Cancellation of Removal, Asylum, Convention Against Torture, Adjustment of Status and more. Office in Long Beach and clients all over the State of California. Please call (866) 495-0554 for a free consultation or e-mail Brian D. Lerner at blerner@californiaimmigration.us

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