DHS agreed to join in a motion to reopen Client’s in absentia deportation order and terminate her proceedings based on an approved I-360 widow petition. We were initially hired to file a MTR but then Client’s husband died and we were retained to file an I-360. When that was approved, we filed the joint motion request. Client was waived through so she should be eligible for AOS.
Parole in Place: How to adjust in the United States even if you don’t qualify
Question: I am married to a U.S. Citizen and I want to adjust to that of a Lawful Permanent Resident. What can I do?
Answer: Are you inside the U.S.?
Answer: Did you enter illegally?
Answer: Did you commit any crimes, any fraud or have you been issued any deportation orders?
Answer: Is your spouse in the military?
Answer: There is a possibility for the immediate family members of U.S. military personnel. Family members of U.S. military personnel often run afoul of our nation’s complex and dysfunctional immigration laws, and the particular burdens imposed on military personnel by their service makes resolving those problems even more difficult than solving similar problems for civilian clients. You may want to consider an application for one of the more common discretionary remedies, a form of immigration parole that is commonly called “parole in place”.
Question: What Is Parole in Place?
Answer: Parole in place (PIP) is a process by which USCIS assists family members of U.S. military personnel to become eligible to “adjust status” in the United States and thus become permanent residents of the United States. Under Immigration and Nationality Act (INA) Section 245(a), a person cannot adjust status unless he or she has been “admitted or paroled” into the United States. Usually, a person who has not been “admitted or paroled” into the United States cannot obtain lawful permanent residence unless he or she leave the United States and travels abroad to a U.S. consulate. If a person who has not been admitted or paroled into the United States leaves the United States and attempts to undergo consular processing, however, the person nearly always faces an inadmissibility bar that is triggered by departing the United States. Thus, the person cannot obtain his or her lawful permanent residence status easily through consular processing. PIP attempts to avoid the separation of military families by allowing some family members—in meritorious cases only—to adjust their status inside the United States and thereby avoid a lengthy separation that might harm the military member’s morale, readiness, or ability to complete his or her service. PIP is granted in order “to preserve family unity and address U.S. Department of Defense concerns regarding soldier safety and readiness for duty.” PIP is also a remedy that appeals to the views of Americans that in wartime, the government should provide special support to military families; when the availability of PIP was made public, 18 members of the House of Representatives, including nine Republicans, wrote to DHS to indicate their support for the program.
PIP is only available to persons who are present in the United States; it should not be confused with the “humanitarian parole” that is available to persons who are outside the United States.
Question: Who Should Request PIP?
Answer: Under current immigration law, no one who entered the United States without inspection can adjust status unless he or she falls into a category in which special rules apply (such special rules apply to asylees, Cubans, special immigrant juveniles, Violence Against Women Act petitioners, grandfathered aliens, and some others). A PIP request is often proper for immediate military family members who entered the United States without inspection, do not have an eligible visa petition or labor certification filed on or before April 30, 2001, and do not otherwise fall into a special adjustment category.
Question: What if the person requesting PIP is in Proceedings?
Answer: PIP is possible when a person is in removal proceedings. If a military family member is in removal proceedings and is granted PIP, an immigration judge (IJ) would be prevented from adjudicating a follow-on adjustment application. USCIS, however, does have jurisdiction to adjudicate an adjustment application in this situation. Family members in this situation may file a new adjustment application with USCIS—after the PIP is granted—and then request termination of proceedings without prejudice to allow them to pursue administrative remedies. Counsel may explain that whether or not the IJ terminates, the respondent will still be eligible to adjust status, and if the case is not terminated and the IJ proceeds, the IJ may be facing a future Motion to Reopen.
Question: Who Should NOT Request PIP?
Answer: A grant of PIP will not resolve immigration problems that involve issues other than ineligibility under INA §245(a). A grant of PIP will not, for example, lift a permanent bar for false claim to United States citizenship; work to waive a criminal ground of inadmissibility; relieve an immigrant of the consequences of a prior deportation or removal order; or allow an immigrant to adjust status when the immigrant needs a waiver of some other ground of inadmissibility. PIP only cures the problem that an immigrant cannot adjust status without showing that he or she has been “admitted or paroled.” PIP is not a magic solution to every immigration problem. It has very limited application to a specific set of circumstances when the military family member has not been admitted or paroled in a manner that allows adjustment under INA §245(a).
Requesting PIP may also not be advisable when there is no military-related reason to grant the PIP. For example, USCIS may determine not to grant PIP when the military member is about to be discharged from the military; when the military member is serving as an inactive Reserve member; or when a military member is stationed abroad (there, the family member’s presence in the United States is not necessary for a military-related reason).
A military family member also does not need PIP if the military family member was admitted lawfully but has no documentation of the entry.
Question: How Do I Request PIP?
Answer: The PIP program is new, and as of this writing, no formal regulatory guidance has been issued by DHS or USCIS. Practitioners report a variety of different approaches at different USCIS offices.
In most USCIS field offices, a PIP request consists of a hardship letter signed by the service member and supporting documentation, which should be submitted to the local USCIS office having jurisdiction over the service member’s residence or place of duty. An example of the list of requirements from the Los Angeles USCIS Office is reproduced in the Appendix.
The opening paragraph of the hardship letter should state that this is a request for a parole in place so that the particular military family member can file an Application to Register Permanent Residence or Adjust Status (I-485) while in the United States. The body of the letter should describe the circumstances that led the service member to join the armed forces. The letter should then describe the history of the military member’s relationship with the family member seeking PIP; establishing the bona fide nature of the relationship is extremely important, as USCIS is unlikely to grant PIP in any case in which there are indicators of marriage fraud. The family member’s immigration status should be discussed, including the status of any petitions filed for the family member, such as an I-130. The conditions of the family member’s home country at the time he or she came to the United States should be discussed. The current conditions may be mentioned if they are such that a return to the country would pose a danger to the family member’s health or safety. If applicable, the family member’s loss of Commissary and Post Exchange privileges, military housing, access to military family member health care, and assistance from the Family Readiness Group may be mentioned. Finally, the hardship the service member would experience if the family member were deported should be described in detail. If the service member or the service member’s children have special needs that make them especially dependent on the family member for support, these needs should be explained and supporting documentation provided where appropriate. At a minimum, the body of the letter must contain the service member’s name, date of birth, place of birth, rank in military, branch of service, and unit of assignment, as well as the dates and places of birth of the family member and any children. Any upcoming deployments for which the service member is preparing should be mentioned.
Question: What documents should be provided?
Answer: Generally, you want to provide the following: The service member’s birth certificate and proof of U.S. citizenship (if applicable); The family member’s birth certificate; The birth certificates of any children; If the family member is the spouse, the couple’s marriage certificate and evidence of the bona fide nature of the marriage; The family member’s military family member identification card; A copy of Defense Eligibility Enrollment Reporting System enrollment documentation for the family member; Two original passport photos of the family member; A copy of any deployment orders for the service member; and additional documents that substantiate the case of hardship can be enclosed as well.
Question: Will the PIP Request be Granted?
Answer: A Parole in place determinations are made on a case-by-case basis and are purely discretionary. Your client should not assume his or her request is approved until USCIS officially notifies him or her of the approval. Typically, clients are notified to come for an interview with a USCIS officer who is specially trained to handle PIP applications, and that officer will make an initial determination whether to grant the PIP, but the officer’s decision will be reviewed at a higher level before the PIP request is approved.
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Prosecutorial Discretion granted for a family of 3; father, mother and daughter. Parents had applied for cancellation of removal for non Lawful Permanent Residents, but they did not have a very strong case. Daughter also applied but did not have a qualifying relative, so she needed one of her parents to be granted.
I-751 Divorce Waiver approved. Client retained us after he had received an RFE on a joint I-751 but he had since separated from his wife. We filed the necessary documents and then appeared at his interview. A second RFE was issued requesting Client’s final divorce decree, a statement in his own words and a request to change the case from a joint filing to a divorce waiver. Case approved 1 year after 2nd RFE.
AOS approved for Client who is from Mexico, is married to a USC and they have 6 children (including quintuplets). Client left the United States 2004/2005 and they’re 10 year bar waiver was denied (they didn’t have an attorney) or children at the time. He reentered the U.S. and then left in 2010 because he had no identification and wanted to avoid any issues with Immigration. Our office was retained for a humanitarian parole in 2011 based on one of their children being very very sick. His parole was approved and his I-94 indicated “Paroled in for AOS.” His case was approved today with no issues.
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Is Immigration Reform Actually Here?
Question: I heard that immigration reform is coming. Is this true?
Answer: As a framework for reform, this is closer than we’ve come in years to meaningful change.The Senate “Gang of Eight” for introducing its bipartisan immigration reform proposal, allowing the Senate Judiciary Committee to forge ahead on the “markup” process. A proposal like this is a necessary first step in any path forward to create a common-sense immigration system that will meet the needs of the U.S. economy, businesses, and families, and integrate into our society aspiring Americans who work hard and want only a better life for themselves and their families. Therefore, it is not law, but it is a great step forward.
Question: Is it a comprehensive immigration bill?
Answer: It seems to be both enforcement and benefit. It is the biggest immigration bill to come out in nearly 20 years.I In fact, the last big immigration bill was severely anti-immigrant. There was almost nothing to benefit immigrants. This one seems much more balanced. In many ways, the language contained in the 844 page legislation reflects key issues facing immigrants today and is necessary to any successful immigration reform, such as border and interior enforcement, legalization, backlog reduction, asylum, family unification, and both current and future business needs.
Question: Is this immigration bill the perfect solution for the broken immigration system?
Answer: No compromise measure ever is. Is it a good bill? Yes, for the most part it is, and perhaps it is even a great bill in some respects. We do see some further changes that are desirable, and as we delve more deeply into the details, I’m sure we’ll find some needed tweaks. But as a framework for reform, this is closer than we’ve come in years to meaningful change. This bill does not shy away from addressing the difficult issues embedded in current immigration policy. It’s a good start, and I hope that by continuing to work across the aisle, the Senate can pass a bill that will meet our nation’s needs and the House will follow suit.
Question: What do you think finally prompted Congress to make this immigration bill?
Answer: It was a myriad of things and events. However, the past election again of President Obama seems to have finally been the catalyst to move this procedure forward.
Ways to bring RN’s into the U.S.
Question: I am a Registered Nurse and I don’t know how to come into the U.S. Can you help?
Answer: Primarily, the best way to come into the United States as a Registered Nurse is through the normal I-140 Schedule A process. This is whereby an RN submits everything necessary to eventually obtain residency.
Question: How long does it take?
Answer: It is now taking years for the visa number to become current. It is unfortunate, but it is taking much longer than in prior years. Professional nurses and physical therapists who are in the United States and eligible to file for adjustment of status are able to file their I-485 and ancillary applications concurrently with the I-140 immigrant visa petition as long as their priority date is current. The priority date for a professional nurse or a physical therapist is established when a complete I-140 immigrant visa petition is received by the USCIS service center. Unfortunately, professional nurses in jobs that require only two years of nursing training fall under the third preference category for Skilled Workers. This three– to seven-year visa retrogression has exacerbated the immediate need for qualified registered nurses nationwide.
Question: Can a Registered Nurse come into the United States on an H-1B?
Answer: Most foreign nurses do not qualify for an H-1B visa unless they are certified advanced practice registered nurses (APRN) or upper-level nurse managers
Question: Are there other types of temporary visas that Registered Nurses can come into the United States?
Answer: The Treaty NAFTA (TN) visa remains an option for Canadian and Mexican citizens. Many people have immigrated previously to Canada to become nurses and still want to come to the United States. After they become a Canadian Citizen, they can certainly take advantage of the TN Visa.
Question: What is needed in the I-140 application for an RN to apply for residency?
Answer: (1) Form I-140 Immigrant Petition for Alien Worker, along with evidence that the petitioning employer has the financial ability to pay the salary offered; (2) PERM Labor Certification Application Form ETA 9089 in duplicate; (3) Prevailing wage determination; (4) Posting notice; (5) Proof that the alien applicant possesses all the qualifications necessary to take the licensing examination; and (6) Degree, diploma and transcript.
Question: What is the Visa Screen?
Answer: The VisaScreen certificate verifies that the foreign health care worker’s education, training, licensing, experience, and English competency are comparable to American health care workers. VisaScreen Certificates must be presented at the I-485 stage for applicants in the United States or at the consular interview for candidates who immigrant visa process at a U.S. consular post abroad.
H-1B’s are almost ready to be filed. Don’t wait.
Question: I heard that H-1B’s are about to be able to be filed. What can I do?
Answer: First, April 1, 2013, the doors open again and new H-1B’s can be filed. It does take time to prepare a quality H-1B, so time is of the essence and you should either get started right away and start getting a sponsor right away.
Question: What exactly do I need for the H-1B?
Answer: The job must meet one of the following criteria to qualify as a specialty occupation:
Bachelor’s or higher degree or its equivalent is normally the minimum entry requirement for the position;
The degree requirement for the job is common to the industry or the job is so complex or unique that it can be performed only by an individual with a degree;
The employer normally requires a degree or its equivalent for the position; and the nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree.
Question: What do I need to accept a job offer for an H-1B:
Answer: For you to qualify to accept a job offer in a specialty occupation you must meet one of the following criteria: Have completed a U.S. bachelor’s or higher degree required by the specific specialty occupation from an accredited college or university; Hold a foreign degree that is the equivalent to a U.S. bachelor’s or higher degree in the specialty occupation; Hold an unrestricted state license, registration, or certification which authorizes you to fully practice the specialty occupation and be engaged in that specialty in the state of intended employment; have education, training, or progressively responsible experience in the specialty that is equivalent to the completion of such a degree, and have recognition of expertise in the specialty through progressively responsible positions directly related to the specialty.
Question: Is a Labor Condition Application required?
Answer: Yes. The prospective employer must file an approved Form ETA-9035, Labor Condition Application (LCA), with the Form I-129, Petition for a Nonimmigrant Worker.
Question: Must I establish an employer-employee relationship?
Answer: The H-1B regulations currently require that a United States employer establish that it has an employer-employee relationship with respect to the beneficiary, as indicated by the fact that it may hire, pay, fire, supervise or otherwise control the work of any such employee. In addition to demonstrating that a valid employer-employee relationship will exist between the petitioner and the beneficiary, the petitioner must continue to comply with all of the requirements for an H-1B petition including: establishing that the beneficiary is coming to the United States temporarily to work in a specialty occupation; demonstrating that the beneficiary is qualified to perform services in the specialty occupation; and filing of a Labor Condition Application (LCA) specific to each location where the beneficiary will perform services.
AOS (I-130 and I-485) granted for couple married for about 1 year, with no children and very very little joint documents.