Adjustment of status based on approved I-360 approved. Client recently moved and Client’s manner of entry into the US was questionable (she may have entered with a false document), but still got AOS approved.
Immigration Reform: Is it really coming?
Question: I have heard that there is going to be immigration reform. Can you shed some light on the subject and what we might expect?
Answer: Conservatives have tended to oppose immigration reform and amnesty for undocumented workers. Prominent Republicans, however, have recently come out in support of massive immigration overhauls. We could speculate as to why this is the case, but suffice it to say, immigration is on the table and both sides are talking.
At a Jan. 29 event in Las Vegas, President Barack Obama called for broad changes to the nation’s immigration laws. President Obama said the following:
“The time has come for common sense, comprehensive immigration reform. … I’m here because most Americans agree that it’s time to fix the system that’s been broken for way too long. I’m here because business leaders, faith leaders, labor leaders, law enforcement and leaders from both parties are coming together to say now is the time to find a better way to welcome the striving, hopeful immigrants who still see America as the land of opportunity.”
Obama’s immigration reform proposal includes providing undocumented workers a path to citizenship, a requirement for employers to check workers’ immigration status as well as stiffer penalties for those who break immigration law.
Although in the past many GOP lawmakers have been reluctant to support immigration reform, the tides may be changing. The immigration reform tide turned once and for all on Nov. 6, 2012. The elections produced a mandate for immigration reform and now it is time to act.
The 2013 State of the Union address and the President’s call for comprehensive immigration reform led to one of the only bipartisan standing ovations. Although the anti-immigrant movement has always been loud … their influence today is much diminished. Meanwhile, the power of the immigration reform movement is growing every day in depth and breadth.
A growing number of conservatives, including Tea Party lawmakers, religious groups and conservative media leaders, are part of the growing momentum calling for comprehensive immigration reform.
Sen. Rand Paul, R-Ky., who said in an interview with Politico after the 2012 elections that he plans to pursue measures that have long been avoided by his party, including carving an immigration plan with an “eventual path” to citizenship for undocumented immigrants. Many Republicans are beginning to question the sources for their information on the economic and social impacts of immigration.
Question: What can we do to help?
Answer: At this point since the ball is finally rolling after the draconian 1996 Anti-immigration bill, it is time to let your representatives know you support immigration reform and to keep the pressure on to move forward. Call, e-mail, write and speak out. You can do it tactfully and methodically, but the more the congressional representatives know that their constituents are behind them with immigration reform, the more likely we will have a new and complete comprehensive immigration reform bill.
Can you get the Green Card even if your over 21 years old?
Question: My auntie petitioned my mother when I was 3 years old. However, the visa process is so slow that it took 22 years for the visa number to become current. I was over 21 when my mother got her Green Card and the U.S. Embassy said that I aged out and could not come. Is there something that can be done without me having to wait another 10-15 years for a petition from my mother to become current?
Answer: Normally, in that case, once the child ages out, they cannot qualify to come as a derivative. There are, however, certain instances under the CSPA (Child Status Protection Act) whereby the derivative can show he or she is under the age of 21 (under immigration law.) However, in this case, that would not be applicable. Given that, the question then becomes whether you can still fall under any particular provision of the CSPA.
In this case, there was the BIA case Matter of WANG which specifically denied the priority date retention provision of the CSPA. However, the 9th Circuit Courts of Appeal has just come out with a decision which overruled the BIA and has stated essentially that this provision of the CSPA does stand and needs to be followed.
Question: What is this case and what does priority date retention mean?
Answer: First, it is necessary to understand basic immigration family petitions. You have a petitioner which is either the U.S. Citizen, or a Lawful Permanent Resident petitioning the beneficiary (which is the person who wants to come into the U.S.) Once the petition is filed (assuming it is not an Immidiate Relative) will be put into a visa line and only when the visa becomes current (sometimes many years later), can they immigrate to the U.S.
In many of these cases, the child is eligible to immigrate as a derivative at the time that the petition is filed, but once the visa number becomes current, they “age-out”. This can also occur as a direct occurrence for example from a Lawful Permanent Resident petitioning a child under 21.
Question: What exactly is the provision of the CSPA that was ruled on in the 9th Circuit case?
Answer: Well, first you have to try to do the age reduction calculation to see if the beneficiary is actually under 21 for immigration purposes. This means that even if their real age might be over 21 years their immigration age would be under 21 and they can immigrate. However, for purposes of this new case, it is only for those derivative beneficiaries and beneficiaries that have not only aged out, but cannot have their age determined to be under 21.
The CSPA in those cases under the particular provision of the CSPA, will have a petition that is automatically converted to the appropriate category. In other words, let’s say that in your example that an aunt petitioned your mother and you aged out and you cannot reduce your ‘immigration age’ to under 21. In that case, their application is automatically converted for a petition from your mother to you. This would be a Lawful Permanent Resident petitioning a son/daughter over the age of 21. This would be preference F2B.
Then the next part is the key. The CSPA allows you to then recapture or use the priority date of the petition from your auntie’s petition to your mother. As you stated, you were 3 years old when the petition was filed and you were about 24 years old when the visa number became current. This means, that under the CSPA (and now the 9th Circuit Class Action suit that agreed with the provision of the CSPA) that the priority date of the now automatically created petition is the SAME as the one your auntie filed for your mother. Therefore, the priority date will be basically over 20 years old the very moment the petition is automatically created. Since that number is now current, you can then come into the United States under this petition now. You have the petition and the visa number is current. Therefore, you can process right now to get the Green Card.
Question: So, what did the Ninth Circuit case do?
Answer: In fact, USCIS and other government agencies were denying this provision of the CSPA. They basically stated it was not supposed to do what was clearly in the law. Thus, now with the affirmation of the Ninth Circuit case, we can proceed forward with all of these CSPA cases.
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An undated CBP muster informing CBP officers that a Mexican presenting a Diplomatic or Official Passport who is not assigned a post in the U.S. and enters for a visit of 6 months or less does not need to present a visa.
An undated CBP muster informing CBP officers of the basic elements of a primary inspection. The muster indicates that recent testing by CBP shows a potential for inadmissible travelers to present fraudulent documents.
President Obama’s appeal to Congress for a bipartisan overhaul of the nation’s broken immigration system in a speech delivered at American University School of International Service.
As of now, there are nearly 12 million people who are illegal in the U.S. We could simply say that they should all go home, or why should we reward people here illegally. However, the values of the U.S. and everything we believe draws people from all over the world here. Therefore, there should be some type of comprehensive immigration reform that does not unduly reward people with an amnesty, but will give some real path to getting residency in the U.S. through possible employment petitions or family petitions.
Filed under: Immigration, Immigration Attorney, Immigration Law, immigration provisions, Immigration Reform, los angeles immigration attorney | Tagged: Immigration, Immigration Attorney, Immigration Lawyer, Immigration Reform | Leave a Comment »