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Will my son be sent back home?

Posted on December 16, 2009 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I am a lawful permanent resident and have petitioned my wife and son many years ago. Just recently I found out about the V Visa which allowed my wife and son to come to the United States and reside with me while we are waiting for the visa number to become current. However, my son is going to be 21 years old in two months. I have been told by USCIS that he will have to return home and he can no longer reside here on the V Visa. I have missed him so much that I cannot bear to be separated for years to come. Is there anything I can do?

Answer: Actually, there was just a case that came out in the Ninth Circuit Court of Appeal. Therefore, if you live in the jurisdiction of the Ninth Circuit (basically the Western United States), then you are in luck.

In this case, the court held that Immigration regulations terminating V nonimmigrant status the day before the visa holder’s 21st birthday, was contrary to Congress’ intent to reunite families when it enacted the Legal Immigration Family Equity Act (“LIFE Act“).

As background: the LIFE Act added a new nonimmigrant visa category, INA § 101(a)(15)(V). Spouses and children of lawful permanent residents who have been waiting for permanent resident status for at least three years are eligible for V visas. These V visa holders are entitled to certain benefits, including employment authorization. The INS regulations implementing INA § 101(a)(15)(V) provide that V visa status “will be granted a period of admission not to exceed 2 years or the day before the alien’s 21st birthday, whichever comes first.” Upon termination of V nonimmigrant status, the individual is no longer eligible for employment authorization.

In this Ninth Circuit case, the government argued that, the court should allow the USCIS regulations to stand. The court ultimately disagreed, stating “[w]e do not owe deference…to agency regulations if they construe a statute in a way that is contrary to congressional intent or that frustrates congressional policy.”

The court concluded that Congress did not directly speak to the issue of whether a person could lose V status by turning 21. The court found that the LIFE Act made clear that a person over the age of 21 was not eligible to receive a V visa but that the statute was silent regarding whether a person over the age of 21 who has been issued a V issue is able to continue to hold that visa. Thus, the court concluded that Congress’ intent was ambiguous.

The court noted that the LIFE Act provided three ways that V visa status may terminate and that aging-out was not one of those ways. Thus, applying the presumption that “when a statute designates certain . . . manners of operation, all omissions should be understood as exclusions,” the court concluded that “[s]ince Congress explicitly enumerated circumstances by which V Visa benefits are terminated, the presumption is that Congress purposely excluded all other possible means, such as aging-out.” The court further found that its conclusion was supported by: (1) statements in the congressional record regarding another LIFE Act provision (adjustment of status under INA § 245(i)); (2) “the general rule of construction that when the legislature enacts an ameliorative rule designed to forestall harsh results, the rule will be interpreted and applied in an ameliorative fashion;” (3) and the rule of lenity (in immigration cases, “doubts are to be resolved in favor of the alien.”).

Thus, the court invalidated the age-out provisions of the V Visa. Thus, your son can legally stay with you under the V Visa even though he will be older than 21 years of age. This is a significant victory for immigrants as it shows the power of the family unit and how Immigration cannot simply make arbitrary regulations.

Filed under: Immigrant Visa, Immigration Law, immigration provisions, LIFE Act, V VISA | Tagged: , | Leave a comment »

How can I leave the U.S. with an expiring Green Card?

Posted on December 16, 2009 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I have heard that most things are taking longer at the United States Citizenship and Immigration Services. My problem is that I must renew my Green Card as it is expiring. However, my father is gravely ill and I want to visit him before he dies. What can I do?

Answer: First, if you leave the U.S. without having a valid Green Card, you will not be able to return to the U.S. and you will have very significant problems. You are correct that in that many applications at USCIS are taking longer. Just recently, U.S. Citizenship and Immigration Services (USCIS) announced the launch of the I-90 pilot project in Los Angeles that will reduce the wait time to replace or renew a permanent resident card or green card from a year to less than a week. The pilot project takes advantage of electronic filing of applications on the USCIS website offering persons such as yourself a convenient and simple-to-use alternative to mailing in applications for benefits.

“This pilot allows us to dramatically reduce the time it takes to process an application for renewal or replacement of a green card,” said Jane Arellano, Los Angeles District Director. “All it takes, once the applicant has filed electronically, is a visit to one of our Application Support Centers. Applicants get a new green card in less than a week, in most cases.” Customers wanting to take advantage of the new I-90 pilot can go to http://www.uscis.gov and file by using the E-Filing feature. The receipt that’s produced by that transaction shows a toll-free number that applicants can call to make an appointment at the USCIS Application Support Center (ASC) that is closest to them. During the visit, the ASC will order a permanent resident card for customers to receive in under a week. The current wait time for green cards to be produced by the USCIS California Service Center is just under one year. Customers who wish to speed up the process of an already-filed I-90 application can elect to re-file electronically, and participate in this new pilot program. Second-time filers will pay a second fee. “We are offering our customers a quicker and more convenient way of doing business,” said Jane Arellano, Los Angeles District Director. “This new pilot will allow us to offer the kind of service that our customers need and deserve.”

The I-90 pilot project in Los Angeles is one of several USCIS Internet-based customer service initiatives.

In March, USCIS also launched InfoPass in Los Angeles. This customer friendly initiative allows customers to go online instead of waiting in long lines at the Los Angeles District Office to make an appointment with an information officer. Before InfoPass, customers would start lining up at the USCIS office in Los Angeles early in the morning; some customers would wait all day. InfoPass means the end of long lines and has the potential to eliminate lines completely. InfoPass began in Miami and was also recently implemented in Dallas. USCIS plans to expand InfoPass in Arlington, VA, New York City, and Detroit.

Thus, in the computer age, CIS is finally taking advantage of the technology. Therefore, if there are no other issues in your case and you happen to live in the Los Angeles area, you can use this service. If it works, it is likely to spread over the entire U.S. as time passes. The same is true of InfoPass.

Filed under: Immigrant Visa, Immigration Law, LPR, Re-entry Permit, USCIS | Tagged: , | Leave a comment »

My Adopted Son is a U.S. Citizen

Posted on December 16, 2009 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: My wife and I were unable to have our own children. Therefore, we looked to adopt a child. Because this took years in the U.S., we decided to do an international adoption which has turned out to be much quicker. However, now that the adoption has gone through, we are unsure what must be done to bring our adopted child into the United States. Can you help?

Answer: Yes. Eduardo Aguirre, Director of U.S. Citizenship and Immigration Services (USCIS), today announced an important step toward the fulfillment of the Child Citizenship Act (CCA). USCIS is launching a CCA Program to simplify and streamline the process by which parents obtain a Certificate of Citizenship for their children.

“I want prospective parents, who are seriously considering international adoption, to know that the process just got a little easier. This program will help parents to more rapidly realize the privileges of American citizenship for their children. It accelerates reassurance of their child’s citizenship status,” said Director Aguirre.

One of the Director’s eight strategic initiatives, the CCA Program will eliminate the backlog of N-643 forms (Application for Certificate of Citizenship in Behalf of an Adopted Child) relating to children affected by the CCA. Additionally, the program will soon automatically provide Certificates of Citizenship to certain adopted children within 45 days of entry into the United States. These Certificates of Citizenship will be produced and mailed to the parents without application and without fee.

Managed from the USCIS Buffalo, New York District Office, the program will initiate 45-day processing for children who fall within the Immediate Relative visa category. This will be for adoptions whereby adoptions are made final overseas. This program will eliminate the issuance of a Permanent Resident Card for newly entering children, since these cards are not applicable to U.S. citizens.

Question: What must I do to fall under this program?

Answer: Assuming you are a U.S. Citizen and your child is under 18 years old, he or she will be considered to be an Immediate Relative. You must petition him or her for lawful permanent residency. Once this is done, then the adopted child can enter the United States. The moment the child takes one step in the United States, he or she will automatically become a U.S. Citizen. According to the new policy, the Certificate of Citizenship should be sent within about 45 days.

Filed under: Adoption, CCA, Immigrant Visa, Immigration Law, immigration provisions | Tagged: , | Leave a comment »

New Affidavit of Support Requirements.

Posted on December 15, 2009 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I heard that there are new requirements for the affidavit of support requirements. Can you let me know what they are?

Answer: A person completing an Affidavit of Support (Form I-864) on behalf of an adjustment of status applicant is now only required to file one Federal income tax return, for the tax year that is most recent as of the date the Form I-864 was signed, rather than having to submit a Federal income tax return for each of the three most recent tax years.

Question: Can you clarify exactly what year you must now submit the tax returns?

Answer: For any Form I-485 filed on or after the date of this memorandum, the sponsor shall not be required to file any Federal income tax return for any year other than the tax year immediately preceding the sponsor’s signing of the Form I-864. For example, if the sponsor signed the Form I-864 after April 15, 2005, only the sponsor’s 2004 Federal income tax return would be required. However, the sponsor may file the three most recent returns if the sponsor believes that the additional returns will make it more likely that the Form I-864 will be found to be sufficient. This rule shall apply to petitioning sponsors, as well as substitute or joint sponsors signing a Form I-864 for an adjustment case.

Question: How does the officer determine the sufficiency of the I-864?

Answer: USCIS officers shall, as a general rule, determine the sufficiency of a Form I-864 based upon whether evidence shows that the annual income at the applicable threshold set forth in the Form I-864P, Poverty Guidelines, from the calendar year in which the Form I-864 was filed. Accordingly, adjudicators will determine whether the current income listed on Form I-864 is at least 125% (or 100% as applicable) of the governing threshold set forth in the Poverty Guidelines. Adjudicators will also determine whether the sponsor’s total income (line 22 on the 2004 IRS Form 1040, line 15 on the 2004 IRS Form 1040A), or adjusted gross income for those who filed IRS Form I040EZ (line 4 of the 2004IRS Form I040EZ), meets the Poverty Guidelines threshold. The adjudicator should request additional evidence (i.e., employment letter(s), pay stub(s), or other financial data) only if the tax return reflects income below the Form I-864P, Poverty Guidelines and the record does not already contain additional evidence that would establish the sponsor meets the current income requirements. The adjudicator should also request additional evidence (i.e., employment letter(s), pay stub(s), or other financial data) if there is a specific reason (other than the passage of time) to question the veracity of the income stated on Form I-864 or the accompanying document(s).

If the officer determines that the tax return and/or the evidence in the file do not establish that the sponsor meets the government Form I-864P, Poverty Guidelines threshold, the adjudicator shall request current year income information, not additional information from the year the sponsor signed Form I-864. In this situation, the sufficiency of the Form I-864 is determined based upon the additional evidence as it relates to the applicable threshold set forth in the Form I-864P from current year rather than the Form I-864P, Poverty Guidelines from the calendar year in which the Form I-864 was signed.

Question: Can each immigration office have a different policy than stated above?

Answer: Previously USCIS has permitted each local office to establish its own policy on whether to require submission of Form I-864 at the time of filing for adjustment or at the time of the adjustment interview. Effective as of now, all applicants are required to submit Form I-864 with their adjustment application.

Filed under: Affidavit of Support, Immigrant Visa, Immigration, Immigration Law, USCIS | Tagged: , | Leave a comment »

I have been beaten by my husband. Now what?

Posted on December 15, 2009 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I have been beaten by my husband and he never petitioned me. He was a lawful permanent resident, but was deported and now has no status. I really did love him at some point in the past. Is there something I can do?

Answer: You do not have to stay in this relationship and there is something you can do. There is a petition known as the self-petitioning battered spouse provision. Parts of the law providing help in this regard come from provisions of the Immigration and Nationality Act (the Act) by the Victims of Trafficking and Violence Protection Act (VTVPA). Title V of the VTVPA is entitled the Battered Immigrant Women Protection Act (BIWPA), and contains several provisions amending the self-petitioning eligibility requirements contained in the Act.

Question: However, my husband was deported and no longer has legal status in the U.S. Can I still file this petition?

Answer: As long as the petition is filed within two years of when your husband lost his status, you are still eligible to file the petition. For example, if your abusive husband has died, the spouse or child of a U.S. citizen who died within the two years immediately preceding the filing of the self-petition may benefit from the self-petitioning provisions for abusive United States Citizens.

Assuming this is not a case dealing with the death of a USC, you must demonstrate that the abuser’s loss of status was related to or due to an incident of domestic violence, and that you file your self-petition within two years of the loss of status. Thus, in your case, since your husband was deported most likely because of the domestic violence, there would not be a problem filing this petition. You should provide the circumstances surrounding the loss of status; the requisite causal relationship between the loss of status and the incident of domestic violence; and that the loss of status occurred within the two-year period immediately preceding the filing of the self-petition.

Similarly, divorce from an LPR or loss of LPR status by an LPR abuser after the filing of the self-petition shall not adversely affect the approval of the self-petition, nor shall it affect the ability of an approved self-petitioner to adjust status to that of an LPR.

Question: When must I file the application?

Answer: Eligibility to Self-Petition as a Battered Spouse or Child of a U.S. Citizen or Lawful Permanent Resident must be filed within Two Years of the Abuser’s Loss of Status.

Question: What must I provide and what evidence is necessary to be able to file this petition?

Answer: A self-petitioning spouse or child must demonstrate that his or her abusive spouse or parent is or was a U.S. Citizen (USC) or Lawful Permanent Resident (LPR). A self-petition filed by a battered spouse or child must be accompanied by evidence of citizenship of the U.S. citizen or evidence of the immigration status of the lawful permanent resident abuser. Self-petitioners are encouraged to submit primary evidence whenever possible, although adjudicators will consider any relevant credible evidence. USCIS regulations provide detailed information concerning the primary supporting documentation needed as evidence of a petitioner’s U.S. citizenship or lawful permanent residence. Self-petitioners can submit evidence of a spousal relationship to a USC or LPR. Evidence should include a birth certificate issued by a civil authority that shows the abuser’s birth in the United States; The abuser’s unexpired U.S. passport issued initially for a full ten-year period to a citizen of the United States; The abuser’s expired U.S. passport issued initially for a full five-year period to a citizen of the United States who was under the age of 18 at the time of issuance; A statement executed by a U.S. consular officer certifying the abuser to be a U.S. citizen and the bearer of a currently valid U.S. passport; The abuser’s Certificate of Naturalization or Certificate of Citizenship; Department of State Form FS-240, Report of Birth Abroad of a Citizen of the United States, relating to the abuser; and the abuser’s Form I-551 Alien Registration Receipt Card, or other proof given by USCIS as evidence of lawful permanent residence.

Question: What is I cannot find evidence that my husband was a Lawful Permanent Resident?

Answer: If primary evidence is unavailable, the self-petitioner must present secondary evidence. Any evidence submitted as secondary evidence should be evaluated for authenticity and credibility. If a self-petitioner is unable to present primary evidence or secondary evidence of the abuser’s status, the officer will attempt to electronically verify the abuser’s citizenship or immigration status from information contained in DHS computerized records. Other DHS records may also be reviewed at the discretion of the adjudicating officer. It is ultimately, however, the self-petitioner’s burden to establish the abuser’s U.S. citizenship or immigration status. If USCIS is unable to identify a record as relating to an abuser or the record does not establish the abuser’s immigration or citizenship status, the self-petition will be adjudicated based on the information submitted by the self-petitioner.

Thus, if your spouse or parent is abusing you, there is no need to stay. You are able to file a self petition to help yourself and to get status by yourself.

Filed under: Battered Spouse, Immigrant Visa, Immigration Law, Self-Petitioning - Battered Spouse, USCIS | Tagged: , | Leave a comment »

PERM: More on Terrorism.

Posted on December 10, 2009 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I have heard a great deal of new regulations and rules regarding anti-terrorism efforts. Have there been any new provisions recently that have been added?

Answer: Yes. If you are in Immigration Court and have submitted several different types of applications, there is a new procedure being implemented which is another layer of security checks.

Question: Which applications are applicable?

Answer: The applications are divided into two areas. First, if you apply for Asylum and Withholding of Removal. Secondly would be if you are applying for Adjustment of Status, Cancellation of Removal for Lawful Permanent Residents, Cancellation of Removal for Non Permanent Residents, Suspension of Deportation or Special NACARA Suspension of Deportation.

Question: If you are applying for the first category of Asylum and Withholding of Removal, what must you now do?

Answer: You must send certain documents now to the USCIS Nebraska Service Center. It should be entitled ‘Defensive Asylum Application with Immigration Court.’ You need to send a clear copy of the first three pages of your completed Form I-589 (Application for Asylum and for Withholding of Removal) that you will be filing or have filed with the Immigration Court, which must include your full name, your current mailing address, and your alien number (A number). Do Not submit any documents other than the first three pages of the completed I-589) and (2) A copy of Form EOIR–28 (Notice of Entry of Appearance as Attorney or Representative before the Immigration Court) if you are represented by an attorney.

Question: What will happen after these documents are sent in?

Answer: A USCIS receipt notice in the mail indicating that USCIS has received your asylum application, and an Application Support Center (ASC) notice for you and each dependent included in your application. Each ASC noticewill indicate the individual’s unique receipt number and will provide instructions for each person to appear for an appointment at a nearby ASC for collection of biometrics (such as your photograph, fingerprints, and signature). You should receive the notice within three weeks after submitting the documents to the USCIS in Nebraska. You (and your dependents) must then attend the biometrics appointment at the ASC, and obtain a biometrics confirmation document before leaving the ASC, and retain your ASC biometrics confirmation as proof that your biometrics were taken, and bring it to your future Immigration Court hearings.

Question: What is the procedure for the other applications you stated will be filed in Immigration Court?

Answer: A clear copy of the entire application form that you will be filing or have filed with the Immigration Court. (Do not submit any documents other than the completed form itself); (2) the appropriate application fee; (3) the $70 USCIS biometrics fee and (4) A copy of Form EOIR–28 (Notice of Entry of Appearance as Attorney or Representative before the Immigration Court) if you are represented. You should send it to the USCIS Texas Service Center.

Question: After you send these documents to Texas, will the same procedure be followed as with the Asylum application.

Answer: Most of it is exactly the same. However, with these applications, after you receive your biometrics appointment and get your fingerprints taken, you must file the following with the Immigration Court within the time period directed by the Immigration Judge: (1) the original application Form, (2) all supporting documentation, and (3) the USCIS notice that instructs you to appear for an appointment at the ASC.

Hopefully, this new procedure will not delay proceedings and will move efficiently through the process.


 

Filed under: asylum, Deportation, Immigrant Visa, Immigration, Immigration Law | Tagged: , , | Leave a comment »

Why am I penalized because my father became a U.S. Citizen?

Posted on December 10, 2009 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I have been waiting many years to become a Lawful Permanent Resident. My father petitioned me many years ago. My priority date was almost current, and then my father became a U.S. Citizen. Afterwards, I actually had to wait many more years. He only became a U.S. Citizen because he thought it would speed up the process. Is there anything I can do?

Answer: Actually, the Child Status Protection Act (CSPA) had a provision that addressed your exact concern. On August 6, 2002, the President signed into law the Child Status Protection Act (CSPA), Public Law 107-208, 116 Stat. 927. Section 6 of the CSPA allows for unmarried sons or daughters of lawful permanent residents (LPRs) to remain classified as second preference aliens, even if the LPR parent naturalizes. In other words, this provision actually applies only to people from the Philippines at this point as in the rest of the world the priority date is years closer when the parent petitioner becomes a U.S. Citizen.

Section 6 of the CSPA provides for the automatic transfer of preference categories when the parent of an unmarried son or daughter naturalizes, but also provides the unmarried son or daughter the ability to request that such transfer not occur. There are certain instances when the visa availability dates are more current for the unmarried sons or daughters of LPRs than for the unmarried sons or daughters of United States citizens. In such instances, it would be to the advantage of the alien beneficiary to request that the automatic conversion to the first preference category not occur because a visa would become available sooner if the alien remained in the second preference category than if he converted to the first preference category. As of this date, the Department of State Visa Bulletin shows that visa availability in the first preference category is more current than for the second preference categories, except for beneficiaries from the Philippines. As such, it is anticipated that only beneficiaries from the Philippines will seek to take advantage of the CSPA.

Question: I heard about the CSPA and was told to write a letter that I wanted to go back to the 2nd preference, not to stay at the 1st preference which I automatically was move to at the time my father had petitioned me. I did not know who to write the letter to, but sent off such a letter requesting to be changed to 2nd preference. However, to date nothing has changed.

Answer: I agree that this has been a problem. In the past, we would write Immigration and they would tell us to write the National Visa Center. Then, we would write the National Visa Center and they would tell us to write Immigration. It was a game of finger pointing without any resolution. However, guidance from Immigration has just come out.

All beneficiaries in the Philippines wishing to opt out of the automatic conversion must file a request, in writing, addressed to the Officer in Charge, Manila. The Officer in Charge shall provide written notification, on official U.S. Citizenship and Immigration Services letterhead, of a decision on the beneficiary’s request to the beneficiary and to the Department of State’s visa issuance unit. If the beneficiary’s request is approved, then the beneficiary’s eligibility for family-based immigration will be determined as if his or her parent had never naturalized and they will remain a second preference alien.

Filed under: cspa, Family Petition, Immigrant Visa, Immigration Law, immigration provisions | Tagged: , | Leave a comment »

If I stay, I will be killed

Posted on December 9, 2009 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I live in a country that is very dangerous. It is not democratic and I decided to protest against the government in order to try to make some democratic changes. I was in a protest rally. Unfortunately, the government sent its soldiers out and killed many people. I escaped. However, the government suspects that I was in the protest rally (as well as distributing e-mails and other pro-democracy pamphlets.) I am now afraid for my life. I went to the United States Consulate in my home country and got a visa to the United States I basically lied and said I just wanted to visit the United States I was desperate to get out of the country. Now I am in the United States Is there anything I can do?

Answer: You can certainly apply for asylum in the United States Asylum provides a haven in the United States for certain persecuted people of the world. The Attorney General may grant asylum to aliens present in the United States who have been the subject of persecution in their home country. Because of the broad rights granted to asylees, and concern that many people who apply for asylum do not actually qualify for it, all asylum applicants must meet stringent substantive and procedural requirements.

Question: How can I qualify for asylum?

Answer: To establish eligibility for asylum, you must show that you are a refugee. The term ‘refugee’ means any person who is outside any country of such person’s nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.

Therefore, asylum is not just for those who apply for ‘political’ asylum. The United States opens the doors to persons whom are subjected to religious, nationality and other categories of persecution.

Question: I have not actually been persecuted in the past. I am just deathly afraid to go back because of what will happen to me. Is this a problem?

Answer: No. If you can show that you have a well founded fear of future persecution, then it is not necessary to show past persecution. If on the other hand, you were able to show past persecution, then it is presumed you will suffer future persecution. Thus, you have more of a hurdle to get over, but if you will be persecuted upon your return to your home country, you are certainly eligible to apply for asylum.

Question: If I am granted asylum, can my wife and children come to the United States with me and will I be able to work?

Answer: After an alien is granted asylum, he or she is called an asylee. His or her spouse and children may be granted permission to reside in the United States. An asylee will receive appropriate authorization to enable him or her to work in the United States. Finally, because asylum is a temporary status, the asylee can apply for other, more permanent, types of status in the United States.

Brian D. Lerner is an Immigration Attorney Specialist. This firm does every aspect of immigration law including family and employment based petitions, deportation defense and criminal related immigration issues, asylum, naturalization, appeals, nonimmigrant visas, immigrant visas, and all other areas of immigration law. An appointment can be made by calling (866) 495-0554 or (562) 495-0554. The Firm website is www.californiaimmigration.us.

Filed under: Immigrant Visa, Immigration, Immigration Law, immigration provisions | Tagged: | Leave a comment »

I can get my Green Card back after having a deportation order?

Posted on December 9, 2009 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I was young and committed in a crime in 1994. Even though I had my Green Card for years, I was put into deportation proceedings in 2001 and was ordered deported. I am still in the U.S. Is there anything I can do?

Answer: The Department of Justice (Department) published a proposed rule to permit certain lawful permanent residents (LPRs) to apply for relief under former section 212(c) of the Immigration and Nationality Act, from deportation or removal based on certain criminal convictions before April 1, 1997. Certain LPRs who plead guilty or nolo contendre to crimes before April 1, 1997, may seek section 212(c) relief from being deported or removed from the United States on account of those pleas. Under this rule, eligible LPRs currently in immigration proceedings (and former LPRs under a final order of deportation or removal) who have not departed from the United States may file a request to apply for relief under former section 212(c) of the Act, as in effect on the date of their plea, regardless of the date the plea agreement was entered by the court. This rule is applicable only to certain eligible aliens who were convicted pursuant to plea agreements made prior to April 1, 1997.

Question: I have already lost at the Board of Immigration Appeals and am now appealing to the Circuit Court. What must I do at this point?

Answer: Based upon the regulations, you should request that the Circuit Court hold the case without processing it. Simultaneously, you should file a Motion to Reopen the case under 212(c) under this special rule to the Board of Immigration Appeals. If granted, the Board of Immigration Appeals will send the case back down to the Immigration Judge for hearings on 212(c).

Question: I have a friend in a similar situation who was actually deported back to his home country. Will he qualify to make the Motion to Reopen?

Answer: Under the new regulations, the answer is no. Unfortunately, the logic of the regulations is that they could have asked for various federal court relief or a stay of deportation, and therefore, their cases are closed and are no longer eligible for 212(c) relief.

Question: What if a person had a jury trial instead of pleaing guilty?

Answer: Again, they do not qualify for this 212(c) Motion to Reopen. They must have plead guilty, no contest or nolo contendre. There are other ways of fighting the battle to try to get 212(c) relief in federal courts. However, a straight forward Motion to Reopen will not work.

Question: Is there a time deadline in which to apply?

Answer: Yes. There will be a window of 180 days to apply. If you are unsure as to the exact date, you should get your motion filed as soon as possible.

Brian D. Lerner is an Immigration Attorney Specialist. This firm does every aspect of immigration law including family and employment based petitions, deportation defense and criminal related immigration issues, asylum, naturalization, appeals, nonimmigrant visas, immigrant visas, and all other areas of immigration law. An appointment can be made by calling (866) 495-0554 or (562) 495-0554. The Firm website is www.californiaimmigration.us.

Filed under: Immigrant Visa, Immigration, Immigration Law, immigration provisions | Tagged: , | 26 Comments »

Can I Petition My Adopted Sister?

Posted on December 9, 2009 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: How Do I Bring a Sibling to Live in the United States?

Answer: This information is for U.S. citizens who wish to bring a sibling to live permanently in the United States. Only U.S. citizens can bring their siblings to live permanently in the U.S. Lawful Permanent Residents can not.

First, you must know exact how the USCIS defines a sibling. A sibling is a brother, sister, stepbrother, stepsister, or adopted brother or sister. For the necessary sibling relationship to exist, each person must have been a child of at least one of the same parents. The siblings need not share the same biological parents as long as both became “children” at the appropriate time (before the age of 16 in cases of adoption, and before the age of 18 for stepchildren).

Question: What must I do since I am eligible to petition my sister?

Answer: A legal immigrant (or “lawful permanent resident”) is a foreign national who has been granted the privilege of living and working permanently in the United States. There is a three-step process for your brother or sister to become a legal immigrant: 1. The USCIS must approve an immigrant visa petition that you file for your brother or sister. Keep in mind that the USCIS is not actually ruling on these petitions until a visa number becomes available. 2. The State Department visa bulletin must show that a sibling immigrant visa is available to your sibling, based on the date that you filed the immigrant visa application. 3. If your brother or sister is outside the United States when an immigrant visa number becomes available, your brother or sister will be notified to go to the local U.S. consulate to complete the processing for an immigrant visa. If your sibling is legally inside the U.S. when an immigrant visa number becomes available, he or she may apply to adjust status to that of a lawful permanent resident using the Form I-485.

Question: How long must I wait for the visa number to become current?

Answer: Depending on the relationship and the country involved, the wait for an available sibling visa number may be several years. Unfortunately, for people from Mexico and the Philippines, the wait can be as long as 20 years.

Thus, keep in mind that many people such as your sibling sister may be able to come to the United States with an employment based visa much faster. If she has a college degree, she may be able to get an H-1B. She could also get an employer to sponsor her for a Labor Certification which would not take nearly as long.

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  • Brian D. Lerner

    Immigration Lawyer

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