An I-140 Multi-National Manager petition approved for Client from Egypt who is the majority owner of a small health care and medical supply business. Client is in E-2 status (also prepared by our office) and can now adjust status to get permanent residency.
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Don’t even think about filing a frivolous asylum application!
Question: I have a friend who came into the U.S and filed a fake asylum application. Is there anything that can happen?
Answer: Yes. This would be one of the worse things that your friend could do. In fact, the consequences for filing a frivolous application are extremely severe. If such a ruling is made, then the law states that this person will NEVER be able to obtain immigration benefits for the rest of his or her life.
Question: How do we know if this ruling is properly made?
Answer: There are three parts to getting a ruling of a frivolous application on an asylum application. First, the application must be frivolous. Second, it must be knowingly filed. Finally, the foreign national must have been given the proper advisals on the consequences of filing a frivolous application.
Question: On the first item, what does frivolous mean?
Answer: This means that the application was simply fake and had absolutely no basis in truth. Essentially, it was a fraudulent application.
Question: If the asylum application is denied, does that mean that it is frivolous?
Answer: No. Having an asylum application denied is far better than having a frivolous application. Getting denied might be for a wide variety of reasons such as there was not sufficient proof or that there was an adverse credibility finding, or that the legal basis for the asylum application is not applicable. These matters could be appealed or a motion to reopen could be made.
Question: How do you know if the foreign national ‘knowingly’ made the frivolous application?
Answer: This is a question of fact. However, if for example, the person came into the United States and did not speak a word of English and a ‘notario’ or somebody claiming to be an expert in Immigration Law simply filled out a fake application so that the foreign national would get a work-permit, then it is arguable it is not knowingly submitted. Especially if the foreign national was just told to sign everywhere without reading the application or understanding the application or what is said.
Question: What types of advisals exactly must be given in order for this section of law to be applicable?
Answer: The law specifies two major advisals that must be given: 1) the right to counsel and 2) what happens if a frivolous asylum application is filed. Specifically, if the Attorney General determines that an alien has knowingly made a frivolous application for asylum and the alien has received the notice, the alien shall be permanently ineligible for any benefits under the Immigration and Nationality Act.
Question: What is the ‘notice’ you referred to above? Specifically, how does the foreign national have to received the notice?
Answer: It has to be given at the time the asylum application is submitted. Therefore, if the frivolous asylum application is filed and is knowingly filed, but no advisals given, then the person does not fall under this area of law. It should then be immediately withdrawn.
Question: If somebody got this ruling, but years later marries a U.S. Citizen and has children and no crimes, can he adjust?
Answer: No. The bar against immigration benefits is for life. Therefore, I would have to go back to the original ruling and determine if it was incorrect and/or whether one of the elements necessary for the permanent bar to take effect has not been properly complied with by the government. I would then make a Motion to Reopen to try to get this ruling vacated.
In any case, it is an extremely harsh ruling and must be avoided at all realistic costs.
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I never got notice of my Immigration Court hearing. Now what?
Question: It seems years ago I supposedly received a notice to go to court, but never went because I never really received the notice. What can I do?
Answer: An in absentia order may be rescinded by the immigration judge upon the filing of a motion to reopen if the respondent did not receive proper notice of the hearing.
Question: Where to File the Motion to Reopen?
Answer: The motion should be filed with the immigration court having administrative control over the record of proceedings. Typically, this will be the court where the in absentia order of removal or deportation was entered.
Question: What is the Time for Filing the Motion to Reopen?
Answer: A motion to reopen based on lack of proper notice can be filed at anytime. This also means that a motion may be filed even after a person has departed the United States.
Question: Will I get deported if I file the motion – or have a risk of deportation?
Answer: An automatic stay goes into effect when the motion is filed and remains in effect pending disposition of the motion by the immigration judge. In deportation cases, the stay remains in effect during the appeal to the Board of Immigration Appeals (BIA).
To alert the court and the U.S. Immigration and Customs Enforcement (ICE) to the applicability of the automatic stay provision, motions may indicate (in bold letters on the cover page and on the front page of the motion) that an automatic stay applies.
Question: What factors are considered in this type of motion?
Answer: Consideration of many different factors goes into this type of motion, especially that you did not have notice of the proceedings against you.
Question: What does proper notice mean?
Answer: Proper notice means that ICE must properly serve the respondent with a charging document at the outset of proceedings. The charging document is an Order to Show Cause (OSC) in deportation and exclusion proceedings and a Notice to Appear (NTA) in removal proceedings. Also, the court must properly serve the respondent with written notice of all hearings.
Question: What Information Must the Government Put in the Notice?
Answer: The charging document must include: the nature of the proceedings, the legal authority for the proceedings, the acts/conduct alleged to be in violation of the law, the charges against the respondent, notification of the right to be represented by counsel, and the requirement that the respondent must provide a change of address or telephone number. The notice also must inform the respondent of the consequences of not providing a change of address (i.e., that the he or she may be ordered removed or deported in absentia). The notice of hearing, whether contained in the charging document or as a separate notice, must state the time and place of the proceedings and must inform the respondent of the consequences of failing to attend the hearing.
Question: What are Proper Methods of Service?
Answer: There is a presumption of effective delivery where the evidence indicates that the notice was properly served. However, if the respondent can show that the notice was not served properly, the presumption of effective delivery should not apply and thus there is no need to rebut the presumption. The following are the service requirements:
The nature of the requirements have chnged over time. However, for Removal Proceedings Filed On or After April 1, 1997, the NTA and notice of hearing may be served in person or by mail, but there is no requirement that the NTA be mailed by certified mail. Regular mail is sufficient. Consequently, signatures of receipt are not required.
Question: How Does the “Change of Address” Requirement Affect Proper Service and Can the Notice Requirements Be Satisfied Without Actual Receipt?
Answer: ICE may mail the NTA to the last address on file for the respondent. This may be the address that was included in an affirmative application that was filed with U.S. United States Citizenship and Immigration Services (USCIS). However, respondents cannot be ordered removed or deported in absentia until they are warned (by receipt of the NTA or OSC) that they may be ordered removed or deported in absentia as a consequence of failing to inform the government of a change of address. Thus, individuals who failed to report a change of address and do not receive the NTA or OSC as a result, cannot be ordered removed in absentia.
Question: How Can the I Prove that I Did Not Receive Notice Even If the Record Shows that It Was Mailed to the Correct Address?
Answer: Some of this will depend when the deportation notice of your hearing was mailed. However,
the presumption of effective service can be overcome if the respondent demonstrates non-delivery or improper delivery by the U.S. Postal Service. Non-delivery or improper delivery can be established by submitting substantial and probative evidence, such as documentary evidence from the Postal Service and affidavits. For example, if there were ongoing problems with the mail delivery, you may want to provide details about the problems and affidavits from people with direct knowledge of the problem.
In determining whether the respondent has overcome this presumption, the immigration judge must consider both circumstantial and corroborating evidence, and may consider a variety of factors, including (but not limited) to: Respondent’s affidavit; Affidavits from family members and other individuals who are knowledgeable about the relevant facts; Respondent’s actions upon learning about the in absentia order and whether he or she exercised due diligence in seeking redress; Any prior affirmative application for relief or application filed with USCIS or prima facie eligibility for relief (to help establish an incentive to appear); Previous attendance at immigration court hearings; and Other circumstances or evidence indicating possible non-receipt.
Thus, there is a significant amount of work to be done on a Motion to Reopen a deportation order issued in absentia, but if done properly, it can work and proceedings can be reopened.
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Question: Hello, my husband just got an H-1B to goto the United States. Do I have to remain here in my home country while he is in the United States on a work permit?
Answer. No. You would be considered a ‘derivative beneficiary’. This means that you would only have to prove the relationship that you have with your husband and then you would get a derivative visa. In this case, you would get an H-4. This would allow you to come to the United States.
Question: What about my children and my son who is married and my other daughter who is 32 years old?
Answer: All children who are under 21 and unmarried will be able to obtain derivative status as well. Unfortunately, the son who is married and the daughter who is over 21 years of age will not be able to get derivative status as well.
Question: Can I work on derivative status?
Answer: That will depend on the type of visa you have. For example, H-4 will not permit you to work. However, if your husband were to have received an E-2 for investing in a business or an L-1 for opening up a branch office, then you would be able to easily work with a derivative status.
Question: If I have a derivative status that does not permit me to work, what can I do?
Answer: You could always apply for a change of status when you get to the U.S. For example if you come to the United States on H-4 status, you could always apply for an H-1B yourself or a myriad of other types of status where you are no longer the derivative beneficiary, but the primary applicant.
Question: Will my children be able to goto school if they are here on a derivative status?
Answer: That also will depend on the type of derivative status. E-2 and L-2 will allow going to school without a problem (as long as not college). Otherwise, there has to be a change of status to F-1.
Question: If one of my children is now 20, but my husband got an H-1B for 3 years, will my child also get derivative status for 3 years?
Answer: No. The moment your child turns 21, his derivative status is over. Even if the I-94 states it is good for 3 years, by operation of law, it will terminate the day he is 21 years old. Therefore, it would be in your interest for him to file for a change of status a few months before, such as to F-1 to be a student.
Question: Are derivative beneficiaries also the spouse and unmarried children under 21 years old?
Answer: Actually, that is most of the time. However, there are certain visas which in actuality have a broader range of derivative beneficiaries, and therefore, make it a better choice if you qualify. For example, visas such as the U and T allow a broader range of derivative beneficiaries.
Question: What about the Green Card? Are there also derivative beneficiary’s?
Answer: Yes, in much the same manner. Except when the Green Card or Lawful Permanent Residency is involved, it will result in the Green Card being issued. Therefore, you want to make sure to apply in plenty of time as in some cases, it will take years for the visa number to become current. There might be some ways of getting a derivative Beneficiary if the child is over 21 years old if they fall under the Child Status Protection Act.
In any case, be sure you consult a knowledgeable immigration attorney before the child has aged out and there is no way to get derivative status.
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DOMA and now Same Sex Immigration Petition Updates
Question: I am a U.S. citizen or lawful permanent resident in a same-sex marriage to a foreign
national. Can I now sponsor my spouse for a family-based immigrant visa?
Answer: Yes, you can file the petition. You may file a Form I-130 (and any applicable
accompanying application). Your eligibility to petition for your spouse, and your spouse’s
admissibility as an immigrant at the immigration visa application or adjustment of status stage,
will be determined according to applicable immigration law and will not be denied as a result
of the same-sex nature of your marriage.
Question: I am a U.S. citizen who is engaged to be married to a foreign national of the same
sex. Can I file a fiancé or fiancée petition for him or her?
Answer: You may file a Form I-129F. As long as all other immigration requirements are
met, a same-sex engagement may allow your fiancé to enter the United States for marriage.
Question: My spouse and I were married in a U.S. state or a foreign country that recognizes
same-sex marriage, but we live in a state that does not. Can I file an immigrant visa
petition for my spouse?
Answer: As a general matter, the law of the place where the marriage was celebrated
determines whether the marriage is legally valid for immigration purposes. Just as USCIS
applies all relevant laws to determine the validity of an opposite-sex marriage, we will apply
all relevant laws to determine the validity of a same-sex marriage.
Question: Do I have to wait until USCIS issues new regulations, guidance or forms to apply for
benefits based upon the Supreme Court decision in Windsor?
Answer: No. You may apply right away for benefits for which you believe you are eligible.
Question: My Form I-130, or other petition or application, was previously denied solely
because of DOMA. What should I do?
Answer: USCIS will reopen those petitions or applications that were denied solely because of
DOMA section 3. If such a case is known to us or brought to our attention, USCIS will
reconsider its prior decision, as well as reopen associated applications to the extent they
were also denied as a result of the denial of the Form I-130 (such as concurrently filed
Forms I-485). USCIS will make a concerted effort to identify denials of I-130 petitions that
occurred on the basis of DOMA section 3 after February 23, 2011. USCIS will also
make a concerted effort to notify you (the petitioner), at your last known address,
of the reopening and request updated information in support of your petition. To alert USCIS of an I-130 petition that you believe falls within this category,
USCIS recommends that you send an e-mail from an account that can receive
replies to USCIS at USCIS-626@uscis.dhs.gov stating that you have a pending
petition. USCIS will reply to that message with follow-up questions as necessary to
update your petition for processing.
Question: What about immigration benefits other than for immediate relatives, family preference
immigrants, and fiancés or fiancées? In cases where the immigration laws
condition the benefit on the existence of a “marriage” or on one’s status as a “spouse,”
will same-sex marriages qualify as marriages for purposes of these benefits?
Answer: Yes. Under the U.S. immigration laws, eligibility for a wide range of benefits
depends on the meanings of the terms “marriage” or “spouse.” Examples include (but
are not limited to) an alien who seeks to qualify as a spouse accompanying or following to
join a family-sponsored immigrant, an employment-based immigrant, certain
subcategories of nonimmigrants, or an alien who has been granted refugee status or
asylum. In all of these cases, a same-sex marriage will be treated exactly the same as an
opposite-sex marriage.
Question: If I am seeking admission under a program that requires me to be a “child,” a “son
or daughter,” a “parent,” or a “brother or sister” of a U.S. citizen or of a lawful
permanent resident, could a same-sex marriage affect my eligibility?
Answer: There are some situations in which either the individual’s own marriage, or that of
his or her parents, can affect whether the individual will qualify as a “child,” a “son or
daughter,” a “parent,” or a “brother or sister” of a U.S. citizen or of a lawful permanent
resident. In these cases, same-sex marriages will be treated exactly the same as opposite sex
marriages.
Question: Can same-sex marriages, like opposite-sex marriages, reduce the residence period
required for naturalization?
Answer: Yes. As a general matter, naturalization requires five years of residence in the
United States following admission as a lawful permanent resident. But, according to the
immigration laws, naturalization is available after a required residence period of three
years, if during that three year period you have been living in “marital union” with a
U.S. citizen “spouse” and your spouse has been a United States citizen. For this purpose,
same-sex marriages will be treated exactly the same as opposite-sex marriages.
Inadmissibility Waivers
Q9. I know that the immigration laws allow discretionary waivers of certain
inadmissibility grounds under certain circumstances. For some of those waivers, the
person has to be the “spouse” or other family member of a U.S. citizen or of a lawful
permanent resident. In cases where the required family relationship depends on
whether the individual or the individual’s parents meet the definition of “spouse,” will
same-sex marriages count for that purpose?
Answer: Yes. Whenever the immigration laws condition eligibility for a waiver.
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The Walsh Waiver and How to Argue it
Question: I am going to marry my husband and I wanted him to petition me. However, I have been told because he has a conviction for viewing child pornography on the internet that he cannot petition me and I need some kind of waiver. Can you explain?
Answer:A United States Citizen (USC) who has been convicted of “a specified offense against a minor” as defined in §111(7) of the Adam Walsh Child Protection and Safety Act of 2007 is prohibited from petitioning for a fiancé(e), unless DHS in its “unreviewable discretion,” determines that the USC poses no risk to the beneficiary.
Question: What are the ‘specified offenses’?
Answer: A “specified offense against a minor” is an offense against a minor that involves any of the following: (A) kidnapping (unless by a parent or guardian); (B) false imprisonment (unless by a parent or guardian); (C) solicitation to engage in sexual conduct; (D) use in a sexual performance; (E) solicitation to practice prostitution; (F) video voyeurism as described; (G) possession, production or distribution of child pornography; (H) criminal sexual conduct involving a minor, or the use of the Internet to facilitate or attempt such conduct; or (I) any conduct that by its nature is a “sex offense against a minor.”
The last provision—conduct that by its nature is a “sex offense against a minor”—encompasses crimes including: (i) an offense that has an element involving a sexual act or sexual contact with another; (ii) an offense that is a specified offense against a minor; (iii) a federal offense or (v) any attempt or conspiracy to commit an offense described above.
Question: What if the conviction was not in the United States?
Answer: The “sex offense” provision applies to foreign convictions unless they were not obtained “with sufficient safeguards for fundamental fairness and due process for the accused.” Sex offense convictions “under the laws of Canada, United Kingdom, Australia, and New Zealand are deemed to have been obtained with sufficient safeguards for fundamental fairness and due process.” The other exception to the definition of “sex offense” under Adam Walsh §111(5)(C), are “offense[s] involving consensual sex … if the victim was an adult, unless the adult was under the custodial authority of the offender at the time of the offense, or if the victim was at least 13 years old and the offender was not more than 4 years older than the victim.
Question: What type of authority does the Immigration Officers have to grant or deny a Walsh Waiver?
Answer: Waiver of the Criminal Bar under the Adam Walsh Act—Waiver under this provision is in the “sole and unreviewable discretion” of DHS upon a determination that the “petitioner poses no risk to the beneficiary.” USCIS interprets the ‘poses no risk to the beneficiary’ provision to mean that the petitioner must pose no risk to the safety or well-being of the beneficiary, which includes the principal beneficiary and any alien derivative beneficiary.
Question: What type of evidence is needed for this Waiver?
Answer: The petitioner must submit evidence that demonstrates, beyond a reasonable doubt, that he or she poses no risk to the safety and well-being of the beneficiary. Proof may include: (1) certified records indicating successful completion of counseling or rehabilitation programs; (2) certified psychological evaluations attesting to rehabilitation or behavior modification; (3) evidence of service to the community; (4) certified copies of police and court records relating to the offense; and (5) news accounts and transcripts describing the nature and circumstances of the offense.
Proof of rehabilitation may be submitted but it is not required above and beyond proof that a petitioner poses no risk to the beneficiary.
Question: What type of criteria does USCIS to make the decision on this Waiver?
Answer: USCIS shall consider all known factors that are relevant to determine whether the petitioner poses any risk including: (1) the nature and severity of the offense; (2) petitioner’s criminal history; (3) the nature, severity, and mitigating circumstances of prior arrests or convictions of violent or criminal behavior that may pose a risk; (4) the relationship between the petitioner and the beneficiary and derivative beneficiaries; (5) the age and gender of the beneficiary; (6) whether petitioner and beneficiary will be residing in the same house; and (7) the degree that rehabilitation or behavior modification alleviate the risk.
Question: What if the beneficiary of this petition is a child?
Answer: Irrespective of the nature and severity of the petitioner’s specified offense and other past criminal acts and irrespective of whether the petitioner and beneficiary will be residing either in the same household or within close proximity to one another, the adjudicator must automatically presume that risks exists” where the intended beneficiary of the petition is a child. The burden is on the petitioner to rebut and overcome the presumption
Where no children are beneficiaries, there is no presumption against the petitioner. However, the adjudicator must “closely examine” the petitioner’s offense and consider past acts of spousal abuse or other acts of violence. The fact that past acts were perpetrated only against children or that the petitioner and beneficiary will not be residing in the same household or in close proximity are not alone sufficient to find no risk to an adult beneficiary.
Make sure you get an attorney who can prepare a very persuasive attorney cover letter, declarations, affidavits and all of the necessary supporting evidence to try to get the Walsh Waiver completed.
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Immigration Lawyer
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