Proceedings terminated based on approved I-130 even though Client had a previous VD order.
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Cancellation of Removal (42A) granted by IJ . Client had 2 DUIs, a reckless driving and a discharge of a firearm in gross negligence. Firearm offense would have stopped time if it was a CIMT. Established through testimony that it was not a CIMT and Judge granted case. Client had a long work history and one minor child but not too many other equities.
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Adjustment granted for Client with with a possession conviction (expunged) and firearm offense. Case went to the 9th Circuit and back and eventually proceedings were terminated so Client could adjust. No issues and no waiver needed.
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1016.5 motion granted by Judge Schwarz. PC 11378 (possession for sale of meth) dismissed. In 2001, DA asked Client if he was a USC, Client said yes and therefore, no 1016.5 advisals given. Same judge that heard the case in 2001 granted the motion, she essentially blamed it on the old DA.
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What must I do to bring in an adopted child?
Question: I have a child that I want to adopt, but do not know the immigration procedures. Can you help?
Answer: The U.S. is now a signatory to the Hague Convention on the Protection of Children and Co-operation in Respect of Intercountry Adoption, 29 May 1993, entered into force Apr. 1, 2008. The Hague Convention applies when both countries are signatories and have entered the Convention into force. As of July 1, 2012, there are 87 signatory countries, not including countries that have signed but not ratified the Convention Congress has authorized DOS to be the central authority for monitoring requests for overseas adoptions and preventing fraud. As the Central Authority the DOS must accredit or approve and list adoption agencies, and it is no longer a matter of state accreditation for purposes of the Convention.
Question: What is the acredited agency?
Answer: The “accredited agency,” “temporary accredited agency,” or an “approved person” acts as the primary provider, and is responsible for the home study and certifying other aspects of the process needed to approve the I‑800 Convention adoptee petition.The primary provider prepares home study, provides statements regarding preplacement preparation, provides certification statement, provides plan for post-placement duties, statement summarizing the plan for monitoring the placement.
Question: When do the procedures for the Hague Convention apply?
Answer: The procedures under the Hague Convention apply to adoptions that occur after Apr. 1, 2008. As long as the adoption occurred before Apr. 1, 2008, the I-600A may be filed after Apr. 1, 2008.If a USC adopted a child after Apr. 1, 2008 from a Hague Convention Country, the former procedures would apply only if either the USC was not habitually resident in the U.S. or the child was not habitually resident in the other Hague Adoption Convention country.
Question: Who can adopt under the Hague Convention?
Answer: The following persons can adopt under the Hague Convention:
(1) Only a married USC whose spouse also adopts the child or an unmarried USC who is 25 or older may adopt. Thus, for non–orphan adoptions, LPRs may not apply.
(2) The visa petition must be filed before the child’s 16th birthday.
(3) The 2-year legal-custody and joint-residence requirements do not apply as in non–orphan cases.
(4) The child must be adopted abroad.
(5) The adopting parents must habitually reside in the U.S. and the child must be an habitual resident of the Convention country.
Question: What does ‘habitual residence’ mean?
Answer: A USC who is living abroad but is returning to establish a domicile in the U.S. on or before the child’s admission with an IV will be considered to be habitually residing in the U.S. Similarly a USC who will be bringing the child back to the U.S. after the adoption and before the child’s 18th birthday so the child may be naturalized under will be considered an habitual resident and subject to the Convention. USCs serving in the Armed Forces or working with the U.S. government are considered habitual U.S. residents. However, USCs who are living abroad, adopt the child abroad and are not returning are not subject to the Convention but can bring the child to the U.S. Also, USCs who complete the two year custody and joint residence with the child abroad will not be considered to be habitually residing in the U.S. and therefore can move forward with a non–Hague Convention adoption. Thus, post–Hague Convention, an LPR (unless married to a USC) who decides to adopt must, as a practical matter, reside with the child and have the two year custody requirement met by living with a child in a foreign country. The LPR would then not be habitually residing in the U.S. and could adopt under pre-Hague standards by filing an I-130.
Question: What does the child’s habitual residence mean?
Answer: If the child is habitually residing in the country of citizenship, the process must proceed through the Convention. If the child’s actual residence is outside his country of citizenship, the child will be deemed habitually resident in that other country rather than the country of citizenship, if the Central Authority (of that country) has determined that the child’s status in that country is sufficiently stable for that country properly to exercise jurisdiction over the child’s adoption or custody. The child will not be considered to be habitually resident in any country to which “the child travels temporarily, or to which he or she travels either as a prelude to, or in conjunction with, his or her adoption and/or immigration to the United States.” Thus, if the child is in the U.S. as a Nonimmigrant, parolee, or Entered Without Inspection, he or she will be treated as an habitual resident of the Convention country and an adoption can only proceed under the Convention. If the child is otherwise ineligible to adjust or if the Central Authority in the other country requires the child’s return to approve the adoption, the petition may be provisionally approved but the child must return to the country and obtain an immigrant visa. If it is determined that the child is habitually residing in the U.S., the Convention does not preclude the adoption of the child in the U.S. and therefore an I-130 petition may be filed but only if there is a statement from the Central Authority of the country of birth/citizenship that the child is not habitually residing there. There may also be a situation where the Central Authority in the country determines that, from its perspective, the Convention does not apply. USCIS may conclude that the Convention does not apply in that situation and allow the person to adopt and file an I-130. Similarly, the regulations are read not to bar adoption in the U.S. and the submission of an I-130 where the child is in the U.S., as long as the U.S. adopting court enters an adoption order that expressly states the Central Authority of the other country “is aware of the child’s presence in the United States, and of the proposed adoption, and that the Central Authority has determined that the child is not habitually resident in that country.”
Adoption questions and answers
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Find a good immigration lawyer to help you
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Recent Win from Law Offices of Brian D. Lerner. Client, from Pakistan, served with NTA in 2008 after applying for naturalization. Charged with a controlled substance violation and 2 CIMTs based on a grand theft conviction and a conviction for solicitation to sell cocaine. Denied charges and DHS was ordered to brief the issue. Instead, they moved to terminate without prejudice. Now we can file for Naturalization.
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Coffee talk with Immigration Attorney Brian D. Lerner, A Professional Corporation on Immigration and Naturalization Law and specifics on how you can find solutions to immigration problems, visas, work-permits, deportation and other areas of immigration law. Find out about the R-1 Religious Worker Visa and how to come into the U.S. as a Priest, Rabbi or other type of Minister or a Religious Worker. Immigration Lawyer Brian D. Lerner explains this area of immigration law so that it is clear and in normal and plain English. The Law Offices of Brian D. Lerner is happy to give you a free 10 minute consultation at http://www.blerner.checkappointments.com/. Additionally, call us at 562-495-0554 or send a Skype to ‘briandlerner’.
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The R-1 Religious Visa
Question: I am a priest. Can I get a visa to come to the U.S.?
Answer: Yes. You would have to fall under the definition of a minister and be petitioned as an R-1. A minister is defined as: (1) Fully authorized and trained in religious denomination to conduct religious worship and perform other duties usually performed by clergy of denomination;
(2) Is not a lay preacher or a person not authorized to perform clergy’s duties;
(3) Performs activities rationally related to being a minister; and
(4) Works solely as a minister in the U.S. which may include incidental administrative duties. May be part-time (20 hours per week)
Deacons, practitioners of Christian Science and officers of the Salvation Army may be deemed ministers.
Question: I know somebody who is not a priest, but want to be petitioned in an R-1 capacity. Can this be done?
Answer: Yes, if you meet the requirements for a Religious Worker. This would be defined as:
(1) Member of a religious denomination for at least 2 years immediately preceding the time of application for admission that has a bona fide nonprofit religious organization in the U.S.;
(2) Must be coming to work at least in a part-time position (20 hours);
Must be coming to perform a religious vocation or occupation in either a professional or nonprofessional capacity.
Question: What is considered a religious occupation?
Answer: The duties must primarily relate to: (i) a traditional religious function and be recognized as a religious occupation within the denomination; (ii) clearly involve inculcating or carrying out the religious creed and beliefs of the denomination; (iii) not include positions that are primarily administrative or support such as janitors, maintenance workers, clerical employees, fundraisers, person solely involved in solicitation of donations or similar positions but may include incidental administrative duties to religious functions; and (iv) not be solely for religious study or training for religious work, although a religious worker is not barred from such training or study.
Question: What is a religious vocation?
Answer: A form of lifetime commitment through vows, investitures, ceremonies or similar indicia to a religious way of life such as nuns, monks, and religious brothers and sisters. Distinguished from secular members of the denomination.
Question: What is considered a religious occupation?
Answer: The duties must primarily relate to: (i) a traditional religious function and be recognized as a religious occupation within the denomination; (ii) clearly involve inculcating or carrying out the religious creed and beliefs of the denomination; (iii) not include positions that are primarily administrative or support such as janitors, maintenance workers, clerical employees, fundraisers, person solely involved in solicitation of donations or similar positions but may include incidental administrative duties to religious functions; and (iv) not be solely for religious study or training for religious work, although a religious worker is not barred from such training or study.
Question: How do I get petitioned for an R-1?
Answer: The employer files the I-129 with attestation and supporting documentation. You cannot self-petition like special immigrants. Department of State no longer grants an R visa without an approved I-129. However, an approved petition is prima facie evidence of entitlement to R-1 status and a consular officer should refer cases to USCIS for reconsideration “sparingly.” Before requesting review of the I-129 by USCIS the consular officer “must have specific evidence of a requirement for automatic revocation, misrepresentation in the petition process, lack of qualification on the part of the beneficiary, or of previously unknown facts, which might alter USCIS’s finding…”
Answer: The employer must then file the attestation by authorized official of the religious organization showing that: (i) the employer is a bona fide nonprofit religious organization or affiliate of one and is tax exempt; (ii) the beneficiary has been a member of the denomination for at least 2 years and is otherwise qualified for the position; (iii) the number of members of the religious organization; (iv) the number of employees who work at the same location and a summary of their responsibilities. USCIS may request a list of all employees, their titles and duties and employment description; (v) number of R-1 or Special Immigrant visa or status holders employed within last 5 years; (vi) number of NIV and IV applications filed in last 5 years; (vii) title and detailed description of position offered; (viii) salaried or nonsalaried compensation in position; (ix) employment will be at least 20 hrs per week; (x) location of employment; and (x) applicant will not be engaged in secular employment.
Question: Can my spouse and children come to the U.S. when I get my R-1?
Answer: Yes, they will receive an R-2. Subject to same time limits as principal, and also may obtain benefit of recapturing time out of U.S. However, they cannot accept employment. R-2s “are not required to demonstrate a residence abroad which they have no intention of abandoning.”
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