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What does the REAL ID Act mean?

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

Question: I have heard so much about the REAL ID Act, but do not really understand what it is. Can you explain?

Answer: The REAL ID Act made two changes to INA § 242(a)(2)(B), an INA subsection added by IIRIRA that precludes federal court jurisdiction over certain discretionary decisions. One of these changes purports to expand § 242(a)(2)(B) to non-removal cases.

Courts have only recently begun to interpret the REAL ID Act.

Question: What is INA § 242(a)(2)(B)?

Answer: INA § 242(a)(2)(B), entitled “Denials of Discretionary Relief,” restricts when federal courts have jurisdiction over certain types of discretionary decisions and action by the government in immigration cases.

INA § 242(a)(2)(B) includes two subparts. The first limits federal court jurisdiction over a “judgment regarding the granting of relief under section criminal and fraud waivers, cancellation of removal or adjustment proceedings. The second subpart restricts federal court jurisdiction over “any other decision or action … the authority for which is specified under this title [Title II] to be in the discretion or the Attorney General or the Secretary of Homeland Security.” Asylum decisions are specifically exempted from this bar on jurisdiction.

For § 242(a)(2)(B) to apply, a case must fall within one of these two subsections. Each subpart has been interpreted narrowly, in accord with the specific language chosen by Congress.

The REAL ID Act also expanded the scope of § 242(a)(2)(B) so that it now applies “regardless of whether the [discretionary] judgment, decision, or action is made in removal proceedings.” Prior to the REAL ID Act, some – though not all courts had held that § 242(a)(2)(B) was applicable only in removal cases. Presumably, this amendment was intended to reverse these earlier court decisions.

Question: Do these amendments eliminate all mandamus and other types of affirmative suits in non-removal cases?

Answer: No, these changes do not eliminate all jurisdictions over mandamus and other affirmative lawsuits in non-removal cases. To determine whether jurisdiction remains available in a particular case, a practitioner may carry out a several step analysis. This analysis is essentially the same as the analysis to determine whether jurisdiction exists in a removal case involving agency discretion. Consequently, court decisions interpreting § 242(a)(2)(B) in the removal context will be helpful in determining whether the provision applies in a non-removal case.

Question: What steps are involved in determining whether a court has jurisdiction under § 242(a)(2)(B) in a removal or non-removal case?

Answer: While there are several issues in such an analysis, the first issue will be looked at in this article. INA § 242(a)(2)(B) does not apply to every immigration-related case. Thus, the first step is to determine if the case is entirely outside the reach of § 242(a)(2)(B). There are at least four general categories of cases that arguably fall outside the reach of this section.

A. INA § 242(a)(2)(B) only limits jurisdiction over certain discretionary actions and decisions. Neither this section nor the REAL ID Act stripped federal courts of jurisdiction where the government has a nondiscretionary duty to act. In mandamus cases in particular, the existence of a mandatory, non-discretionary duty on the part of the government is an essential element of the claim. Thus, mandamus actions by definition generally should not fall within the restrictions of INA § 242(a)(2)(B).

B. INA § 242(a)(2)(B) does not apply to asylum decisions. Asylum is not one of the forms of discretionary relief specifically mentioned in § 242(a)(2)(B)(i), and thus this subsection does not apply to asylum cases. Additionally, asylum is specifically exempted from § 242(a)(2)(B)(ii), and thus this subsection also does not apply to asylum cases. Consequently, § 242(a)(2)(B) should never be an issue with respect to federal court jurisdiction over asylum cases, even if the challenged agency action is a discretionary one.

C. INA § 242(a)(2)(B) also does not apply to naturalization decisions. Additionally, § 242(a)(2)(B)(ii) states that it applies to agency decisions or action, “the authority for which is specified under this title” to be discretionary. Consequently, INA § 242(a)(2)(B) should never be an issue in federal court jurisdiction over a naturalization decision, even one involving discretion.

D. INA § 242(a)(2) should not apply to S, T and U visas. While generally, this provision contains definitions that do not authorize discretion, there are a few exceptions. For example, the definition of the non-immigrant “T” visa category includes as an eligibility requirement that the Attorney General determine if the individual “would suffer extreme hardship involving unusual and severe harm upon removal.” The determination of extreme hardship has been held to be a discretionary determination. Arguably, however, the exercise of the Attorney General’s discretion with respect to a T visa would not fall within the bar to jurisdiction in § 242(a)(2)(B)(ii) because the statutory authority for this discretion is found in Title I, not Title II. The definitions of the “S” and “U” visa categories contain similar grants of discretion that fall outside the scope of § 242(a)(2)(B).

Thus, the REAL ID Act did not completely eliminate federal court jurisdiction.

Filed under: asylum, Immigration Law, immigration provisions, REAL ID Act, USCIS | Tagged: , | Leave a comment »

Can I get review of my denied case under the REAL ID Act?

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

Question: I have had my case denied in Immigration Court and I have heard about the REAL ID act and am very confused if I can get some type of judicial review of my case. Can you clarify?

Answer: The REAL ID Act did not change the language of either subpart (i) or (ii) of the statute giving/denying review. Rather, the Act made two changes to the paragraph preceding these subparts. First, it specified that the phrase “notwithstanding any other provision of law” applied to “statutory and nonstatutory” law and included the habeas corpus statute, the mandamus statute, and the All Writs Act. Second, the REAL ID Act also expanded the scope of § 242(a)(2)(B) so that it now applies “regardless of whether the [discretionary] judgment, decision, or action is made in removal proceedings.” Prior to the REAL ID Act, some – though not all – courts had held that § 242(a)(2)(B) was applicable only in removal cases. Presumably, this amendment was intended to reverse these earlier court decisions.

Question: Do these amendments eliminate all mandamus and other types of affirmative suits?

Answer: No, these changes do not eliminate all jurisdiction over mandamus and other affirmative lawsuits in non-removal cases. To determine whether jurisdiction remains available in a particular case, it is necessary to carry out a several step analysis. This analysis is essentially the same as the analysis to determine whether jurisdiction exists in a removal case involving agency discretion. Consequently, court decisions interpreting § 242(a)(2)(B) in the removal context will be helpful in determining whether the provision applies in a non-removal case.

Question: What steps are involved in determining whether a court has jurisdiction under § 242(a)(2)(B) in a removal or non-removal case?

Answer: There are several items that one must look at to determine if this section applies. 1. Does the issue/case fall completely outside the scope of INA § 242(a)(2)(B)? A. INA § 242(a)(2)(B) only limits jurisdiction over certain discretionary actions and decisions. B. INA § 242(a)(2)(B) does not apply to asylum decisions.

C. INA § 242(a)(2)(B) also does not apply to naturalization decisions and D. INA § 242(a)(2) should not apply to S, T and U visas.

Question: What if the case is one that appears to have fallen under the provision not permitting discretionary review?

Answer: Again, it is necessary to do an analysis. First, has there been an actual exercise of discretion? Even where there has been an actual exercise of discretion, is this exercise of discretion the issue in the case? Is the challenged action or decision discretionary? Is the decision or action specified by statute to be discretionary? Is the grant of discretion one of pure discretion unguided by legal principles? (9th Circuit cases.)

Thus, while the REAL ID Act may seem to completely limit judicial review of cases, if you fight the matter and analyze the case, there are different ways to still get judicial review of your case.

Filed under: Case Denied, Immigration Law, immigration provisions, REAL ID Act, USCIS | Tagged: , | Leave a comment »

H-1B’s

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

The H-1B’s are about to close. Get the petition filed right now to have a realistic chance of still getting in.

Filed under: H-1B, Immigration, Immigration Law, immigration provisions, USCIS | Tagged: | 1 Comment »

I can get a temporary work permit?

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

Question: An employer wants to petition me for the next 6 months because of my knowledge in his industry. I do not seem to qualify for any types of visas that I know about. Do you have any ideas?

Answer: Yes. You may qualify for the H-2B. The U.S. Citizenship and Immigration Services (USCIS) has just announced that, as required under the recently-enacted Save Our Small and Seasonal Businesses Act of 2005 (“the Act”), the agency will begin to accept additional petitions for H-2B workers as of May 25, 2005. Under the Act, the USCIS has been granted a waiver of the normal requirement to issue regulations implementing the new law. Therefore, in order to implement these new provisions expeditiously, the USCIS has issued a Public Notice detailing filing requirements and procedures, and does not intend to supplement it with any further notice or regulation.

Question: Who Can Benefit From The Act?

Answer: Beginning on Wednesday, May 25, 2005, the USCIS started accepting filings for two types of H-2B workers: 1) For Fiscal Year 2005: Approximately 35,000 workers, who are new H-2B workers or who are not certified as “returning workers” (as explained further below) seeking start dates before October 1, 2005. 2) For Fiscal Year 2005 and 2006: All “returning [H-2B] workers,” meaning workers who were counted against the annual H-2B cap of 66,000 during any one of the three fiscal years preceding the fiscal year of the requested start date. In other words: (a) in a petition for a start date before October 1, 2005 (i.e., for FY 2005), the worker must have been previously approved for a start date in H-2B status between October 1, 2001 and September 30, 2004; (b) in a petition for a start date on or after October 1, 2005 (i.e., for FY 2006), the worker must have been previously approved for a start date in H-2B status between October 1, 2002 and September 30, 2005.

Question: What Is A Returning Worker?

Answer: If a previous petition for an H-2B worker was approved for an extension of stay, change in the terms of employment, or change or addition of employers, the worker was not counted against the annual cap at that time; therefore, that particular approval cannot in itself result in the worker being considered a “returning worker” for purposes of filing a new petition now. As a general rule, only previous petitions for a change of status or new employment that were filed during the requisite three-year period before the requested start date will qualify a worker as a “returning worker.” Any worker not certified as a “returning worker” will be subject to the numerical limitation for the relevant fiscal year.

Question: What Are The Filing Requirements?

Employers wishing to file petitions for H-2B workers who qualify under the Act should follow all current requirements, as well as the following additional requirements for returning workers: The petition must include a certification from the employer, signed by the same person who signs the I-129 form, stating, “As a supplement to the certification made on the attached I-129, I further certify that the workers listed below have entered the United States in H-2B status or changed to H-2B status during one of the last three fiscal years.” The list must set forth the full name of the worker(s). If the petition seeks a change of status, it must include evidence of previous H-2B admissions (i.e., a copy of each worker’s visa and I-94 admission record).

A single petition may be filed on behalf of multiple workers, including unnamed workers in “special filing situations” for business reasons. However, any returning workers must be listed in a certification as described above. For multiple-named workers, including returning workers, “Attachment 1” to Form I-129 must be included and completed. This is a supplement to the new I-129 form on which the names and other biographic information of multiple workers must be listed.

As usual, each petition must include a labor certification from the U.S. Department of Labor (DOL). The USCIS will accept a copy of the labor certification in those cases where the original labor certification has previously been filed with the USCIS. (Note that the USCIS and DOL both published proposed regulations in January 2005 that would substantially revamp the labor certification application process for H-2B workers and would replace the current procedure with a one-step, electronically-filed, attestation-based petition that would bypass the DOL and be filed directly with the USCIS.

Approval notices issued under the Act will include the names of all returning workers listed on the petition. Each worker must be prepared to show to the U.S. consulate abroad (when applying for an H-2B visa) or to the inspector at the port of entry (if the worker is exempt from the visa requirement) proof of his or her previous H-2B admissions (e.g., a previous H-2B visa in the worker’s passport, and a copy of a prior I-94 admission document). Although the Department of State will seek to confirm prior visas through its electronic system, an applicant for an H-2B visa under the returning worker provision who does not show these documents may be denied a visa and/or be denied admission when traveling to the United States.

Premium processing is available by including a Form I-907 and an additional $1,000 fee. Petitions for start dates of October 1, 2005, or later must include a new anti-fraud fee in the amount of $150.

Question: What New Sanctions Does the Act Include?

Answer: The Act contains new provisions including sanctions and civil monetary penalties (up to $10,000 per violation) for failure to meet any of the H-2B petition conditions for willful misrepresentation of a material fact. These new provisions become effective on October 1, 2005.

Question: What Happens When the Annual Cap is Reached?

Answer: Whenever the annual H-2B numerical limitation has been reached, the USCIS will reject any additional filings that are subject to the cap (i.e., other than for returning workers, extension of stay, change of employers, or change in terms of employment). For FY 2006 filings, the Act provides that the numerical limit for the first six months of the fiscal year shall be no more than 33,000, with the remaining 33,000 to be allocated on or after April 1, 2006. Employers may file H-2B petitions no more than six months in advance of the requested start date.

Filed under: H-2B, Immigration, Immigration Law, USCIS, Work Visa | 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 »

Can I get a new visa in Mexico?

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

Question: I came here on an F1 Visa and later applied for a change of status to H-1B. However, I have been told that if I go back to the Philippines, that I must have an interview at the U.S. Embassy in the Philippines which could be denied (even though I was approved for the change of status.) Is there any way to get a visa in Mexico without having to go through the interview process in the Philippines?

Answer: There are several qualifications to be able to go to Mexico. Applicants seeking to renew their C1/D, D, F, H, I, J, L, M, O, P and R visas, if the initial visa was issued in the applicant’s home country or at one of the border posts in the past few years.

Applicants for visas that reflect a change of status (e.g., F1 to H1B or F1 to J), provided the applicant originally entered the US in other than B status and possesses an original change of status notice (I-797) from the Department of Homeland Security.

Applicants possessing B visas issued in their home country with annotations showing intent to change visa status, such as “Prospective Student.”

Question: Who Cannot Apply in Mexico?

Answer: Applicants who entered the U.S. with a B visa issued in their home country that changed status to another visa category, e.g., F, J, H1B, but the visa did not have an annotation indicating intent to change status.

Applicants who have been out of status in the U.S. having violated the terms of their visas or having overstayed the validity indicated on their I-94s.

A, B, E, G and Q visa applications, including renewals are not accepted from Third Country Nationals (TCN) that are not resident in the appropriate consular district.

Citizens of Iran, Sudan, Libya, Iraq, North Korea, Cuba and Syria.

Question: How can I go about making an interview appointment.

Answer: You can actually make it online at the website available 24 hours a day, 7 days a week at http://www.visa-usa.com.mx. In order to use the service the applicant must purchase a PIN for US$10.00 payable by Visa or Mastercard. Please note that the PIN will expire 10 days after the appointment date. If an appointment is not scheduled, the PIN will expire 90 days after purchase. The PIN provides for 3 scheduling opportunities so that an applicant can schedule an appointment and reschedule it up to 2 additional times if necessary. Appointments cannot be changed or cancelled within 5 business days of the appointment date.

For further information the US Embassy Mexico Customer Service Center is available Monday through Friday from 7am to 9pm Central and Saturday and Sunday from 9am – 3pm Central. There are several payment options for accessing the Customer Service Center, including a new option to pay by Visa or MasterCard via a toll-free number from the United States which is 1-900-476-1212 with a cost of US$1.25 per minute.

 

Filed under: H-1B, Immigration Law, immigration provisions, Third Country National (TCN), 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 »

What is Registry?

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

Question: I have been in the U.S. for over 30 years. I’m illegal here, but cannot seem to find a way to get my status. Is there anything I can do?

Answer: If you have been present in the United States since January 1, 1972, you may be eligible for the “registry” provisions of our immigration laws which would allow you to obtain lawful permanent residence even if you are illegally in the United States now, or if you initially entered the U.S. illegally.

Question: Where Can I Find the Law?

Answer: The part of the law concerning the registry provisions is located at INA §249. The specific eligibility requirements and procedures for becoming a permanent resident through registry are included in the Code of Federal Regulations (CFR) at 8 CFR 1259 .

Question: Who Is Eligible?

Answer: You are eligible to apply for permanent residence based on 8 CFR 1259 if you: Entered the United States prior to January 1, 1972; Have continuously resided in the United States since entry; Are a person of good moral character; Are neither ineligible for citizenship, except for the requirement of five years of lawful permanent residence, nor inadmissible for participation in terrorist activities, certain criminal or security grounds, or for alien smuggling and never participated in Nazi persecutions or genocide.

Any alien who has at any time engaged in terrorist activities is ineligible for registry. Further, any alien who fails to appear at a removal hearing, or who fails to depart after agreeing to voluntary departure, is ineligible for registry for a period of ten years.

Question: How Do I Apply?

Answer: You must submit a completed Form I-485 with filing fee, and a completed Form G-325A with evidence that you have continuously resided in the United States prior to January 1, 1972, to the USCIS district office having jurisdiction over the place in which you live. You must establish that you are eligible and that registry should be granted in the exercise of discretion. There is no appeal from the decision of the District Director but your application may be renewed in front of an Immigration Judge.

Question: Will I Get a Work Permit?

Answer: Applicants who are inside the United States and have filed Form I-485 (Application to Register Permanent Residence or Adjust Status) are eligible to apply for a work permit while their case is pending. You should use Form I-765 to apply for a work permit.

You do not need to apply for a work permit once you are accorded permanent resident status. As a lawful permanent resident, you should receive a permanent resident card that will provide evidence that you have a right to live and work in the United States permanently.

Question: Can I Travel outside the United States while I am waiting for my application under the registry provision to be processed?

Answer: If an alien obtains Advance Parole from the USCIS following approval of a Form I-131, he or she may travel outside of the United States and return without jeopardizing their registry application. However, any alien who has accrued more than 180 days of unlawful presence in the United States and then travels outside the United States is inadmissible for a period of 3 to 10 years. Registry applicants have, by definition, accrued long periods of time in unlawful status. If you are applying for permanent residence using the section 249 registry provisions, you should not travel outside of the United States without first obtaining advance parole from the Service, or you will be unable to return to the United States.

Filed under: Advance Parole, Immigration, Immigration Law, Registry, USCIS | Tagged: , | Leave a comment »

The New Year’s Hope for Immigration

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

Question: I have been fighting my case for some time and yet do not have anything. What can I do?

Answer: As the year comes to an end, you need to try to give thanks for what you do have and then start again after the New Year. I am sure that you can appreciate and understand that practically everything is getting more difficult at Immigration. Whether your case is in Immigration Court, on Appeal to the Board of Immigration Appeals or the Circuit Courts or in front of USCIS, things are taking longer. Whether you have a Labor Certification or are applying for a Religious Visa, or a multitude of other types of visas, everything has gotten harder. Whether you are applying for a particular kind of Waiver or relief in Immigration Court, the evidence needed to present is much more than it used to be.

Therefore, you must keep fighting and you must keep your hopes up high. No matter how hard it is to get what you want from Immigration, you can always make a better case than before and you can always submit more evidence. We as a people cannot let the forces at Congress, USCIS, BICE, BCBP, and DOL or any other government agency drive immigrants and nonimmigrants away. If we permit the forces against the natural flow of immigration to win, then the United States will become the opposite of a land of dreams. It will become a land that will become unwelcoming.

As an immigration attorney, I am committed to keeping the fight going. Since IIRAIRA passed in 1996, lawyers across the U.S. have fought against provisions that were hurtful and spiteful to immigrants. Slowly, bit by bit, we have had successes to show that certain parts of legislation aimed against immigrants were unfair or unconstitutional. Now, there are more cases in Circuit Courts across the U.S. that are immigration related than ever before. The Circuit Courts are inundated with immigration cases because we must keep appealing and keep fighting what are laws that are aimed to deprive the immigrant of their dreams. If we give up, then we are validating the unfair laws, the discrimination, and the laws that will keep immigrants out of the U.S.

Therefore, do not despair that it is taking a long time to resolve your visa or your status. Keep in mind that there are multitudes of people in a much worse situation than you. There are people whom did not have anyone to fight for them and have been deported; had their appeals denied; had their Labor Certifications denied or had their relief denied. However, as long as you have an immigration attorney fighting for you, keep up your hope. It is only the fighting by that immigration attorney and other immigration attorneys across the country that will eventually prevail against antiquated laws and the discrimination against immigrants that exists by some of Congress.

It is almost New Year’s. Let’s give thanks for our health and our family. Let’s give thanks that we are still in the U.S. fighting to stay and fighting to get what is deserved. Let’s look at the people who did not win and hope that someday they have a successful return to the U.S. Hope is a powerful emotion and all of us can have hope to get what we eventually want.

I would like to wish all of my readers a Happy and Prosperous New Year’s and a hope that next year will give each and everyone of you prosperity and happiness.

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: Congress, Immigration, Immigration Law, immigration provisions, USCIS | Tagged: | Leave a comment »

I AM A PERMANENT RESIDENT… HOW DO I…GET A RE-ENTRY PERMIT?

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

Question: I need to leave the U.S. and am wondering if there is anything I need to do. Can you help?

Answer: As the Holiday Season approaches, it is important for Permanent Residents to review the rules and regulations regarding travel outside of the United States and proper procedures for obtaining a Reentry Permit. A re-entry permit can help prevent two types of problems: (1) Your Permanent Resident Card becoming technically invalid for re-entry into the United States (U.S.), if you are absent from the U.S. for 1 year or more. (2) Your U.S. permanent residence being considered as abandoned for absences shorter than 1 year, if you take up residence in another country.

A re-entry permit establishes a presumption that you did not abandon status, and it allows you to apply for admission to the U.S. after traveling abroad for up to 2 years, without having to obtain a returning resident visa. Re-entry permits are normally valid for 2 years from the date of issuance.

You may also want to get a re-entry permit if you plan on traveling outside the U.S. and cannot, or do not wish to get a passport from your home country. Many countries throughout the world may allow you to use a re-entry permit much like you would use a passport–placing necessary visas, and entry and exit stamps in the permit–so you may use it as your main travel document. Be sure to check with the country(ies) you plan on visiting about their requirements before you travel.

Question: What will happen if I do not apply for a re-entry permit before I travel outside of the U.S.?

Answer: If you are a permanent resident who plans to travel outside of the U.S. for one year or more, it is important that you apply for a re-entry permit before you depart the U.S. If you stay outside of the U.S. for one year or more and did not apply for a re-entry permit before you left, then you may be considered to have abandoned your permanent resident status and may be refused entry into the U.S. if you try to return. If you are in this situation, you should try to apply for a returning resident visa.

Question: Can I apply for the re-entry permit and then leave, even though I don’t have the re-entry permit in my possession yet?

Answer: U.S. immigration law does not require that you have the re-entry document in your possession when you depart, but it does require that you apply for the permit before you leave the U.S. It is possible to send your re-entry permit to the U.S. Consulate or Embassy in the country you plan on visiting, but you’ll need to specifically request this when you file your I-131. If you choose this option, you should contact the U.S. Consulate or Embassy in the country you plan on visiting when you arrive, to let them know how to contact you while you are in that country. The U.S. Consulate or Embassy may then contact you if your application is approved and your permit has arrived there.

If you are planning to use the re-entry permit as a passport, then you will need to wait for it before leaving the U.S. If you cannot wait, you may want to contact the consulate of the country you are planning to visit to find out if you can use other documents to enter.

Question: How do I get a re-entry permit?

Application: If you want to get a re-entry permit, file Form I-131, Application for Travel Document. You should file this application well in advance of your planned trip.

Filed under: Immigration Law, immigration provisions, LPR, Re-entry Permit, USCIS | Tagged: , | 1 Comment »

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