• Hours & Info

    3233 E. Broadway,
    Long Beach, CA 90803
    (562) 495-0554
    M-F: 8:00am - 6:00 p.m.
    Sat: 9:00 a.m. - 12:00 p.m.

  • Past Blog Posts

  • https://api.whatsapp.com/send?phone=13104885414

My mother is a drug addict

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

Question: I am 16 years old and came to the U.S. many years ago when I was a small child. I have no legal status in the U.S. and have been put in foster care homes for what seems like all of my life. My father left when I was a baby and my mother has been in and out of rehab because she is a drug addict. Is there anything I can do to try to get legal status in the U.S.? I have no other family in the U.S. and am desperate.

Answer: Yes. You might qualify for what is known as the Special Immigrant Juvenile petition. Generally, this includes those juveniles deemed eligible for long-term foster care based on abuse, neglect, or abandonment.

Question: What are the basic requirements for this type of visa?

Answer: You would need the consent of the Secretary of the Department of Homeland Security (DHS) for all of these types of cases. There is also express consent required by a juvenile court showing dependency. Express consent means that the Secretary, through the CIS District Director, has determined that neither the dependency order nor the administrative or judicial determination of the alien’s best interest was sought primarily for the purpose of obtaining the status of an alien lawfully admitted for permanent residence, rather than for the purpose of obtaining relief from abuse or neglect or abandonment. In other words, express consent is an acknowledgement that the request for this type of classification is real.

Question: Procedurally, what must I do to apply for this type of petition? Also, if I am successful, what does the approval of this petition mean?

Answer: This type of petition if approved will grant you lawful permanent residency in the U.S. In other words, you will be able to obtain the Green Card. First, the special immigrant petition must be filed by what is known as the I-360 Special Immigrant Petition. Because the petition must be approved before you turn 21 years of age, you should also simultaneously submit the Adjustment of Status Application to speed up the process.

Question: What type of documents do I need to help support the application?

Answer: The Form I-360 must be supported by the following: 1) Court order declaring dependency on the juvenile court or placing you under the custody of an agency or department of a State; 2) Court order deeming that you are eligible for long-term foster care due to abuse, neglect, or abandonment; 3) Determination from an administrative or judicial proceeding that it is in your best interest not to be returned to your country of nationality or last habitual residence; and 5) Proof of your age.

The Adjustment Application must also be supported by the following documentation: 1) Your birth certificate or other proof of identity; 2) A sealed medical examination; 3) Two ADIT-style color photographs; and, where applicable, also supported by evidence of inspection, admission or parole. Since you are over 14 years old, you must also submit a Form G-325A (Biographic Information) and if you have an arrest record, you must also submit certified copies of the records of disposition.

Question: What if I am inadmissible on some other ground?

Answer: Actually, with this type of petition, there are many provisions of the law that are excepted from inadmissibility statutes. Many of the other grounds of inadmissibility can be waived.

Since you have no other way to adjust status to that of a lawful permanent resident, you should start on this application as soon as possible.

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

PERM: Am I an ‘Arriving Alien’?

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

Question: I am married to a U.S. Citizen and just entered the U.S. Unfortunately, I have a crime in my past. The Immigration Judge denied my case and stated that because I was an arriving alien that I do not qualify to adjust my status in the U.S. Is this true?

Answer: Actually, in a majority of the U.S. you would not be eligible to adjust status to that of a Lawful Permanent Resident because you are considered to be an arriving alien. This is when a person basically enters the U.S. and is immediately put into deportation or removal proceedings. However, there was issued just recently a decision in the First Circuit Court of appeal a case that deals with this very issue. This case raises issues of first impression in immigration law as to the validity of a regulation promulgated in 1997 by the Attorney General, 8 C.F.R. § 245.1(c) (8). The regulation redefines certain aliens as ineligible to apply for adjustment of status to lawful permanent residents. Under that regulation, the Attorney General will not consider an application for adjustment of status from the entire category of aliens who have been granted parole status (permitted to enter the U.S.) but have been placed in removal proceedings.

Question: What was the reasoning of the court?

Answer: First, 8 U.S.C. Section 1255 specifically states who is eligible to adjust status. Previously, in 1997, the Attorney General carved out an exception to this (through implementing new regulations) that arriving aliens are not eligible to apply. First, the actual code 8 U.S.C. Section 1255 (made by Congress and signed by the President) specifically permits persons whom are paroled into the U.S. (and therefore an arriving alien) to adjust status in the U.S. Therefore, the actual Immigration and Nationality Act is not silent on the issue to which the Attorney General made the regulation.

Next, the Court ruled that Congress has specifically stated where the Attorney General had the authority to issue discretionary decisions as to eligibility for adjustment of status. Here, there was no authority given to the Attorney General (John Ashcroft at the time) to issue such a decision to bar people from adjusting status when the Immigration and Nationality Act specifically permitted those people to adjust. Basically, Congressional intent in making the policies of who can adjust status takes precedence over what the Attorney General thought that he could do.

Question: So, what was the final outcome?

Answer: The First Circuit Court of Appeals sent the case back down to the Immigration Court for Adjustment of Status proceedings after ruling that the regulation promulgated by the Attorney General making arriving aliens (or those paroled into the U.S.) ineligible for adjustment proceedings unconstitutional.

Question: Does this rule apply all over the U.S.?

Answer: Unfortunately, it does not. It only applies if you happen to be living in the 1st Circuit. This would be in the Northeastern part of the U.S. Thus, in all other areas of the U.S. an arriving alien cannot adjust status in removal proceedings. However, this ruling from the First Circuit is very powerful and can be used to convince the Immigration Judge to permit such an adjustment. If he/she does not, you can take it up on appeal to the Board of Immigration Appeals. After, if you lose, you can appeal this up to the Circuit Courts of Appeal in your jurisdiction. Finally, if you lose there, take it all the way up to the U.S. Supreme Court.

Filed under: Immigration Law, immigration provisions, Removal Proceedings, USCIS, Visa | Tagged: , | Leave a comment »

Are H-1B’s gone yet?

Posted on December 14, 2009 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I have a Masters Degree in Business Administration and want to obtain an H-1B. Are they all used up yet?

Answer: The U.S. Citizenship and Immigration Services (USCIS) announced on May 24, 2005, that it has received approximately 6,400 H-1B petitions that will count against the Congressionally-mandated 20,000 cap exemption for fiscal year 2005 established by the H-1B Visa Reform Act of 2004. This would be for people with advanced degrees (not the normal type of H-1B.) The USCIS published an interim final rule on May 5, 2004, implementing the new H-1B cap exemption for foreign nationals holding U.S.-earned advanced degrees, pursuant to the H-1B Visa Reform Act of 2004. The Act exempts 20,000 H-1B visa numbers from the overall H-1B cap for foreign nationals holding masters or higher degrees from U.S. universities. Petitions seeking Fiscal Year 2005 H-1B visa numbers under the exemption received on or after May 12, 2005, will be accepted for filing.

The new regulations, which took effect on May 5, 2005, changed the H-1B filing procedures for FY 2005 and for future fiscal years. The regulations make available 20,000 new H-1B visas, only for foreign workers with a minimum master’s level degree from a U.S. academic institution, in addition to the Congressionally-mandated annual cap of 65,000 H-1B visas.

Question: About how many more remain this year for the advanced degree holders?

Answer: About 13,600 slots remain available for fiscal year 2005 (which ends on September 30, 2005). Only foreign nationals holding masters or higher degrees from U.S. universities are eligible for one of these numbers. Because the 65,000 cap has already been reached, H-1B employers seeking the services of foreign nationals who do not hold such degrees are restricted to filing petitions for a FY 2006 number (i.e., for employment commencing on or after October 1, 2005) unless a different cap exemption is applicable (e.g., the employer is an institution of higher education). Note that a new 20,000 cap exemption will apply for FY 2006. The USCIS will exempt the first 20,000 petitions for H-1B workers who have a master’s degree or higher from a U.S. institution of higher learning. After those 20,000 slots are filled, the USCIS will apply petitions for H-1B workers with a master’s degree or higher against the annual cap of 65,000. As a result, once the 20,000 numbers are used, an initial petition for an advanced-degree worker will be approved only if a number is available within the general 65,000 cap or the case is not subject to the cap under a different exemption (i.e., the employer is an institution of higher education).

Question: My friend has had an H-1B for almost 6 years and has had a Labor Certification pending for over 1 year. I heard you can only have an H-1B for 6 years maximum. What is he to do?

Answer: Post-Sixth Year H-1B Extensions Based on Long-Pending Permanent Residence Papers under what is known as AC-21 § 106(a)) allows for an extension if a labor certification or employment-based petition has been filed on behalf of the alien and remains pending for 365 days. Note the following issues clarified by the 2005 memo. Combined standard and post-sixth year H-1B extensions permitted. To obtain a post-sixth year H-1B extension, there is no need for the foreign national to first request an extension of time through the completion of his or her initial six years and then request an additional extension of time beyond the six-year limit. The petitioner can request an extension that combines the remaining time in the initial six-year H-1B period and post-sixth year time. Post-sixth year time can only be granted in one-year increments, and the total period of extension cannot exceed three years.

Question: When should the extension be filed?

Answer: The post-sixth year extension request can be filed prior to the passage of 365 days from the filing of a qualifying labor certification or I-140 petition, as long as the qualifying labor certification or I-140 petition has or will have been pending for 365 days prior to the foreign national’s requested extension start date. However, the extension will not be granted if the foreign national will not be in H-1B status at the time that the 365 days have elapsed, i.e., where there is a gap in status.

Filed under: H-1B, Immigration Law, USCIS, Visa, Work Visa | Tagged: , | Leave a comment »

« Previous Page

  • Brian D. Lerner

    Immigration Lawyer

  • Blog Stats

    • 298,665 Visitors

  • Categories

  • Recent Posts