17-year-old in absentia order reopened for lack of notice. Client is eligible for Adjustment of Status.
Conditional parolee not eligible for adjustment of status
Filed under: Adjustment of Status | Tagged: adjust, adjust status, adjustment, Adjustment of Status, AOS, Brian D. Lerner, Immigration, Immigration Attorney, Immigration Law, Immigration Lawyer, Petitioner ineligible for AOS for presenting US Birth Certificate and continuous Physical Presenc, win | Leave a comment »
I-360 approved for husband of USC. No physical abuse but mental and psychological abuse, including names and threats of deportation.
Another Win from the Law Offices of Brian D. Lerner
Filed under: I-360 | Tagged: Battered Spouse, Brian D. Lerner, brian lerner, I-360, Immigration, Immigration Attorney, Immigration Lawyer | Leave a comment »
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.
Filed under: Come to the US | Tagged: beneficiary, Brian D. Lerner, Derivative beneficiary, E-2, H-4, h4, L-2, u-2 | 1 Comment »
Change of status to student visa
Student visa – Immigration Lawyer
Filed under: student status | Tagged: #hangoutsonair, #hoa, brian lerner, f-1, f1, Hangouts On Air, i-20, i20, Immigration, petition for reinstatement, petition for reinstatement of f-1, reinstatement petition, SEVIS | Leave a comment »
Derivative citizenship process
Filed under: Derivative Citizenship | Tagged: Brian D. Lerner, brian lerner, california immigration, deportation attorney, deportation lawyer, derivative, Derivative beneficiary, E-2, H-4, Immigration Lawyer, L-2, Law Offices of Brian D. Lerner, los angeles deportation attorney, los angeles immigration, visa beneficiary | 2 Comments »
I have an Immigration Hold. Now What?
Question: I have a friend who has an immigration hold. He is finishing up a sentence for a crime. What can be done?
Answer: A removable alien who is detained has the right to a bond hearing unless he or she is removable for security reasons, is subject to mandatory detention because of the commission of certain crimes, or is an arriving alien, which may include a returning LPR. The alien should not be detained or required to post bond unless there is a finding that he is a threat to national security or is a poor bail risk. A person with a criminal conviction is not eligible for release except under limited circumstances. An applicant is also detained if he or she falls within the expedited removal provisions and cannot get bond until credible fear is established and are detained pending IJ’s review. ICE has established criteria for granting parole to a person who has been determined to have a credible fear of persecution. If a person claims fear of persecution at a land border port of entry and the fear is unrelated to Canada or Mexico, the person may be required to wait in Canada or Mexico. If the fear is related to Canada or Mexico, the person must be detained pending the IJ’s review. Similarly, a person who is deemed to have not been lawfully admitted is denied bond. DOJ regulations also appear to preclude persons seeking admission from obtaining bond before an IJ.
Question: Is Mandatory Detention constitutional?
Answer: The constitutionality of mandatory detention has been upheld. For example, the Ninth Circuit has ordered a bond hearing for LPR who has been imprisoned for 2 years and 8 months, finding that “it is constitutionally doubtful that Congress may authorize imprisonment of this duration for lawfully admitted resident aliens who are subject to removal. Also, it is a violation of substantive due process to detain a person subject to deportation for 1½ years, particularly when it is unlikely he can be physically removed.
It has been ruled that “simple fairness, if not basic humanity, dictates that a court should take into consideration the entire period in which a person has lost his liberty such as detention over 2½ years is unreasonable.
Question: Can I appeal a bond decision?
Answer: Yes. Also, persons granted asylum, withholding or CAT by the IJ may be released pending DHS appeal. Although DHS regulations provide that persons granteddeferral under CAT may remain in detention, DHS has stated, “[i]n general, it is ICE policy to favor release of aliens who have been granted protection relief by an [IJ], absent exceptional concerns such as national security issues or danger to the community and absent any requirement under law to detain…. Arriving aliens should [also] be considered for parole.”
You can either appeal the bond denial itself, or the amount of the bond as being unreasonable.
Question: When is detention mandatory?
Answer: Three primary classes of noncitizens are ineligible for bond: (1) certain criminals and terrorists; (2) “arriving aliens”; and (3) individuals with administratively final orders of removal.
Question: What types of crimes make somebody ineligible for bond?
Answer: Those who are deportable for committing one crime of moral turpitude if the sentence included a term of imprisonment of a year or more; multiple crimes of moral turpitude; aggravated felonies; controlled substance offenses; certain firearms offenses or certain espionage and sabotage crimes.
There are usually many ways to fight an immigration detainer, a denial of bond, a claim of mandatory detention, etc. Don’t just give up because you received a denial.
Got bond? Get a LA deportation attorney
Filed under: bond | Tagged: bond hearing, Brian D. Lerner, brian lerner, immigration detainer, Immigration Hold, joseph hearing, mandatory detention | 2 Comments »
Provisional Waiver granted for person inside the U.S. illegally for years. Now, he can continue with the consulate processing, leave for the appointment and only be gone for less than 1 week before getting his green card.
Application for waiver of grounds of inadmissibility
Filed under: waiver | Tagged: immigration atorney, Provisional Waiver, Visa Waiver, waiver, waiver of inadmissibility, Waivers, Waivers of Inadmissibility | 5 Comments »
Immigration Lawyer
Brian D. Lerner Immigration Attorney & Deportation Lawyer Blog 