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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 USCISemail@example.com 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
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
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.
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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I’m going to be beaten if I’m sent back to my country!
Question: I have to escape my country. I don’t know what to do. I want to go to the United States and try to get help. What can I do?
Answer: Assuming you do not have proper entry documents, the border patrol will try to remove you from the United States. However, if a person subject to expedited removal indicates a wish to apply for asylum or expresses a fear of persecution, he or she must be referred to an asylum officer for an interview. Consultation with counsel is allowed only if it will not unduly delay the process. The asylum officer must keep a written record of the “credible fear” interview.
A person found to have a credible fear will be placed in full removal proceedings. A person found to have a credible fear who establishes identity and that he or she is not a flight risk or a danger to the community should, absent additional factors, be paroled and not detained. In those proceedings, if found inadmissible by the IJ, the respondent may apply for asylum as a form of relief from removal. The respondent also may apply for any other form of relief from removal for which he or she may be eligible.
Question: What exactly does ‘credible fear’ mean?
Answer: The term “credible fear” is defined as “a significant possibility, taking into account the credibility of the statements made by you in support of the your claim and such other facts as are known to the officer, that you could establish eligibility for asylum.”
Question: Is it as difficult to get a credible fear determination as it would be to win asylum?
Answer: A “credible fear of persecution” is a lower standard than that required for an actual grant of asylum. For an actual grant of asylum, the applicant must show that he or she has experienced past persecution or that he or she has a well-founded fear of persecution in the future. The “well-founded” fear standard has been determined to mean that a reasonable person in the applicant’s position would fear persecution.
Question: What if I cannot get the asylum officer to agree and rule and there is a credible fear of persecution?
Answer: If the asylum officer finds that the you do not have a credible fear of persecution, you can request that the Immigration Judge review the asylum officer’s decision. The Immigration Judge may review the asylum officer’s decision either in person or telephonically, within seven days, and you would have to be detained during the review. If the Immigration Judge determines that you do have a credible fear of persecution, then you will be placed in regular INA §240 removal proceedings, in which you may file an application for asylum and withholding of removal.
Question: If either the asylum officer or the Immigration Judge through review determine that there is in fact a credible fear of persecution, will I be detained the entire time?
Answer: Yes, you should be eligible to ask for bond. There are valid cases that state that individuals, other than arriving aliens, who initially were placed in expedited removal but who subsequently passed credible fear interviews and were placed in INA §240 removal proceedings are eligible for bond. For example, people who are in expedited removal because they have been in the United States less than 14 days and are caught within 100 miles of a land border are eligible for bond once they have passed a credible fear interview.
Question: What about stowaways?
Answer: They are eligible for a credible fear interview exactly as anyone else would be eligible.
Question: What will I get if the asylum officer agrees that there is a credible fear?
Answer: The asylum officer will issue you a Form I-863, Notice to Referral to Immigration Judge. Before the Immigration Judge, you may only apply for asylum, withholding of removal, or relief under the Convention Against Torture. Technically, you would not be able to apply for other forms of relief other than asylum or withholding.
Question: If I get a denied credible fear determination, will I get a form?
Answer: You will get written notice of the decision and the negative decision is issued on Form I-869, Record of Negative Credible Fear Finding and Request for Review by Immigration Judge. It may be possible at this point, however, to arrange for a credible fear “reinterview.”
Question: Who is entitled to the ‘credible fear interview’?
Answer: Anyone who enters the United States because they possess either false documents or no documents. A false document may include a facially valid document that an individual obtained fraudulently or through willful misrepresentation of a material fact. Expedited removal also applies to individuals seeking transit through the United States at a port of entry.
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Parole in Place: How to adjust in the United States even if you don’t qualify
Question: I am married to a U.S. Citizen and I want to adjust to that of a Lawful Permanent Resident. What can I do?
Answer: Are you inside the U.S.?
Answer: Did you enter illegally?
Answer: Did you commit any crimes, any fraud or have you been issued any deportation orders?
Answer: Is your spouse in the military?
Answer: There is a possibility for the immediate family members of U.S. military personnel. Family members of U.S. military personnel often run afoul of our nation’s complex and dysfunctional immigration laws, and the particular burdens imposed on military personnel by their service makes resolving those problems even more difficult than solving similar problems for civilian clients. You may want to consider an application for one of the more common discretionary remedies, a form of immigration parole that is commonly called “parole in place”.
Question: What Is Parole in Place?
Answer: Parole in place (PIP) is a process by which USCIS assists family members of U.S. military personnel to become eligible to “adjust status” in the United States and thus become permanent residents of the United States. Under Immigration and Nationality Act (INA) Section 245(a), a person cannot adjust status unless he or she has been “admitted or paroled” into the United States. Usually, a person who has not been “admitted or paroled” into the United States cannot obtain lawful permanent residence unless he or she leave the United States and travels abroad to a U.S. consulate. If a person who has not been admitted or paroled into the United States leaves the United States and attempts to undergo consular processing, however, the person nearly always faces an inadmissibility bar that is triggered by departing the United States. Thus, the person cannot obtain his or her lawful permanent residence status easily through consular processing. PIP attempts to avoid the separation of military families by allowing some family members—in meritorious cases only—to adjust their status inside the United States and thereby avoid a lengthy separation that might harm the military member’s morale, readiness, or ability to complete his or her service. PIP is granted in order “to preserve family unity and address U.S. Department of Defense concerns regarding soldier safety and readiness for duty.” PIP is also a remedy that appeals to the views of Americans that in wartime, the government should provide special support to military families; when the availability of PIP was made public, 18 members of the House of Representatives, including nine Republicans, wrote to DHS to indicate their support for the program.
PIP is only available to persons who are present in the United States; it should not be confused with the “humanitarian parole” that is available to persons who are outside the United States.
Question: Who Should Request PIP?
Answer: Under current immigration law, no one who entered the United States without inspection can adjust status unless he or she falls into a category in which special rules apply (such special rules apply to asylees, Cubans, special immigrant juveniles, Violence Against Women Act petitioners, grandfathered aliens, and some others). A PIP request is often proper for immediate military family members who entered the United States without inspection, do not have an eligible visa petition or labor certification filed on or before April 30, 2001, and do not otherwise fall into a special adjustment category.
Question: What if the person requesting PIP is in Proceedings?
Answer: PIP is possible when a person is in removal proceedings. If a military family member is in removal proceedings and is granted PIP, an immigration judge (IJ) would be prevented from adjudicating a follow-on adjustment application. USCIS, however, does have jurisdiction to adjudicate an adjustment application in this situation. Family members in this situation may file a new adjustment application with USCIS—after the PIP is granted—and then request termination of proceedings without prejudice to allow them to pursue administrative remedies. Counsel may explain that whether or not the IJ terminates, the respondent will still be eligible to adjust status, and if the case is not terminated and the IJ proceeds, the IJ may be facing a future Motion to Reopen.
Question: Who Should NOT Request PIP?
Answer: A grant of PIP will not resolve immigration problems that involve issues other than ineligibility under INA §245(a). A grant of PIP will not, for example, lift a permanent bar for false claim to United States citizenship; work to waive a criminal ground of inadmissibility; relieve an immigrant of the consequences of a prior deportation or removal order; or allow an immigrant to adjust status when the immigrant needs a waiver of some other ground of inadmissibility. PIP only cures the problem that an immigrant cannot adjust status without showing that he or she has been “admitted or paroled.” PIP is not a magic solution to every immigration problem. It has very limited application to a specific set of circumstances when the military family member has not been admitted or paroled in a manner that allows adjustment under INA §245(a).
Requesting PIP may also not be advisable when there is no military-related reason to grant the PIP. For example, USCIS may determine not to grant PIP when the military member is about to be discharged from the military; when the military member is serving as an inactive Reserve member; or when a military member is stationed abroad (there, the family member’s presence in the United States is not necessary for a military-related reason).
A military family member also does not need PIP if the military family member was admitted lawfully but has no documentation of the entry.
Question: How Do I Request PIP?
Answer: The PIP program is new, and as of this writing, no formal regulatory guidance has been issued by DHS or USCIS. Practitioners report a variety of different approaches at different USCIS offices.
In most USCIS field offices, a PIP request consists of a hardship letter signed by the service member and supporting documentation, which should be submitted to the local USCIS office having jurisdiction over the service member’s residence or place of duty. An example of the list of requirements from the Los Angeles USCIS Office is reproduced in the Appendix.
The opening paragraph of the hardship letter should state that this is a request for a parole in place so that the particular military family member can file an Application to Register Permanent Residence or Adjust Status (I-485) while in the United States. The body of the letter should describe the circumstances that led the service member to join the armed forces. The letter should then describe the history of the military member’s relationship with the family member seeking PIP; establishing the bona fide nature of the relationship is extremely important, as USCIS is unlikely to grant PIP in any case in which there are indicators of marriage fraud. The family member’s immigration status should be discussed, including the status of any petitions filed for the family member, such as an I-130. The conditions of the family member’s home country at the time he or she came to the United States should be discussed. The current conditions may be mentioned if they are such that a return to the country would pose a danger to the family member’s health or safety. If applicable, the family member’s loss of Commissary and Post Exchange privileges, military housing, access to military family member health care, and assistance from the Family Readiness Group may be mentioned. Finally, the hardship the service member would experience if the family member were deported should be described in detail. If the service member or the service member’s children have special needs that make them especially dependent on the family member for support, these needs should be explained and supporting documentation provided where appropriate. At a minimum, the body of the letter must contain the service member’s name, date of birth, place of birth, rank in military, branch of service, and unit of assignment, as well as the dates and places of birth of the family member and any children. Any upcoming deployments for which the service member is preparing should be mentioned.
Question: What documents should be provided?
Answer: Generally, you want to provide the following: The service member’s birth certificate and proof of U.S. citizenship (if applicable); The family member’s birth certificate; The birth certificates of any children; If the family member is the spouse, the couple’s marriage certificate and evidence of the bona fide nature of the marriage; The family member’s military family member identification card; A copy of Defense Eligibility Enrollment Reporting System enrollment documentation for the family member; Two original passport photos of the family member; A copy of any deployment orders for the service member; and additional documents that substantiate the case of hardship can be enclosed as well.
Question: Will the PIP Request be Granted?
Answer: A Parole in place determinations are made on a case-by-case basis and are purely discretionary. Your client should not assume his or her request is approved until USCIS officially notifies him or her of the approval. Typically, clients are notified to come for an interview with a USCIS officer who is specially trained to handle PIP applications, and that officer will make an initial determination whether to grant the PIP, but the officer’s decision will be reviewed at a higher level before the PIP request is approved.
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