Posts Tagged ‘Immigration And Nationality’

BIA held Advance Parole Absence does not trigger Unlawful Presence Bar

May 1st, 2012 Tushar Mathur

In a recent BIA decision, the Board surprisingly held that a foreigner
who left the United States after securing an “advance parole” travel document
from the DHS is not considered a departure for the purposes of determining
whether the person is subject to the 10-year unlawful presence bar.  The Board held that the foreigner is
therefore allowed to apply for adjustment of status to become permanent
resident under section 245(i) of the Immigration and Nationality Act.
 In Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012),
the respondents, husband and wife, legally entered the U.S.

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BIA held Section 245(i) Unavailable to Reentrants with Prior Violations

April 22nd, 2012 Tushar Mathur

Litigation surrounding section 245(i) of the Immigration and Nationality
Act often involves complex factual and legal issues. Matter of Miguel
LEMUS-Losa, 25 I&N Dec. 734 (BIA 2012), a recent BIA decision on section
245(i) is such an example.  In LEMUX, the
BIA held that adjustment of status under section 245(i) is unavailable to an
alien who is subject to the 3-year and 10-year bars under section 212(a)(9)(B)(i)(II)
of the Act, without a waiver.
Section 245(i) was enacted in 1994 by Congress to allow certain
applicants for adjustment of status in the U.S.
to be eligible to receive their permanent resident status even though they
entered the U.S.
without having been formally inspected by an immigration officer first.  However, Section 301 of the Illegal
Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996 imposed
two additional
grounds of inadmissibility for foreigners who have prior violations of
immigration laws.  First, section
212(a)(9)(B)(i)(II) of the Act imposes the 3-year and 10-year bars for those
who have been present in the U.S.
unlawfully.   Second, section
212(a)(9)(C)(i)(I) punishes those individuals who reentered or attempted to
reenter the U.S.
after prior violations. 
In this case, the foreigner reentered the U.S.
without authorization after having been present in the U.S. for more than one year.  He then applied for adjustment of
status.  Both the immigration court and
the BIA denied his request based on the 10-year-bar under 212(a)(9)(B)(II) of
the Act.

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EB-5 Investor Visa: Sources of Capital

March 7th, 2012 Tushar Mathur

The U.S. Immigration and Nationality Act sets aside 7.1% worldwide visa numbers to qualified immigrants seeking to enter the U.S. for the purpose of engaging in a new commercial enterprise. The applicant must either have invested or is in the process of actively investing capital not less than U.S. $1,000,000 in the enterprise. This is commonly known as the EB-5 investor visa. Other categories of immigrant visa are usually oversubscribed for countries such as China and India. For instances, many family-based petitions, including those filed by U.S. citizens, are currently backlogged. The EB-2 and EB-3 employment visa categories are similarly oversubscribed.

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New hope for foreigners who are subject to the three/ten year bar

January 10th, 2012 Tushar Mathur

A new proposal by the Department of Homeland Security (DHS) brings new hope to foreigners who are subject to the three and ten year bars because of their unlawful presence in the United States. Rather than leaving the United States to apply for a waiver at an overseas consulate office, these foreigners would be allowed to have their waiver pre-adjudicated by the USCIS in the United States according to the proposal. If their waiver applications are approved, they would still be required to depart the U.S. to apply for immigrant visas to return to the United States.

The 3/10 Year Bar
Section 212(a)(9) of the Immigration and Nationality Act provides that any noncitizen who after having been unlawfully present in the United States for 180-364 days and then voluntarily departs the country before they are placed in removal proceedings is not allowed to return to the United States for three (3) years.

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When is a Lawful Permanent Resident considered seeking admission to the United States?

October 23rd, 2011 Tushar Mathur

The United States immigration laws confer certain rights and privileges to a person who has been granted Lawful Permanent Resident (LPR) status by the government.  These individuals, commonly known as green card holders, are authorized to work and live in the United States indefinitely.  Legal residents are also allowed to return to the United States after international travel.  Nonresidents, on the other hand, are considered applicants for admission and must establish that they are admissible to the United States in order to enter.

Sec.

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Third Circuit Appeal Court held section 245(i) does not overcome 10-year illegal presence bar

September 28th, 2011 Tushar Mathur

Section 245(i) of the Immigration and Nationality Act allows certain foreigners in the United States who would not normally qualify to apply for adjustment of status in the U.S.

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VAWA self-petitions can be filed by the victim between the ages of 21 and 25

September 8th, 2011 Tushar Mathur

The USCIS has issued a policy memo dated September 6, 2011, to allow victims of abuse to file their self green card petitions even though they are over the age of 21 if it is filed before the age of 25.  The Violence Against Women and Department of Justice Reauthorization Act of 2005 (VAWA 2005) amended section 204(a)(1)(D) of the Immigration and Nationality Act to allow continued eligibility for certain individuals to file a VAWA self-petition after the age of 21, if the abuse was at least one central reason for the filing delay. 


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It’s time to bring back Section 245(i)

May 2nd, 2011 Tushar Mathur

It may be hard to believe, but April 30 marked the 10th anniversary of the sunset date of Section 245(i) of the Immigration and nationality Act – a law that has changed the lives of tens of thousands of people in the United States by allowing them to be legalized through adjustment of status. In order for a foreign national to adjust their status to that of a lawful permanent resident, she must meet a number of conditions and requirements in the legal process called adjustment of status. Congress passed Section 245(i) to allow foreigners to adjust their status even though they did not meet all the conditions and requirements.

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