Green Card & Visa News » Immigration And Nationality

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

Tushar Mathur — Tue, 10 Jan 2012 21:44:00 +0000

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. Similarly, a noncitizen who has been unlawfully present in the United States for one year or longer and then departs or is deported is not allowed to return to the United States for ten (10) years. These are known as the 3-year-bar and the 10-year-bar. There are some exceptions for asylum applicants, battered spouses, certain family unity beneficiaries and minor children. Furthermore, the unlawful period can be tolled for good cause and non-frivolous requests for extensions. Otherwise, if these noncitizens wish to return to the United States, they must first obtain a waiver from the U.S. government. The Department of Homeland Security has discretion to waive the 3/10-year-bars if the noncitizen can show that his U.S. citizen or legal resident spouse or parent will suffer extreme hardship if he is not allowed to return to the U.S.

Catch 22
For many foreigners who have accrued unlawful presence in the United States but are otherwise eligible for an immigrant visa, they are caught in a “Catch 22” situation. On the one hand, they are not allowed to apply for a green card within the United States because of their unlawful status. On the other, they do not want to leave the country for fear that they would not be able to return to the U.S. because of the 3/10-year-bars. Even if they are eligible to apply for a waiver based on hardship of their spouses and/or parents, they are afraid that the waiver might not be approved. The current policy is that the wavier must be filed with an overseas DHS office. In short, they are stuck between two equally undesirable options.

The New Proposal
The DHS recently announced that it intends to publish in the Federal Register a proposal to revise the procedures for determining the unlawful presence (family unity) waivers for spouses and children of U.S. citizens. The new proposal creates an “in-country processing” mechanism for noncitizens who are spouses and children of U.S. citizens to file the unlawful presence waiver. A noncitizen who has accrued unlawful presence would be able to apply for the waiver from within the United States. This “in-country processing” proposal would permit USCIS to grant a provisional waiver. Applicants would still be required to depart from the U.S. before receiving a final approval on their application. By pre-processing the family unity waiver, the applicant’s waiting time will be shortened. Currently applicants face a long wait when seeking a waiver outside the U.S. The goal of this new proposal is to encourage more noncitizens to come forward to file their immigrant and waiver petitions in the United States.

This process, however, does not change the legal requirements for immigrant visa petition or the family unity waiver application. The “law” regarding immigrant visas and waiver adjudication has not been changed. The change is only procedural in nature. Further, it is important to note that the proposal will not cover spouses and children of legal permanent residents. They must still follow the existing procedure and apply for a waiver at an overseas U.S. consulate office. Finally, applicants must not rely on this proposal yet until it is finalized. Thus far, the DHS has only published a statement of intent to propose the change. It is expected that the change will not be finalized until the end of 2012. Interested foreigners may start gathering documentary evidence to establish their eligibility for a waiver but should not act hastily before they have discussed their case with a qualified immigration attorney.

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

Tushar Mathur — Mon, 24 Oct 2011 05:21:00 +0000

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. 101(a)(13)(C) of the Immigration and Nationality Act provides that a returning LPR should not be regarded as seeking an admission into the United States for purposes of the immigration laws unless the legal resident (i) has abandoned or relinquished that status, (ii) has been absent from the United States for a continuous period in excess of 180 days, (iii) has engaged in illegal activity after having departed the United States, (iv) has departed from the United States while under legal process seeking removal of the alien from the United States, including removal proceedings and extradition proceedings, (v) has committed an offense identified in section 212(a)(2), unless since such offense the alien has been granted relief under section 212(h) or 240A(a), or (vi) is attempting to enter at a time or place other than as designated by immigration officers or has not been admitted to the United States after inspection and authorization by an immigration officer.

If either one of the six conditions apply, the returning green card holder is considered an applicant for admission and will be subject to less legal protection that he or she normally enjoys as a legal resident. A LPR is like a person who is returning home with a key (his green card) while an applicant for admission is like a visitor asking for permission to enter another person’s house. A visitor seeking admission but not a legal resident is subject to all the grounds of inadmissibility contained in the immigration statutes. When a legal resident is placed in removal proceedings, the government must first prove by clear, unequivocal, and convincing evidence that the grounds and basis for deportation are true before the person may be removed from the United States. The burden of proof is on the government to prove that the person is deportable. Similarly, to treat a returning resident as seeking admission to the United States, the Department of Homeland Security bears the burden of proving by clear and convincing evidence that a returning lawful permanent resident falls under one of the above six categories of individuals.

For example, in a recent Board of Immigration Appeal (BIA) case, Matter of Benno Rivens, decided October 19, 2011, the Board remanded the case to the Immigration Judge to analyze if the offenses committed by the respondent – a green card holder – constitute a crime involving turpitude (CIMT). (This falls under condition v above.) If the DHS meets its burden by proving by clear and convincing evidence that the respondent had committed a CIMT, then he would be treated as an applicant for admission. Further, since convictions of CIMTs are also grounds of inadmissibility, he would also not be allowed to be admitted to the United States and, consequently, he would lose his green card. On the other hand, if the government fails to meet it burden of proof, the respondent would be allowed to return to the United States as a lawful permanent resident.

Hence, before a legal resident travels outside of the United States, it is very important for him to determine whether or not he will be regarded as a returning resident or an applicant for admission upon his return. Sometimes, it may be wise for a legal resident not to depart the United States at all.

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

Tushar Mathur — Thu, 29 Sep 2011 04:04:00 +0000

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. to apply for a green card regardless of the manner they entered the U.S., working in the country without authorization, and failing to continuously maintain lawful status since entry. The LIFE Act amendment extended the filing deadline to April 30, 2001.

However, Congress also passed another piece of legislation which punishes foreigners who had stayed in the U.S. without lawful status. Section 301 of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996 imposed two bars to admissibility for foreigners who were unlawfully present in the U.S. Individuals who have been unlawfully present in the U.S. for more than 180 but less than 365 days, and then depart from the U.S., are not eligible to return for the next three years. Similarly, foreign nationals who have been unlawfully present in the United States for more than 365 days, and then depart from the U.S., are inadmissible for the next ten years (the 10-year bar).

The question arises as to whether a person in the United States who is subject to the 10-year bar may still apply for a green card through adjustment of status by invoking section 245(i) as a defense. Recently, the 3rd Circuit Court of Appeal held that an Indian software engineer who is subject to the 10-year bar may not adjust her status under section 245(i). In the case of Cheruku v. Att’y Gen. of the U.S. decided on September 22, 2011, the 3rd Circuit analyzed the above issue and concluded that Congress does not intend section 245(i) to overcome the 10-year-bar to admission.

Cheruku is a software engineer from India who first entered the U.S. on a B-1 business visa in 1995. She stayed in the U.S. and was offered a job by a U.S. employer. Her employer filed a labor application and immigrant visa petition on her behalf, both of which were approved. Cheruku filed an I-485 adjustment of status application on December 21, 2001 to apply for lawful permanent residence status. While the I-485 was pending, she travelled outside of the U.S. and used her advance parole return to the U.S. in 2002. In 2004, her I-485 was denied based on the 10-year-bar. Both the Immigration Court and the Board of Immigration Appeal found her barred from applying for a green card. She petitioned the 3rd Circuit Court to review her case.

Adopting the reasoning of the BIA, the Third Circuit first acknowledges that Congress passed section 245(i) and the LIFE Act with the intention to waiver some general grounds of inadmissibility such as entry without inspection and overstaying of status. However, it also found the 10-year-bar contained in the IIRIRA was intended to punish the more culpable class of foreigners who was present illegally in the U.S., then departed or deported, and then reentered the U.S. The LIFE Act does not explicitly excuse this type of behavior. In fact, Congress requires that foreigners who are subject to the illegal presence bars must first apply for a waiver from outside of the U.S. to obtain permission to reenter the U.S. Cheruku actually was paroled into the U.S. by using her advance parole (AP) travel document. The advance parole document is an auxiliary benefit of the adjustment application. However, the document itself contains a conspicuous warning that using the AP to travel may trigger and does not overcome the illegal presence bar to admissibility. The 3rd Circuit Court found no difference between Cheruku and those who reentered the United States illegally.

It is interesting to note that other federal circuits have reached different conclusions on this issue. While the 10th Circuit also adopts the BIA approach and held that the 10-year bar trumps section 245(i), the 7th Circuit held the other way. This remains to be an unsettled area of the law, to say the least. Suffice to say that foreign nationals who have been unlawfully present in the U.S. should not travel outside of the U.S. if they intend to use section 245(i) to apply for lawful permanent residence status.

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

Tushar Mathur — Thu, 08 Sep 2011 23:38:00 +0000

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.

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

Tushar Mathur — Mon, 02 May 2011 18:13:00 +0000

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. For examples, foreigners who had worked without authorization or who had failed to maintain their legal status were not eligible to apply for adjustment of status before Section 245(i) was signed into law. Section 245(i) began effective on October 1, 1994 and was initially scheduled to expire on January 14, 1998. The LIFE Act amendment extended the deadline or “sunset date” to April 30, 2001. Eligible applicants must pay a penalty fee of $1000 in addition to the regular filing fees.

The significance of Section 245(i) is that a foreigner may preserve his eligibility by virtue of an immigrant visa petition filed on or before April 30, 2001, and use it to apply for adjustment in the future based on an unrelated immigrant visa petition. A large of number of applicants were able to take advantage of the law by means of an immigrant visa petition filed by a family member or an employer before the sunset date. They are considered “grandfathered” for 245(i) benefits. However, for those who missed the sunset date, they can only hope that 245(i) is extended again by Congress.

Over the past decade, there have been proposals to bring back 245(i) to life. For example, after a meeting between U.S. President, George W. Bush, and Mexican President, Vicente Fox, on March 22, 2002, the House of Representatives passed a bill extending section 245(i) to November 30, 2002. Unfortunately, none of these proposals was eventually passed by Congress and became law. There has been strong opposition to passing any law that would legalize a large of foreign nationals by the restrictionists. Their voice were particular strong during the last few years when the U.S. was suffering from one of the worst economic downturns since the Great Depression. In fact, since 2001, our immigration policy can be characterized as one of strong enforcement but not comprehensive reform. For instance, when Republicans controlled both House and Senate and also the White House, the 108th Congress passed the Real ID Act which added strong enforcement provisions in the law. In the more recent years, when Democrats controlled both the House and Senate, the situation did not change much. For example, when the Dream Act was proposed, it was welcome by almost all groups of political voices including many restrictionists. At the end, however, it still failed to pass the Senate.

The debate over our immigration policies will continue for years to come. The prospect of Congress adopting Comprehensive Immigration Reform (CIR) may not great in the next few years. The question remains: how do we deal with the millions of foreigners who are already living in the U.S. without legal status? We are certainly not ready to remove them on a massive scale. Some of them actually have extensive family ties here including USC spouses and children. Bringing back Section 245(i) may be a good compromise. On the one hand, it is not an amnesty that is opposed by the conservatives. It is only an extension of an existing provision of the law. The USCIS has both internal protocols and adjudication experience for processing 245(i) cases. It does not excuse criminal offenses or serious immigration violations. On the other, Section 245(i) fosters family relationships and generates additional revenues for the government – both are important to our country. It should not be too difficult for the legislators to explain the benefits of 245(i) to their constituents. Hence, after Section 245(i) has been sunset for 10 years, it may be the right time to bring it back.

Seattle Immigration Lawyer | Bribery of a Public Official is Not an Aggravated Felony Under INA

Tushar Mathur — Wed, 24 Nov 2010 14:12:00 +0000

As immigration attorneys and other immigration law watchers know, the definition of “aggravated felony” under the Immigration and Nationality Act (“INA”) is ever-changing. Last month was no exception. In a decision that represented a victory for the narrow definition crowd, the Board of Immigration Officials (“BIA”) recently ruled in favor of an Austrian lawful permanent resident who was convicted of bribery of a public official under federal law, for which he was sentenced to 36 months of imprisonment. Matter of Chrysanth George Gruenangerl, 25 I&N Dec. 351 (BIA 2010).

In September, an Immigration Judge (“IJ”) had found Mr. Gruenangerl removable as an alien convicted of an aggravated felony, specifically, because his offense related to “commercial bribery” under INA Sect. 101(a)(43)(R). Mr. Gruenangerl appealed, and the BIA ruled that bribery of a public official under 18 USC Sect. 201(b)(1)(A)(2006) is not an offense “relating to” commercial bribery and thus not an aggravated felony under the INA.

By way of background, according to the indictment, Mr. Gruenangerl had promised to pay a portion of a finder’s fee to a US Forest Service employee that he expected to receive for the sale of a new gondola at a ski resort, if the employee would tell the ski resort in a report that it needed to replace its gondola.

In its analysis of the crime charged, 18 USC Sect. 201(b)(1)(A), which prohibits “[b]ribery of public officials and witnesses,” the BIA found that “the essence of the offense is the corrupt intent to influence official action.” In contrast, it held that commercial bribery “focuses on influencing action in the private sector involving the breach of the duty of fidelity.”

The BIA actually disagreed with Mr. Gruenangerl’s argument that the Fifth Circuit (where his case arose) has taken a restrictive approach to the phrase “relating to” which would require that the offense he was charged with be described in the immigration statute as a crime of commercial bribery. In fact, the BIA pointed out that both it and the Fifth Circuit had consistently held the phrase has an expansive meaning, especially when used with a general term. Nonetheless, and no doubt to the government’s chagrin, the BIA did not find the phrase “relating to” so encompassing that it includes convictions under 18 USC Sect. 201 for bribery involving public officials in order to influence official action.

Citing Perrin v. United States, 444 US 37 (1979), the BIA pointed out that Congress’s decision to use only the narrow term “commercial bribery” in the immigration statute reflected its awareness that the generic definition of “bribery” included a broad range of conduct, including violations of State commercial bribery statutes.

Disagreeing with the IJ , the BIA held that Sect. 101(a)(43)(R) is a generic provision of the Act, which requires the categorical approach since it lacks specific circumstances on how the offender committed the crime on a specific occasion. Employing such an approach, the BIA found that Mr. Gruenangerl’s crime is not an aggravated felony because the criminal statute does not facially define an offense sufficiently related to commercial bribery.

The BIA also criticized the IJ for his use of the modified categorical approach, where he considered the facts of the case and determined that the alien’s purpose in committing the offense was to obtain financial gain and therefore was commercial in nature. The BIA held that given that the essence of the criminal statute here was the intent to influence official action, the alien’s particular purpose did not somehow transform the offense into one “relating to” commercial bribery of someone in the private sector.

Of course, Mr. Gruenangerl’s battle is not over. The BIA reversed the IJ’s finding of removability (based on aggravated felony) and remanded to determine whether he is removable as an alien convicted of a crime involving moral turpitude. (In dicta, the BIA said that the crime did involve moral turpitude, but the factual issue of whether he committed the offense within five years of the date he was admitted to the U.S. remained.)

What is Visa Waiver Program?

Tushar Mathur — Tue, 02 Mar 2010 11:11:11 +0000

The term Waiver stands for a kind of document provided to a person before a service is rendered by him. This waiver works as a security object for both the person as well as the provider.

‘Waiver’ holds the same significance in Visa Waiver Program too. Visa Waiver Program is a grant provided by the government of United States of America to the citizens of specific countries to travel United States for business or any other purpose for not more than 90 days without any Visa.

U.S. government has listed 34 countries under waiver program which are either the countries that possess higher economy or the developed countries.

A Pilot test of Visa Waiver Program was incorporated into Immigration and Nationality Act (INA) in year 1986 by the Immigration Reform and Control Act. This pilot program was made permanent on October 30, 2000 by a special Visa Waiver Permanent Program Act. Security of Visa Waiver Program was strengthened by the 9/11 Commission Act of 2007 which made the entry under this program more difficult.

The greatest advantage that a Visa Waiver Program can give is that any person that wishes to conduct his business in America can travel to United States without any visa.

Any individual applying for this program has to obtain an authorisation from the Electronic System for Travel Authorization (ESTA) before travelling. ESTA is an Automatic system that scrutinizes the eligibility of travellers wishing to visit United States under Visa Waiver Program. Application for the ESTA can be applied any time before your travel but it is highly recommended that its application should be submitted at the time of your travel plans.

Apart from the leverage that Visa Waiver Program provides, there are some issues to be taken care if you are applying for this program. You may not extend your status of being non-immigrant, if you are admitted once under this program. If you have violated any terms related to admission under this program then you cannot apply for the same anymore and in case if your admission is not accepted then you cannot take any judicial support for re-application.

Thus, if you fall under the privileged countries that come under Visa Waiver Program then you can surely apply for this facility that United States government provides.

Visa Bulletin for Oct 2009

Tushar Mathur — Sun, 13 Sep 2009 05:17:30 +0000

The Visa Bulletin for Oct 2009 has summarized the availability of the number of immigrants during October 2009. As per the same a black and white report would be expected from the consular officers on the qualified applicants. The report is to be send o the United States department of state. I have discussed the same briefly here under and is aimed at benefiting you. Hope the under mentioned would keep you updated on the latest from the United States department of State

The limits for the fiscal year 09, has been fixed as per the provisions of the INA Act (Sec 201). As per the said Immigration and Nationality Act (Sec 201), the annual minimum family sponsored preference limit is 226,000. However as per the same act the Upper limit for the preferred immigrants has been set to a maximum of 7% of the total applications received from the country for the employment based preference and the annual family sponsored preference. However, only 2% has been allotted for the dependent area limit.

The Sec 203 of the Immigration and Nationality Act, defines the preference of the family sponsored preferences as per the under mentioned.

First – The preference would be given to the unmarried children for the citizens and the number stands at 23,400 plus what ever is the surplus from the numbers allotted to the 4^th preference.

Second – The send in the line would be the spouses and children along with the unmarried children of the permanent residents of the United States.

Third – Third in the line comes the children of citizens who are married in different countries and are have been staying there. The upper limit for this category has been fixed at 23400 plus the surplus of the first two preferences.

Fourth – Siblings of adult United State citizens, and the upper limit of this preference e has been capped at 65,000. This category would also include the surplus of the previous 3 preferences.

There has been mentioned some preferences for the employment based immigrations as well.

1. 28.6% of the world wide employment based preference level would be allowed as the first preference.

2. People in profession who holds advanced degree. This category has been capped at the maximum of 28.6% of the world wide employment based preference level.

3. The third category is for the skilled workers and the professionals. Again capped at 28.6% of the world wide employment based preference level.

4. This category is for the special immigrants being capped at 7.1% of the total world wide level.

Some insight about US Visas

Tushar Mathur — Mon, 31 Aug 2009 18:02:22 +0000

While talking of visas if a person does not belong to any of the three undermentioned categories then in that case the person would have to obtain a visa from the United States government to enter into the country.

First is if the person is not a citizen in one of the countries which fall under the thirty five countries which are listed by the United States government and falls under the visa waiver program.

Second, In case the person is a citizen of Canada or Bermuda then the person need not obtain a visa to enter in to the United State.

Finally, in case the person has some high profile criminal record or due to medical emergency also the person would not have to undergo the visa process.

There are normally 2 types of Visas there which may be Immigrant and Non immigrant types. Please note that in case you area resident of Mexico then also there are separate procedures for you, for as far as Visa is concerned.

To talk about the qualification process for the United State Visas while having applied for one. All applicants for the visa would have to establish that they do qualify as per the provisions made by the Immigration and Nationality Act. It’s an assumption that all visa applicants are intending immigrants. Thus the applicants must overcome the undermentioned.

The sole purpose of the trip is business, pleasure or a requirement of some medical assistance.

The duration of the stay would be specific and limited to a certain period.

The visitors have strong ties or relatives out side the United State boundaries, detachment from whom are likely to bring back the visitors after some time.

An interview amount equivalent of USD $131 is required to be paid to the interviewing officer at the consulate. Also in case the Visa is not granted then the fee does not stand to be refundable. The deciding factor s for the visa approval is adequate employment in the country of current residence, material assets and lack of criminal records for the applicant.

In case the visa officer has doubts about the applicant then they have all rights to reject the application or additionally, they might choose to go for a suggestion from the US Department of State. Now this is a long procedure and might take weeks of time for the approval to come in.