Determination of Inadmissibility Reversed, Green Card Issued without a Waiver

I just received a Green Card approval on behalf of a client who is married to a United States citizen.  The client first came to us when in immigration court proceedings were instituted against him after he was taken into custody while mistakenly driving down a one way road that led to a border crossing.  He was engage to a United States citizen at the time he was encountered.

After the institution of proceedings my client married his fiancé.  I prepared and submitted the immigrant visa petition on his behalf, together with proof that the marriage was entered into for the right reasons, and obtained adjournments of the deportation proceedings in order to buy time to get the Green Card petition approved.

Upon approval of his wife’s petition I filed a motion to dismissal to enable my client to apply for his Green Card before USCIS rather than before the immigration court.  This motion was granted, and I then filed my client’s Green Card application with the New York district office, which had jurisdiction over his place of residence.  

At the scheduled marriage fraud interview my client was told that he needed a waiver to overcome inadmissibility.  USCIS mistakenly believed that he triggered a 10 year bar when he physically left U.S. soil without being admitted into Canada.  We received instructions from USCIS to file the I-601 within 30 days of receipt of the notice.

I successfully argued that a waiver was unnecessary because when encountered he was not an applicant for admission because he never effectuated a departure from the United States, making a u-turn on the bridge prior to ever leaving U.S. territory.  As such, he did not trigger either a 3 or 10 year bar under INA §§ 212(a)(9)(B)(i)(I) and (II), which would necessitate a waiver of inadmissibility.

USCIS agreed with my interpretation of the law, reversed their initial decision, and issued my client’s Green Card.  


He will be eligible to apply for his citizenship in three years.

Another Same Sex Spouse Faces Deportation due to Defense of Marriage Act

The love story began in April 1990 at a birthday party, which the couple describes as "love at first sight."  One worked at the Pennsylvania State System of Higher Education, the other a university student.  This first meeting turned into a whirlwind romance spanning decades and two continents. The couple ultimate wed in California in 2008, and now have four adopted children.

Unfortunately, there may not be a storybook ending for United States citizen Mark Himes and his French national husband Frederic Deloizy.  Despite the fact that the couple's marriage is valid in the State of California, Deloizy is ineligible to receive any immigration benefits from his United States citizen spouse, and as such he may be just one more faceless statistic in the Obama administration's 400,000 deportations per year mandate.

Mark and Frederic's marriage faces the prospect of destruction, not because of the "broken immigration laws," but due to the Obama administration's continued enforcement of the Defense of Marriage Act (DOMA) in the immigration context. In fact, if Frederic were a woman there would be nothing to worry about, and the Green Card process would be fairly straight forward.  

DOMA prohibits the Federal recognition of same-sex marriages, further providing that States are not required to recognize same sex marriages.  DOMA was signed into law in 1996 by a Democrat (President Bill Clinton) who is a proponent of gay rights.  Democrat Barack Obama continues to enforce DOMA against immigrants married to United States citizens.  This enforcement continues despite the fact that both the President and his Attorney General have stated that it is unconstitutional, and that it should not be enforced in Federal Court.  

To paraphrase: With Democrats like these who needs Republicans.

The painful irony is that even Dick Chaney openly opposes DOMA, making him more progressive than either Clinton and Obama on the issue.  Only now that the President is seeking reelection has Obama's view on gay marriage "evolved."  It seems pretty clear to me that Obama's evolution is in spoken word, and not in deed.

More disappointments from the Lipservicer-in-Chief.

Thankfully, CNN.com has given this couple a voice so that the Obama Administration will be shamed into doing the right thing. It is an election year after all.

Click here for the source for this story.

Determination of Inadmissibility Reversed, Client to be Admitted without a Waiver

I was just able to convince U.S. Customs and Border Protection (CBP) that my client, an undergraduate student and citizen of Canada, is not inadmissible to the United States, and does not need a waiver to be readmitted as a student.  

The basis for the initial determination of inadmissibility was that he was charged with a theft offense in the State of Pennsylvania.  Most convictions for theft offenses constitute a crime involving moral turpitude that render an individual inadmissible.  That being said, I convinced CBP that my client was not convicted of any offense, theft or otherwise, that would preclude his readmission as an F-1 Student. 

In doing this I provided proof that in lieu of a conviction my client was admitted into Pennsylvania’s Accelerated Rehabilitation Program (ARD).  The ARD rehabilitation program allows prosecutors to avert a trial and defendants to ultimately earn a dismissal of criminal charges upon the satisfactorily completion a probationary program.  In support of my argument I provided case law from the Board of Immigration Appeals that set forth that participation in the ARD program is not a conviction for immigration purposes as it does not mirror the definition of conviction as set forth in 8 U.S.C. § 1101(a)(48). 

CBP conferred with the lawyers in Office of Chief Counsel who agreed with my interpretation of the law, and my client is subsequently determined to be eligible for admission to the United States to resume his studies without the need for a waiver.  I received this determination in less than 10 days.

Visa Bulletin For February 2012

FAMILY-SPONSORED PREFERENCES

First: (F1) Unmarried Sons and Daughters of U.S. Citizens: 23,400 plus any numbers not required for fourth preference.

Second: Spouses and Children, and Unmarried Sons and Daughters of Permanent Residents: 114,200, plus the number (if any) by which the worldwide family preference level exceeds 226,000, plus any unused first preference numbers:

A. (F2A) Spouses and Children of Permanent Residents: 77% of the overall second preference limitation, of which 75% are exempt from the per-country limit;

B. (F2B) Unmarried Sons and Daughters (21 years of age or older) of Permanent Residents: 23% of the overall second preference limitation.

Third: (F3) Married Sons and Daughters of U.S. Citizens: 23,400, plus any numbers not required by first and second preferences.

Fourth: (F4) Brothers and Sisters of Adult U.S. Citizens: 65,000, plus any numbers not required by first three preferences.

On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see paragraph 1); "C" means current, i.e., numbers are available for all qualified applicants; and "U" means unavailable, i.e., no numbers are available. (NOTE: Numbers are available only for applicants whose priority date isearlier than the cut-off date listed below.)

Family-Sponsored	All Chargeability Areas Except Those Listed	CHINA-mainland born	INDIA	MEXICO	PHILIPPINES
F1	22DEC04	22DEC04	22DEC04	22APR93	22MAY97
F2A	08JUN09	08JUN09	08JUN09	08MAY09	08JUN09
F2B	15OCT03	15OCT03	15OCT03	01DEC92	01NOV01
F3	01DEC01	01DEC01	01DEC01	01JAN93	22JUL92
F4	08SEP00	08SEP00	08SEP00	15MAY96	01NOV88

*NOTE: For February, F2A numbers EXEMPT from per-country limit are available to applicants from all countries with priority dates earlier than 08MAY09. F2A numbers SUBJECT to per-country limit are available to applicants chargeable to all countries EXCEPT MEXICO with priority dates beginning 08MAY09 and earlier than 08JUN09. (All F2A numbers provided for MEXICO are exempt from the per-country limit; there are no F2A numbers for MEXICO subject to per-country limit.)

EMPLOYMENT-BASED PREFERENCES

First: Priority Workers: 28.6% of the worldwide employment-based preference level, plus any numbers not required for fourth and fifth preferences.

Second: Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability: 28.6% of the worldwide employment-based preference level, plus any numbers not required by first preference.

Third: Skilled Workers, Professionals, and Other Workers: 28.6% of the worldwide level, plus any numbers not required by first and second preferences, not more than 10,000 of which to "*Other Workers".

Fourth: Certain Special Immigrants: 7.1% of the worldwide level.

Fifth: Employment Creation: 7.1% of the worldwide level, not less than 3,000 of which reserved for investors in a targeted rural or high-unemployment area, and 3,000 set aside for investors in regional centers by Sec. 610 of Pub. L. 102-395.

On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see paragraph 1); "C" means current, i.e., numbers are available for all qualified applicants; and "U" means unavailable, i.e., no numbers are available. (NOTE: Numbers are available only for applicants whose priority date isearlier than the cut-off date listed below.)

Employment- Based	All Chargeability Areas Except Those Listed	CHINA- mainland born	INDIA	MEXICO	PHILIPPINES
1st	C	C	C	C	C
2nd	C	01JAN10	01JAN10	C	C
3rd	22FEB06	01DEC04	15AUG02	22FEB06	22FEB06
Other Workers	22FEB06	22APR03	15AUG02	22FEB06	22FEB06
4th	C	C	C	C	C
Certain Religious Workers	C	C	C	C	C
5th Targeted EmploymentAreas/ Regional Centers and Pilot Programs	C	C	C	C	C

*Employment Third Preference Other Workers Category: Section 203(e) of the Nicaraguan and Central American Relief Act (NACARA) passed by Congress in November 1997, as amended by Section 1(e) of Pub. L. 105-139, provides that once the Employment Third Preference Other Worker (EW) cut-off date has reached the priority date of the latest EW petition approved prior to November 19, 1997, the 10,000 EW numbers available for a fiscal year are to be reduced by up to 5,000 annually beginning in the following fiscal year. This reduction is to be made for as long as necessary to offset adjustments under the NACARA program. Since the EW cut-off date reached November 19, 1997 during Fiscal Year 2001, the reduction in the EW annual limit to 5,000 began in Fiscal Year 2002.

B. DIVERSITY IMMIGRANT (DV) CATEGORY

For February, immigrant numbers in the DV category are available to qualified DV-2012 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number:

Region	All DV Chargeability Areas Except Those Listed Separately
AFRICA	32,000	Except: Egypt  21,000 Ethiopia  21,500 Nigeria 16,000
ASIA	23,900
EUROPE	22,000	Except: Uzbekistan 16,500
NORTH AMERICA (BAHAMAS)	7
OCEANIA	775
SOUTH AMERICA, and the CARIBBEAN	775

Entitlement to immigrant status in the DV category lasts only through the end of the fiscal (visa) year for which the applicant is selected in the lottery. The year of entitlement for all applicants registered for the DV-2012 program ends as of September 30, 2012. DV visas may not be issued to DV-2012 applicants after that date. Similarly, spouses and children accompanying or following to join DV-2012 principals are only entitled to derivative DV status until September 30, 2012. DV visa availability through the very end of FY-2012 cannot be taken for granted. Numbers could be exhausted prior to September 30.

C. ADVANCE NOTIFICATION OF THE DIVERSITY (DV) IMMIGRANT CATEGORY RANK CUT-OFFS WHICH WILL APPLY IN MARCH

For March, immigrant numbers in the DV category are available to qualified DV-2012 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number:

Region	All DV Chargeability Areas Except Those Listed Separately
AFRICA	35,800	Except: Egypt 26,000 Ethiopia 26,000 Nigeria 17,500
ASIA	27,000
EUROPE	26,500	Except: Uzbekistan 16,500
NORTH AMERICA (BAHAMAS)	7
OCEANIA	925
SOUTH AMERICA, and the CARIBBEAN	925

D. VISA AVAILABILITY IN THE COMING MONTHS

FAMILY-sponsored categories (monthly)

Worldwide dates:
F1: three to five weeks
F2A: one to two months
F2B: three to four weeks
F3: one to three weeks
F4: up to one month

EMPLOYMENT-based categories (monthly)

Employment First:  Current

Employment Second:

China and India:  Reports from U.S. Citizenship and Immigration Services (USCIS) indicate that the rate of new filings for adjustment of status in recent months has been extremely low.  This fact has required the continued rapid forward movement of the cut-off date, in an attempt to generate demand and maximize number use under the annual limit.  Once the level of new filings or USCIS processing increases significantly, it will be necessary to slow or stop the movement of the cut-off.  Readers are once again advised that an eventual need to retrogress the cut-off date is also a distinct possibility.  

Employment Third:

Worldwide: up to one month
China: up to one month
India: up to two weeks
Mexico: up to one month
Philippines: up to one month

Employment Fourth:  Current

Employment Fifth:  Current

Please be advised that the above ranges are only estimates for what could happen during each of the next few months based on current applicant demand patterns.  The determination of the actual monthly cut-off dates is subject to fluctuations in applicant demand which can occur at any time.  Those categories with a “Current” projection will remain so for the foreseeable future.

Colombia to hand over American teen mistakenly deported

Obama Administration Considering Pre-Adjudication of Hardship Waivers Prior to Departure

The New York Times has reported that the Obama administration is considering implementing a new policy that will provide for the pre-adjudication of hardship waivers for undocumented individuals inside the United States that are married to United States citizens.  The details of the policy change have not been reported at this time, so I don't want to go into every possibility until I have something on paper to go on.  That being said, it is impossible to overstate the impact that this change in policy potentially could have, as it may provide a realistic and incentive-laden path for certain individuals with substantial ties to this country to follow the law and become documented.  

The reason that this potential change in policy is so meaningful is that if a person did not first enter the United States legally they are ineligible to apply for their Green Card inside the country even if they are married to a United States citizen.  To be eligible to apply for your Green Card inside the United States (adjustment of status) the law requires that you must first be "inspected" by an officer and then either "admitted" or "paroled" after inspection.  Basically, this means that if you "snuck into the country" you can't apply for your Green Card here.

As a result, if you came here without inspection to get a Green Card you must first leave the U.S., and you may only return after an immigrant visa is issued by the Department of State.  

So what's the problem?

The first problem is that in the vast majority of cases when the individual leaves the country they trigger either a three or a ten-year bar if they have been unlawfully present inside the United States for more than 180 days (3 year bar upon departure) or one-year (10 year bar upon departure) .  

The second problem is that there is no guarantee that a waiver will be approved, and once you depart you may be separated from your family for years.

To paraphrase the Clash: "Should I stay or should I go?  If I stay there will be trouble, If I go there will be double."

So the waiver that the Obama administration is planning to pre-adjudicate cures the three or ten year bar in cases for people that are able to establish that it will cause an extreme hardship to their United States citizen spouse or parent should they not be permitted to return to the country with a Green Card. Once they have an approval in hand they can depart the United States to attend their visa interview, and hopefully return to be reunited with their family as a lawful permanent resident with minimal delay.  

Sounds pretty damn good on paper, and it may be, for many, many people.  

Director Alejandro Mayorkas has stated that: "The goal is to substantially reduce the time that the U.S. citizen is separated from the spouse or child when that separation would yield an extreme hardship.” 

BRAVO!  

Thank you President Obama for giving us a reason to have the audacity to hope for some change.

So that's the half-full side of the equation...

Now for the half-empty.  

The reality is that the determination of what constitutes "extreme hardship" varies depending on who is reviewing the waiver application, or in simpler terms, no hardship waiver is a slam-dunk.  For example, although there are guidelines that are supposed to be utilized, they are subjectively interpreted, often ignored, and there is no judicial review of denials.  

The factors for determining extreme hardship include:

1. Presence of LPR/USC family ties in the United States;
2. Your qualifying relative's ties outside the U.S.;
3. Conditions in the country of relocation;
4. The financial impact of departure; and
5. Significant health conditions particularly when tied to the unavailability of suitable medical care in the country of relocation.

Mind you, the hardship to the person who needs the waiver, and hardship to a minor child is not a factor for consideration, so it makes no difference if you have a house full of U.S. citizen children that you are supporting that will suffer an extreme hardship from your separation.

Although this policy change is obviously a fantastic step in the right direction, I must remain cautiously pessimistic until I see how things play out in practice.

And President Obama, if you are reading this, why don't you just consider issuing humanitarian parole to certain individuals who are otherwise adjustment eligible but for the fact that they entered without inspection?  This would circumvent the requirement of the waiver, and would take the subjectivity out of the determination of what constitutes extreme hardship.  The Bush administration did this for one of my clients with a high-profile case, so I know that it can be done. 

All that would be required is for an individual to establish that they are eligible for adjustment of status other than the manner of their admission, and that they do not possess any other adverse disqualifying factors such as criminal convictions, or repeat violations of U.S. immigration law.  This would potentially cut down on the time required to adjudicate waivers, as approval would be objective rather than subjective, which would result in a savings to the taxpayer.

Just a suggestion.

Click here to read the New  York Times article.

Obama Administration Deports a 14-Year-Old U.S. Citizen Runaway

It has been reported that the Obama administration deported 14-year-old United States citizen runaway Jakadrien Turner to Columbia last April.  Jakadrien doesn't speak Spanish.

Image courtesy of Facebook.

Jakadrien ran away from home in late 2010 when her parents were going thorugh a divorce.  She was picked up by Houston Police who turned her over to ICE after giving a fake name that matched a 22-year-old Columbian immigrant.

Although Jakadrien was fingerprinted, ICE didn't confirm her identity before shipping her to South America under an order of removal.  Jakadrien's grandmother, Lorene Turner, responds: "How do you deport a teenager and send her to Colombia without a passport, without anything?"

ICE Director of Public Affairs Brian Hale has assured that "ICE is fully and immediately investigating this matter in order to expeditiously determine the facts of this case.”  Here's a thought, maybe ICE should have fully and immediately investigated the identify of a 14-year-old runaway before they deported her to a country where she doesn't even speak the language.

To add injury to injury, Jakadrien, now 15, is pregnant and is being held in a detention facility by the government of Columbia who refuse to release her, despite the family's pleas for her safe return.

Just one more victim of this administration's rush to deport as many people as humanly possible.

Click here to read the original source for this story.