Author Archives: Lena Korial-Yonan

Syrian Nationals can Now File for TPS

The USCIS has released a notice that Syrian nationals may now apply for TPS starting on March 29, 2012 until the deadline of September 25, 2012. The notice initially stated that the deadline is September 30, 2013, but this is incorrect. USCIS has released a new notice that clarifies that the deadline is in September of 2012. It is a good idea to file sooner than later, given the confusion over the correct deadline.

Individuals who habitually resided in Syria and are without nationality are also eligible for TPS. All applicants must present proof of residence here in the U.S. on March 29, 2012. Applicants with a criminal record may not be eligible for TPS, so individuals who have a criminal record and wish to apply for TPS should seek legal counsel before filing for TPS.

Examples of other countries eligible for TPS include El Salvador, Sudan and South Sudan, Somalia, Honduras, Nicaragua and Haiti.

Estimates of the Number of Illegal Immigrants in the U.S.

The U.S. Department of Homeland Security has, through the Office of Immigration Statistics, issued its estimate of how many illegal immigrants are residing in the U.S. The report indicates that there are approximately 11.5 illegal immigrants residing in the U.S. during in January of 2011. The Report further estimates that more than half of these illegal immigrants entered the U.S. during the years of 1995 and 2004, and that since 2007, it is unlikely that the illegal U.S. population has significantly increased.

The Report indicates that since 2007, there is no real significant increase in the number of illegal immigrants due to the U.S. suffering from high unemployment and due to the economy in Mexico improving. The Report indicates that despite the greater levels of border enforcement, fewer apprehensions are taking place. The Report attributes the lower number of apprehensions at the U.S. border being due to lower demand for Mexican nationals to enter the U.S. for employment reasons.

The number of unauthorized immigrants in the U.S. has not always remained the same. In 1980, the number of illegal immigrants doubled from 2 million to 4 million in the U.S. This number jumped to over 8 million by the year of 2000. The numbers indicated above reflect an approximation of illegal immigrants, and not immigrants that have authorization to remain in the U.S.

I-601 Provisional Waiver Not Yet Available

Earlier this year, USCIS announced good news that it will allow certain applicants to file their I-601 waiver here in the U.S. and to therefore receive their decision, before they depart the U.S. A Form I-601 is a waiver needed by certain applicants that must be approved before he or she can receive a green card. The Form I-601 is needed in cases where there has been unlawful presence or illegal entry into the U.S., and therefore there is an unlawful presence bar against the applicant that needs to be waived.

Previously, applicants would need to depart from the U.S. and file the I-601 waiver request with a U.S. Embassy that has jurisdiction over their case. The problem of course is that the applicant has departed the U.S. and if the waiver is denied, he or she will be denied entry back into the U.S. Further, even if the I-601 is granted, the applicant has now been separated from his U.S. citizen relative(s) for a long period of time.

The USCIS has indicated that it will allow applicants to apply for the I-601 waiver here in the U.S. rather than requiring them to file the I-601 through an interview overseas with the U.S. Embassy that has jurisdiction over the case.

The USCIS has indicated that it will publish its rule and place into effect the provisional waiver program in the “…coming months.” The provisional waiver is NOT yet available, and so USCIS has announced a news release that lets the public know to be careful and not hire immigration consultants that claim this waiver has been placed into effect.

In order for the waiver to be approved, the applicant must show through much documentation that the U.S. relative will suffer extreme and unusual hardship. This waiver is available for spouses, children, or parents of a U.S. citizen.

Example of Denied Naturalization Due to Lying to USCIS

A precedent case has just been released online that I found very interesting. This case was released in the Third Circuit, and is called Jose Gonzalez v. Secretary of Department of Homeland Security. It involves a case where an immigrant obtained his green card by filing based on his marriage to his U.S. citizen wife, and he was caught for lying to USCIS because he secretly had another life that he failed to mention to USCIS. The immigrant in the instant case had married his U.S. citizen spouse in the year of 1999. He then filed for his two year green card, which was approved, and then he filed his application to remove the conditions. On his application to obtain his permanent 10-year green card, he placed on his application that he did not have any children.

The USCIS approved the removal of his conditional residence, and he received his 10-year permanent green card on or about August of 2004. He then decided to file for divorce, and his divorce became final on or about March of 2005, so less than one year later.

Then Mr. Gonzalez filed for naturalization in December of 2006, and on his naturalization application he stated that he has two children, one born in 2000 and his second child born in 2001. Mr. Gonzalez also amended his children’s birth certificates once he obtained his green card. He in fact had moved in with his children and the mother of his children soon after receiving his green card.

The USCIS denied his naturalization application, citing that he had lied to USCIS at the time of filing for the removal of his conditional status by stating at that time that he had no children. USCIS states that Mr. Gonzalez therefore failed to meet the requirement of good moral character, which is a requirement that all immigrants must meet in order to obtain naturalization in the U.S. His misrepresentations (i.e. lies) do not need to be material to cause an applicant to fail being a person of good moral character. One small irrelevant lie allows USCIS to find that a person lacks good moral character.

Mr. Gonzalez argued that he did not know that the two children were his children at the time he applied for his 10-year green card. He pointed to the fact that he later amended their birth certificates. The Court notes, however, that he was having relations with the mother around the time that the children were conceived. He gave her money and supported her in other ways; therefore he had sufficient knowledge that these children could be his biological children. The Court notes that he did not adopt these children, but rather he amended their birth certificates instead, further showing that he should have had knowledge that these were his children.

Where can Petitioners residing overseas file their Petitions?

This issue of whether a U.S. citizen spouse who resides outside the U.S. can file directly with the U.S. Embassy or Consulate seems to come up every so often, so I thought that I would do a “reminder” blog on the issue. I had blogged about this issue last year as well as it comes up often when discussing which venue is the best place to file petitions.

For petitioners who reside outside the U.S., they can file directly with the U.S. Embassy or Consulate ONLY IF USCIS has an “office” or public counter presence within the U.S. Embassy or Consulate. If USCIS does not have a public presence within that U.S. Embassy, then the Petition for Alien Relative must be filed at the same Chicago lockbox.

Please call USCIS at 1-800-375-5283 for the exact address of the Chicago lockbox for filing a Petition for Alien Relative. As of February 2012, the address is as follows:

USCIS
P.O. Box 804625
Chicago, Il 60680-4107

This address can change, and frequently does change, so please call or check other USCIS sources before filing your Petition for Alien Petition, should you decide to file a Petition without the use of an Immigration Attorney.

U.S. Embassy in Damascus, Syria is suspending Operations

While I have been expecting this news for some time now, the U.S. Embassy in Damascus, Syria has officially announced that it will be suspending its operations as of February 06, 2012. The announcement also indicates that all U.S. personnel have already left Syria.

The reason is, of course, the escalating violence now in Syria. The announcement indicates that the U.S. Embassy personnel reached out to the Syrian government regarding their concerns for their safety, and that according to the announcement the Syrian government did not “respond adequately.”

With the cases that I am handling for Syrian nationals, many of these cases are now being transferred to the U.S. Embassy in Amman, Jordan for processing.

Do Fiancé’s of U.S. Citizens Have to Apply for an Employment Card?

A Fiancé of a U.S. Citizen can obtain permission to enter the U.S. through a K-1 visa. Their children can enter the U.S. through a K-2 visa. Upon entry, most people that enter through a K-1 visa, otherwise known as Fiancée visa, want to immediately start working as soon as they find employment.

The question that I receive from many of my K-1 applicants or their spouse is whether they can start working upon their entry into the U.S. My answer is that they must first apply for an employment card. They can apply for an employment card, also known as EAD card, with USCIS. It takes anywhere from 30-90 days for that application to be approved and for the applicant to receive the employment card in the mail.

It is true that the USCIS regulations allow K-1’s to engage in employment pursuant to their status of a K-1 visa. However, according to a recent Customs and Border Patrol (CBP) liaison meeting on or about November 09, 2011, CBP made it clear that, “a K1 must apply …for an EAD.”

In the past, CBP officers would write on the I-94 card that work was authorized, and this was often used by K-1’s when they applied for work in the U.S. However, it appears that CBP has stopped this practice.

The bottom line is that K-1’s must apply for an employment card and wait for the approval of that employment card before they start working in the U.S. Of course, once the K-1 marries the U.S. citizen and files his or her green card application, the employment card can be filed as a part of that application.

Is Administrative Closure the Same as Termination of Removal Proceedings?

For any applicants currently in Removal proceedings, they may have heard the above terms used interchangeably, but in fact they are two completely different forms of relief that an Immigration Judge(s) can grant. Termination of Removal Proceedings basically means that removal proceedings against an applicant are completed and no longer pending, i.e. open, against the applicant. This means that at least for the most current removal proceedings, the applicant was not ordered removed or deported from the U.S. The applicant’s removal proceedings are considered completed, and the applicant is no longer in removal proceedings.

Administrative closure, on the other hand, simply means that the applicant’s removal proceedings are being put on hold for the time being, and that they must be reopened in the future for the removal proceedings to be resolved. Through Administrative closure, the applicant’s case is temporarily taken off the Court’s calendar. The applicant still remains in removal proceedings.

In June and ongoing months in 2011, some Memorandums of law were released by Director J. Morton that set forth factors ICE should consider when determining if a case is eligible for prosecutorial discretion. If ICE agrees to apply prosecutorial discretion to a case, then that case will be administratively closed. In this way, that applicant will not be ordered removed and can also apply for an employment card while he or she is in the U.S.

Fraud Waiver APPEAL SUSTAINED BY AAO For Our Client

In an unpublished decision received on behalf of our clients, the AAO (Administrative Appeals Office) sustained our appeal that we filed for the denial of our clients I-601, Waiver for Fraud, Application. Our client had previously filed a fraud waiver on his own without an attorney with the U.S. Embassy in Tirana, Albania. The U.S. Embassy in Tirana, Albania denied his fraud waiver, claiming that the applicants did not show that the U.S. citizen spouse would suffer extreme and unusual hardship if her husband cannot re-enter the U.S. or if she is forced to move to Albania to join her husband.

Our client, an Albanian national, had entered the U.S. with a fraudulent passport that did not belong to him. He applied for asylum in the U.S. but the Immigration Judge denied his case and granted him voluntary departure requiring him to leave the U.S. During his many years in the U.S. while his case was pending, our client met his current wife, a U.S. citizen. They now have a child together.

When he left the U.S. and applied for his green card to re-enter the U.S., the U.S. Embassy in Tirana denied the fraud waiver citing that the U.S. citizen spouse was already living with her husband in Tirana. They reasoned that she could remain there, if she did not want to be separated from her husband. As noted above, our client was required to file a fraud waiver because of his previous use of a fake passport to enter the U.S.

Because our client was not represented by an attorney and filed the fraud waiver on his own, his case was not as strong as it could have been and the Officer(s) were able to deny his case. His wife had submitted substantial research on the country conditions in Albania, proof of their marriage etc. but the Officer was not satisfied.

When I took over the case, I immediately filed an appeal with the Office in Vienna, Austria, which has jurisdiction to review the case from the U.S. Embassy in Tirana, Albania. The case was then transferred to the AAO in Washington, D.C. The AAO decision, which we just received, held that the U.S. citizen would suffer extreme and unusual hardship if her husband is not allowed to re-enter the U.S.

The Immigration Appeals Officer(s) based their favorable decision on the arguments and research we presented on behalf of our clients. Notably, they noted that the U.S. citizen does not speak Albanian, and that she did live in Albania for a year or so, but that she had to return to the U.S. because she could not adjust to living in Albania. Further, we had conceded that our client’s use of the fake passport was wrong. We did not try to rationalize his breaking of U.S. laws. We did however point out individual details of the couple’s life to convince the AAO to allow them to be reunited here in the U.S.

We are pleased to have worked on this case and to be a part of this family’s reuniting, especially given that they now have a child together. Our client, the U.S. citizen spouse, has given her express permission for me to use the details of her case in this blog. Her name has been kept confidential.

CBP has issued a Practice Pointer for TN Visas available to Canadians

CBP is short for Customs and Border Patrol. CBP has recently issued a practice pointer useful for Canadians wanting to enter the U.S. with a TN visa under NAFTA. NAFTA, which is the North American Free Trade Agreement, allows Canadians and Mexicans to be eligible for a TN nonimmigrant visa, if they have an employer willing to sponsor them for a professional position.

Citizens of Canada can make an application for a TN visa at a U.S. class port of entry, at a U.S. pre-clearance or pre-flight station, or a U.S. airport handling international traffic. Usually the applicant must submit the filing fee, copies of all relevant degrees showing he or she is eligible for the professional position, and an offer of employment letter from his or her sponsoring employer on original company letter. The Offer of employment letter must specify the offered job, rate of pay, and basic duties required under that offered job. The letter must also state the length of admission requested. Usually proof that the applicant will NOT immigrate to the U.S. permanently should be provided as well.

A TN visa can be issued for a maximum of three years. However, the length of the visa cannot exceed the applicant’s passport validity date. In other words, if the applicant wants a three year visa, then his or her passport must be valid for three years or more to qualify.

If the Canadian national is already in the U.S. and has not overstayed his or her visitor visa (up to 6 moths allowed), then he or she can file a change of status request with USCIS instead of traveling in order to obtain a TN visa.

Some positions that qualify for a TN visa include engineers, accountants, architects, economists, social worker, and many other professional level positions.