Did your NOTICE TO APPEAR have a date time and place?

By Jessica Suotmaa 2

Since the Pereira v. Sessions decision in June 2018, immigration attorneys have been flooding the courts with variations of motions to reopen and terminate, with the most important being the Cancellation of Removal.  In this post, we’ll review the importance of this decision and how it may affect you.

What is a “Notice to Appear” (NTA)?

A notice of appear is a charging document the government sends or hands to you to inform you that you have been determined “removable” (a.k.a “deportable”).  An NTA will include the following:

  • biographical information
  • nature of proceedings
  • factual allegations
  • charge(s) of removability
  • date and place of proceedings (immigration court hearing)

Why is the Pereira v. Sessions decision significant?

The most significant takeaway from the Pereira v. Sessions decision is the Supreme Court’s decision that the NTA for Pereira was invalid because it failed to include an exact time and place for proceedings.

In the past, many NTAs were issued by other agencies (not the Department of Justice) so they would put “To be decided”, “TBD”, “To be set”, etc. on the NTA and let the immigration court send out a followup “Notice of Hearing” with an exact date, time, and location.  The Supreme Court ruled that a literal interpretation of the law means an NTA without a date, time, and location for proceedings is  invalid. An invalid NTA means that the immigration court has no jurisdiction, or power, over the alien.

In Pereira’s case, the decision means that his NTA was invalid so the immigration court did not have jurisdiction over his case. Since the department of justice (DOJ) did not have jurisdiction over Pereira, he was not technically in removal proceedings. Or at the very least, he should not have been in removal proceedings.

Pereira had been in the US approximately six years before receiving his NTA, which put a stop to his “time in the US” as time in removal proceedings does not count.  After his NTA was ruled invalid, Pereira had accrued enough time (ten years) to qualify for Cancellation of Removal.

What if my NTA didn’t have a time and place but I haven’t been here long enough?

It’s important for anyone with a similar NTA to be aware of the possible consequences. Just because the government served you an invalid NTA at some point, doesn’t mean you will suddenly be able to “get your papers” or live under the radar.  In fact, most likely they will serve you a new NTA with the date, time and location of your next hearing. If that happens, you will still be in removal proceedings.

As we discussed above, in Pereira’s case, he had prepared to ask for relief in the form of Cancellation of Removal.  If you are married to a U.S. citizen, or have a qualifying US citizen family member to petition for you, then you may be able to request relief in the form of allowing you to adjust your status.

A qualified immigration lawyer could analyze your situation and give you a clear idea of what your options may be.  Contact one of the qualified immigration attorneys at Lum Law Group today for a free phone consultation!

 

Can an Immigrant purchase a home?

By Lisa 0

Home ownership is an integral part of the American Dream, which we are encouraged to work hard towards.  Home ownership is a great source of pride in the U.S., and a huge source of gratitude for immigrants.  Striving towards home ownership can be considered a way of life for Americans born and raised in the United States.

Immigrants Can Buy A Home In The US

Image Credit

There is good news for immigrants that want to own a home, too. It has long been said that America is the land of opportunity. Any realtor can tell you from experience that you do not have to be a U.S. citizen to buy a home in the States. With some hard work and with the right resources, the opportunity of home ownership awaits everyone. Immigrants can obtain homes in the US just like anyone else. There are millions of undocumented immigrants who already own homes in the United States. One obvious way to purchase a home as an immigrant would be to buy the house all in cash, without taking out a mortgage. Then, with the equity of their first home purchase, one can work up to a bigger, better home in the future.

If one does not have the cash to buy a home outright, there are mortgage programs that are set up to help an undocumented immigrant qualify for a home mortgage. Immigrants who do not qualify for social security numbers must apply for an Individual Tax Payer Identification Number (ITIN) through the Internal Revenue Service (IRS).  Some financial institutions can offer a mortgage to ITIN holders.

Green Card Holders Can Buy A Home In The US

Image Credit

A green card holder is a legal permanent resident (LPR) of the United States, so they can purchase a home just like a U.S. citizen. They can apply for a traditional mortgage through a bank or credit union. Of course, they will be required to meet the down payment requirements and of all of the documentation that would be expected from all applicants. Like all mortgage applicants, everyone is required to qualify financially and must present proof of income, proof of residency, etc. to qualify.

Due to the time it takes to obtain a mortgage, it is strongly suggested to begin the process of applying for a mortgage before beginning to look for a home. Residential real estate is a fast-moving industry and many home sellers and realtors prefer to work with pre-qualified buyers only. Fortunately, immigrants can buy homes in the US just like anyone else.

If you, or someone you know, is interested in purchasing a home in the U.S. and have questions, feel free to contact Curtis Lum Team for real estate. 

If you have additional questions regarding what immigrants can and cannot do in the United States, do contact our office.

Does presentation matter with USCIS?

By Jessica Suotmaa 1

Any time we’re filing documents on behalf of clients with the court system, there are court rules on how documents must be presented and filed. Other government agencies, such as the United States Citizenship and Immigration Services (USCIS), do not have set rules on presentation and organization because they allow applicants to apply without a lawyer.  Unfortunately for us, the lack of regulations doesn’t mean we can file a client’s handwritten form with our own handwritten letter, but it does beg the question: does presentation matter?

The official answer is that as long as your writing is legible, you use the right colored paper for the right documents, and your paperwork is not dirty, damaged, or too dark/light to read, it should be fine.

To get to the unofficial answer, we try to put ourselves in the immigration officer’s shoes.

Imagine you’re a government employee in a factory-style assembly line where you only have one very specific duty.

Maybe you’re the person who opens the mail and divides the paperwork and bags the attachments and staples them together.

Maybe you’re the person who goes through the document pile with a checklist to ensure all necessary documents have been submitted.

Or maybe you’re the lucky person who gets to make decisions on the 20-100 cases that land on your desk each day (we’re not sure what their daily quotas are).

Now we don’t know what you think of when you imagine yourself as an immigration officer at USCIS, but here’s what we think:

We think about the number of files coming in, the boring and repetitive tasks associated with each file, and the size of the files our office tends to send out and we feel like giving the officers a hand.

We want to make their jobs just a little easier by organizing the files the best we can according to their requirements.

Here’s how we do it:

  • We carefully review your individual situation and thoughtfully present your case in the most clear and concise way possible.
  • We review the application/petition requirements, list them, and detail all the ways our client meets each requirement along with supporting evidence.
  • We write personalized cover letters with narrative summaries of each of our client’s unique situations.
  • We type up all forms and form attachments to ensure legibility.
  • We include separate document indexes when we have too many exhibits.
  • We divide our file package with colored paper so that each section is clearly separated, or so that each exhibit can be easily found.
  • We label everything, include exhibit tabs, and we staple any odd-sized attachments, such as photos, medical reports, or CD-Roms to the package so as to prevent them from falling out of files.

We hope our clients can appreciate the time we spend organizing and presenting their cases to immigration as it really is not as simple as just printing out forms, making copies, and dropping them off at the post office.  Preparing your case involves so much more attention and effort that we only do because we care enough to do it.

Lum Law Group–we care enough. 

How to prove extreme and unusual hardship for immigration hardship waivers

By Jessica Suotmaa 0

Many of our clients are aware that they need, or will need, a I-601 or I-601A waiver in order to re-enter or apply for a green card in the U.S. Most hardship waivers and relief require proof of “extreme and unusual hardship” to qualify.  Many of our clients feel that they meet the requirements. So the question is, how do we prove to Immigration, United States Citizenship and Immigration Services (USCIS), that our clients have extreme and unusual hardship?

What is “Extreme and Unusual Hardship” anyway?

USCIS has released a list of common factors for extreme hardship.

  • Health 
    • e.g., ongoing special treatment for physical or mental condition, chronic vs. acute or long- vs. short-term care
  • Financial considerations
    • e.g., sale of home/business, cost of care for elderly and sick parents, special education needs of children
  • Education
    • e.g., disruption of current education program,
  • Personal considerations
    • e.g., family connection, length of community/social ties
  • Special factors
    • e.g., fear of persecution, social ostracism or stigma
  • Significant factors
    • e.g. asylum, refugee, or other temporary protection status

This is in no way a complete list. You may have a situation that is not listed but would qualify for extreme and unusual hardship. If you have questions, feel free to ask a lawyer.

Who qualifies for “extreme and unusual hardship”?

USCIS only considers hardship on a “qualifying relative”, not the applicant. Only the applicant’s U.S. citizen parents or spouse qualify for hardship.  The entire application is based on the hardship the applicant’s qualifying relative will suffer if the applicant is deported or not allowed to re-enter the country.

This is not to say you cannot submit items related to, for example, your U.S. citizen children. It just means that any hardship from your children must be presented in relation to how it will pose as hardship to your spouse/parent.

How can I prove “extreme and unusual hardship”?

The specific evidence needed to prove extreme and unusual hardship depends on your individual situation, the factors you qualify for, and the strength of those factors. Having said that, it’s important to know that any statement or explanation should be backed up by evidence. The burden of proving extreme and unusual hardship is on the applicant.

For example, if you claim hardship based on medical or health concerns, you need to submit medical reports and/or a healthcare professional’s statement.  If for some reason you cannot get a copy or a new statement about your condition, you need to explain why.

Here are some examples USCIS has listed in their policy manual:

  • Payroll and tax statements to show employment and business ties
  • Evidence of monthly spending, such as mortgage statements, rental agreements, bills and invoices
  • Medical documentation for any health concerns
  • Expert opinions
  • Records of members in community organizations, volunteer confirmation and evidence of cultural affiliations
  • Birth/marriage/adoption certificates proving family ties
  • Country condition reports
  • Affidavits by qualifying relative declaring personal knowledge of claimed hardships

In addition, our office usually provides a budget template to see if our clients qualify for financial hardship. We research the city, county, and country you’d be living in, and we help you look for jobs, schools, or even medical facilities.

What does it mean to prove “extreme hardship under two scenarios”?

USCIS requires that extreme hardship be proven under two scenarios: 1. where the applicant is deported or not allowed to re-enter, and 2. where the applicant leaves/does not re-enter but the qualifying relative(s) lives with them outside the U.S.

Many of our clients who are “qualifying relatives” will often exclaim that they do not want to consider “the other scenario” because it is not an option for them.  Keep in mind that these scenarios are hypothetical right now, but could become reality should the waiver or relief not be granted. As such, we need to consider them as we would consider any international move: with detail and seriousness. Every claim made has to be supported by evidence.

What is not considered “extreme and unusual hardship”?

The opposite of “extreme and unusual hardship” is common hardship.  Expected consequences of denial or readmission or deportation include:

  • the heartbreak of family separation
  • less income or financial ruin
  • challenges in adjusting to another country
  • poorer education opportunities abroad
  • poorer medical services abroad
  • poorer employment or career opportunities abroad

The USCIS Policy Manual, Volume 9, Part B, Chapter 5, Extreme Hardship Considerations and Factors goes into detail with examples of what counts as “common hardship” and what counts as “extreme and unusual hardship”.

What Immigration's New Policy regarding RFEs and NOIDs means for you

By Jessica Suotmaa 1

United States Citizenship and Immigration Services (USCIS) recently published a policy update and field guide memo regarding the issuance of Requests for Evidence (RFE) and Notice of Intent to Deny (NOID).  The new policy gives adjudicators (aka immigration officers) more power to make discretionary decisions as to whether an immigration application or petition meets the minimum requirements to warrant an RFE or NOID.  The new policy will go into effect September 11, 2018, at which point USCIS adjudicators will have discretionary power in processing immigration cases and will not be required to request for additional evidence or inform petitioners and applicants of an upcoming denial.

What is a “Request for Evidence” (RFE)?

First, we’ll explain what USCIS means by a “Request for Evidence” (RFE) notice.  Applicants and petitioners will receive RFE notices when their application or petition is missing critical information that the immigration officer needs in order to process and decide on their cases.  Previously, immigration officers (or adjudicators) may issue RFE requests for any deficiency.

For example, a I-130 Petition for Alien Relative petitioner who petitions for his father may have neglected to provide his parent’s marriage certificate, but his application is otherwise fine.  On the other hand, an applicant filing a I-601A Waiver may have provided all basic documents, such as birth certificates, marriage certificates, and evidence of long-term residence, but failed to provide proof of extreme hardship to his or her U.S. citizen spouse/parent.

Once this policy is in effect, we can assume that the the I-130 petitioner would still receive an RFE, but the I-601A applicant would not, but would be denied immediately.

Examples of RFE requests include, but are not limited to, providing documentary evidence, applying for a police clearance, attaining an FBI background check, or writing a declaration. RFE requests usually have a set deadline from the date of the letter.

What is a “Notice of Intent to Deny” (NOID)?

A Notice of Intent to Deny (NOID) is exactly as described; it is a letter detailing why your application or petition will soon be denied.  The letter will quote relevant immigration law and describe and explain existing policies that guide the adjudicator into making the decision to deny.

The difference between the NOID and RFE is that with the NOID, the immigration has already come to a conclusion, and any response to the NOID will need to counter the points for denial, if possible. With the RFE, the immigration officer has yet to make a decision, and cannot make one before relevant evidence has been provided.

The policy does not affect NOIDs which must be issued when information not provided by the applicant or petitioner is used to deny. USCIS often cross-checks with other government departments, checking border control records, FBI records, and so forth.  When it does so and discovers facts that negatively affect one’s petition or application, it will issue an NOID to explain the basis of the denial.

Why are they making this policy change?

In the policy update, USCIS states that the change is not meant to discourage people from applying on their own (rather than with the help of a professional), but is meant to discourage people who are applying with USCIS just to have something pending (“‘placeholder’ filings”).

What does this mean for us?

We have had clients hire us half-way into the process because they tried filing on their own, received an RFE, and came to us for help.  When you hire a lawyer to help with paperwork, it means that we will review them for issues and ask you to get more evidence or explain discrepancies. The clients described above were reluctant to cooperate at first, and as a result our RFE response was insufficient, and they received an NOID.  Once our clients realized that just hiring an attorney is not enough if additional documents, declarations, and overall evidence is not provided, then we were able to overturn the NOID and we eventually received an approval.

The purpose of the above example is to emphasize how important client cooperation is to client success.  We need time to carefully examine what we have on hand, or what was previously submitted, what is being requested, and then, and only then, can we provide advice as to what more is needed.  Once we receive all the evidence, we also need time to review, process, and organize the documents into a clear description that accurately describes our client’s individual situation. This new policy means that we will need to be extra diligent, extra careful, and spend extra time on each and every petition/application.

Our job is not only to review your documents and fill out forms for you. In fact, the most important part of our job is to organize your information and prepare it in such a way that the immigration adjudicator can easily and effortlessly review and understand your individual situation.  The presentation of your situation is important, and we take pride in how we take extra steps to meet the silent requirements.

Do you have questions on this new policy update? Contact us today!

Why is California considered immigrant-friendly? About Sanctuary States.

By Jessica Suotmaa 0

While the passing of new year’s reminds us of resolutions and letting go of the past, for Californian immigrants, 2018 marked a new era.  The Sanctuary State bill passed in October of 2017 came into effect January 1, 2018, making California the first sanctuary state ever.

But hold on, what does it mean for California to be a “sanctuary state”?

 

California Values Act SB54

The senate bill limits local and state law enforcement agencies from sharing information with federal agencies, such as ICE.

Whereas in a non-sanctuary state, law enforcement officers can hold a detainee until ICE picks them up, even if they have not been charged.  In California, law enforcement cannot hold a detainee, but they can transfer the detainee to a detention center if the detainee is convicted of one or more of about 800 crimes or is a registered sex offender.

The list of 800 or so crimes include assault, battery, sexual abuse and exploitation, rape, crimes endangering children, burglary, robbery, theft, fraud, forgery, a crime resulting in death, gang/drug/weapon-related offenses, and even some domestic violence offenses and driving under the influence (DUI) felony convictions.  These provisions are from the TRUST Act), where the conviction requirement only stands if the crime was committed (or charged) within 15 years.

In California, law enforcement (e.g., the police) cannot ask someone about their immigration status.  Immigrants who admit to being illegal can also not be arrested just for their immigration status. It’s important to note that while the police cannot arrest someone for their immigration status, ICE officers can.

However, law enforcement can still respond to ICE requests if the detainee has been convicted or charged with a crime in the list.

In some cases, ICE has access to local prisons and is allowed to interview an inmate already in custody.

ICE can also assist local law enforcement in cases where the primary goal is not immigration enforcement.

Hospitals, schools, and courthouses in California are not required to share information with ICE.

Why does bill SB54 matter?

California has about 2.3 million illegal immigrants.  27% of Californians are foreign-born, and roughly every 5th green card is issued to a California resident.  SB-54 bill states three primary reasons why the bill is important for California:

  1. “Immigrants are an Essential Part of California”
    • One in four Californians are immigrants
    • 50% of Californian children have at least one immigrant parent
    • The cost of mass deportations would be too high for our families and communities.
  2. “Entangling Local Law Enforcement Agencies with Immigration Enforcement is Harmful”
    • Prior to TRUST Act (2013), California spent a lot of local resources assisting ICE in detaining illegals e.g., in 2012 California spent $65 million tax payer money to help ICE detail people.
    • Studies show that when illegals are afraid of local law enforcement, they do not report crimes or assist in providing information or acting as witnesses.
  3. “California’s Resources Cannot be Commandeered to Carry Out Deportations”
    • Federal law states that California cannot be required to use local resources to detain and deport illegal residents.

How does California compare to other states?

The Immigrant Legal Resource Center (ILRC) published a report stating facts on today’s state of immigration policies:

  • Department of Homeland Security (DHS) has a budget of over $18 billion.
  • DHS relies on voluntary help from local governments, especially local law enforcement agencies.
  • Local law enforcement agencies have no legal authority to enforce immigration laws.
  • Local law enforcement agencies do not have to assist DHS with immigration enforcement.
  • However, one in four counties will voluntary detain immigrants at ICE’s request.
  • Compared to one year ago, over 400 counties have stronger limitations on immigration enforcement.
  • Some counties have a signed agreement of cooperation with ICE (287(g)).

ILRC has created a color-coded map of the U.S. showing counties by the level of ICE-cooperation.

Map on how ICE-friendly counties are

The greener the county, the more policies it has in place against helping ICE detain and deport illegal immigrants.  From this map, we can see that California is by far the greenest state, making it th

California and Nevada ICE influence

ILRC reminds readers that just because policies are in place, doesn’t mean cities and local authorities agree on the policies. In Orange County, the city of Los Alamitos approves its precedent-setting anti-sanctuary ordinance, whereby the city voted not to follow California’s sanctuary policies. Another example is how the city of Los Angeles may adhere to sanctuary policies, but the smaller cities in Los Angeles county or other counties may not.

To view the interactive map and find your county, visit the Immigrant Legal Resource Center website.

 

Why do you think California is immigrant friendly? Share your reasons below!

5 Things to Know About Sessions' Recent Asylum Decision re: Domestic and Gang Violence

By Jessica Suotmaa 0

We have been carefully following Attorney General Jeffrey Sessions’ review of the domestic violence asylum case (Matter of A-R-C-G-, 26 I&N Dec. 338 (BIA 2014)), which he overturned on June 11, 2018.  While our previous post on Sessions’ asylum decision was rather detailed, this post will outline the top five things you need to know from his decision.

  1. “Particular Social Group” category definition

Sessions states that persecution is usually government persecution, and while he did not define exactly what the catch-all “particular social group” includes, he does list all the boxes the particular case did not check.

The particular social group must…

  1. …be widely “understood to be a societal faction or a recognized segment of the population” in the applicant’s home country.
  2. …have members who share a “common immutable characteristic”, such as one “that either is beyond the power of an individual to change or is so fundamental to individual identity or conscience that it ought not be required to be changed.”
  3. …not be too wide in definition, such as “married women in Guatemala who are unable to leave their relationship”.
  4. …not be too narrow in definition, such as “El Salvadoran women who are unable to leave their domestic relationships where they have children in common”.
  5. …not be helped by the government (when not directly persecuted by the government).
  6. …must be the primary cause for asylum.

In the case of gang violence, Sessions explains how immigration judges have previously determined that victims of gang violence are not a “particular social group” but come from “all segments of society” and cannot be grouped together. So while it seems that gang members are a social group, victims of gang members are unfortunately not.

  1. Burden of Proof

Sessions highlights that the “burden of proof” lays with the applicant, meaning the applicant must show enough evidence to prove her need for asylum. The evidence must meet all the elements for asylum, which is determined by the asylum officer, immigration judge, or the Board of Immigration Appeals (BIA).

An example of bearing the burden of proof is by proving “group membership”. An applicant is expected to know the origins of the particular social group and be able to describe her membership.

  1. Credibility

Sessions has stated that if an applicant’s asylum claim is “fatally flawed in one respect, [then] immigration officers and judges need not examine the remaining elements of the asylum claim”. This basically means the applicant’s story must add up and be fool proof. If there are any question marks that constitute a “flaw” in reasoning, then the asylum application can be instantly denied without further review.

Applicants may notice the results of this decision at Immigration when observing asylum interviews that last mere minutes.

  1. Government’s Responsibility

To qualify for asylum, the applicant must prove that her government is unable or unwilling to protect her. However, if the government has made efforts but “may have problems effectively policing certain crimes”, then that reason alone is not enough to meet asylum requirements. Similarly, if “certain populations are more likely to be victims of crime”, then it is also not enough to qualify.

In the above case of domestic violence, Sessions states that for the applicant to show that the government doesn’t control private behavior well, e.g., the police don’t respond to 911 calls, is not enough. Rather, the applicant must prove that the government is not only aware of the private behavior, but also allows it to occur. If the case is that the government cannot protect the applicant, then the applicant must show evidence of the government’s inability to protect victims like her.

“The fact that the local police have not acted on a particular report of an individual crime does not necessarily mean that the government is unwilling or unable to control crime, any more than it would in the United States. There may be many reasons why a particular crime is not successfully investigated and prosecuted. Applicants must show not just that the crime has gone unpunished, but that the government is unwilling or unable to prevent it.”

  1. Scope

Finally, Sessions reminds that applicants not only have to prove all of the above and any other requirements, but also has to provide evidence as to why escape to the United States is their only option.

“When the applicant has suffered personal harm at the hands of only a few specific individuals, internal relocation would seem more reasonable than if the applicant were persecuted, broadly, by her country’s government.”

 

If you have any questions about how Sessions’ decision reversal may affect your application for asylum or immigration hearing, contact us today to talk to an experienced immigration attorney!

Should I file my USCIS immigration application online?

By Jessica Suotmaa 0

The United States Citizenship and Immigration Services (USCIS) online form processing system is designed for existing lawful permanent residents for quick and easy processing, such as renewing or replacing their green cards, applying for a travel document, or naturalization.  As USCIS has begun modernizing their website and systems, even releasing a mobile application, we wondered why we should prefer one form of application over another. Is there a difference?

To test out the system, we recently filed an I-90, Application to Replace LPR card. In this article, we will share our opinion of the online system.

What are the benefits of filing online?

No paperwork

We opt to go paperless whenever possible, which can be challenging in a law office, but shouldn’t be in our private lives. As such, we truly felt that the process of filling out a form on our cellphones was much easier than filling out an Adobe PDF on the computer, printing it out, signing the form, scanning/copying the signed form, and then buying stamps or delivering the form to the post office.

Pay online

Up till now, we have been able to pay for USCIS filing fees using either a check or money order (cashier’s checks might be an option as well).  Money orders cost money and require upfront payment, while personal checks often give clients stress because they have to maintain a certain balance on their accounts for weeks, if not months on end, while waiting for USCIS to process their check.  If at the time of processing the account does not have enough to cover the filing fees, USCIS rejects the applications and mails the entire package back to us.

Paying for your USCIS filing fees online is like online shopping: you insert your card number and it’s done. Instant, simple, and most importantly: stress-free.

Secure updates

Have you ever filed something and then waited for the results in the mail? Snail-mail can seemingly take forever, especially when coupled with USCIS processing times, and the postal service is not always reliable. Did you move? Was there a typo with your address? Did you forget an apartment number? Whatever the cause, the damage is done. You’ve sent it out and sure, you can make inquiries and address changes, but meanwhile you may not be able to check the online status of your case because you don’t have the receipt with the receipt number (a must!)

USCIS online account creation

In order to file an application online, you first have to create an online account with USCIS. Once submitted, you’ll receive all receipts, updates, and notifications to your account instantaneously.  The system will send you an email notification informing you that you have received an update or notice and you can download the PDF copy of the notice.  A paper copy is also mailed to you.  The online notifications are great for when you’re mobile, when you don’t check your P.O. box every day, or when mail gets lost in the process.  You’ll know instantly if you have a finger print appointment, an interview, or a request for further evidence (RFE).

Updates on my cellphone

Finally, we felt the online application process saved us a lot of headaches as everything was mobile accessible.  If you want to be updated on your USCIS case file with a mobile app, download the iOS version here and the Google Play version here  (note: not an official USCIS application). Would you like to see a review of these apps? Let us know!

How to Check your USCIS case Processing Times Online

By Jessica Suotmaa 0

One of the most common questions we receive in the office is “when will my form be processed?” Or when can I expect to be approved? When will I receive ________? While we can give you an estimate based on United States Citizenship and Immigration Services (USCIS) processing times and our experience with other clients, the best way to check processing times is to view the official website.

Before, checking the processing time “table” on the USCIS website was a long and arduous process. Today, USCIS has changed the format of checking processing times, making it easier for the layman to navigate.

Here’s how to check the processing time of a family-based I-130 Petition for Alien Relative:

  1. Go to USCIS: Check Processing Times website:

      2. Select the form you filed. For our example, we’re selecting I-130.

      3. Select the Processing Center. For our example, we’re selecting California Processing Center.

      4. Find the type of form that’s applicable to you.

Select the “Form Type” that applies to you. For our example, we might look at U.S. citizen filing for unmarried son or daughter over 21, and see that the estimated processing time is 23.5 to 30.5 months, so about 2-2.5 years.  If we filed our I-130 petition in January 2010, we can see from the “Case Inquiry Date” that USCIS is currently processing September 10, 2009, which means that we still need to wait before they will process January 2010.

 

We hope this guide has helped you how to check processing times online. If you have any further questions regarding case processing, feel free to contact our office for more assistance.

Are Administratively Closed Immigration Court Cases still SAFE?

By Jessica Suotmaa 0

On May 17, 2018, Attorney General Jeff Sessions overruled a Immigration Judge’s decision in Matter of CASTRO-TUM, 27 I&N Dec. 187, clarifying that immigration judges and the Board of Immigration Appeals (BIA) does not have the authority to administratively close cases indefinitely. 

What does this mean?

In short, you can no longer request prosecutorial discretion (PD) for immigration court cases to be administratively closed.

If your case was administratively closed, commonly referred to as “having PD”, your case could be reopened by the court or BIA.

What does “Administratively Closed” mean?

“Administrative Closure” means the immigration judge has ordered the case off calendar for the time being.  Usually cases are administratively closed to allow the respondent to receive a decision from United States Citizenship and Immigration Services (USCIS),  e.g. an I-130 petition that would grant them the ability to adjust status in the U.S.

Sometimes, immigration judges have administratively closed cases because respondents did not show up to any of their hearings, and the immigration judge felt that the court did not have the correct address or means to contact the respondent.

For an individual respondent, administrative closure means their case is in limbo: they have no closure.  Respondents with administratively closed cases are not ordered removed, but their Notice to Appear (NTA) remains on file.  They (usually) do not qualify for work permits and cannot adjust for status through their original application (if applicable).  Not every respondent appreciates having their case administratively closed, as was the case in Matter of W-Y-U-, 27 I&N Dec. 17 (BIA 2017) where a Chinese national appealed his administrative closure because he wanted a decision on his asylum case.

Why do Judges “Administratively Close” cases?

The immigration courts have a huge backlog of cases. Transactional Records Clearinghouse identified 658,728 pending immigration court cases as of November 2017.  This total does not include administratively closed cases.  On January 5, 2018, The American Bar Association announced that there were around 350,000 administratively closed cases, making the total “pending” immigration court cases over 1 million. There are not enough judges or courts to handle all of the cases. Administrative closure is a tool for Immigration Judges to manage their case docket.

Why are “Administrative Closures” an issue?

Administrative closures have been argued to be a “cover up” for immigration courts to hide their unmanageable backlog.  The American Immigration Council connects “administrative closure” to “prosecutorial discretion” (PD), which is “the authority of an agency or officer to decide what charges to bring and whether to pursue your case”:

Administrative closure was used extensively as a form of prosecutorial discretion during the later years of the Obama Administration; in particular, the Department of Homeland Security (DHS) often joined in motions to administratively close cases that did not fall within its enforcement priorities.

Out of the 350,000 administratively closed cases (last 22 years), over 200,000 cases were closed during the last four years of the Obama administration. The Immigration Court backlog has also increased exponentially during the Obama years. The BIA has previously held in Matter of Ramirez-Sanchez that PD cannot be given by the Immigration Court or reviewed by the BIA:

The decision to institute deportation proceedings involves the exercise of prosecutorial discretion and is one which neither the immigration judge nor this Board reviews. Once deportation proceedings are commenced, the immigration judge must order deportation if the evidence supports the charge.  

In the more recent case, Matter of WYU-, 27 I&N Dec. 17 (BIA 2017), BIA held that an immigration judge does not have PD:

In considering administrative closure, an Immigration Judge cannot review whether an alien falls within the enforcement priorities of the Department of Homeland Security, which has exclusive jurisdiction over matters of prosecutorial discretion.

This decision prompted Attorney General Jeff Sessions to review old cases, such as the Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012) and the Matter of Reynaldo CASTRO-TUM.

What’s important about Matter of Avetisyan?

In this matter, the respondent had an expired J-1 visa, was out of status, but she told the court that her husband was to be naturalized and could thereby file an I-130 Petition for Alien Relative soon. The Immigration Court gave her five continuances, but the respondent did not have proof of an I-130 approval. Speculating that the immigration court hearings were the reason why USCIS could not process her I-130 (as the physical file has to be sent back and forth between the attorney general’s office and USCIS), the respondent requested administrative closure, which the Immigration Judge granted despite government attorney objections.

Before January 31, 2012, Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012), immigration court cases could only be administratively closed if there was no opposition to the closure. If the individual respondent requested administrative closure, then both the immigration court judge and the government attorney had to approve the decision.  However, Board of Immigration Appeals’ (BIA) decision in Matter of Avetisyan overruled previous guidelines, stating that the immigration court or BIA could decide if a case warranted administrative closure. In doing so, the immigration judge and BIA overruled a previous decision in Matter of Gutierrez.

What’s important about the Matter of Reynaldo CASTRO-TUM?

By overruling the decision in Matter of Reynaldo CASTRO-TUM, Sessions has effectively overruled the decision in Matter of Avetisyan as well. Here’s what the decision basically states:

  • Immigration judges and the BIA do not have authority to “suspend indefinitely immigration proceedings by administrative closure” (overrules Avetisyan and W-Y-U-).
  • The only time immigration judges and the BIA can administratively close a case is “where a previous regulation or a previous judicially approved settlement expressly authorizes such an action”, e.g. when the settlement agreement in American Baptist Churches v. Thornburgh, 760 F. Supp. 796 (N.D. Cal. 1991) required BIA to administratively close all Guatemalan and Salvadorian deportation cases to allow them to apply for asylum under a new class.
  • By law, the Department of Homeland Security (DHS) decides whether to pursue a case and issue an NTA. Immigration judges and the BIA must resolve the case as quickly as possible.
  • If a case needs time, immigration judges are to issue continuances.
  • If a respondent doesn’t show up to their hearing (in absentia), then the immigration judge must order removal in absentia if DHS can prove that they’ve given written notice.
  • Cases that were administratively closed “without requisite authority” will be recalendered on the motion of either party.

In other words, Attorney General Jeff Sessions has decided that while administrative closure is abolished, it is not possible to reopen all the previously administratively closed cases due to the backlog of unresolved immigration court cases. However, any administratively closed case can be reopened by the court or BIA.

 

Feeling confused? Have questions? This blog is not legal advice. Contact our office to speak to an attorney for advice on your case.

 

 

J-, M-, and F-visa holders! Will you be unlawfully present after August 9, 2017?

By Jessica Suotmaa 7

Update:  On August 9, 2018, USCIS updated their previous policy memorandum. 

Under the revised policy memorandum, F- and M- nonimmigrant visa holders who “fall out of status” while their applications are pending but timely applied for reinstatement of status will have their “accrual of unlawful presence suspended while their application is pending.”

On May 11, 2018 United States Citizenship and Immigration Services (USCIS) released a policy memorandum on “…Accrued Unlawful Presence by Non-immigrant Students and Exchange visitors”, which will specifically apply to current F-, M-, and J-visa holders (and their dependents).  The policy is important to existing visa holders who may have violated their visa status or who do not plan ahead to renew their visas to avoid a “gap”.  The policy will come into effect on August 9, 2018.

What does “unlawful presence” mean and what is its significance?

USCIS defines “unlawful presence” as presence in the United States without being admitted or paroled, e.g. crossing the border illegally or as any time after the expiration of lawful presence as authorized by the Department of Homeland Security (DHS).

So what is wrong with unlawful presence? Besides the fact that anyone who accrues “unlawful presence” is breaking the law, if a person accrues enough unlawful presence, they become inadmissible according to Section 212(a)(9)(B) and 212(a)(9)(C)(i) of the Act.  Depending on how long one was illegally present in the U.S., one could be barred from reentering the U.S. for 3 years or 10 years after departure.

In practice, this means a student who studies in the U.S. could overstay his visa, forget to renew in time, or be delayed by his school, and begin accruing unlawful presence.  If enough is accrued, then the student will not be able to renew his F-1 visa and continue his studies, or if he is finished with his studies, will not be able to obtain a non-immigrant visa to return to the U.S. for a visit. Casual tourism aside, said student might need to make a business trip in his future job position, but be banned from obtaining it, which may then affect his career.

When do I begin to accrue “unlawful presence”?

If you failed to maintain your non-immigrant status before August 9, 2018, then you will begin accruing unlawful presence on August 9, 2018 or on one of the following dates, whichever is earlier:
  • The day after your DHS denial for immigration benefit if DHS found you in violation of your non-immigrant status;
  • The day after your I-94 expired;
  • The day after the decision for removal or deportation by an Immigration Judge or the Board of Immigration Appeals (BIA).
After August 9, 2018, you could begin accruing “unlawful presence” on the following:
  • The day after you stop your studies/work/exchange program or the day after you begin engaging in an “unauthorized activity”;
  • The day after you complete your studies or exchange program, including any practical training or grace period, or the day after you begin engaging in an “unauthorized activity”;
  • The day after your I-94 expires;
  • The day after the decision for removal or deportation by an Immigration Judge or the Board of Immigration Appeals (BIA).
If you were wondering, “unauthorized activity” usually refers to working without a work permit.

What if I leave after accruing “some” unlawful presence?

The policy status that you would still accrue unlawful presence, and if you return to the U.S., violate your non-immigrant visa again, the unlawful presence will be consolidated from your previous stay.  In addition, if you re-enter illegally, without being admitted or paroled, the unlawful presence will also be consolidated with any previous unlawful presence.

What if I am only unlawfully present for a few days?

It is difficult to say what would happen.

The policy states that if you are unlawfully present for 180 days or more, whether consecutively or after multiple re-entries, you could be subjected to a 3- or 10-year ban.

It also reminds that recipients of 10-year-bars tend to not be given any non-immigrant visas, admission, or adjustment of status, even after the ten year period has passed unless they are eligible for a waiver.

How Jeff Sessions' Recent Decision Affects Asylum Seekers

By Jessica Suotmaa 0

You may have heard in the news that the current Attorney General, Jeff Sessions, has been making changes this  year.  As the Attorney General, Sessions has the authority to refer cases to himself for review and to overturn a decision by the Board of Appeals (BIA).  Most recently, he rendered moot the 2014 BIA decision re: The right to a full hearing for all asylum and withholding of removal applicants.  

This BIA decision upheld a 1989 ruling where hearings were described as “an essential aspect of the asylum adjudication process for reasons related to fairness . . . and to the integrity of the asylum process itself.” However, the Honduran asylee later withdrew his application and appeal due to marriage to a U.S. Citizen, so Sessions has declared the decision irrelevant (and thereby inapplicable towards future cases).

Where before the Department of Justice (DOJ), Immigration Courts had to allow every asylee and applicant for withholding of removal to appear in front of a judge with a fair chance to present their case even if the USCIS officer denied them based on their asylum application and interview, now cases viewed as frivolous or fraudulent can be denied without the opportunity for a full hearing.

Immigration Court processing backlog in Los Angeles IC Graph credit: Immigration Backlog Tool

Sessions made this decision based on the overwhelming backlog at the Immigration Courts, where cases may remain pending or continued for years on end.  On average, we estimate that before this year, each asylum applicant from China had about three years to live and work before their asylum interview, decision, or Notice to Appear (NTA). Today, new asylum applicants are scheduled for an interview within one month!

What is a merit-less asylum application?

An application for asylum must meet the following federal requirements in order to be legally viable:

  • a history of persecution, or hostilities, based on your race, religion, nationality, membership in a particular social group, or political opinion
  • a well-founded fear of future persecution or ill-treatment based on your race, religion, nationality, membership in a particular social group, or political opinion
  • come from a country with a government that will not help them
Immigration Court backlog by nationalityGraph credit: Immigration Backlog Tool 

What does this mean in practice?

  • Asylum applicants who file their applications without assistance from qualified legal representation may be at a disadvantage.
  • Asylum applicants should prepare better for their asylum interviews and ensure that they have a qualified translator, if necessary.
  • Immigration Court judges can deny an asylum application or application for withholding of removal without even seeing the applicant if he or she finds the application is without merit.
  • Refugees who illegally cross the U.S. border and apply for asylum are detained as “criminals” (entering illegally is a misdemeanor while reentry is a felony) and may be denied near immediately.

What else might Sessions change?

  • Sessions is also reviewing a case that granted asylum to a woman suffering from domestic abuse.  If the decision is overturned, applicants may not be able to qualify for asylum based on domestic violence (also described as “private violence”).
Green Card Holders - Get naturalized now!

By Justin Lum 0

If you’ve been a permanent resident (green card holder) for five years or longer, why have you not applied for citizenship yet?

Our immigration attorneys are always encouraging people to apply for naturalization–relatives, friends, and clients alike! We don’t encourage you to apply for citizenship to collect attorney fees, rather, we encourage you to obtain your citizenship for your own sake. We’re just Good Samaritans looking out for you and your family.

“Of course I want to be a U.S. Citizen”

If you understand why we encourage permanent residents to apply for citizenship–that’s great! Stop reading right now and go file your application immediately! These days, filing your N-400 Application for Naturalization couldn’t be easier–you can apply via mobile app and even pay with a credit card.

However, due to a great number of permanent residents realizing the importance of citizenship, United States Citizenship and Immigration Services (USCIS) is behind in processing and the entire process may take a year–or longer! All the more reason why you should get started on your naturalization process today (See our article: Want to get Naturalized? Here’s everything you need to know!)

“But, <insert your excuse>”

If you’re not sure why we’re strongly encouraging green card holders to apply for naturalization, then keep reading, because we have an important message for you.

Here’s the message:

As a U.S. permanent resident, your residency permit is not guaranteed.

What this means is that you may lose your green card at any moment. It could be caused by a change in laws, an unforeseen arrest, or perhaps you’ve had too many DUIs. You could lose your green card if you decided to study abroad, work abroad, or visit relatives for an extended period of time. You could have your permanent resident card revoked at the border for any one of the above reasons, and in the extreme, you may even be placed in a detention center or deported.

In other words, your “right” to remain in the U.S. is conditional, meaning it can be taken away from you.

With many changes being made under the new administration where current laws and regulations are being followed more closely than ever before, it’s important to review your history and decide if it’s time to naturalize.  Green card holders with criminal records are being detained and deported. The amount of time a permanent resident stays in the U.S. versus abroad is closely scrutinized.  Border control inspect green card holders carefully, checking their “permanent residence” category, flagging suspicious looking residents, and running FBI background checks.

If our message doesn’t convince you to apply for citizenship, then consider USCIS’ Top 10 Reasons Why You Should Get Naturalized:

  1. Voting Rights – The right to vote for gov’t representatives.
  2. The Right to Serve on a Jury – The right to participate in justice.
  3. U.S. Passport – The ability to travel with a U.S. passport and be protected in the U.S. embassies of foreign countries.
  4. Bring Relatives to the U.S. – The right to petition for relatives to immigrate to the U.S.
  5. Children under 18 can become U.S. Citizens – For your children, even if born abroad, to (likely) have automatic citizenship.
  6. Apply for Federal jobs – The right to apply to the many federal positions that are limited to U.S. citizens.
  7. Run for Public Office – The right to become a politician and represent your community.
  8. Maintain Residency – The right to leave the U.S. for as long as you want and still be welcome back.
  9. Eligibility for Federal grants and scholarships – The right to apply for federal student grants and scholarships.
  10. Eligibility for Government benefits – The right to apply for certain gov’t benefits that are limited to citizens.

If you’re convinced, head over to the USCIS N-400 page to read more about the naturalization process, or read our summary here.

If you have still have questions, send us a message or give us a call!

Want to get naturalized? Here's what you need to know...

By Jessica Suotmaa 0

In line with recent trends, our office has received more inquiries regarding naturalization, with more and more people realizing that they are safer as U.S. citizens than permanent residents. Note: We estimate the naturalization process to take about a year, given USCIS 700,000+ processing backlog.

The process of applying for Naturalization is as follows:

  1. Check that you qualify to be naturalized
  2. Fill out Form N-400 and gather necessary documents
  3. Mail out your completed application (or send it online)
  4. Prepare for your interview
  5. Go to your interview/test
  6. Attend the naturalization/oath ceremony

As we haven’t found a comprehensive resource for those looking to learn more about how to prepare for the interview and citizenship test beyond USCIS official resource center, we’ve compiled this list as a comprehensive resource.

Keep in mind that USCIS will test you on the following:

  • Civics: You will be asked about 10 questions on U.S. history, U.S. government, U.S. geography.
  • Listening: You will be expected to understand the officer interviewing you and converse accordingly.
  • Reading: You will be asked to read a sentence aloud during your interview.
  • Writing: You will be asked to write a sentence that is read to you (dictation).

You can prepare for the listening, reading, and writing portions of your interview by studying vocabulary lists, chatting with many different people (with different accents), and watching the news.

Official information:

Form help:

Interview help:

Citizenship test help:

Podcasts:

Apps:

 

Do you know of additional resources that we can add to this list? Let us know!

Use your receipt number and check your USCIS case status online

By Lum Law Group 0

Immigration clients often call in for their immigration case statuses, wondering if an attorney has more insight into their USCIS case processing than they do. The truth is that most of the time when they call us, we check their status online.

Back in the day, we would have to make a note of it, call a 1-800 customer service number, hold for an hour or two, and then call our client back with an update.  Today, we can check our client’s USCIS application or petition status while on the phone with them.

We do this so often, we thought we would create a tutorial for those of you who are unfamiliar with the USCIS online status check:

Try it out and tell us what you think!

Now, if your case is well-beyond the USCIS processing times and it still shows an old status (“pending”), then we would send an inquiry on behalf of our client.  Case inquiries used to have to be done by email (they still can be done by email), but now USCIS has created a form submission website for convenience.  Click here to see how USCIS allows you to inquire online.

Did you find that helpful? Would you like to see more video tutorials? Let us know what you think!

Is your EB-5 Investment a SCAM?

By Lum Law Group 1

The U.S. EB-5 Immigrant Investment Program offers foreign investors and entrepreneurs permanent residence (a green card) in exchange for an investment of $1 million (or $500,000 for targeted employment areas) and job creation.  Over the years, EB-5 investment has virtually guaranteed its investors citizenship, even if it cannot guarantee a return on its high-risk investment.  However, recent years have revealed that many EB-5 marketing agencies, EB-5 regional centers, and EB-5 projects were nothing but utopian pyramid and ponzi schemes.

If you didn’t know about the warning…

Every year, the US releases 10,000 visas to EB-5 immigrant investors, but it wasn’t till 2013 that all 10,000 visas were claimed.  Since then, the government has released an official warning to investors regarding the prevalence of EB-5 fraud.  In the warning, the US Securities & Exchange Commission (SEC) reveals a few warning signs investors should steer clear of:

  • guarantees of a visa, green card, or citizenship
  • guarantees of a return on investment (5% in SEC v. Marco A. Ramirez, et al.)
  • promises of “no risk” investment
  • proof of overly consistent returns on investment
  • agencies that promote a business before USCIS has designated it as a Regional Center
  • promises to refund Regional Center administrative fees if the EB-5 visas are denied (SEC v. A Chicago Convention Center, et al.)
  • unregistered investments
  • unlicensed sellers
  • many companies run by a handful of people

If you’re curious about past cases of fraud…

Other well-known EB-5 fraud cases include:

  • USA v. Jennifer Yang, Daniel Wu – Californian (norcal) couple raised $4 million between 2009 and 2016 through the EB-5 visa program by defrauding the gov’t with fake reports, fake employees, etc.
  • Edward Chen, Jean Chen – Californian Chinese-American couple raised $22.5 million through Chinese EB-5 investors and stole more than $12 million, misappropriating more than 91 percent of the investors’ funds, and defrauding the gov’t by issuing leases with fake information.
  • Victoria Chan, California Investment Immigration Fund –  South El Monte-based father-daughter duo raised over $50 million from Chinese investors by submitting over 130 fraudulent EB-5 applications.
  • Jay Peak, Inc. – A ski resort company raised $360 million between 2006 and 2016 for various construction projects that were not realized.
  • Xin “Lisa” Wang, Charles C. Liu – Raised $27 million to build a proton-beam cancer treatment center, but 18 months later it was discovered the funds had just been divided among the agents (Los Angeles, 2016).
  • Emilio Francisco, PDC Capital – Californian (OC) Attorney collected $72 million from investors to fund various projects from coffee shops to assisted living facilities only to divert at least $9.6 million for his personal use.
  • Steve Qi – Alhambra-based attorney sued for pocketing money from both investors and regional centers while fraudulently promoting EB-5 projects based on personal gain.
  • Anshoo Sethi, A Chicago Convention Center LLC – Chicago-based attorney raised over $158 million through over 290 Chinese investors for a hotel project that never took off.

If you’re looking to invest…

The SEC also offers helpful tips as to how to avoid EB-5 fraud:

  • Confirm a Regional Center is on the official list
  • Ask the Regional Center for official USCIS documents, such as the form I-924, and I-924A
  • Ask for a copy of the written investment memorandum
  • Ask if the agents/promoters are being paid
  • Hire a third-party to verify the investment
  • Weight the risk by reviewing the loan documents
  • Confirm if the developers have also invested in the project
  • Confirm a regional center can operate in your geographic location

If you’re worried…

If you have reason to believe an EB-5 investment project is a scam, or a Regional Center, agent, or seller is suspicious, you can report their activities to the SEC here. The SEC typically offers a monetary award to successful whistle-blowers. Scams can also be reported through Immigration (USCIS) or the Federal Trade Commission (FTC).

If you’ve already invested…

The attorneys at Lum Law Group has experienced business litigators with traditional EB-5 and class-action law suit experience.  If you believe your investment qualifies as EB-5 fraud, we can help you. In the end, EB-5 is nothing more than a business contract.

Getting married? Prepare for immigration

By Justin Lum 0

Many of our clients come to us for assistance with their Adjustment of Status (I-485), better known as green card, applications, thinking it will be as simple as filling out a form and paying the filing fee.  It is not.

Those who come to us after receiving a Request for Evidence (RFE) or worse–an Intent to Deny know this to be true.  They tried to file an adjustment application on their own, DIY style, and soon found that USCIS requires more from a spouse petitioning for the other than a marriage certificate.

When love needs proof

In fact, USCIS requires several items in order to prove a bona fide (genuine) marriage.  You can prove that your relationship is true, and not formed for the purpose of obtaining immigration benefits (marriage fraud) by showing the emotional, romantic aspect of your relationship, but also the practical, future-planning aspects of your relationship.  For immigration purposes, you have the burden of proof, meaning it is your duty to show the immigration officer that your marriage is real and it is the immigration officer’s duty to assume your marriage is fake. A good rule to keep in mind while preparing your applications.

When love is not enough

Many young couples focus on the romance, providing photo after photo, love messages, photos with joint friends, declarations, love letters, love emails, and even proof of milestones celebrated together.  If you have such evidence, they should definitely be submitted, but a romantic relationship is not the same as marriage.  The immigration officer wants to see proof that your “boyfriend” or “girlfriend” is not just your crush, but is also your “life partner”.

Examples of proof:

  • You both have State Drivers Licence with the same shared address
  • You’re the “emergency contact” for each other at work
  • You’re both listed on your lease (and you should live together)
  • You’re both listed on each other’s auto insurance (or you share a policy)
  • You have an add-on gym membership for one or the other

Money trumps love

How do you prove that you’re entwined for the long haul? You share money. USCIS wants to see married couples enmesh their finances from the day they get married.  If you plan on applying for adjustment right after getting married, it might be a good idea to get started while still engaged as USCIS prefers to see continuity.

Examples of proof of joint finances:

  • Joint bank account
  • Joint credit card (or a side card)
  • Joint debt
  • Joint phone lines
  • Joint car ownership
  • Joint property ownership
  • Joint medical insurance policy
  • Joint rental/home insurance policy
  • Joint auto insurance policy
  • Joint utility bills
  • Joint tax returns
  • Trust where you’re both beneficiaries

When you have a love child

If you’re expecting a child, or have already given birth to one, then birth certificates and photos of your child will be proof of a love relationship as well.

 

As you can tell from the list, some of these take time to create and change, some take time to apply, and others take time to obtain. It doesn’t help to create a joint bank account today and submit a statement tomorrow as there will be little to no transactions on the statement (a detail many forget!)  Be sure to start preparing for your marriage-based adjustment as early as you can to avoid time wasted on RFEs or just your lawyer, asking you for these things before submitting.

 

What is an EB-5 Regional Center?

By Lum Law Group 0

The difference between investing directly in an EB-5 project and investing through an EB-5 Regional Center comparable to buying individual stocks and buying a stake in a fund. An EB-5 Regional Center is an organization approved by U.S. Citizenship and Immigration Services that creates a fund and attracts investors to invest in the EB-5 project.  Investors purchase equity stakes in the investment fund, and then the fund either buys equity in the job-creating entity (the EB-5 project) or loans the job-creating entity money.  The job-creating entity uses the EB-5 investment fund to create jobs (and meet EB-5 requirements) indirectly.

Regional Centers are the so-called “middle man” between businesses that want to create an EB-5 project and investors who want the EB-5 investor visa.

As of March 5, 2018, there are 919 USCIS approved regional centers.  Make sure the regional center you are considering is on the registered list before investing in any advertised EB-5 project.  USCIS also conveniently has a list of terminated regional centers.

 

Deportation is not the end

By Lum Law Group 0

Deportation has become a source of tears, hardship, and anxiety for many of our clients in recent months.  The new administration has tightened policies, increased the number of ICE arrests, and limited the amount of discretion at the disposal of individual officers. As a result, we have seen an increase in the number of detainees and deportations.  Many have weighed heavily on our minds weeks, or even months afterwards, and we have struggled to communicate effectively the hope we still hold for them.

Yes, there is hope.

Banned from Returning

Each immigration case is different, as it depends on the number of years you are banned from returning to the United States. There are five year bans, ten year bans, 20 year bans, and even permanent bans, which are issued depending on why you were removed and on whether you have a criminal record.  Generally, non-citizens who entered the US illegally without inspection or who overstayed, are unlawfully present in the US.  If you have been unlawfully present for over 180 days, but less than one year, you are banned for three years.  If you have been unlawfully present for over one year, you are barred from re-entering for ten years.

Form I-212

Once deported, you can file I-212 Application for Permission to Reapply for Admission to the United States. You can file the I-121 if you were deported or ordered removed and voluntarily departed. You may also need to file the I-212 if you were previously removed and then re-entered unlawfully, or if you were illegally present in the United States for over one year.  The I-212 should be filed with applicable supporting evidence and the filing fee alongside a visa application.  Supporting evidence can range from family ties in the US to changed country conditions to rehabilitation, depending on your individual reasons for inadmissibility. By submitting the form, you are asking Immigration (USCIS) to overlook your “inadmissibility” (the reason you were deported) and grant you another application that would allow you to re-enter the US (such as a Visa application).

If granted, you are able to re-enter the US and do not have to worry about your previous illegal status.

Form I-601

If you are deemed inadmissible for circumstances other than illegal entry and unlawful stay, then you may need to file an I-601, Application for Waiver of Grounds of Inadmissibility alongside your other applications.  The I-601 Waiver requires you to prove extreme hardship to an immediate family member who is a US citizen or permanent resident.

USCIS has deemed extreme hardship factors to include (but not limited by) health, financial considerations, education, personal considerations, and special factors. Evidence of extreme hardship should be carefully annotated, but keep in mind the I-601 Waiver is a discretionary relief, meaning the officer reviewing your case will interpret your extreme hardship and decide whether to grant your request for waiver.

When preparing to file for I-601, it’s important to note that while you may qualify to apply, there is no guarantee that your application will be accepted.  Your chances of success may be low if you have previously violated immigration law, if you have criminal charges/arrests/convictions, or marriage fraud.  Such circumstances could weaken your application and require proof of more extreme hardship than others.

Re-entering Illegally is a Felony

We cannot stress enough how important it is to re-enter the United States lawfully post-deportation. The reason is that illegally entering the United States is a misdemeanor (8 U.S.C. § 1325), but illegally entering, or attempting to enter, the United States after removal is a felony crime (§ 1325 is 8 U.S.C. § 1326). Your previous proceedings and orders will be “reinstated”, meaning you’ll likely not have a chance to defend yourself in front of an Immigration Judge and you may be permanently barred from entering the US.

 

If you’re unsure as to whether you qualify for any of the above waivers, or if would like to know your chances, talk to an experienced immigration attorney.

5 Reasons Why It's Already Too Late to File Your H1b Petition

By Jessica Suotmaa 0

While Spring marks the busy federal and state tax season for CPAs and Tax preparers, H1B is the busy season for immigration law firms. The difference is that “File your taxes with us!” ads don’t start coming out till February-March when companies big and small begin aggressively marketing their clever tax preparation services; yet by March law firms have already begun their H1B preparations. So if you haven’t finished negotiations with your company and you haven’t retained a lawyer yet, it may be too late for you. Here’s why:

1. Are you ready to file on April 3rd, 2018?

H1B petitions are not accepted before April 3rd, but they may not be accepted after April 3rd either, since the USCIS annual quota (85,000) can potentially be reached the same day. Last year, and in the last three years, the H1B cap was reached by April 7th, less than a week since accepting petitions on April 2nd. Therefore, it is crucial that attorneys prepare H1B petitions promptly and file on April 3rd, 2018.

2. Do you want an attorney to prepare/review/file your petition?

Some of you may think this means you have plenty of time left.  After all, many of you complete your own paperwork at home and believe it is sufficient. However, keep in mind that finding a last minute attorney, or providing all your documentations last minute to an attorney is ill-advised given that you are not an attorney’s only client. Like with any law firm, attorneys have a roster of clients and cases they are working on and have to plan and manage their time wisely to meet all deadlines. When you spring your case on them last minute, if they are even willing to accept your case, they will charge you for the sacrifices they must make to meet your deadlines.

3. Did you already receive your DOL certification?

In addition, while it typically only takes a week to obtain a labor certification (LCA) from the Department of Labor (DOL), the processing times increase with the number of pending applications, often doubling or even tripling wait times. Generally, attorneys expect to have the LCA filed by mid-March, if not earlier.

4. Does your company have all the documents requested on hand?

Finally, the employer’s company organization, HR, and overall preparedness play a large part in the H1B preparation process, given that many of the required documents need to be prepared (a certain way) by the employer.  The H1B recipient usually has very little control of what has already been prepared and if not ready, then when the required documents can be provided. Hence, the necessity to begin the process as early as January.

5. Did you know USCIS no longer accepts premium processing?

Be careful in submitting your H1B petitions as USCIS will reject your petition if filed or paid for incorrectly.  USCIS has suspended premium processing (I-907). Any petition filed with a combined check payment for regular and premium processing will be rejected.