Navigating the Adoption Process

The decision to adopt a child is an exciting and life-changing event. You may have been thinking about giving a child in need a loving home, but are unsure of where to begin. We’re here to help guide you through the basic process and provide you with some information that may help put your mind at ease.

According to §101(b) of the INA, there are two types of adoptions: (1) “Orphan”; and (2) “Non-Orphan.” For the definition of “Orphan,” please see: http://www.uscis.gov/tools/glossary/orphan. An orphan adoption situation typically arises when the child meets the definition of “orphan,” is under the age of sixteen years old, and is currently residing in another country. In a “Non-Orphan” adoption situation, the child has been residing with you for at least two years, and you must have legal custody or guardianship of the child. “Legal custody” means either an official adoption decree or an official document in the form of a custody award by a court or recognized government entity.

If you are thinking of adopting a child from another country, keep in mind that intercountry adoptions are governed by U.S. federal law, the laws of the child’s country of residence, and the laws of the U.S. state that you live in. This means that, in addition to U.S. immigration rules, each country may have its own criteria for prospective adoptive parents such as age, marital status, and others that you must follow. Each State also has its own requirements.

The Hague Adoption Convention is an international treaty among over 75 countries (including the United States) that serves to protect the best interests of children, birth parents and adoptive parents who are involved in intercountry adoption. It offers protections that are not necessarily available when adopting outside the scope of the Convention. Anyone who resides in any country outside of the United States that is a party to the Convention must follow the Hague process.

USCIS, which must approve all intercountry adoptions, has two basic eligibility requirements for prospective adoptive parents: If unmarried, petitioners must be U.S. citizens and at least 25 years old when they file the petition to adopt. For married couples, only one spouse must be a U.S. citizen, and there is no age requirement. Please keep in mind that in all adoption cases, the visa petition must be filed before the child’s sixteenth birthday.

The adoption of orphans, as well as non-orphans, can be a very complicated process. The Department of Homeland Security has outlined specific rules pertaining to these two types of adoptions.  It is very important that you consult an experienced immigration attorney in New Jersey to help you decide which rule should apply to your specific case.

If you would like to find out more information about the international adoption process, please contact our office for a consultation. Now contact to international adoption lawyer, for more information visit: www.immilawyernj.com/

Obtaining a Green Card Under §245(a) Versus §245(i) of the Immigration and Nationality Act (INA)

Green Card

Green Card

Generally, when someone wants to “adjust status,” it means that they obtain a green card either through an employment-based petition or a family-based petition. In order to adjust status under INA §245(a), a person would have had to enter the United States legally and be admitted (come in with a visa and be inspected by a Customs and Border Patrol officer). Additionally, a visa must be immediately available at the time the petition is filed.

In a family-based petition situation, visas are considered to be “immediately available” to immediate relatives when there are no quotas. There are no quotas (an unlimited amount of visas) for immediate relatives of a United States Citizen (U.S.C.). “Immediate relatives” are parents of a U.S.C., children of a U.S.C. under the age of 21, or spouses of a U.S.C. Petitions filed for other family members, such as brothers or sisters, or for children over the age of 21, are subject to a quota system (limited amount of visas in these categories). Therefore, those are not considered immediate relatives and cannot adjust under §245(a). It should also be noted that spouses and children of legal permanent residents (LPRs) are also subject to a quota and are not eligible to adjust under §245(a).

In the employment-based context, persons can only adjust if their visas are currently available and they are in lawful status.

However, if a person is not eligible under INA §245(a) because s/he is out of status, entered the U.S. without inspection, or have violated the terms of their non-immigrant visa, s/he may still be eligible to adjust under §245(i).

A person is eligible to adjust under §245(i) if s/he:

  • Has been physically present in the U.S. since December 21, 2000;
  • A visa petition or a labor certification must be filed for the benefit of the alien on or before April 30, 2001;
  • The immigration petition or the labor certification application must be approvable at the time of filing; and
  • The applicant must pay a $1,000 penalty at the time of filing Form I-485.

It should be noted that once a visa petition or labor certification has been filed prior to the sunset deadline (April 30, 2001), the immigrant or any of his/her derivatives (children or spouse) are deemed to be grandfathered. This means that the immigrant and/or derivatives can adjust through this visa petition or any other petition in the future.

For example, if a person entered without inspection or without a visa before December 21, 2000, and had a petition or labor certification filed on his behalf before the sunset date (April 30, 2001, as announced by Congress), s/he would still be eligible to obtain a green card in the United States, despite his illegal entry.

Similarly, if that person’s employer had filed a labor certification before the sunset deadline, s/he would still be eligible to pay a penalty fee and adjust his status based on an employment petition.

If a person does not qualify under §245(a) or §245(i), he or she may be eligible for a provisional waiver. See Provisional Waiver Blog at https://cindypaulesq.com/provisional-unlawful-presence-waiver.html. Now contact to New Jersey temporary visa lawyer Cindy Paul

The Effect of the Supreme Court Decision in Pereira v. Sessions on Non-Citizens

Pereira v. Sessions on Non-Citizens

Pereira v. Sessions on Non-Citizens

Non-permanent residents now have a new way to challenge their removal proceedings.  It has been made possible by a recent legal decision by which many are encouraged since it has the potential to assist many non-citizens in the United States.

In an eight to one (8-1) ruling, made on June 21, 2018, the Supreme Court of the United States held that “a putative notice sent to a nonpermanent resident to appear at a removal proceeding that fails to designate a specific time or place for that proceeding does not end the continuous residence period calculation necessary for possible cancellation of the individual’s removal.”

An applicant for cancellation of removal must accrue ten (10) years of continuous physical presence, accompanied with other variables, to qualify for relief from removal. The statute states that when the Department of Homeland Security (DHS) issues a notice to appear (NTA) for removal proceedings, the NTA stops the clock on the accrual of a non-citizen’s ten (10) years of continuous physical presence.

However, 8 U.S.C. 1229(a), defines the NTA as a notice that provides specific information, including “the time and place at which the proceedings will be held.”   In practice,
a huge majority of NTAs that are served on non-citizens to initiate removal proceedings never include the time and place of the removal proceedings.

In Pereira v. Sessions Petitioner Wesley Fonseca Pereira (Pereira), a native and citizen of Brazil, who arrived in the United States in 2000 and remained after his visa expired.  He was shy of the ten (10) year continuous residence requirement when he received a notice from the DHS placing him in removal proceedings. Given that Pereira’s NTA did not contain the time and place of the removal proceedings, the Supreme Court held that the issuance of an NTA to him did not prompt the stop-time rule, which rendered him ineligible for cancellation of removal. Therefore, even after receipt of deficient notice, Pereira continued to accrue time towards his presence in the United States. On that basis, Pereira should be able to reopen his immigration court case and apply for cancellation of removal, which if granted, would give him lawful permanent residence status.

This ruling could have colossal ramifications on thousands of individuals, including persons who are currently in removal proceedings and persons who have been ordered deported.  If the Supreme Court defines an NTA as a document that must have the time and place of proceedings in all circumstances, most people currently in removal proceedings can challenge the NTA as deficient and move to terminate proceedings.

Currently, some Immigration Court Judges take a broader view and have extended its implication beyond the Stop Time Rule, effectively terminating proceedings based on a lack of subject matter jurisdiction is holding that if the NTA is not valid, the court lacks jurisdiction, and therefore, the authority to render decisions regarding any issues that may be raised.

While the DHS can always file a new and corrected NTA, it does buy a person in removal proceedings time, and may help tremendously with case completion rates, a purported goal of the Department of Justice.

If you have any questions about the recent immigration changes or what to do if you, or someone you know, is apprehended by Immigration and Customs Enforcement (ICE), do not hesitate to contact our office at (973) 542 – 0200. We have trained staff that can speak in Spanish, Hindi and Gujarati.

For more information about best immigration lawyer in New Jersey, visit: www.immilawyernj.com/