Author: immilawyernj

As you may have seen and heard on the news, this past April, Nepal was hit with a magnitude 7.8 earthquake and subsequent aftershocks that killed over 8,600 people and injured more than double that amount. Nepal and its people suffered devastating damage and is still in the process of trying to rebuild their country. In an effort to assist the people affected by the earthquake and keep them safe, the Department of Homeland Security (“DHS”) announced on June 24, 2015 that eligible nationals of Nepal residing in the United States may apply for Temporary Protected Status (“TPS”) with USCIS.

The Secretary of Homeland Security may designate a country for TPS if the conditions in that country temporarily prevent the country’s nationals from returning safely, or in certain circumstances, where the country is unable to handle the return of its nationals adequately. USCIS may grant TPS to eligible nationals of certain countries (or parts of countries), who are already here in the United States. In light of the recent natural disaster, DHS has designated Nepal to be a TPS country.

The TPS will be effective from June 24, 2015 through December 24, 2016. This means that during this designated period, eligible nationals of Nepal (and people without nationality who last habitually resided in Nepal) will not be removed from the United States and may receive a work permit (employment authorization document (EAD)) for 18 months. The 180-day TPS registration period begins June 24, 2015 and runs through December 21, 2015.

To be eligible for TPS, applicants must also have been “continuously residing” in the United States “continuously physically present” since June 24, 2015. Applicants must be able to pass a background check. Those with a criminal history or who pose a threat to national security will not be approved. Also, you may not be eligible for TPS or to maintain existing TPS if you are found inadmissible as an immigrant under applicable grounds in the Immigration and Nationality Act Section 212(a), including non-waivable criminal and security-related grounds, or if you fail to meet initial or late initial TPS registration requirements.

Lastly, once granted TPS, an individual cannot be detained by DHS on the basis of his or her immigration status in the United States. However, TPS is a temporary benefit that does not lead to lawful permanent resident status or confer any other immigration status. However, registration for TPS does not prevent you from: applying for nonimmigrant status, filing for adjustment based on an immigrant petition, or applying for any other immigration benefit or protection for which you may be eligible.

For more information about details and procedures for TPS, please visit the USCIS website at: www.uscis.gov/tps.

In 2014, President Obama announced a series of executive actions that could prevent as many as five million undocumented immigrants in the United States from deportation. These initiatives included:

”DACA” or Deferred Action for Childhood Arrivals:

Which expanded the number of individuals who may be eligible for the DACA program. See https://cindypaulesq.com/blog/deferred-action-for-childhood-arrivals.

”DAPA” or Deferred Action for Parents of Americans and Lawful Permanent Residents:

This program allows the parents of U.S. Citizens and lawful permanent residents (LPRs) to request deferred action and employment authorization for three years, provided they have lived in the United States continuously since January 1, 2010; had, on November 20, 2014, a son or daughter who is a U.S. citizen or LPR; and are not an enforcement priority for removal from the U.S; and

Expanded the provisional waiver program by allowing the spouses, sons and daughters of LPRs and the sons and daughters of U.S. citizens to get a waiver if a visa is available. See https://cindypaulesq.com/blog/deferred-action-for-childhood-arrivals.

However, these initiatives have been met with resistance by 26 states, led by Texas. After President Obama announced DAPA, the 26 states sued, arguing that the President exceeded the scope of his authority. As a result, they were granted an injunction in federal court. This means that, as of February 18, 2015, USCIS has not been accepting requests for the expansion of DACA as originally planned, or for DAPA. The court’s temporary injunction, however, will not affect existing DACA applicants.

In response, the U.S. Department of Justice has sought a reversal of the injunction issued by the Texas judge. The premise of this argument is that the temporary hold interfered with the Department of Homeland Security’s ability to protect the U.S. and secure the nation’s s, and that immigration policy falls solely under the control of the federal government and not individual states.

On May 26, 2015, the Fifth Circuit Court of Appeals denied the U.S. Department of Justice’s request to lift the lower court’s injunction against the executive action.

Unfortunately, in the meantime, this means that the lawsuit from the 26 states will proceed, leaving millions of people in suspense until a decision is made.

For more information regarding the Fifth Circuit’s decision, see http://www.ca5.uscourts.gov/opinions/pub/15/15-40238-CV0.pdf.

Historically, there has been a form of relief called a suspension of deportation for aliens who had been present in the United States for long periods of time, avoided problems with the criminal authorities, and could show that their forced removal from the country would result in a high level of hardship to certain individuals. However, in 1996, with the passage of the Illegal Immigration Reform and Immigrant Responsibility Act (”IIRAIRA”), Congress eliminated the former suspension of deportation as a form of relief from deportation. In its place, Congress enacted a form of relief called ”cancellation of removal for certain non-permanent residents,” found under the Immigration and Nationality Act (”INA”) Section 240A(b)(1).

The statutory requirements for cancellation are much higher than those of the former suspension statute. An individual seeking cancellation of removal under this statute can no longer claim eligibility based on hardship to him- or herself. Now, hardship to the alien’s U.S. citizen or legal permanent resident (”LPR”) spouse, parents or children must be shown. Also, the level of hardship that must be proven has risen from ”extreme hardship” to ”exceptional and extremely unusual hardship.” Exceptional and extremely unusual hardship means that the applicant’s removal would cause hardship to that qualifying relative that rises beyond the normal hardship that is expected in the case of removal, such as financial hardship. Such hardship can most readily be proven when the applicant’s qualifying relative has a serious medical condition that cannot be easily treated in the country of removal, or when medical access is not readily available in the applicant’s native country.

Additionally, cancellation of removal requires 10 years’ physical presence in the United States, and the applicant must show that s/he has been a person of good moral character for the 10-year period. Individuals who have been convicted of certain crimes including moral turpitude and aggravated felonies are ineligible, as are individuals who are believed to be threats to national security.

Cancellation of removal is a discretionary form of relief, meaning that not only does the applicant have to meet the statutory standards as outlined in the INA, but the individual must prove that s/he is discretionarily deserving of the benefit. Cancellation of removal leads to LPR status (Green Card) and is a valuable form of relief.

Unfortunately, there is no derivative status for spouses or children of those seeking cancellation of removal. Each individual must qualify on his or her own merits. In addition, cancellation of removal is a ”defensive” form of relief; thus, it may only be sought and received in removal proceedings as a defense to deportation after an individual has been found removable.

For any further inquiries, please contact our office for a consultation.

The H-2B visa is one type of working visa that unskilled foreign nationals use to temporarily enter the United States to work in certain types of jobs. The worker must be engaged in nonagricultural employment which is seasonal, intermittent, a peak load need, or a one-time occurrence, and be from a designated country.

The industries that can most benefit from H2-B workers are the hospitality and service industries. Typically, in these industries, there is a peak season in which employers need additional unskilled labor to fill the jobs that American workers cannot fill. Such jobs include: servers, lifeguards, hosts and hostesses, laundry attendants, construction workers, cooks, cleaners, and many more.

It should be noted that the H-2B cap is 66,000 per fiscal year, with 33,000 to be allocated for employment beginning in the first half of the year (October 1-March 31) and 33,000 to be allocated for employment beginning in the second half of the year (April 1-September 30). In other words, if you are filing, you must either submit your application before October 1 for the first deadline, or before April 1 for the second. Any unused numbers from the first half of the fiscal year will be made available for use by employers seeking to hire H-2B workers during the second half of the fiscal year, but there is no “carry over” of unused H-2B numbers from one fiscal year to the next.

In addition to falling into one of the above categories, the petitioner must prove that there are not enough American workers who are able, willing, qualified, and available to do the temporary work in order for the H-2B visa to be issued. Secondly, the petitioner must prove that the employment of H-2B workers will not adversely affect the wages and working conditions of similarly employed U.S. workers.

The first thing that the petitioner must do is submit a temporary labor certification application (“LCA”) to the Department of Labor and conduct a recruitment campaign, which tests the labor market to see if there are any qualified U.S. workers interested in the position. This is then followed by Form I-129, Petition for Nonimmigrant Worker, to USCIS.

An H-2B visa is usually granted for an initial period of one year, and extensions may be granted not to exceed three years. Further, spouses and unmarried children under the age of 21 may apply for the applicable derivative visa (H4) to join their spouse or parent in the United States. H-4s are entitled to study in the United States, but are not eligible for employment while in the H-4 status.

For more information on H-2B visas, please visit the USCIS website at: http://www.uscis.gov/working-united-states/temporary-workers/h-2b-non-agricultural-workers/h-2b-temporary-non-agricultural-workers#H2-B Program Process

There is exciting news for H-1B nonimmigrant visa holders! Effective May 26, 2015, the Department of Homeland Security (DHS) is extending eligibility for employment authorization to qualifying H-4 dependent spouses of those H-1B nonimmigrants who are seeking employment-based legal permanent resident, or LPR, status. Spouses and unmarried children under the age of 21 are admitted to the United States in the H-4 category.

USCIS will begin accepting applications on May 26, 2015 through the filing of Form I-765, Application for Employment Authorization (EAD). Once USCIS approves the Form I-765 and the H-4 dependent spouse receives an EAD, he or she may begin working in the U.S. This can independently lead to their employment-based LPR status. However, employment eligibility would not be open to all of those in H-4 status. The amendment would enable an H-4 spouse to apply for employment authorization if:

The H-1B spouse is either the beneficiary of an approved I-140 Immigrant Petition for Alien Worker, orThe H-1B spouse has been granted an extension of his or her authorized period of admission under the American Competitiveness in the Twenty-First Century Act of 2000, also known as AC21, as amended by the 21st Century Department of Justice Appropriations Authorization Act. The Act permits H-1B nonimmigrants seeking LPR status to work and remain in the U.S. beyond the six-year limit on their H-1B status.

Before the passage of this amendment, it had been extremely difficult for spouses of H-1B visa holders to work. Visa backlogs occur when there are not enough visas available for professional workers. Visa backlogs, as it pertains to the current visa bulletin, causes severe hardships for families, particularly for those from India or China. The applicants from these countries typically have to wait for approximately ten years before they can adjust status to become Permanent Residents. During that period, their spouses are unable to work because they remained in H-4 status. This led to increased frustrations in families as they were dependent on a single income. Consequently many H1-B holders abandoned their pending immigrant visa applications and returned to their home countries. Now, hopefully the economic burdens and personal stresses that H-1B nonimmigrants and their families experience during their transition to LPR status may be lessened and they can fully integrate into American society.

Marriage based visa petitions is one of the most common ways to obtain US immigration benefits. While a legitimate marriage is a straightforward way of getting legal immigration status, there are certain caveats to be kept in mind. The petitioner, a United States citizen, may confer immigration benefits through a Petition for an Alien Relative (Form 130) to the beneficiary spouse, through marriage. The immigration laws define marriage as two persons undertaking to establish a life together and assume certain duties and obligations. In contrast, a sham or fraudulent marriage is one in which the parties marry primarily for the purpose of obtaining the noncitizen spouse’s lawful permanent resident status. The petitioner bears the burden of proving that the couple married in good faith. Hence he/she must prove to the immigration officer that the parties married for the principal purpose of love or to establish a life together.

To determine the marriage’s bona fides, USCIS may examine the parties’ conduct both during and after the marriage in order to assess their intent at the time the marriage took place. This is typically done by both an extensive personal interview and by examining the documents which the couple has presented. These documents should show the couple’s intent to establish a life together. The relevant case law has indicated that the normal married couple has a fair amount in common. They typically share a language, religion and a cultural background. They live together and do things together, such as take vacations, celebrate important events, birthdays, and holidays, join clubs or gyms, support each other through medical problems, and most importantly have children. Typical couples also combine financial and other aspects of their lives after marriage. They demonstrate their trust in one another by sharing bank and credit card accounts and ownership of property, such as cars and houses. They spend time with each other’s families. The interview and the documents should reflect the couple’s knowledge of these various aspects of their marital life.

USCIS grills marriage-based immigration applicants for a longer and more detailed personal interview as compared to other applicants. If the couple has been married for less than two years, the beneficiary spouse will be subject to a two year conditional period, and will need to apply to remove these conditions prior to the expiration of their temporary status. That two year time period starts when their Conditional Green Card is approved or when they enter the U.S. on their immigrant visa.

Couples suspected of engaging in a sham marriage are subjected to an extensive interview. This is generally referred to as a Stokes interview. The parties are separated and are individually subjected to this intense interview often lasting about 2-3 hours. These are based on all aspects of their marital life, family relationships, finance and budget, religion, daily routines, job related questions and so on. If the government has a suspicion of marriage fraud, they can and often will refer these cases to the Fraud Investigation Unit of USCIS. This special unit of investigators frequently visits the couple’s home, talk to neighbors, friends, interview employers, and make a detailed finding based on their investigation. If the marriage is deemed to be a sham marriage or a fraudulent marriage the couple can be subjected to criminal and civil penalties. Furthermore, a finding of marriage fraud may also be a permanent bar to the foreign national’s ability to file future applications with USCIS.

The consequences of marriage fraud are very severe. The petitioner, or American born citizen and foreign spouse can face up to five years of imprisonment or no more than $250,000 in fines or both. You should be thoroughly prepared for your marriage based interview as the consequences and failure to prepare can be very detrimental.

We are sending this message to inform you about President Obama’s exciting new November 20, 2014 Executive Order. Three critical elements are:

Cracking Down on Illegal Immigration at the Border;Deporting Felons, Not Families; andAccountability—Criminal Background Checks and Taxes.

The President’s actions will also streamline legal immigration to boost the U.S.’s economy and promote naturalization for those who qualify.

As such, Immigration and Customs Enforcement (ICE) will no longer target innocent, hard-working families. More importantly, President Obama said that he would defer the deportation of the parents of children who are either U.S. citizens or legal residents, and that he would expand protection to “DREAMers,” or children who entered the country illegally without their parents. Those two groups will be allowed to get work authorization after passing a background check (you must not have a criminal record), and paying back taxes and a fee.

New and Improved DACA

Under the Executive Order, the age cap on DACA will be removed and the residence requirement has changed from June 15, 2007 to January 1, 2010. Also, DACA will be granted for a period of three years. This program should be up and running in 90 days.

Protection for Parents

Also under the Executive Order, parents of U.S. citizens and lawful permanent residents (of any age) may be granted deferral as long as they have been continuously present since January 1, 2010, pass a background check, and pay back taxes. This program should be up and running in 180 days and is also granted for a period of three years.

I-601A Waiver Expansion

Further, under the existing I-601A waiver program, only spouses and minor children of United States citizens are eligible to file for a provisional waiver. But now, spouses and minor children of lawful permanent residents (LPRs) may apply for a waiver as well. Please keep in mind that “extreme hardship” must still be proven.

Other Executive Actions

The President’s actions will also streamline immigration to boost our economy and promote naturalization by:

Providing portable work authorization for high-skilled workers awaiting LPR status and their spouses. “Under the current system, employees with approved LPR applications often wait many years for their visas to become available. DHS will make regulatory changes to allow these workers to move or change jobs more easily. DHS is finalizing new rules to give certain H-1B spouses employment authorization as long as the H-1B spouse has an approved LPR application.” Reducing family separation for those awaiting to obtain LPR status. Due to barriers in our system, U.S. citizens and LPRs are often separated for years from their immediate relatives, while they wait to obtain their LPR status. To reduce the time these individuals are separated, DHS will expand an existing program that allows certain individuals to apply for a provisional waiver for certain violations before departing the U.S. to attend visa interviews. Ensuring U.S. Citizens Can Serve. Because some branches of the military ban applicants who have undocumented family members, DHS will expand an existing policy to provide relief to spouses and children of U.S. citizens seeking to enlist in the military, consistent with a request made by the Department of Defense. Ensuring that individuals with lawful status can travel to their countries of origin. DHS will clarify its guidance to provide greater assurance to individuals with a pending LPR application or certain temporary status permission to travel abroad with advance permission (“parole”). Issuing a Presidential Memorandum on visa modernization. There will be a Presidential Memorandum directing the various immigration-related agencies to look at modernizing the visa system, with a view to making optimal use of the numbers of visas available under law. Issues such as whether derivatives should be counted towards the visa quota and whether past unused visa numbers can be recapture are expected to be included in this effort.

Relief May Be Available for You

Although President Obama has taken these much-needed steps, they are temporary, and only Congress can finish the job. By passing a comprehensive, bipartisan bill, Congress can replace these actions and fix the whole system.

If you believe that you are one of the over 4 million undocumented individuals who may be eligible for one of these forms of relief under the new Executive Order, we encourage you to contact our office for a consultation at 973-542-0200. Although it will not take effect until 2015, there are many preparatory steps that we can begin to take in the meantime.

As seen in the news, the dramatic increase in unaccompanied children entering the United States has presented a huge problem. Unaccompanied minors are children under the age of 21, usually from Central America, who cross the Mexico-U.S. border without a parent or guardian. They take the perilous journey in order to escape the danger back home and hope for a chance at a better life in the U.S. One possible form of relief by the U.S. government is Special Immigrant Juvenile Status (SIJS). SIJS is a temporary immigration benefit that provides a pathway to legal status for abused, neglected or abandoned minors, who meet certain statutory requirements. Children who get a Green Card through SIJS could work and live permanently in the U.S. However, they can never petition for a Green Card for their parents. They can only petition for a Green Card for their brothers and sisters when they become United States Citizens (U.S.C.s). To qualify for SIJS, a child victim must meet the following four requirements:

Be unmarried;Be under 21 years of age and under the jurisdiction of a juvenile court at the time of filing the SIJ petition;Be physically present in the U.S.; andHave an order from a juvenile court that makes the following three findings, explained below:

Family Reunification;Dependency/Custody; andBest Interests.

Family Reunification- A juvenile court judge must find that a child cannot reunite with one or both of his/her parents because of abuse, neglect, abandonment, or a similar basis, depending on state law. The abuse may have occurred in the U.S. or prior to the child’s arrival in the U.S.

Dependency/Custody- Next, the judge must declare the juvenile dependent on the court or legally commit the child under the custody of either an agency, department of a state, or an individual or entity appointed by a state or juvenile court. This is typically done through guardianship proceedings through a state court.

Best Interests- Lastly, the judge must also find that it would not be in the child’s best interest to be returned to his or her country of origin.

A SIJS applicant must file at least two USCIS forms in order to get an SIJ-based green card:

[Form I-360], Petition for Amerasian, Widow(er), or Special Immigrant [Form I-485], Application to Register Permanent Residence or Adjust Status.

Both forms can be filed together. Alternatively, the Form I-360 can be filed first while the applicant waits for a decision before filing the Form I-485.

If you would like to apply for SIJS or have further inquiries, please feel free to contact our office to schedule a consultation with our highly experienced immigration attorney.For more information,

please visit the USCIS website at: http://www.uscis.gov/green-card/special-immigrant-juveniles/special-immigrant-juveniles-sij-status.

An S non-immigrant visa (also known as an “S Visa”) is available for undocumented individuals who assist U.S. law enforcement in investigating and prosecuting crimes and terrorist activities.

There are 2 types of S visas: S-5 and S-6. A law enforcement agency (LEA) may specifically request S-5 or S-6 classification when an applicant intends to remain permanently in the U.S. The S visas are issued for 3 years and no extensions may be granted. Qualifying family members of the principal S non-immigrant may also be eligible for a Green Card (S-7 non-immigrant status).There are 200 S-5 visas available each year. To be eligible for an S-5 visa:

A person must be in possession of critical and reliable information about a criminal organization or enterprise;Be willing to supply, or has supplied, this information to federal or state authorities or the court; ANDThe Attorney General must determine that the person’s presence in the U.S. is essential to the success of an authorized criminal investigation or prosecution.

There are 50 S-6 visas available each year. To be eligible for an S-6 visa:

A person must be in possession of critical and reliable information about a terrorist organization, enterprise, or operation; Be willing to supply, or has supplied, this information to federal authorities or federal court; Will be, or has been, placed in danger as a result of proving information; AND The person is eligible to receive an award from the Department of State for providing the information.

The application process for a green card is a two-step process:

Step 1: File [Form I-854], Inter-agency Alien Witness and Informant Record.This must be completed by the federal or state law enforcement agency or U.S. Attorney’s Office that initially filed for the S non-immigrant status on behalf of the individual. The application must include the agency’s reasons for seeking the cooperation of the alien and it must also assume responsibility for the alien from their admission until departure.At this point, it is very important that you be honest with the agency representatives and disclose any possible grounds of inadmissibility; otherwise, failure to disclose may result in removal from the U.S.

Step 2: After [Form I-854] is approved, file [Form I-485], Application to Register Permanent Residence or Adjust Status. The green card application [Form I-485] requires you to submit supporting documentation which may include, but is not limited to:

Two passport-style photos[Form G-325A], Biographic Information, if you are between 14 and 79 years of ageA copy of your birth certificate[Form I-693], Report of Medical Exam and Vaccination RecordCopy of [Form I-94], Entry/Exit Record Copies of all of the pages of your passport (or if you do not have a passport, an explanation of why you do not have a passport)A list showing the dates of all arrivals and departures from the U.S. while you were in S non-immigrant status with an explanation for each departure of why you left the U.S.Proof of employmentIf you are filing for a green card as a derivative beneficiary of an S non-immigrant, you must give evidence of the relationship to the principal S non-immigrant witness or informant (such as birth certificate or marriage certificate)You must pay any applicable fees

If you feel that you may qualify for an S visa or have further inquiries, please feel free to contact our office to schedule a consultation with our highly experienced immigration attorney.

For more information, please see the USCIS website at: http://www.uscis.gov/green-card/other-ways-get-green-card/green-card-informant-s-nonimmigrant.