Author: immilawyernj

The Child Status Protection Act (“CSPA”) provides relief to children [individuals who are unmarried and under the age of 21] who “age-out” as a result of delays by the U.S. Citizenship and Immigration Services (“USCIS”) in processing visa petitions and asylum and refugee applications. A child “ages-out” when s/he turns 21 and loses the preferential immigration treatment provided to children.

Before CSPA took effect on August 6, 2002, a beneficiary who turned 21 at any time prior to receiving permanent residence could not be considered a child for immigration purposes. However, Congress soon recognized that many beneficiaries were aging out because of large backlogs and processing times for visa petitions and designed CSPA to protect individuals in those situations. CSPA can protect “child” status for family-based immigrants, employment-based immigrants, and some humanitarian programs such as for refugees, asylees, and VAWA applicants.

The primary benefit of the CSPA is an age-preservation formula for calculating the age of a beneficiary of a preference visa petition. This formula allows certain beneficiaries to preserve their age as under 21 even if, chronologically, they are over 21. This way, a child can remain a beneficiary on a pending visa petition despite having aged-out.

In order to be eligible for CSPA:

A person must be the beneficiary of a pending or approved visa petition on or after August 6, 2002.The beneficiary must not have had a final decision on an application for adjustment of status or an immigrant visa before August 6, 2002.The individual must “seek to acquire” permanent residence within 1 year of a visa becoming available. The date of visa availability is the first day of the first month a visa in the appropriate category was listed as available in the Department of State’s visa bulletin or the date the visa petition was approved, whichever was later.

NOTE: “Seek to acquire” means having a USCIS Application for Action on an Approved Application or Petition [Form I-824] filed on behalf of the child; the filing of an Application to Register Permanent Residence or Adjust Status [Form I-485]; or submit an Application for Immigrant Visa and Alien Registration from the Department of State [Form DS-230].

For more information, please visit the USCIS website at: http://www.uscis.gov/sites/default/files/files/nativedocuments/PM-602-0094_Family-Based_Priority_Date_Retention_Final_Memo.pdf

If you have further inquiries, please feel free to contact our office to schedule a consultation with our highly experienced immigration attorney.

A child born outside the U.S. may become a US Citizen (USC) as a matter of law by virtue of his or her parent or parents’ birth or naturalization.

The Immigration and Nationality Act (INA) grants U.S. citizenship at birth based on:

(1) Birth in the U.S. or certain other places;

(2) The citizenship of one or both parents; and

(3) A combination of location and parental citizenship.

U.S. citizenship is also granted to persons after their birth based on a combination of parental citizenship and later residence and by naturalization. U.S. noncitizen national status is granted based on the birth location in certain other places, and the U.S. national status of one or both parents.

There are two general ways to obtain citizenship through parents, one at birth and one after birth but before the age of 18:

1. A child born outside the U.S. is a citizen at birth if both parents were U.S. citizens at the time of birth, AND the parents were married at the time of birth and at least one parent lived in the U.S. or its territories prior to the birth.

2. A child born outside the U.S. is a citizen at birth if one parent is a U.S. citizen at the time of birth and the birth date is on or after November 14, 1986 AND the parents were married at the time of birth and the U.S. citizen parent had been physically present in the U.S. or its territories for a period of at least five years at some time in his or her life prior to the birth, of which at least two years were after his or her 14th birthday. If the U.S. citizen parent spent some time abroad in any one of the following three capacities, these can also be counted towards the physical presence requirement:

Employed with the U.S. Government;Serving honorably in the U.S. Armed Forces; orEmployed with certain international organizations.

Additionally, time spent abroad by the U.S. citizen parent while the U.S. citizen parent was the unmarried son or daughter and a member of the household of a person who meets any one of the three conditions above can also be counted.

Example 1: A child born outside the U.S. is a citizen after birth if the child was under 18 or not yet born on February 27, 2001 AND at least one parent is a U.S. citizen, the child is currently under 18 and residing in the U.S. in the legal and physical custody of the U.S. citizen parent pursuant to lawful admission for permanent residence.

Example 2: A child born outside the U.S. is a citizen after birth if the child was under 18 from December 24, 1952 to February 26, 2001 AND the child was residing as a Green Card holder in the U.S. and both parents naturalized before the child’s 18th birthday; OR

If one parent died, and the surviving parent naturalized before the child turned 18.

If the parents legally separated, and the parent maintaining legal and physical custody naturalized before the child turned 18.

If the child was born out of wedlock and paternity has not been established by legitimation, the mother naturalized before the child turned 18.

For more information, please visit the USCIS website at: http://www.uscis.gov/us-citizenship/citizenship-through-parents.

If any of these situations apply, you may contact your nearest United States Consular Office or visit the Department of State website: http://travel.state.gov/content/passports/english/abroad/events-and-records/birth.html to find out what are the requisite applications forms necessary for apply for a United States passport for your child.

There are many scenarios in which the U. S. Citizenship through parents can be granted. Anyone who believes s/he is eligible for derivative citizenship is advised to contact our highly-experienced immigration attorney to gain clarity on the issues and to ensure that the proper filing procedures are followed for a successful citizenship.

The Violence against Women Act, or VAWA, allows an abused spouse or child of a U.S. Citizen or Lawful Permanent Resident, or an abused parent of U.S. Citizen to self-petition for lawful status in the United States, receive employment authorization and access public benefits. VAWA provides survivors of domestic violence with the means that are essential to seek safety and independence from their abuser, who is not notified about the filing. This is also known as a SELF PETITION.

You may be eligible to file for VAWA if you fit into one of the following categories:

Spouse:

You are married to a U.S. Citizen or permanent resident abuser; orYour marriage to the abuser was terminated by death or a divorce (related to the abuse) within the 2 years prior to filing your petition; orYour spouse lost or renounced citizenship or permanent resident status within the 2 years prior to your filing your petition due to an incident of domestic violence; orYou believed that you were legally married to your abusive U.S. Citizen or permanent resident spouse but the marriage was not legitimate solely because of the bigamy of your abusive spouse.You have suffered extreme cruelty/battery by your U.S. Citizen or permanent residence spouse; orYour child has been subjected to battery or extreme cruelty by your U.S. Citizen or permanent resident spouse.You entered into the marriage in good faith, not solely for immigration benefits.You have resided with your spouse.You are a person of good moral character.

Parent:

You are the parent of a U.S. citizen son or daughter who is at least 21 years of age when the self-petition is filed; orYou are the parent of a U.S. citizen son or daughter who lost or renounced citizenship status related to an incident of domestic violence; orYou are the parent of a U.S. citizen son or daughter who was at least 21 years of age and who died within 2 years prior to filing the self-petition.You have suffered battery or extreme cruelty by your U.S. citizen son or daughter.You have resided with the abusive son or daughter.You are a person of good moral character.

Child:

You are the unmarried child under the age of 21 of a U.S. citizen or permanent resident abuser; orYou are the child of a U.S. citizen or permanent resident abuser who lost citizenship or lawful permanent resident status due to an incident of domestic violence.You have suffered battery/extreme cruelty by your U.S. citizen or permanent resident parent.You have resided with your abusive parent.You are a person of good moral character; a child less than 14 years of age is presumed to be a person of good moral character.

To begin the process, you must complete the [Form I-360], Petition for Amerasian, Widow(er), or Special Immigrant, including all supporting documentation. If you have an approved [Form I-360], you may be eligible for a plethora of benefits, including work authorization, public benefits, and even be eligible to file for a green card.

For more information, please visit the USCIS website at: http://www.uscis.gov/humanitarian/battered-spouse-children-parents.

If you would like to begin the process for a VAWA petition or have further inquiries, please feel free to contact our office to schedule a consultation with our highly experienced immigration attorney.

On November 15, 2013, USCIS issued a policy memorandum entitled “Parole of Spouses, Children and Parents of Active Duty Members of the U.S. Armed Forces, the Selected Reserve of the Ready Reserve, and Former Members of the U.S. Armed Forces or Selected Reserve of the Ready Reserve and the Effect of Parole on Inadmissibility under Immigration and Nationality Act §212(a)(6)(A)(i).”[1]This memorandum addresses a possible path to citizenship for immediate relatives[2]of U.S. citizen members of the U.S. military, who are presently in the U.S. and have entered unlawfully. The administration has applied the memorandum broadly,extending it to all active-duty members of the armed forces, to reservists including the National Guard, and to all veterans. Their spouses, children and parents will be eligible for a “parole in place” or “PIP,” which allows those who are already qualified for a green card based on this close family relationship to adjust status without leaving the U.S., despite their past illegal entry and stay.

Under INA 245(a), a person cannot adjust status unless s/he has been “admitted or paroled” into the U.S. Usually, a person who has not been “admitted or paroled” into the U.S. cannot obtain lawful permanent residence unless s/he leaves the U.S. to collect visas they applied for through marriage to an American citizen or some other family relationship; however, the person will most likely face a 3-year or 10-year inadmissibility bar that is triggered by exiting the U.S. PIP is an attempt to avoid the separation of military families by allowing some family members to adjust status inside the U.S. Under this policy, those immigrants who are in military families will not have to leave to complete their visa applications.

In order to request parole, the alien must submit to the director of the USCIS office with jurisdiction over the alien’s place of residence:

A completed Form I-131, Application for Travel Document[3];

Evidence of a family relationship with one of the following: – An Active Duty member of the U.S. Armed Forces; – A current member of the Selected Reserve of the Ready Reserve, or; – Someone who has previously served in the U.S.Armed Forces or the Selected Reserve of the Ready Reserve (which must be proven through documentation such as a photocopy of both the front and back of the service member’s military identification card (DD Form 1173));Two identical, color, passport style photographs; andEvidence of any additional favorable discretionary factors that the requester wishes considered.Once you have obtained PIP approval, you can now proceed with filing a visa petition (signed by the U.S. citizen) and adjustment of status application, all at the same time.

NOTE: Please keep in mind that anyone with a criminal conviction or other “serious adverse factors” will not be granted PIP. Also, PIP is discretionary and decided on a case-by-case basis, which means that immigration authorities do not have to grant PIP if they feel that you are not eligible.

If you would like to apply for PIP or have further inquiries, please feel free to contact our office to schedule a consultation with our highly experienced immigration attorney and we would be happy to assist.

In September 2012, USCIS began deferring action for childhood arrivals and issuing employment authorization for two years. However, in September 2014, the initial two-year grants are due to expire, and USCIS is in the process of preparing renewal applications in which eligible individuals can request and receive an extension of their deferred action without lapsing in their lawful presence or employment authorization. USCIS plans to announce the details of the final process in late May 2014.

By way of background, on June 15, 2012, the DHS began accepting DACA requests, which is a form of administrative relief given to a person with unlawful immigration status that grants them temporary protection from deportation if they can prove that they fulfill certain criteria. [Please see January 15, 2014 DACA blog on our site for more information on the specific DACA requirements].

If you wish to renew your deferred action for another two-year period, you must submit [Form I-821D], Consideration of Deferred Action for Childhood Arrival to USCIS. However, you must submit the revised [Form I-821D], which is forthcoming, since it is currently being drafted and is unavailable for use at this time. USCIS will not accept renewal filings until the new version of the form is published in May 2014. This form must be accompanied with [Form I-765], Application for Employment Authorization and [Form I-765WS].

If your previous period of deferred action expires before you receive a renewal of deferred action under DACA, you will accrue unlawful presence and will not be authorized to work for any time between the periods of deferred action. Because of this, USCIS encourages that you submit your renewal 120 days before your current period of deferred action under DACA expires. While USCIS will continue to accept filings after this date, it will not accept renewals made earlier than 150 days before that expiration date.

As with your initial DACA application, USCIS will review your request to determine whether the exercise of prosecutorial discretion is appropriate in your case. However, USCIS reviews applications on a case-by-case basis, and its decisions are unreviewable. You only need to submit new documents pertaining to removal proceedings or criminal history that you have not already submitted, meaning that you would not have to re-submit documents that you have already included with your previous DACA request that has been approved.

For more information, please contact our office for a consultation or visit the USCIS website at: http://www.uscis.gov/humanitarian/consideration-deferred-action-childhood-arrivals-process/ice-granted-daca-renewal-guidance

Each year, up to 10,000 visas may be authorized to aliens (and their spouses and children) for eligible entrepreneurs. If you have the right combination of skills, education, and/or work experience and are otherwise eligible, you may be able to live permanently in the United States.There are five (5) employment-based immigrant visa preferences/categories, some of which require a prior labor certification, but the fifth preference, EB-5 visa, is the topic of this article.

The fifth preference was created by Congress in 1990 to stimulate the United States economy through job creation and capital investment by foreign investors and is reserved for business investors who invest $ 1 million or $500,000 (if the investment is made in a “targeted employment area”) in a “new commercial enterprise” that employs at least (ten) 10 full-time U.S. workers. The fifth preference does not require a labor certification.

The EB-5 visa is a 3-step process consisting of [Form I-526], Petition by Alien Entrepreneur, [Form I-485], Application to Register Permanent Residence or Adjust Status, and [Form I-829], Petition by Entrepreneur to Remove Conditions.Form I-526 is the first form that should be filed. After approval, one still must adjust status through Form I-485 if in the U.S., or through consular processing if outside the U.S. All forms should be accompanied by the required documentation and evidence to prove the above criteria.

Upon approval of the Form I-485 or admission based on an EB-5 visa, the investor and his or her derivative(children who must be unmarried and under the age of 21) family members are granted a two-year conditional permanent resident status and must petition to remove the conditions ninety (90) days prior to the two-year period by filing Form I-829. Once the conditions have been removed, a green card is granted for indefinite permanent resident status in the U.S. After 5 years of permanent residency (including the 2 conditional years), an EB-5 investor may apply for U.S. citizenship.

If you have additional questions or would like to begin this process, please contact our office for a consultation with our highly-experienced immigration attorney.

For more information, please visit the USCIS website: http://www.uscis.gov/working-united-states/permanent-workers/employment-based-immigration-fifth-preference-eb-5/eb-5-immigrant-investor

Thanks to the passage of the Victims of Trafficking and Violence Protection Act (including the Battered Immigrant Women’s Protection Act) in October 2000, victims of certain crimes may be eligible for a U non-immigrant status visa (“U visa”). The U visa is set aside for victims who meet certain criteria.

In order to be eligible for a U visa, an applicant must show s/he:

(a) has suffered substantial physical or mental abuse as a result of having been a victim of “qualifying criminal activity” pursuant to INA §101(a)(15)(U) listed below;

(b) possesses credible and reliable information establishing that he or she has knowledge of the details concerning the qualifying criminal activity upon which his or her petition is based;

(c) has been helpful, is being helpful, or is likely to be helpful to a certifying agency in the investigation or prosecution of the qualifying criminal activity; AND

(d) the qualifying criminal activity occurred in the U.S. or violated U.S. laws or the territories and possessions of the United States.

Qualifying Criminal Activities include, but is not limited to: rape, torture, trafficking, incest, domestic violence, sexual assault, abusive sexual contact, prostitution, sexual exploitation, female genital mutilation, being held hostage, peonage, involuntary servitude, slave trade, kidnapping, abduction, unlawful criminal restraint, false imprisonment, blackmail, extortion, manslaughter, murder, felonious assault, witness tampering, obstruction of justice, perjury; or attempt, conspiracy or solicitation to commit any of the above.

A petitioner must file a Petition for U non-immigrant Status [Form I-918] with the USCIS. S/he may file Form I-918 if s/he is in pending immigration proceedings, has a final order of removal, deportation or exclusion, or seeks non-immigrant visa (“NIV”) status outside of any proceeding. However, you must be admissible to the U.S. in order to apply for a U visa. If you are not admissible, you may apply for a waiver on an Application for Advance Permission to Enter as a Non-Immigrant [Form I-192].

Please note that there is a cap of 10,000 visas/statuses that may be issued annually and the limit only applies to principal aliens. Once granted, employment is authorized and the USCIS will automatically issue an employment authorization document (“EAD”). Additionally, the U visa is approved for a period of four (4) years. The four years may be extended if the certifying official attests that the U-1s presence in the U.S. is necessary to assist in the investigation or prosecution of a qualifying criminal activity.

Under INA § 245(m), a U visa holder may be eligible to adjust status to that of a lawful permanent resident (“LPR”). In order to adjust, U non-immigrants must demonstrate:

(a) Lawful admission to the U.S. as a principal or derivative in U status (U-1, U-2, U-3, U-4, or U-5 non-immigrant status);

(b) U status at the time of application, OR accrual of at least 4 years in interim relief status;

(c) Continuous presence in the U.S. for 3 years;

(d) Is not inadmissible;

(e) Has not “unreasonably refused to provide assistance to an official or law enforcement agency…after the alien was granted U non-immigrant status, as determined by the Attorney General, based on affirmative evidence” (8 CFR § 245.24(b)(5));

(f) That a favorable exercise of discretion is “justified on humanitarian grounds, to ensure family unity, or is in the public interest” (8 CFR § 245.24(b)(6));

An applicant may NOT adjust if:

(a) They participated in Nazi persecution, genocide, or any act of torture or extra-judicial killing (other grounds of inadmissibility do not preclude adjustment).

(b) Affirmative evidence shows that the person unreasonably refused to provide assistance in investigation or prosecution of criminal activity.

(c) U non-immigrant status has been revoked. (8 CFR § 245.24(c)).

Please keep in mind that adjustment is discretionary, and applicants must prove that they are not inadmissible.

If you feel that you are eligible for a U visa or have further inquiries, please feel free to contact our office to schedule a consultation with our highly experienced immigration attorney.

On June 15, 2012, the Department of Homeland Security (“DHS”) implemented a policy that could potentially change the lives of thousands of undocumented young people, or “DREAMers,” forever. It began accepting requests for Deferred Action for Childhood Arrivals (“DACA”). Deferred action is a form of administrative relief meant to give a person with unlawful immigration status temporary protection from deportation if they can prove that they fulfill certain criteria. Receiving deferred action status would allow these individuals to obtain a work permit and driver’s license while they go through the process of becoming legal residents or otherwise resolve his or her status. This would allow them to help their families or save money for college. Deferred action would be valid for two years and may be renewed at the end of the two years.

This relief is offered to certain individuals who were brought to this country as children, and fulfill the following additional requirements:

You must have been under the age of thirty-one (31) as of June 15, 2012;Have arrived in the United States before your sixteenth (16th) birthday;Have been continuously residing in the United States since June 15, 2007 (the date of the memorandum issued by the DHS), up to the present time;Entered without inspection before June 15, 2012, or your lawful immigration expired as of June 15, 2012;Be at least fifteen (15) years old, unless you are currently in deportation proceedings, have a voluntary departure order, or have a deportation order and are not in immigration detention. Are currently in school, have graduated from high school, have obtained a general education development (“GED”) certificate, or be an honorably discharged veteran of the Coast Guard or U.S. armed forces;Have not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise pose a threat to national security or public safety; andPass a background check.

For additional information, please visit: http://www.uscis.gov/humanitarian/consideration-deferred-action-childhood-arrivals-process

Even if you meet the requirements, DHS will still decide on a case-by-case basis whether to approve your application. This is why it is important to have the guidance of a qualified immigration attorney to help prepare you for the process. DACA is a way for people who consider the United States to be their only home to have a chance to remain here and feel safe once and for all. By removing the threat of deportation, young “DREAMers” can focus on work and education to better themselves and their communities, which would benefit us all.

Asylum is a form of protection given by the United States government to individuals who have a well-founded fear of persecution based on race, religion, nationality, membership in a particular social group, and/or political opinion. “Persecution” means to harass, punish, injure, oppress, or otherwise cause someone to suffer physical or psychological harm. Such examples include threats, violence, torture, severe discrimination and economic persecution, or a denial of basic human rights and freedoms. This fear of persecution must be either by the government of one’s country or by a group that the government is unable or unwilling to control. A person who is granted asylum may remain in the U.S. indefinitely and may apply for permanent residence after one year.

To apply for asylum, the applicant must fill out an Application for Asylum and for Withholding of Removal [Form I-589], within one year of arrival to the United States. The applicant’s spouse and children (who are under 21 and unmarried) who are inside or outside the United States may be included on the application at the time of filing or at any time until a final decision is made. If a person is in removal proceedings before an Immigration Judge, he or she may also be eligible to apply for withholding of removal and for relief under the Convention Against Torture (CAT).

Further, an applicant may be granted asylum based on past persecution alone. If the applicant can sufficiently demonstrate past persecution, then he or she is presumed to have a well-founded fear of persecution. However, if there has been a fundamental change in circumstances or the applicant could reasonably relocate to another part of the country of origin, then this presumption can be rebutted. Even if an applicant cannot demonstrate a well-founded fear of persecution, there is still hope that the applicant can be granted asylum if there are other compelling reasons that he or she is unable or unwilling to return to their home country based on past persecution or if there is a possibility that he or she may suffer other serious harm.

However, unlike asylum, obtaining withholding of removal or relief under CAT does not necessarily lead to permanent residence in the United States. Also keep in mind that there are a few bars to withholding of removal. For example, if an individual has been convicted by a final judgment of a particularly serious crime and therefore represents a danger to the United States, or if he or she has persecuted another person, withholding of removal will be denied. Whether an individual qualifies for asylum, or for a withholding of removal or CAT, it is important to gather enough facts and evidence and to build a strong case from the beginning, since individuals can only apply for asylum once. Since asylum applications can be extremely complicated, it is important to have the right facts and guidance necessary to navigate this process.

We are highly experienced in the asylum application process, so if you have any further questions about your case or would like to request a consultation, please contact our office and we would be happy to assist.