Asylum

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.

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.ca/

Humanitarian Reinstatement

If you are a beneficiary of an approved Form I-130, Petition for Alien Relative, but your petitioner has died before you get your green card, you may know that immigration will automatically cancel or revoke your petition. The thought of restarting the entire application process can be frustrating and overwhelming, but there may be something you can do. You can request reinstatement of your petition by filing a Humanitarian Reinstatement (HR) Application.

To be eligible, you must have an approved I-130 and have a qualifying “substitute” sponsor. Your substitute sponsor must:

Have completed Form I-864, Affidavit of Support;Be a U.S. citizen, national, or lawful permanent resident;Be at least 18 years old; andBe your spouse, parent, mother-in-law, father-in-law, sibling, child, son, daughter, son-in-law, daughter-in-law, sister-in-law, brother-in-law, grandparent, grandchild, or legal guardian.

The first thing you must do before filing a Humanitarian Reinstatement Application is inform the National Visa Center (NVC) that your Petitioner has died. You do not have to wait for your petition to become current because it will result in further delay in processing your application. HR cannot be granted if the petitioner died while the petition was pending. Additionally, NVC does not have the power to grant HR, only the USCIS office that originally approved the petition has the power to do that. Once NVC learns of the death of your Petitioner, it will return the petition to the USCIS office which originally approved the petition.

USCIS will then send a notice to the address used by the deceased Petitioner when he filed the petition in your behalf, so it would be a good idea to maintain good relations with anyone else living at that address. Once that notice is received, that is when you file your HR application. You need to make a written request with supporting evidence to the USCIS office that originally approved the petition.

When you request HR, be sure to include:

Your name and your deceased petitioner’s name;The receipt number of the petition;Your alien registration number (A number), if you have one;Your petitioner’s A number, if he or she had one;Your petitioner’s death certificate (certified translation is required, if not in English); andForm I-864 or Form I-864W, Affidavit of Support, from your substitute sponsor.

While relief may be available, it is up to you to prove to USCIS that it should not cancel or revoke your petition for humanitarian reasons. Some factors that USCIS looks at in determining eligibility for HR are: whether you have a home to go to, if you have strong ties in the United States, whether your family unity will be disrupted, and whether you are elderly.

If you believe that you are eligible for Humanitarian Reinstatement, please feel free to schedule a consultation with our office.

Marriage Equality At Last

DOMA, or the “Defense of Marriage Act”, was passed in 1996 by Congress and signed into law by President Bill Clinton. Section 3 of DOMA is the part that prevented the federal government from recognizing any marriages between gay or lesbian couples for the purpose of federal laws or programs, even if those couples are considered legally married by their home state.

However, in 2013, in United States v. Windsor (2013), the U.S. Supreme Court declared Section 3 unconstitutional because it violated equal protection rights. In that case, Edith Windsor sued the United States after she was forced to pay over $363,000 in estate taxes after her same-sex spouse died. Had her spouse been a man, she would not have had to pay the tax. Following this decision, Windsor’s marriage will be federally recognized.

The Supreme Court case did not challenge Section 2 of DOMA, which says that individual states do not legally have to acknowledge the relationships of gay and lesbian couples who were married in another state. Only the section that dealt with federal recognition was ruled unconstitutional.

What this basically means is that if a couple’s home state allows them to be legally married, then they will be able to get federal benefits. Federal benefits include: health insurance (and hospital visitation rights) and pension protections for federal employees’ spouses, social security benefits for widows and widowers, support and benefits for military spouses, joint income tax filing and exemption from federal estate taxes, immigration protections for binational couples—binational couples will be allowed to sponsor foreign-born spouses for U.S. residency, and many more.

Those that are married in a state where marriage equality is legal, but live in a state where it is not may have a harder time receiving benefits. Because different organizations base benefits off of where a couple lives, as opposed to where they were married, those who are legally married but live in a state without marriage equality may not be able to take part in these newly accessible benefits.

Following the Supreme Court decision President Obama declared that federal agencies including United States Citizenship and Immigration Services (USCIS) implement regulations which will allow benefits for same-sex couples.

This means that now same-sex couples can apply for benefits of their spouses, and or fiancé. The spouse will be required to show the marriage was valid in the state where it occurred and prove the bonafides of the relationship.

In order to apply for same-sex marriage the citizen spouse should file for a Petition for Alien Relative [Form I-130] on behalf of the Beneficiary or Immigrant spouse for further information about processing these applications please schedule a consultation with our office.

Provisional Unlawful Presence Waiver

Beginning March 4, 2013, certain immigrant visa applicants who are spouses, children and parents of U.S. citizens (immediate relatives) can apply for provisional unlawful presence waivers before they leave the United States. Under current law, immediate relatives of U.S. citizens who are not eligible to adjust status in the U.S. must travel abroad and obtain an immigrant visa.

Unlawful presence (UP) from “overstaying” a visa, entering without inspection, or failing to timely depart when ordered to do so bars aliens from returning for 3 to 10 years once they leave the country. Individuals who have accrued more than 180 days of UP while in the U.S. must obtain a waiver of inadmissibility to overcome the UP bars under section 212(a)(9)(B) of the Immigration and Nationality Act (INA) before they can return to the U.S. Because UP is also a ground of inadmissibility, USCs are separated from family who must stay abroad to obtain a waiver or “consular process.”

The new provisional unlawful presence waiver process allows individuals, who only need a waiver of inadmissibility for UP, to apply for a waiver in the U.S. and before they depart for their immigrant visa interviews at a U.S. embassy or consulate abroad. This new process is expected to shorten the time U.S. citizens are separated from their immediate relatives while those family relatives are obtaining immigrant visas to become lawful permanent residents of the U.S.

Who Can Apply?

To be eligible for a provisional unlawful presence waiver you must fulfill ALL of the following conditions:

Be 17 years of age or older.Be an immediate relative of a U.S. citizen.Have an approved Form I-130, Petition for Alien Relative, or Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant.Have a pending immigrant visa case with DOS for the approved immediate relative petition and have paid the DOS immigrant visa processing fee.Be able to demonstrate that refusal of your admission to the United States will cause extreme hardship to your U.S. citizen spouse or parent.Be physically present in the United States to file your application for a provisional unlawful presence waiver and provide biometrics.Not have been scheduled for an immigrant visa interview by Department of State (DOS) before January 3, 2013.Meet all other requirements for the provisional unlawful presence waiver, as detailed in 8 C.F.R. 212.7(e) and the Form I-601A and its instructions.

You are NOT eligible for a provisional unlawful presence waiver if any of the following conditions apply to you:

You are subject to one or more grounds of inadmissibility other than unlawful presence.DOS initially acted before January 3, 2013, to schedule your Immigrant Visa (IV) interview for the approved immediate relative petition upon which your provisional unlawful presence waiver application is based, even if your immigrant visa interview has been canceled, you failed to appear for the interview, or your interview was rescheduled on or after Jan. 3, 2013. “Scheduled” means the date on which National Visa Center (NVC) took the action to schedule the case—not the date of the visa interview appointment.You are in removal proceedings that have not been administratively closed.At the time of filing, you are in removal proceedings that have been administratively closed but have been placed back on the EIOR calendar to continue your removal proceedings.You do not meet one or more of the requirements, as outlined in the Form I-601A and its instructions.

What Happens Next?

After you submit your Form I-601A, USCIS will notify the NVC that it received your Provisional Waiver application and NVC will not schedule your immigrant visa interview appointment until USCIS informs NVC of its determination about your I-601A application. If an immigrant visa interview is granted, NVC will schedule it at the U.S. embassy or consulate you designated and notify you of your interview appointment date. You will then need to depart the U.S. to attend your immigrant visa interview at the designated location. If you fail to depart and attend your immigrant visa interview, the provisional unlawful presence waiver will not take effect, and the approval may no longer be valid.

Note: Immediate relatives of U.S. citizens who are eligible for the new provisional unlawful presence waiver can still choose to apply for a waiver using the existing process by filing a Form I-601, Application for Waiver of Grounds of Inadmissibility, after a DOS consular officer has determined that he or she is inadmissible to the United States.

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