Category: Uncategorized

As you may have heard in the news, Immigration and Customs Enforcement (also known as “ICE”) has recently been engaging in immigration raids all over the country. In a recent statement, Jeh C. Johnson, the United States Secretary of Homeland Security, states that the focus of these removals were adults and children who:

Were apprehended after May 1, 2014 crossing the southern border illegally;Have been issued final orders of removal by immigration court; and Have exhausted appropriate legal remedies, and have no outstanding appeal or claim for asylum or other humanitarian relief under our laws.

In other words, ICE’s recent raids were not focused on those unlikely to fit into one of the above categories. However, this does not quell the fears of many undocumented individuals currently in the country, who believe that they or someone they love could be deported next.

In fact, many of the individuals apprehended were women and children who crossed the border in the spring of 2014, many of whom fled to escape gang-related and domestic violence in their home countries of El Salvador, Honduras and Guatemala. They may have a legal claim for asylum based on a genuine fear of returning to their home country.

Secretary Johnson continues that, “as part of these operations, 121 individuals were taken into custody, primarily from Georgia, Texas, and North Carolina, and they are now in the process of being repatriated. To effect removal, most families are first being transported to one of ICE’s family residential centers for temporary processing before being issued travel documents and boarding a return flight to their home countries” and a number of precautions were taken, such as having medical and female personnel available.

Another alarming issue is that minors traveling without parents are coming into the United States at an increasing rate. For instance, border agents apprehended about 10,600 minors in October and November 2015, versus about 5,100 during those months in 2014. The issue of where to house the children in the meantime, as well as their treatment, are raising grave humanitarian and social concerns that must addressed.

White House Press Secretary Josh Earnest said in a press release that “ politics did not factor ” into the decision by DHS to conduct raids, meaning that DHS made the decision independent of the influence of recent Presidential campaigns, but many are skeptical of the neutrality of the raids. Either way, this is an important issue that will have a significant impact on the future of our country.

If you have any questions about the recent immigration raids or what to do if you are someone you know is apprehended by ICE, please do not hesitate to contact our office at (973) 542-0200. We also have trained staff to speak in Spanish and Gujarati.

The Visa Waiver Program (VWP), and immigration generally, has been a hotly-debated topic for the upcoming Presidential election and has worsened in light of the Paris and San Bernardino attacks. The VWP allows certain eligible citizens or nationals from designated countries to travel to the United States without visas in exchange for visa-free travel (for 90 days or less) to those countries by United States citizens. The Department of State administers this program and ensures that applicants undergo many levels of security measures to prevent terrorists, serious criminals, or other potentially dangerous people from entering the United States.

VWP eligible individuals are generally permitted to enter the United States for business or tourism, but are not allowed to study for credit, work, or retain permanent residence. There are also many other requirements. For example, the individual must have authorization to travel without a visa through the Electronic System for Travel Authorization (ESTA) prior to boarding a U.S. bound sea or air carrier. In order to get an ESTA, you must submit biographic, travel, and credit card information in advance, and you must have a round trip ticket to prove that you intend to return to your home country, among other requirements.

However, in light of recent events, new restrictions have been proposed on VWP eligibility for certain individuals. For instance, people who have been present in Iraq, Sudan, Iran, Syria, or other countries designated by DHS as supporting terrorism or “of concern” at any time on or after March 1, 2011, are not eligible to participate in the VWP. The new law also excludes from the VWP individuals who are nationals of those designated counties, even if s/he has never resided in that country.

The increased security implementations and restrictions have been a source of great debate by many groups. Some say that the VWP helps drive U.S. economic growth by generating tax revenue and creating jobs, while opponents are extremely concerned about our national safety and think that the restrictions are fair to keep out terrorists and potential dangerous criminals. No matter what side you are on, this is an issue of great debate and the new developments are important for everyone to consider.

The latest Ebola outbreak is the worst in history, with more than 15,000 cases and over 5,400 deaths reported globally. In an effort to protect those who are already in the United States from deportation, on November 20, 2014, the Department of Homeland Security (DHS) announced a measure called the Temporary Protected Status (TPS). The TPS will be granted to those people currently living in the United States who are from Liberia, Guinea, Sierra Leone- the three West African countries most affected by Ebola.​

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.

People who are eligible may apply to the USCIS for protection from deportation, as well as for work permits (employment authorization document (EAD)) for 18 months. The 180-day TPS registration period begins November 21, 2014 and runs through May 20, 2015. After 18 months, the U.S. will determine whether protection should be extended, based on the level of the Ebola epidemic in West Africa. However, applicants must be able to pass a background check. Those with a criminal history 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 INA Section 212(a), including non-waivable criminal and security-related grounds, or if you fail to meet initial or late initial TPS registration requirements.

To be eligible for TPS, applicants must also have been “continuously residing” in the United States since November 20, 2014 and “continually physically present in” the United States since November 21, 2014. Additionally, in order to prevent the disease from spreading, the 8,000 people estimated to be eligible will not be allowed to travel home once granted TPS.

Once granted TPS, an individual also cannot be detained by DHS on the basis of his or her immigration status in the United States. 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, visit : www.uscis.gov/tps

Yemen is currently experiencing widespread conflict and a resulting severe humanitarian emergency. Because of the dangerous conditions, the United States has granted Temporary Protected Status (TPS) for eighteen months from September 3, 2105 through March 3, 2017 for eligible nationals of Yemen residing in the United States.

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 ongoing armed conflict within the country, the Department of Homeland Security announced on September 3, 2015 that eligible nationals of Yemen residing in the United States may apply for TPS with USCIS.

To be eligible for TPS, applicants must also have been “continuously residing” in the United States “continuously physically present” since September 3, 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 TPS on the basis of his or her immigration status in the United States. 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.

Those who are approved for TPS will not be removed from the United States and may receive an Employment Authorization Document (EAD). The 180-day TPS registration period runs through March 1, 2016.

More information can be found on the USCIS website: http://www.uscis.gov/news/dhs-announces-temporary-protected-status-designation-yemen.

TN Visa for NAFTA Professionals

The North American Free Trade Agreement (NAFTA) created special economic and trade relationships for the United States, Canada and Mexico. As part of its terms, the TN visa category was created to enable Canadian and Mexican citizens to enter the United States to engage in professional business activities on a temporary basis for a period of up to three years.

There are many types of professionals who may be eligible to seek admission as TN non-immigrants, including, but not limited to: accountants, engineers, lawyers, pharmacists, scientists, and teachers. You may be eligible if:

You are a citizen of Canada or Mexico;Your profession qualifies under the regulations;The position in the United States requires a NAFTA professional;You have a prearranged full-time or part-time job with a U.S. employer (but not self-employment); andYou have the qualifications to practice in the profession in question.

Canadian Citizens

If you are a Canadian citizen, then you are not required to apply for a TN visa at a U.S. consulate.

A Canadian professional worker may be admitted to the U.S. without advance petition approval or labor certification. In order to apply, the Canadian worker (if in Canada) would have to go straight to any U.S. port of entry (land border crossing, U.S. airport, or U.S. preflight inspection station at a major Canadian international airport) and provide the following documentation to the CBP officer:

Proof of Canadian citizenship;Letter from your prospective employer, your length of stay, and your educational qualifications; andCredentials evaluation (if applicable), together with any applicable fees.

Alternatively, a prospective TN employer may choose to file on behalf of a Canadian citizen who is outside the United States by submitting Form I-129, Petition for Non-immigrant Worker to the USCIS Vermont Service Center.

If USCIS approves Form I-129, you, the prospective worker, may then apply to CBP for admission to the U.S. as a TN non-immigrant to a CBP Officer at certain CBP-designated U.S. ports of entry or at a designated pre-clearance/pre-flight inspection station by providing the following documentation:

Proof of Canadian citizenship; andApproval Notice from USCIS for Form I-129.

In addition, when applying for admission, you should have in your possession a copy of Form I-129, and all supporting documentation that was submitted to USCIS, to respond to questions about your eligibility. You should also be prepared to pay any applicable inspection fees at the time you seek admission. If a CBP officer finds you eligible for admission, you will be admitted as a TN non-immigrant.

Upon entering the U.S., the Canadian TN professional will be given an I-94 card (or one accessible online) indicating an authorized stay of up to three years. This period can be extended in three-year increments without leaving the United States.

A Canadian national can also apply if already in the United States.

Mexican Citizens

If you are a Mexican citizen, then you are required to obtain a visa to enter the United States as a TN non-immigrant. You should apply for a TM visa directly at a U.S. embassy or consulate in Mexico. Once you are approved for a TN visa, you may apply for admission at certain CBP-designated U.S. ports of entry or at a designated pre-clearance/pre-flight inspection station.

Dependents of TN Non-immigrants

TN visa recipients can also bring their spouses and children (under the age of 21) to the U.S. by providing proof of the family relationship, such as a birth or marriage certificate, with the application process. However, spouse and children are not permitted to work while in the United States, but they are permitted to study. Further, they are granted TD status for no longer than the period of time granted to the principal TN non-immigrant.

Every month, the Department of State (DOS) publishes current visa availability information in its Visa Bulletin, which can be found at: http://travel.state.gov/content/visas/english/law-and-policy/bulletin.html. The Visa Bulletin indicates when visas are available to prospective immigrants based on their individual priority date. Availability means applicants are able to begin their final steps in the process of obtaining their green cards. The priority date is generally the date when the applicant’s employer or relative properly filed the immigrant visa petition on the applicant’s behalf with USCIS.

On September 9, 2015, USCIS and DOS announced that they would be making some changes to the procedures for determining visa availability for applicants waiting to file adjustment of status applications (employment or family-based).

The new procedures would allow individuals to apply for adjustment of status much earlier than they normally would. They would also be able to obtain benefits for themselves and their families, such as work authorization and permission to travel.

The reason for this is to help ensure that the maximum number of immigrant visas is issued annually as intended by Congress, despite the long waiting periods for cases to be processed.

Prior to the changes, DOS published one chart in its visa bulletin each month that determined both when an application could be filed and when pending applications could be adjudicated. Beginning with the October 1, 2015 visa bulletin, there will be a second chart published each month, which will now govern cases that are eligible to file for adjustment of status in the United States.

There will be two charts per visa preference category:

Application Final Action Dates (dates when visas may finally be issued); andDates for Filing Applications (earliest dates when applicants may be able to apply).

Each month, USCIS will post the relevant DOS Visa Bulletin chart after determining whether additional visas are available. Applicants can use these charts to determine when they must file their Form I-485, Application to Register Permanent Residence or Adjust Status.

Anytime anyone enters the United States through consular processing or applies to adjust their status, it is important that s/he passes a criminal background check. When applying for legal permanent residence, also known as a “Green Card,” an immigrant can be denied entry or admission to the United States if s/he has committed a “crime involving moral turpitude” (“CIMT”).

A crime involving moral turpitude is defined as a crime that is “inherently base, evil, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general.” Generally, a crime involving moral turpitude requires evil intent. Examples include murder, manslaughter, rape, spousal abuse, child abuse, robbery, aggravated assault, theft, and fraud, among many others. However, a CIMT can also include crimes that may not seem so serious, but could ultimately affect your immigration case.

However, if you are applying for a green card and have committed a crime, there is a chance that you may qualify for an exception, which essentially “excuses” your criminal conviction. The “petty offense exception” is a waiver of this particular ground of inadmissibility. To qualify for the petty offense exception, you must meet certain criteria. For example, a CIMT is a petty offense if the maximum penalty that you could have received for committing the offense is exactly one year or less; and you personally were sentenced to no more than six months of imprisonment.

Additionally, please keep in mind that not all crimes are eligible for the petty offense exception. The petty offense exception can only apply to one offense, meaning that if you have committed two or more crimes involving moral turpitude, you will not be able to benefit from this exception, regardless of the maximum sentence and amount of time that you served.

It is important to have an experienced immigration attorney review your case if you have any type of criminal conviction, since the definitions of crimes for each state are different and specific details may determine whether a particular crime is a CIMT. However, if you do qualify, this form of immigration relief could potentially change your life for the better and allow you to remain in the United States and adjust status.

For more information or to set up a consultation with our experienced immigration attorney, please contact our office.

Advance parole (Form I-131) is an immigration document issued by the United States that allows foreign qualified nationals to re-enter the United States after temporarily traveling abroad. Individuals who are not U.S. citizens, do not have valid immigrant visas, and have pending applications for certain immigration benefits are required to apply for a travel document and be approved for Advance Parole prior to leaving the United States, in order to avoid termination of their pending applications.

However, in situations in which Deferred Action for Childhood Arrivals (“DACA”) recipients are applying for Advance Parole, the applicant must apply for and receive DACA approval prior to applying. DACA recipients must provide as much evidence as possible to explain the purpose of intended travel abroad. In order to receive advance parole, a DACA recipient generally must show that s/he is traveling abroad for humanitarian, employment, or educational purposes. Generally, USCIS will only grant advance parole if your travel abroad will be in furtherance of:

humanitarian purposes, including travel to obtain medical treatment, attending funeral services for a family member, or visiting an ailing relative; educational purposes, such as semester-abroad programs and academic research, or; employment purposes, such as overseas assignments, interviews, conferences or, training, or meetings with clients overseas.

Please keep in mind that travel for vacation is not a valid basis for advance parole.

To apply for Advance Parole, a DACA recipient must submit Form I-131 to USCIS. The advance parole applicant must then submit proof of DACA status by either a copy of the USCIS Notice of Action (Form I-979) showing a DACA approval or a copy of an approval order, notice or letter from USCIS. The applicant must be able to explain the purpose of the trip and the countries the applicant plans to visit. In addition, the requester must submit evidence of the purpose of the trip, the intended date(s) of travel, and the duration of the trip(s). USCIS will determine each request on a case-by-case basis, so the more supporting documentation you have, the better.

Lastly, USCIS does not generally grant expedited requests for advance parole for DACA recipients. However, in a dire emergency, USCIS is willing to consider an expedited request at a local USCIS office.

http://www.uscis.gov/humanitarian/consideration-deferred-action-childhood-arrivals-process/frequently-asked-questions.

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.