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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.

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.

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.

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.