Immigration Visa Attorney Blog

Deferred Action for Childhood Arrivals program is the government's way of providing a two-year respite from deportation for so-called DREAM Act youths. And while not a permanent solution to the country's many immigration issues, Deferred Action does seems to be a positive step towards addressing an immigrant group with unique characteristics.

As with virtually any program of this nature, there will always be complications arising from its parameters. Deferred Action is no exception, and in recent weeks we've been seeing some of those make their way to into the public eye.

To meet the criteria for Deferred Action, one must "have continuously resided in the country between June 15, 2007 to the present." Which means immigrants who otherwise would have qualified for Deferred Action but chose to leave the U.S. temporarily in order to apply for citizenship are stuck in a type of limbo.

Continue reading "More on Deferred Action" »

This will be the third blog in our series on Consideration of Deferred Action for Childhood Arrivals. After an examination of the program as a whole (LINK) and some of the program's specific guidelines (LINK), we will now take a look at the documentation needed to demonstrate for the United States Citizenship and Immigration Services (USCIS) that guidelines have been met.

For proof of identity, an applicant must be able to submit one of the following: A passport/national identity document from the country of origin; a birth certificate with photo ID; a school or military ID; or a U.S. government immigration document containing both name and photo. For proof of immigration status the USCIS will accept a Form I-94/I-95/I-94W with authorized stay expiration date; final order of exclusion or deportation as of June 15, 2012; or a charging document which places the applicant into proceedings for removal.

Records from U.S. schools attended, travels records, Form I-94/I-95/I-94W, immigration documents from the DHS or INS stating date or entry or hospital records can be used to prove an applicant came to the U.S. prior to the age of 16.

Continue reading "Consideration of Deferred Action for Childhood Arrivals - Part III" »

In our last blog, we provided an overview of the process of Consideration of Deferred Action for Childhood Arrivals (LINK). As mentioned, the two-year deferment is available to those who came to the United States as children, have not committed serious criminal offenses and who meet certain guidelines. In this blog we will look at those guidelines.

For starters, there are several important dates to keep in mind. As of June 5, 2012, perspective deferment applicants must have been under the age of 31. They must also have come to the U.S. before their 16th birthday and must have resided in the country, continuously, from June 15, 2007, to the present time. To be considered, applicants must have entered without inspection prior to June 15, 2012 or have had their lawful status expire as of the same date.

There is also an educational component to the deferment process. In order to be considered, an applicant must be: currently enrolled in school; have completed their GED; or be an honorably discharged veteran of the U.S. Armed Forces or Coast Guard.

Continue reading "Consideration of Deferred Action for Childhood Arrivals - Part II" »

The Department of Homeland Security (DHS) continues to focus its immigration enforcement efforts on the removal of two types of individuals: 1. Those who pose a threat to national security, and 2. Those who are a risk to public safety, such as violent criminals, felons, and repeat offenders. DHS does not want to expend resources on low priority cases, such as individuals who came to the United States as children, have not committed serious crimes, and who meet certain guidelines. This is where the process of Consideration of Deferred Action for Childhood Arrivals comes in.

While this deferral does not confer lawful status upon an individual, nor excuse an individual from previous or subsequent periods of unlawful presence in the United States, the Deferred Action for Childhood Arrivals gives an undocumented individual some allowances. That is, under existing regulations an individual who has obtained this deferral, which lasts for two years, is eligible to receive employment authorization for the period of deferred action, provided the person in question can demonstrate "an economic necessity for employment." Additionally, it also allows the individual to attend school.

Continue reading "Consideration of Deferred Action for Childhood Arrivals - Part I" »

One of the more interesting developments in U.S. immigration over the past few years is that Asians have overtaken Hispanics as the country's largest immigrant population.

Using percentage of foreign-born annual arrivals, the Pew Research Center reported that in the last three years Asia has became the top source of immigrants. 430,000 Asians came to the U.S. in 2010, a number that represents 36 percent of all new legal and illegal immigrants. In the same year there were 370,000 new Hispanics arrivals.

A recent article in Forbes detailed some of the reasons we have seen the shift. High growth rates in Asian countries, along with economic conditions in the U.S. and Mexico/Central America have combined to move the groups in opposite directions.

Continue reading "Asian immigration on the rise" »

A poll conducted earlier this month seems to indicate the Obama Administration's decision to stop deporting certain undocumented immigrants brought to the United States as children may not have helped boost his reputation on the issue among voters.

The Washington Post and ABC News conducted a poll asking whether or not voters approve of Obama's handling of the immigration issue. His rating was essentially identical to what it was at this point in 2010 and he received virtually the same favorable numbers as opponent Mitt Romney.

Less than 40 percent of adults polled said they approved of the job Obama was doing on issues related to immigration, while approximately half said they disapproved of his performance. Approximately 45 percent said they trusted Obama on the issue.

Voters in the eight swing states believed to be critical to the 2012 election (Nevada, Colorado, Iowa, Wisconsin, Ohio, Virginia, Vermont and Florida) polled at virtually identical numbers, thought the swing states had a slightly higher disapproval and trust percentages than the rest of the country.

Continue reading "President's new immigration policy not paying dividends with voters" »

Some of you are no doubt aware the Obama administration made a major announcement last week regarding undocumented immigrants who would fall under the auspices of a program like the DREAM Act. That is, hundreds of thousands of immigrants in good legal standing who were brought to the U.S. as children will no longer be pursued for deportation by the Department of Homeland Security (DHS).

Effective June 15, DHS will not pursue these cases as part of a new Deferred Action Process (DAP).

"Our nation's immigration laws must be enforced in a sensible manner," said Secretary of Homeland Security Janet Napolitano. "But they are not designed to be blindly enforced without consideration given to the individual circumstances in each case. Discretion, which is used in so many other areas, is especially justified here."

First, the particulars. To qualify for the DAP you must:

1. Have come to the United States before the age of 16.
2. Currently live in the U.S. and have resided here for five continuous years preceding June 16.
3. Have graduated from high school or received a GED, be currently enrolled in school, or be an honorably discharged veteran of the Armed Forces or Coast Guard.
4. Have never been convicted of a felony, "significant misdemeanor" or multiple misdemeanors. You can also not pose a threat to national security or the public safety.
5. Be 30 years of age or younger.

If an immigrant is able to prove they meet these criteria through "verifiable documentation," they will be allowed to receive deferred action for two years and be able to apply for work authorization. This deferment will be subject to renewal after two years. At that point individuals who wish to renew their deferment will have to re-apply for an extension. If the extension is granted, they will need to re-apply for employment authorization.

Continue reading "Deferred Action Process" »

One of the most common ways of obtaining a permanent residency card that
will allow a non-resident of the United States to remain in the country is
through a family visa. Understanding the terms and conditions that apply to
gaining residency in this manner can be a complicated and lengthy process.
It is essential to work with an experienced immigration attorney like Sam
Shihab to help during this process.

Family based visas are provided in two groups: immediate relative
immigrant visas, and family preference immigrant visas. The number
of immediate relative visas is unlimited and is based on a close family
relationship with a U.S. citizen such as a spouse, adopted orphan, or a
parent. Family preference visas are limited each year and are for more
specific and distant family relationships with a U.S. citizen.

Continue reading "FAMILY IMMIGRATION" »

It is an exciting time for many foreign nationals living in the United States. During the last four months, the EB-2 priority dates for India and China have moved forward over two years. As a result, many employment-based immigrants have been able to file Applications for Adjustment of Status earlier than they ever expected. At times such as this, many forget about the possibility of Visa Bulletin retrogression, the "rolling back" of priority dates.

Visa Bulletin Retrogression is of particular concern for foreign nationals that are intending to or already are married. Spousal concerns can prevent or delay the filing of Adjustments of Status Applications. Such, when combined with Visa Bulletin retrogression can be devastating. As the Department of State has recently stated that Visa Bulletin retrogression is likely to occur soon (See HERE) we thought we would take the opportunity to discuss two common issues that face employment-based Adjustment of Status Applicants with regards to their families:

Delaying Adjustment of Status due to Impending Marriage

United States immigration law permits only pre-existing spouses to immigrate to the United States with the principal employment-based immigrant. That is, a couple must be married before the employment-based immigrant receives their green card. Thus, intending employment-based immigrants sometimes delay filing for Adjustment of Status until after they are married so that their new spouse can immigrate to the United States with them.

Continue reading "Visa Bulletin Retrogression: Consequences for Spouses" »

Earlier this month the Obama administration announced it was going to try and tweak the process surrounding federal immigration law in the hopes of positively impacting thousands of American families. It is a story our readers in Troy, Michigan and Columbus, Ohio should follow closely.

As announced by U.S. Citizenship and Immigration Services (USCIS) Director Alejandro Mayorkas, the change involves how undocumented immigrants with American family members will be able to apply for a green card. Undocumented immigrants would be able to remain in the U.S. while waiting for the visa application process to be completed.

Under current law U.S. citizens can submit green card applications for spouses and children, whether or not those family members entered the country legally.

However, as it currently stands, in most cases those family members have to return to their home country to receive their visas. But leaving the country triggers an automatic policy where they cannot return to the U.S. for upwards of a decade, even if they are eligible to become legal resident.

The new proposal provides that undocumented immigrants receive a waiver before leaving the country to get their visa. The idea is that this will cut down on delays for their return.

Continue reading "A more sensible path to green card?" »

Sometimes family members get left out of the immigration process. Costs, logistics, family obligations and other inconveniences can prevent a family member from coming to the United States.

There's no need to worry, though, United States Immigration officials have anticipated this situation. We'd like our friends here in Columbus to make sure they're aware of a potentially helpful tool.

Following to join allows a spouse or child of a principal immigrant to immediately obtain a visa to immigrate to the United States any time after the principal immigrant becomes a lawful permanent resident of the United States. There are, though, some major limitations of following to join.

Following to join is only available to immigrants in categories that give derivative status to spouses and children. Such categories include family-preference immigrants and employment-based immigrants. Further, following to join only applies to preexisting spouses and children. Spouses and children added after an immigrant becomes a permanent resident cannot follow to join. Finally, children can "age out" of eligibility to follow to join.

In spite of the above limitations following to join is far more versatile than one might think. A family member that is following to join doesn't have to literally follow the principal immigrant to the United States. Spouses and children that are inside the United States as nonimmigrants can "follow to join" and adjust status through a principal immigrant, even if they precede the principal immigrant in entrance into the United States.

Considering its limitations, following to join is not for everybody. That being said, following to join is still a valuable and important part of the immigration toolbox. Using following to join to immediately obtain an immigrant visa for a spouse or child is an excellent way to avoid the long waits that can be associated with family based immigrant petitions.

Recently the U.S. Citizenship and Immigration Services (USCIS) rolled out a new program it hopes will help improve delivery of some documents related to the immigration process. Obviously this could prove to be a significant upgrade for anybody in the local community who deals with the department in an official and time-sensitive capacity.

In a May 2 memo the USCIS said it had put in place what it calls a "Secure Mail Initiative" (SMI). The SMI will take advantage of the Priority Mail with delivery confirmation option within the U.S. Postal Services (USPS).

The USCIS has essentially partnered with the USPS in an effort to allow customers the ability to keep on top of the status of paperwork critical to travel and employment authorization.

Permanent Resident cards (green cards), Employment Authorization (EADs) and Advance Parole can all now be tracked through the SMI. Obviously timely receipt of green cards and EADs will be very important to some of our readers.

The USCIS highlighted two key benefits in its memo:

-Tracking the status of documents with USPS tracking information.

-Increases in the speed documents are received by the USCIS. The memo said that "on average, documents sent through USPS Priority Mail should arrive two to four business days sooner than with first-class mail."

A signature is not required for SMI delivery, so it will still be possible for a piece of mail to be lost - only the delivery of the package or envelope is recorded. But given that the USPS keeps a record of each delivery, the USPS's customer service can be utilized for inquiries.

The USCIS said that customers who receive an approval notice (Form I-797) should contact its Customer Service Center and request tracking information for their particular documents.They will then be given their most recent delivery status and a tracking number. Their document can then be monitored on the USPS's website, usps.com.

Continue reading "USCIS Unveils 'Secure Mail' Initiative" »

Congratulations! Your I-130 petition has been approved! You worked hard, put together a good petition, and now your loved one can immigrate to the United States, perhaps joining you here in central Ohio, worry free. Right? Not always. Even after the United States Citizenship and Immigration Service (USCIS) has approved your I-130 petition, they can issue a Notice of Intent to Revoke (NOIR) and turn your world upside-down.

A NOIR is, essentially, a failsafe that allows USCIS to deny your I-130 petition after it has been approved. If, after your I-130 petition has been approved, USCIS discovers that it made a mistake in approving it, or discovers new information that shows you aren't entitled to approval, it issues a NOIR.

An NOIR letter should explain to the petitioner exactly why the I-130 is being revoked, setting forth the law and facts that, according to USCIS, show that the petitioner is not entitled to their approved I-130 petition. It should also inform the petitioner that they have a right to respond to the NOIR and explain why their NOIR should not be revoked.

So, you've gotten a NOIR in the mail. What can you do?

1. Respond--A NOIR will not go away. If you don't respond to it, USCIS will revoke your I-130 petition.

2. Act Fast--A NOIR should state a time period (often 30 days) in which you are permitted to respond to the NOIR. However you decide to respond to the NOIR, make sure you do so within the allotted time period.

3. Inspect the Record--You have the right to inspect USCIS's record relating to the I-130 that USCIS intends to revoke. Inspecting USCIS's record can help you find holes in the NOIR and allow you to make better factual and legal arguments in response.

4. Submit Evidence in Support of Your Arguments--Your response to the NOIR is your only opportunity to present evidence to USCIS. Don't waste it. You may be able to clear up USCIS's misunderstanding of the facts by providing them with better information.

Continue reading "Columbus, OH Attorney: Notice of Intent to Revoke: Know Your Rights!" »

The saga of Tri Valley University and founder Susan Su is an eye-opener to one way the immigration and educational systems can be exploited and how students can be caught in the middle. We hope folks here in Columbus take a close look at the case.

In January the United States government seized property owned by Susan Su, director of Tri Valley University (TVU), due to allegations related to fraud and other illegal activity. In forfeiture proceedings where typically the properties are the named defendants, the U.S.government asserts that the properties were acquired with illegal funds. The government asked the court to turn over the property due to misuse of visas and permits, mail fraud, wire fraud and money laundering. Court documents outline the alleged offenses which occurred during an elaborate defrauding scheme between 2008 and 2010.

In April of 2008, Susan Su created TVU, an entity that supposedly offered online college classes. The government's complaint explains that while the private learning institution was seeking accreditation from the Department of Homeland Security (DHS), students were already being recruited and tuition was being paid. In reality the existence of the university was purely for fraudulent purposes.

The focus of TVU was to gain foreign immigrant students by securing F-1 visas. TVU was developed as an illegal institution that allowed foreign nationals to immigrate to the United States and be considered "students" as long as $2,700 "semester" fees were paid. DHS's explanation for not identifying the scheme is that the current immigration system is inadequate for tracking the educational status of foreign nationals. The reason DHS offers for not catching the scheme exonerates the students, who appear to be the true victims of DHS's failures and the school's alleged fraud.

The complaint asserts the first offense committed by TVU and Su was a willing misuse of the visa program. Throughout the accreditation process TVU completed federal documents using inaccurate information in order to circumvent Homeland Security. To receive accreditation by the DHS, TVU had to submit a Form I-17 petition. Su and her staff misled the government by claiming they were operating a legitimate school.

The second offense that occurred was mail fraud. In addition to filling out federal documents, TVU had to supply DHS with three articulation statements from major universities asserting credits earned at TVU would be transferable to larger learning institutions. Mail fraud occurred when TVU sent the fraudulent documents and statements to DHS through the U.S. Postal Service.

Continue reading "Immigration Attorney Examines Tri Valley University Case" »

Those residents of our local Columbus, OH community interested in being granted U.S. citizenship should make sure they are familiar with all parts of the process. An area which usually raises questions is continuity of residency.

To be eligible for Naturalization a lawful permanent resident needs to reside continuously in the U.S. for at least five years, or three years if married to a U.S. citizen and having lived with that same U.S. citizen during the entire residency.

The continuity of residence requirement needs to be met before filing a naturalization application.

Generally speaking, traveling outside the U.S. for less than six months does not interrupt continuous residence. But traveling outside the country for more than six months does raise a presumption that continuity of residence has been interrupted.

Such presumption can be rebutted by providing evidence to establish continuous residence, such as presence of immediate family in the U.S., non-termination employment in the U.S. or retention of full access to a U.S. home.

The burden of proof rests with the applicant. In cases where an applicant left the country to study abroad after they became a permanent resident, the courts have ruled that such study does not result in abandonment of residency. Li v. Chertoff, 490 F.Supp.2d 130 (D. Mass. 2007).

Continue reading "Continuity of Residence Requirement for Naturalization Application" »