One of the elements for Cancellation of Removal for Non-LPR (10 year cancellation case) eligibility is “good moral character.” If the applicant has been convicted of a Crime Involving Moral Turpitude (CIMT), the applicant becomes ineligible for cancellation of removal relief.

In this case, the Respondent was convicted of assault. In his Individual Hearing, the Immigration Judge ruled that the respondent’s assault conviction was for a crime involving moral turpitude.  On appeal, the respondent argued that he was not convicted of an assault involving family violence, but was instead convicted of simple assault, which is not a CIMT.  Moreover, when the Immigration Judge ruled that the respondent was convicted of a CIMT, the IJ used police reports (which was not part of the record of conviction) to determine whether the respondent’s assault conviction was a CIMT.

The BIA though held that evidence outside the record of conviction may only be considered in determining whether a conviction is a CIMT when the record itself does not conclusively answer that question. Thus, this holding allows Immigration Judges to undermine plea agreements by going behind a conviction to use sources outside the record of conviction to determine that an alien was convicted of a more serious offense that call fall within CIMTs.

If you have any questions, please fill out the free consultation form below, and we will respond as soon as possible privately. 

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On April 14, 2011, the USCIS announced its final rule regarding the employment eligibility verification process. Under federal law, employers must complete Form I-9 for all newly hired employees to verify their identity and authorization to work in the United States.  The list of acceptable documents that employees may present to verify their identity and employment authorization is divided into three sections: List A documents, which show identity and employment authorization; List B documents, which show identity only; and List C documents, which show employment authorization only.

Prior to the announcement of the final rule, the interim rule allowed employers to accept expired documents. However, under the final rule, this action is strictly prohibited.  So, if an employee presents an expired driver’s license or passport, employers must not accept those documents as proper identification proof for I-9 purposes.  The Final rule revised the list of acceptable documents by removing outdated documents and making technical amendments; and adding documentation applicable to certain citizens of the Federated States of Micronesia and the Republic of the Marshall Islands.

The Department of Homeland Security wants to ensure that documents presented for use in the Form I-9 process are valid and reliable to establish both identity and employment verification. The DHS announced that expired documents are prone to tampering and fraudulent use, so the DHS prohibited employers to accept expired documents.

I-9 procedures are very important for both employers and employees. A foreign employee who is authorized to work in the United States must make sure that the information on his or her I-9 form is accurate.  In some cases, people misrepresent on the I-9 by claiming that they are a US citizen or national. Falsely claiming U.S. citizenship will bar you from future possible immigration benefits.  This is also a deportable offense.

If you have any questions, please fill out the free consultation form below, and we will respond as soon as possible privately. 

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On April 8, 2011, AILA released an update on what would happen to different immigration-related government agencies in case the government shuts down. Please note that if the budgetary issues are not resolved, the government plans to shut down at midnight on April 9. As a consequence, the government claims that all but “essential” government functions are not allowed to work.

USCIS (United States Citizenship and Immigration Service)

The USCIS processes permanent resident, naturalization, and non-immigrant  visa petitions, among others. It is the agency that conducts interviews, reviews applications, and makes decisions on green card and citizenship applications. The USCIS has indicated that in the event of a shutdown, they will continue to operate except for the E-Verify section.

DOS (Department of State)

The DOS deals with most visa and consular processing applications. J-1 waivers and visa petitions for people outside the United States go through them. If a shutdown occurs, only applications related to diplomats and “life or death” situations would continue to function.

CBP (Customs and Border Patrol)

The CBP guards the port of the entries – shipping ports, borders, and airports. They inspect and decide on whether a person gets in the United States, and enforce applicable immigration laws when someone is inadmissible. Inspection and law enforcement personnel are deemed “essential” personnel, but a shutdown will also limit their staff. The ramifications of a shutdown are thus uncertain.

EOIR (Executive Officer for Immigration Review)

The EOIR is the immigration court system. Immigration Courts, judges, clerks, and the Board of Immigration Appeals all fall under this branch. A general warning that “non-essential” personnel would not be allowed to work has been set forth, and that the only aspect of operations that is certain to continue is the detained docket, which is considered an essential function.

DOL (Department of Labor)

The Department of Labor is one of the first agencies involved in employment-based petitions, as they review and make determinations on the Labor Certification process. Personnel would certainly not be available to respond to emails or other inquiries, but it is yet to be determined if the ICERT and PERM functions would shut down.

If you have any questions, please fill out the free consultation form below, and we will respond as soon as possible privately. 

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The E-Verify Self Check is a free web-based service that can be used by a US-based worker to check on his or her employment eligibility. This is part of E-Verify, which is a program by the Department of Homeland Security in conjunction with the Social Security Administration. Unlike the beginning stages of the E-Verify program, the Self Check option is more for the employee rather than the employer, in that it is the first service offered directly to them by the E-Verify program. It gives the worker access to their eligibility to work, and gain knowledge about any inconsistencies that they may wish to correct either with the DHS or Social Security Administration.

The Self Check is described as a response to Congressional requests to provide a service in which the U.S. worker could verify their own eligibility status. As of March 21, 2011, this service is available to those who maintain residence and are physically located in Arizona, Idaho, Colorado, Mississippi, Virginia, or the District of Columbia. It shall be expanded to other states in the coming months.

The steps in using Self Check are as follows:

• Click on this Self Check link
• Enter to basic identifying information such as your name, address, birthday, and social security number
• You would answer security assurance questions provided by a third party identity assurance service
• Provide possible eligibility information including immigration documents, citizenship, work permit information etc.
• A response is provided almost instantly on whether your employment is authorized or if there is a mismatch

With regards to privacy, it should be noted by employees using this service that the information they provide to Self Check is never shared with any employer.

If you have any questions, please fill out the free consultation form below, and we will respond as soon as possible privately. 

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Attorney General Eric Holder recently appointed three new immigration judges. Steve Day joins the Boston Immigration Court, while Edward Kelly and Deepali Nadkarni would each be assistant chief immigration judges. 

Judge Steven Day obtained his BA in 1975 from Gustavus Adolphus College and JD in 1978 from the University of Denver College of Law. He also obtained a MA degree from the Naval War College in Newport, Rhode Island. He most recently was a trial attorney for the Office of Immigration Litigation, Civil Division, Department of Justice. 

Judge Edward Kelly obtained his BA in 1982 and JD in 1987 from the University of Notre Dame. He most recently was senior counsel and chief of staff for the Office of the Chief Immigration Judge. 

Judge Deepali Nadkarni obtained his BA in 1991 from Mercer University and his JD in 1994 from Emory University law School. From October 1995 to March 2011, Judge Nadkarni worked for the Board of Immigration Appeals, serving various positions from attorney advisor, supervisory attorney-examiner, and senior panel attorney.

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He was tired. He just got out of jail a few weeks ago. Ten plus years in the United States. Multiple lawyers, hearings, consultations, all for nothing at that point. He had a dream during that faithful day at the airport in New York, somewhere around 2000, after a month long trip, the itinerary of which was deftly planned by some snakehead, one who instructed him to destroy his passport in the plane prior to landing, which he did.

At customs in the airport, as it was with every foreigner trying to enter the United States, he was inspected and questioned by an officer. He had nothing. Not his real passport, not a fake passport, not a card, no immigration document whatsoever, just as the snakehead instructed him.

A common occurrence in the mid to late nineties on to the turn of the century, he was a Chinese national who was paroled as an arriving alien. Through a myriad network of “travel agencies” and lawyers, he went through what a lot of Chinese individuals went through around that time. Some ended up with brilliant lawyers, eventually winning their asylum cases, leading them to permanent residency and eventual naturalization. The unfortunate some ended up with worse attorneys, who half-heartedly represented their clients with minimum effort and “formula” arguments. He said he fell into the latter group, and he lost his case, even with a BIA appeal filed after, the decision was still sustained. He had a final order of removal.

He moved around New York City, working from restaurant to restaurant, toiling day in and day out to make a living. He eventually met what would later on be his wife. They almost had the same path of coming to the United States, almost the same set of people encountered through this immigration maze, from her entry, to her counsels, to her hearings. Alas they had different results to their asylum cases, unlike her husband, she won.

They eventually got married in New York, and she eventually became a permanent resident, and they eventually had two wonderful kids, and they also moved out of New York City, away from it all, where they’d find peace in raising their kids, or so they thought. They moved to a small suburb of Cleveland in Northeast Ohio. They ran a Chinese restaurant, bringing with them the work ethic that they’ve always had. He still had a final order. As far as he knew he was simply running a reverse race against time. He thought nothing could be done. He had a final order, he thought, and that was it.

He consulted with our firm sometime after he was released from immigration detention on an order of supervision. Immigration knew about him anyway, might as well consult with an attorney even though as far as he was concerned, he was done.

I still remember that day, that hopeless submissive look, that tired recounting of his experience, probably told dozens of times with different people, all with the same conclusion – “There’s nothing we can do, you have a final order”. He did not know the terms. He did not know what an arriving alien was. He went through the basics, his entry, his A number, his denied asylum case, his marriage, his detention, his tiring past. He brought two bags of files, and was adamant in simply dumping all paperwork on our tables, as we sifted through what should be the most important parts of the file.

It didn’t take long, to his surprise. We saw the notice to appear. He was an arriving alien. He destroyed his passport in the plane according to the various documents in his file.

We informed him he can apply for and get his green card.

His reaction was not that of joy, nor excitement, nor of surprise. It was more of a yearning look, a few ticks from begging, more close to hoping. Hoping that this is not a hoax nor a false promise. We could tell he’s been through it all. We were not sure if he believed us due to his past experiences, but we knew he can get it. We could not read his face, a blank look, even a doubting look. So it was to our surprise that within ten minutes he decided to retain our firm for his green card application. To this day we had no idea why he decided to retain us. We still remember that blank look on his face after we told him it’s possible. He probably thought he had nothing to lose. Immigration knows him already. He was just detained recently. Might as well go for it. My last chance.

The whole crux of these cases stem from a complex and sometimes epic tale spanning ten or more years, but fall under a simple premise: Arriving aliens with an unexecuted order of removal who remain in the United States past their final order are eligible to adjust status based on marriage to a U.S. Citizen, and the USCIS has jurisdiction over these applications. He was an arriving alien. He had a final order of removal. He was married in good faith to a U.S. Citizen. No fraud. No criminal record. Case is possible.

It was the usual process on our end since then, preparing the applications and arguments, attaching immigration memorandums on arriving alien eligibility, preparing the client for his interview, and ultimately accompanying our client at his interview.

Finally, after over a decade of toiling in the United States, he received his green card around two weeks later.

It was only then that his reaction could finally be discerned, when that numb expression on his face flew out the door. Ten plus years in the United States, multiple hearings, lawyers, consultations, and finally, he was not tired anymore. He finally has his green card.

If you have any questions, please fill out the free consultation form below, and we will respond as soon as possible privately. 

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Introduction

People who could not afford to pay the filing fees for certain immigration paperwork can file a fee waiver request. The USCIS developed the new Form I-912, Request for Fee Waiver, in an effort to facilitate the fee-waiver request process. The form has been available to the public since November 23, 2010. Since the use of this form is not mandated by regulations, and was only implemented to actually help potential applicants, the USCIS will continue to consider applicant-generated fee-waiver requests.

Fee-waiver requests are reviewed by considering whether the applicant is receiving a mean-tested benefit, whether the applicant’s household income level renders him or her unable to pay, or whether recent financial hardship otherwise renders him or her unable to pay.

Specific Forms and Conditions

The USCIS may waive fees for the following more popular forms based on an inability to pay

• Biometrics services fee
• I-90, Application to Replace Permanent Resident Card
• I-751, Petition to Remove Conditions on Residence
• I-765, Application for Employment Authorization
• I-821, Application for Temporary Protected Status
• N-400, Application for Naturalization

For I-485 Adjustment of Status applications, the USCIS may waive a fee based on an inability to pay and subject to the conditions specified:

• An Afghan and Iraqi interpreter who has received a Special Immigrant Visa
• A “Registry” applicant filing under section 249 of the INA who has maintained continuous residence in the United States since before January 1, 1972; or
• An applicant who is exempt from the public charge grounds of inadmissibility under section 212(a)(4) of the INA, including but not limited to
  • Applications filed by asylees under section 209(b) of the INA;
  • Applications for Special Immigrant Juveniles
  • Applications under the Cuban Adjustment Act, the Haitian Refugee Immigration Fairness Act (HRIFA), and the Nicaraguan Adjustment and Central American Relief Act (NACARA), or similar provisions; and
  • Applications filed by Lautenberg Parolees

For I-601 Applications for Waiver of Grounds of Inadmissibility for an applicant who is exempt from the public charge grounds of inadmissibility of section 212(a)(4) of the INA.

Based on an inability to pay, the USCIS may waive any fees associated with the filing of any benefit requested by a VAWA self-petitioner or T-Visa applicant, U visa applicant, battered spouses of an A, G, E-3, or H non-immigrant, battered spouse or child of an LPR or USC, and TPS applicants. This would include filings not otherwise eligible for a fee waiver or eligible only for conditional fee waivers such as Forms I-212, I-485, I539, and I-601.

Steps and Criteria

1. Whether the request is submitted on Form I-912 or in the form of a written statement, the applicant may submit additional documentation to provide proof of his or her inability to pay
2. Is the individual receiving a means-tested benefit? A means tested benefit is a benefit where a person’s eligibility for the benefit, or the amount of the benefit, or both, are determined on the basis of the person’s income and resources, including those that may lawfully be deemed available to the person by the benefit-granting agency. The applicant should provide proof in the form of a letter, notice, or other official document containing the name of the agency granting the benefit.
3. Is the individual’s household income at or below 150% of the Federal Poverty Guidelines at the time of filing? Evidence of current employment , W-2 forms, income tax returns, and other documents evidencing income may be submitted.
4. Is the individual under financial hardship, due to extraordinary expenses or other circumstances that renders the individual unable to pay the fee? Unexpected medical bills is an example of this option.

Decision

After review of the fee-waiver request and supporting documentation, the fee-waiver approval or denial would be recorded in the receipt block of the underlying form for which the applicant is requesting a fee waiver. If it is denied, the applicant receives Form G-1054.

If you have any questions, please fill out the free consultation form below, and we will respond as soon as possible privately. 

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The U.S. Citizenship and Immigration Services (USCIS) announced that the Department of Homeland Security (DHS) will extend Temporary Protected Status (TPS) for eligible nationals of Somalia from the current expiration of March 17, 2011, through the new expiration date of Sept. 17, 2012. Under the extension, individuals who have been granted TPS are eligible to re-register and maintain their status for an additional 18 months. TPS does not apply to Somali nationals who first entered the United States after Sept. 4, 2001.

To maintain TPS status, Somali TPS beneficiaries must re-register during the re-registration period from Nov. 2, 2010, until Jan. 3, 2011. It is important to re-register as soon as the re-registration period opens to allow sufficient time for USCIS to complete all the routine background checks and application processing. USCIS will not accept applications from Somali TPS beneficiaries before Nov. 2, 2010.

If you have any questions, please fill out the free consultation form below, and we will respond as soon as possible privately. 

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In fiscal year 2010, U.S. Immigration and Customs Enforcement (ICE) removed more illegal aliens than in any other period in the history of the United States. ICE removed more than 392,000 illegal aliens. Half of these deported aliens, more than 195,000, were convicted of crimes, including murder, sex offenses and drug violations.

DHS Secretary Janet Napolitano said that the federal government has changed their approach to immigration enforcement since the beginning of the Obama administration. Part of this approach includes implementing the ICE-led program, Secure Communities. The program is a partnership between ICE and state and local law enforcement agencies that uses biometric technology to identify aliens who have been booked into state and local jails. Once identified, these criminal aliens are processed for removal rather than released back into communities.

ICE’s worksite enforcement numbers also climbed to historic high numbers in FY 2010, with more audits of businesses than ever before, as well as increases in prosecutions of employers who repeatedly and egregiously hire illegal workers.

If you have any questions, please fill out the free consultation form below, and we will respond as soon as possible privately. 

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A new BIA case came out which should clear out some confusion on whether spouses of grandfathered relatives are protected under 245(i). They’re not. The Board held in Matter of Legaspi that an alien is not independently grandfathered for purposes of adjustment of status under section 245(i), by virtue of marriage to another alien who is grandfathered as the result of having been a derivative beneficiary of a visa petition.

A simple example is as follows: A petitioned his son B back in 1997. B’s son, C, is a derivative beneficiary of A’s petition to B, and is thus grandfathered under 245(i). C’s wife under this BIA case is not independently grandfathered under this petition and is thus not protected under 245(i).

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