On June 23, 2011, the Board of Immigration Appeals (BIA) concluded that the derivative child of a finacee visa holder is not ineligible for adjustment of status simply by virtue of having turned 21 after admission to the United States on a K-2 visa.

In Matter of Le, the respondent came to the U.S. with his mother, who became engaged to a U.S. citizen. The K visa petition was approved for the respondent’s mother and respondent, and they subsequently applied for adjustment of status in the United States.  Respondent was 19 years old when he filed his adjustment application.  Eventually, his mother’s adjustment application was approved, however, respondent’s application was denied since he had already reached the age of 18 at the time of his mother’s marriage.  He was therefore determined to be ineligible to adjust status.

The issue was whether a fiancé derivative child who accompanied or followed to join his alien fiancé parent to the United States remains eligible to adjust status, if after satisfying the other statutory requirements, he attains the age of 18 or 21.  The BIA conclude that to adjust based on a K-2 visa, an alien derivative child must establish that he or she was under 21 years of age at the time of admission to the United States.  In this case, the Respondent was 19 years old at the time of admission to the United States, thus, he was allowed to renew his application for adjustment of status.

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According to 8 C.F.R 1.1, the term arriving alien means “an applicant for admission coming or attempting to come into the United States at a port-of-entry, or an alien seeking transit through the United States at a port-of-entry, or an alien interdicted in international or United States waters and brought into the United States by any means, whether or not to a designated port-of-entry. An arriving alien remains an arriving alien even if paroled pursuant to section 212(d)(5) of the Act, and even after any such parole is terminated or revoked.”  Under the current regulations, the USCIS can adjudicate an adjustment of status application of a parolee with a final order. Under the amended jurisdictional provisions of the interim regulations, USCIS has been given jurisdiction over the adjustment applications of all arriving aliens regardless of whether they are in removal proceedings, with a limited exception for certain advance parolees not relevant to this practice advisory. Specifically, the amended regulations grant USCIS “jurisdiction to adjudicate an application for adjustment of status filed by any alien, unless the immigration judge has jurisdiction to adjudicate the application under 8 C.F.R. § 1245.2(a)(1).” 8 C.F.R. § 245.2(a)(1). The regulations strip an immigration judge of jurisdiction over the adjustment application of an “arriving alien” in proceedings. 8 C.F.R. § 1245.2(a)(1). Consequently, since the immigration judge does not have jurisdiction over such applications, USCIS does, in accord with this regulation. See also 92 Fed. Reg. at 27587 (explaining that one purpose of the amendments to the regulations is to make clear that USCIS has jurisdiction over the adjustment applications of “arriving aliens” in proceedings).

The main issue in Freire case is whether the BIA abused its discretion in denying Freire’s Motion for Remand or Continuance while he sought adjustment of status before the USCIS.  The Second Circuit held that although IJs and the BIA do not have jurisdiction to adjudicate most arriving aliens’ applications for adjustment of status, it does not prevent IJs or the BIA from adjudicating motions for continuance in removal proceedings over which they already have jurisdiction. Though the Second Circuit finds no reason why the request was not granted, it remanded the case to the BIA to at least provide adequate reasons for their refusal. The Second Circuit vacated the decision, and the case is remanded to the BIA.

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The Adam Walsh Child Protection and Safety Act is a federal statute that was signed into law by President George W. Bush on July 27, 2006 to protect children from sexual exploitation and violent crime and to prevent child abuse and child pornography.  Section 402 of the Adam Walsh Act amends section 204 of the INA to prohibit U.S. citizens and lawful permanent resident aliens who have been convicted of any “specified offense against a minor” from filing a family-based immigration petition on behalf of any beneficiary, unless the Secretary of Homeland Security determines in his sole and unreviewable discretion that the petitioner poses no risk to the beneficiary.  The “specific offense against a minor” includes the following:

• An offense (unless committed by a parent or guardian) involving kidnapping;

• An offense (unless committed by a parent or guardian) involving false imprisonment;

• Solicitation to engage in sexual conduct;

• Use in a sexual performance;

• Solicitation to practice prostitution;

• Video voyeurism as described in section 1801 of Title 18, United States Code;

• Possession, production, or distribution of child pornography;

• Criminal sexual conduct involving a minor, or the use of the Internet to facilitate or attempt such conduct; or

• Any conduct that by its nature is a sex offense against a minor.

If a person is subject to the act, he or she must demonstrate to the USCIS that there is no risk to the beneficiary.  Also, this Act removes spouses or fiancés of U.S. citizens convicted of those offenses above from eligibility for the “K” non-immigrant status.

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On April 19, 2011, President Obama hosted a White House Meeting with 70 national leaders—including Mayor Bloomberg, former Governor Arnold Schwarzenegger, among others—to discuss the challenge of fixing our broken immigration system.

According to the press, the President expressed disappointment over Congress’s failure to produce comprehensive immigration reform (CIR), or even components of CIR like the DREAM Act, and enumerated the many problems resulting from our broken system—families torn apart, shipping talent overseas, wage equity and work eligibility issues, etc. In the same meeting, the President also stated that the “Administration continues to improve our legal immigration system, secure our borders, and enhance our immigration enforcement so that it is more effectively and sensibly focusing on criminals.” Many reports, however, argue that administrative reforms thus far have not been ambitious enough, or as effective as the White House claims.

Moreover, the President seems to be pinning all future immigration relief on Congressional action—stating that “the only way to fix what’s broken about our immigration system is through legislative action in Congress.”

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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.

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The May 2011 Visa Bulletin is out and below are some notes on specific movements this month:

• The F-2A (Spouse of Legal Permanent Resident) preference cut-off date for all of countries shows forward movement.
• The F-3 preference (Married sons and daughters of U.S. citizen) cut-off date for all of countries shows forward movement.
• All of family sponsored immigration preferences for the Philippines advanced.
• The EB-2 cut-off date for India advanced to July 1, 2006. According to the April 2011 visa bulletin, the EB-2 cut-off date for India was May 8, 2006.  This forward movement is the first advancement in this category for fiscal year 2011.
• The EB-3 cut-off date for all countries advanced by two weeks to a month.

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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.

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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.

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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.

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On March 17, 2011, the BIA in the interim decision Matter of Sesay, 25 I&N Dec. 431 (BIA 2011), addressed the issue of whether an alien who entered the United States on a non-immigrant K-1 fiance visa and met the condition of timely marrying the petitioning spouse remains eligible to adjust status even when the marriage has ended. The Board held that a fiancé visa holder may be granted adjustment of status under sections 245(a) and (d) of the act, even if the marriage to the fiancé visa petitioner does not exist at the time the adjustment of status is adjudicated, if the applicant can demonstrate that he or she entered into a bona fide marriage within the 90-day period to the fiancé visa petitioner.

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