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.

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 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.”

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 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.

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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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.

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 J-1 visa is a non-immigrant visa issued by the U.S. government to exchange visitors participating in programs that promote cultural exchange, especially to obtain medical, certain level of academic (mostly Post-Doctorate Program) or business training within the U.S.  All applicants must meet the eligibility criteria and be sponsored either by a private sector or government program. Recently, the number of J-1 visa issuances has rapidly increased.  However, most of the J-1 visa holders are subject to the Two-Year Foreign Residence Requirement. Under INA Section 212(e), this requirement is one of the grounds of inadmissibility. Nevertheless, this mandatory two-year home residence requirement can be waived by the following waivers:

• No Objection Statement (NOS) Waiver
• Exceptional Hardship / Persecution Waiver
• Interested Government Agency Waiver

This article will only discuss the No Objection Statement Waiver.  We will explain and discuss other types of waivers in later blog articles.

What is the “Two-Year Home Residence Requirement?”

Before we discuss it further, if your J-1 visa and DS-2019 states that you are not subject to this requirement under the INA Section 212(e), then you do not need to worry about this waiver at all.  In case you are not sure whether you are subject to the 2-year requirement, you can file an advisory opinion request to the Department of State.  However, certain classes of J-1 “Exchange Visitors” require that the alien return to his/her home country or country of last permanent residence for a period of two (2) years upon completion of their J-1 status. The alien must spend the two-year period in country he/she resided in at the time he/she received the J-1 visa. Such classes include:

• Individuals who have obtained their J-1 status through programs financed either in whole or in part by the U.S. government or individual’s home country government;
• Individuals whose home country is in short supply of people with the individuals’ skill sets; and
• Individuals who have received medical training within the U.S. as interns or residents.

Until this two-year residency requirement has been completed the alien will not be eligible for H or L status and cannot adjust to permanent resident status in any circumstance without getting a waiver.  Moreover, a J-1 visa holder who is subject to the requirement cannot change his or her status to other non-immigrant visas in the United States by filing I-539 (change of status).  Alternatively, an alien may obtain a new status without returning to the home country by seeking such visas in a U.S. consulate in a foreign country such as Canada or Mexico. However, this process may take more time, and the rate of approval is highly dependent on the consular office.

Step-by-Step Guide: No Objection Statement Waiver

The J-1 Visa Holder’s home country government should issue a No Objection Statement (NOS) to the Waiver Review Division stating that it has no objection to the J-1 Visa holder not returning to the home country to satisfy the two-year foreign residence requirement. The NOS may also be issued by a designated ministry of the J-1 visa holder’s home government and forwarded to the U.S. Chief of Mission, Consular Section, within that country to be forwarded directly to the Waiver Review Division.

Hence, in order to obtain a NOS, you should contact the consular section of your home country’s embassy.  Depending on your nationality, your home country’s Embassy’s website may tell you what kind of documents you need to submit to them.  Also, it is very IMPORTANT to note that every country has different policies with regard to NOS.  For example, certain Embassies request extensive documentation for the NOS process.  In contrast, certain Embassies only request a simple one-page request from the applicant.

To start applying for a NOS waiver, you need to go to the Department of State website and fill out the Online J Visa Waiver Recommendation Application (Form DS-3035).  Upon completing the Form DS-3035 online, your information will be downloaded into a barcode and you will be issued a waiver case file number and further instructions.  Once you have completed this online form, you must print and mail in your DS-3035 Application with barcode, and payment ($215) to the Department of State.

Then, you need to submit all requested documents to the embassy to request a no objection statement.  As mentioned above, every country’s Embassy maintains different procedures and policies with regard to the J-1 No Objection Waiver. Contact the Embassy and ask what types of documents you need to submit along with your application together with the third party bar code page.

Once you submit the requested documents to the Embassy, they will process your waiver application and will determine whether they will issue a No Objection Statement.  If NOS is issued by your Embassy, then the Embassy will forward your documents to the Waiver Review Division.  The Waiver Review Division will forward its recommendation directly to the USCIS.  You will receive a copy of that recommendation at the address you listed on your Form DS-3035 or the most current address we have for you if you reported a change of address.  Please note that the USCIS will the final determination on your waiver request.  USCIS will notify you directly, whether your waiver application is denied or approved.

If you have any questions, do not hesitate to contact our firm. The Sarmiento Immigration Law Firm has extensive experience with the J-1 visa waiver process for various clients from different countries.  We have handled various Hardship waivers, No Objection Statement waivers and Interested Government Agency waivers for them.

Prepared by

Sung Hee (Glen) Yu, Esq.

Associate Attorney

Sarmiento Immigration Law Firm

1.216.573.3712

glen@sarmientoimmigration.com

dev.sarmientoimmigration.com

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The US Citizenship and Immigration Services (USCIS) announced on September 23, 2010 the final rule adjusting fees for immigration applications and petitions. The final rule will increase overall fees by a weighted average of about 10 percent but will not increase the fee for the naturalization applications. The rule will also reduce fees for six individual applications and petitions and will expand the availability of fee waivers to new categories. The adjusted fees will go into effect on November 23, 2010.

Below are the increased fee schedule for some commonly used immigration applications and petitions:

• I-130 Petition for Alien Relative: $355 to $420
• I-485 Applicant to Register Permanent Residence or Adjust Status: $930 to $985 (Biometrics fee not included). The current I-485 filing fee $1,010 amount includes $930 and biometrics fee $80. The adjusted filing fee will be $985 plus $85 biometrics fee which becomes $1,070.
• I-140 Immigration Petition for Alien Worker: $475 to $580
• I-907 premium processing service: $1000 to $1225
• I-129 Petition for a Non-Immigrant Worker: $320 to $325
• I-765 Application for Employment Authorization: $340 to $380

USCIS also reduced filing fees for six individual applications and petitions, including:

• I-129F Petition for Alien Fiance: $455 to $340
• I-539 Application to Extend/Change Nonimmigrant Status: $300 to $290 and
• I-698 Application to Adjust Status from Temporary to Permanent Resident: $ $1,370 to $1,020.

The adjusted fees will go into effect on November 23, 2010. Applications or petitions mailed, postmarked, or otherwise filed on or after November 23, 2010 must include the new fee. Applications filed with inappropriate filing on and after such date will not be considered properly filed and may be rejected.

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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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Recent decision from the BIA – Matter of Alania. Respondent is from Peru. He entered the U.S. in 96 on a temporary visa, overstayed, and engaged in unauthorized employment. A labor certification was filed for him before April 30, 2001 and was approved. An I-140 Petition was then filed for him which was also approved on December 21, 2006. Section 245i allows him to adjust status based on an employment petition despite his overstay and unauthorized employment because he is the beneficiary of a labor certification filed on or before April 30, 2001 and he was physically present in the U.S. on December 21, 2000. However, the Immigration Judge denied his application for adjustment of status because he engaged in unauthorized employment. On appeal, the Board of Immigration Appeals held that a respondent who is otherwise eligible to adjust status under INA section 245(i) is not subject to the unauthorized employment restrictions of sections 245(c). The provisions of section 245(k) regarding unauthorized employment are not applicable to section 245(i) adjustment applications.  The alien is thus eligible to adjust the permanent resident status. The case was remanded to the Immigration Judge for the continuation of proceedings consistent with the Board’s decision.

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