Category Archives: Admission to the United States

Immigration law developments: I-601 Unlawful Presence Waiver New Procedure

The US Citizenship & Immigration Service recently published a Notice of Intent for proposed rulemaking in the Federal Register.  It outlines the agency’s plan to transfer the adjudication of certain I-601 waiver applications from USCIS overseas to stateside processing.  This adjudication would take place before the proposed immigrant leaves for consular processing, thus eliminating the waiting time abroad and the uncertainty of the adjudication outcome.  Those applicants whose waiver is provisionally approved could then continue with immigrant visa processing at theU.S. consulate abroad; those who are denied would likely choose to abandon the process. The proposed pre-adjudication procedure is not in effect yet and will likely not go into effect for several months. Officials within the USCIS are hopeful that a final regulation implementing the change will be in effect before the end of this year.

1. The pre-adjudication policy will apply only to immediate relatives, i.e., spouses, parents, and unmarried children under 21 ofU.S.citizens. Those in the preference categories (spouses and children of permanent residents; married children or children over 21 ofU.S.citizens; and siblings ofU.S.citizens) are not covered and continue to be subject to the current waiver filing requirements. In other words, they will file their I-601 waiver after being formally refused an immigrant visa by a consular official and that waiver will be adjudicated by an overseas USCIS office. It is unclear at this time whether the agency is likely to, or could be convinced by the submission of comments; expand this to cover all family preference categories and/or waivers for other grounds of inadmissibility. This proposed change will also have limited applicability to parents ofU.S.citizens over 21, since they will likely lack the qualifying relative.

2. The pre-adjudication procedure will apply only to immediate relatives who are filing an I-601 application to waive the unlawful presence ground of inadmissibility that would be triggered by the immigrant visa applicant’s departure for the consular interview. Those who are subject to inadmissibility based on other grounds, such as fraud, health, or criminal conduct, will be subject to the current waiver filing requirements. It is also important to remember that family members who have triggered the “permanent bar” under INA § 212(a)(9)(C), based on more than one year of unlawful presence followed by a departure and illegal reentry, cannot file a waiver until they have departed and spent 10 years outside the United States.

3. The waiver would be filed after the I-130 petition is approved and the case file has been forwarded to theNationalVisaCenter, which controls consular processing. The immigrant visa applicant would likely file the waiver at a designatedUSCISServiceCenterand pay the filing fee (currently $585). All waiver applicants will be screened through existing databases based on their names and biometrics to see if they are subject to other grounds of inadmissibility.

4. If the waiver is granted by theUSCISServiceCenter, it will be on a provisional basis. This means that the consulate reserves the right to question the immigrant visa applicant, review current data bases, and investigate for any other possible grounds of inadmissibility that were not previously identified. But it is anticipated that denial of an immigrant visa after the waiver has been provisionally granted would be rare.

5. If the waiver is denied by theUSCISServiceCenter, the applicant will be subject to the current USCIS policy on issuance of a Notice to Appear, which commences removal proceedings. According to the November 7, 2011 USCIS memo titled “Revised Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Removable Aliens,” the USCIS will issue NTA’s when there is a finding of fraud in the record. The memo does not indicate if the nature of the fraud will be considered, but simply states upon a finding of fraud, an NTA will be issued. In addition, an NTA will be issued if the applicant is under investigation for, has been arrested for, or has been convicted of an “egregious public safety” crime. These include aggravated felonies, such as murder, rape, sexual abuse of a minor, firearms trafficking, crimes of violence for which a term of imprisonment for a year or more has been imposed, ransom, child pornography, alien smuggling, or offenses relating to peonage or slavery. In addition, NTAs will be issued to human rights violators and those where the alien reentered theUnited   Statesafter an order of removal subsequent to a conviction for a felony where an I-212 has not been approved.

In the case of non-egregious public safety criminal cases, the USCIS will complete adjudication of the waiver and refer the case to Immigration and Custom Enforcement (ICE). ICE will then decide whether or not to issue an NTA. It will make its decision based on the “totality of the circumstances” and existing priorities and guidelines on the exercise of prosecutorial discretion. The totality of the circumstances includes factors such as the severity of the crime, time since the crime was committed, additional criminal conduct, evidence of rehabilitation, immigration history, length of presence in theUnited   States, and contributions to society. The USCIS will not issue an NTA if ICE declines to do so.

Therefore, in the routine case involving an applicant with no serious criminal conduct, if the waiver for unlawful presence is denied, the applicant will not be put into immigration proceedings. However, practitioners will need to screen their clients well to determine if they are subject to any other grounds of inadmissibility, including prior orders of deportation.

6. The proposed change does not affect current requirements for eligibility for the waiver of unlawful presence, nor does it modify the standard of extreme hardship to aU.S.citizen or LPR spouse or parent. Those applicants who are provisionally approved would still have to consular process if they are not otherwise eligible for adjustment of status. The proposed change would not affect pending waiver applications. In other words, those who have left the country and are waiting abroad for their waiver to be approved by the USCIS will be subject to the current procedure. This change, however, will likely discourage those immediate relatives who are in the consular process pipeline and will be scheduled for an immigrant visa soon from proceeding abroad if they would be eligible for this pre-adjudication process.

Evita Tolu

Stientjes & Tolu LLC

9378 Olive Blvd. Ste. 307

St. Louis, MO 63132

 

 

Can a US citizen spouse legalize an undocumented spouse in the US?

This post I receive from a blog reader today.  A US citizen asked me whether she can get a green card for her husband based on their marriage.  Her husband crossed the US border without being admitted sometime in 2003.  Now that they are married the client wants to legalize her husband. 

Based on your facts it appears that your husband is not eligible for legalization under INA Section 245(i) which allows certain immigrants present in the United States on April 21, 2001 with pending employment or family based petition to petition for adjustment of status while in the United States.  Based on the current law, your husband needs to process his documents through United States Embassy in Mexico.  He needs to seek a waiver for illegal entry and unlawful presence in United States.  Once he leaves for Mexico he will be subject to a ten year bar.  As a petitioner and his United States citizen spouse you will need to show that you are suffering extreme hardship because your husband is not in the United States. Although Form I0-601 is deceptively easy, preparation of the documents in support of the waiver is usually time consuming, document intensive and definitely requires expertise of an immigration lawyer. 

Evita Tolu, Esq.
Stientjes & Tolu LLC

9378 Olive Blvd., Ste. 325

St. Louis, MO 63132

 (314) 872-3988 telephone-general number
(314) 872-9556 facsimile

www.toluimmigration.com

evitatolu@yahoo.com

I have a green card and recently was arrested for shoplifting, will I be deported?

The answer to your question will depend on several things. First, it is important to review the statute under which you were charged. For example,crimes of larceny involve moral turpitude. On the other hand, the Board of Immigration Appeals has held that crimes of theft involve moral turpitude only when a permanent taking is intended. Therefore, it is very important to examine the statute or ordinance under which you were charged to determine the nature of the offense and the elements of the criminal statute.

Second, the general rule is that a lawful permanent resident alien who is convicted of a crime involving moral turpitude within five years of admission is deportable only if he or she is convicted of a crime for which a sentence of one year or longer may be imposed.

If the statute does not prescribe a sentence of one year or longer and you have been a lawful permanent resident for five years, the shoplifting conviction will not jeopardize your green card renewal.

Third, generally (not always) retail theft under a certain amount falls within a petty offense exception. The petty offense exception states that an individual will not be deemed inadmissible for one crime involving moral turpitude if the maximum penalty for the offense does not exceed imprisonment for one year, and if convicted of the crime, the individual was not sentenced to a term of imprisonment of more than six months. Therefore, it is important to review the penalty section of the charging statute or ordinance to determine whether the violation falls within the petty offense exception.

Finally, you should hire an experienced criminal/immigration lawyer to help you out with charges. Avoid pleas to theft or intent based crimes. Request your attorney to ask for substitution of your charges with an entirely different sort of offense if possible.

We routinely represent alien defendants in criminal matters. You can contact our office to discuss your case or ask for our opinion on immigration consequences of your criminal convictions. We often work with criminal attorneys nation-wide advising them during plea negotiations.

This information is general in nature and does not address specifics of your case. The specifics of your case should be discussed with your immigration attorney before any filings are submitted to the USCIS. This information does not create an attorney-client relationship.

Evita Tolu – Immigration Attorney
Stientjes & Tolu LLC
9378 Olive Blvd., Ste. 325
St. Louis, MO 63132

314-872-3988 telephone
314-872-9556 fax

evitatolu@yahoo.com

www.greencardadvocate.com
www.toluimmigration.com

COULD PARTNERING IN MY BUSINESS HELP MY FRIEND IMMIGRATE?

Immigration Attorney’s Advice:
I have a friend from overseas who is willing to be a partner or financial backer of a business we’re going to open, but he doesn’t have a green card. Could his participation in our business help him get one?

ANSWER:

If your friend has a million dollars, he may be in luck. The law requires most people to invest that much to qualify as immigrant entrepreneurs.

There are, however, some variations on the million dollar theme. The initial investment can be as little as $500,000 if the business is in a depressed locale. On the other hand, the immigration authorities can require the investment to be as much as $3 million if it’s in a ritzy place.

To qualify as an immigrant entrepreneur, your friend would also have to take an active role in the business, and the business would need to employ at least ten full-time workers. (Meeting these standards can be difficult, leading to the denial of many investors’ green card applications.)

There are other, more general immigration requirements to meet as well. For example, green card applicants must have a record scot-free of serious criminal convictions and must make it through various medical and security checks.

If it sounds as if your friend might qualify, consider it a wise business investment to pay an experienced immigration attorney to process the application or to recommend alternate strategies. Legal advice is definitely in order if your friend is currently living in the United States without documents.

Evita Tolu, Immigration Attorney
Stientjes & Tolu LLC – Immigration Law Firm
9378 Olive Blvd., Ste. 325
St. Louis, MO 63132
314-872-3988 telephone
314-872-9556 fax
evitatolu@yahoo.com
www.toluimmigration.com

© 2009 Nolo

SPONSORING A FIANCE OR SPOUSE FOR A GREEN CARD

Immigration Attorney Evita Tolu says planning your immigration strategy is as important as planning your wedding.

If you are a U.S. citizen or permanent resident, and you are engaged or already married to a citizen of another country, that person may be eligible for a green card. However, many people believe, wrongly, that they can just bring their fiancé or spouse to the United States and the immigrant will be given an instant green card or even U.S. citizenship — a belief that has led to sad cases of people being sent right home again.

Your fiancé or spouse will have to go through a multi-step application process. It’s your job to start the process, by submitting either a fiancé visa petition (only available if you’re a U.S. citizen, but can be used whether you are already married or just engaged) or an immigrant visa petition. Your fiancé or spouse can’t enter the U.S. until both the petition and subsequent applications have been approved.

Note: If you’re not yet a U.S. citizen, but have U.S. permanent residence (a “green card”), you cannot bring your fiancé to the United States until you’re married — and even then, you can bring your spouse only after he or she spends some years on a waiting list.

No matter what, be prepared for a long wait. Every type of visa application involves several stages, including application forms, a medical examination, fingerprinting, and various approvals.

Don’t misuse a tourist visa or other temporary visa. If the immigrant used a tourist or other visa to get to the U.S. for the primary purpose of getting married or applying for a green card, see an attorney. The immigrant could be found liable for visa fraud, and denied the green card as a result.

Eligibility for Various Visas
The requirements for the fiancé visa and the marriage visa are different.

Fiancé Visas
To qualify for a fiancé visa, the immigrant must:

intend to marry a U.S. citizen
have met the citizen in person within the last two years, and
be legally able to marry.
Also, the immigrant must be coming from another country — a fiancé visa won’t be given to someone who is already in the United States.

As part of the fiancé visa application process, you’ll have to prove your intention to marry, by providing documents such as copies of your love letters, phone bills, and wedding ceremony contracts. You’ll also have to prove that you’ve met within the last two years, by submitting copies of plane tickets, hotel bills, and more.

This meeting requirement causes problems for many couples. If you simply can’t afford to meet, the immigration authorities will say, “Tough luck.” If, however, you haven’t met because of proven cultural customs or extreme hardship to the U.S. citizen spouse, they may be willing to lift the meeting requirement in for you.

Marriage-Based Visas (Green Cards)
To be eligible for an immigrant visa, or green card, based on marriage, the immigrant must be:

legally married (it doesn’t matter in what country) to a U.S. citizen or permanent resident
not married to someone else at the same time, and
not married to someone who has another wife or husband.
Also, the marriage must be the real thing, not just a sham to get a green card.

Within the application process, you’ll have to prove all of the above things. Legal marriage is usually the easiest to prove, by simply providing a copy of your marriage certificate — though people who get married outside the United States sometimes have a little trouble, because USCIS usually demands that the certificate come from a government office, rather than a church, a ship’s captain, or other nongovernmental place.

To show that the marriage is the real thing, you’ll have to provide copies of documents such as joint bank statements, children’s birth certificates, photos of the wedding and afterwards, love letters, and more.

Inadmissibility
To qualify for any type of visa, every immigrant must show that he or she is not “inadmissible” (for instance, has a long criminal record or a communicable disease like tuberculosis).

Overview of Application Process
How and where the immigrant applies for a green card depends on a number of factors, including who he or she is marrying, where the immigrant is now, and, if he or she is in the United States, whether he or she got there legally. For details on these matters, and help completing the application forms, assembling the appropriate documents, and having a successful interview, see http://www.toluimmigration.com.

Evita Tolu, Immigration Attorney
Stientjes & Tolu LLC – Immigration Law Firm
9378 Olive Blvd., Ste. 325
St. Louis, MO 63132
314-872-3988 telephone
evitatolu@yahoo.com

© 2009 Nolo

U.S. Immigration Attorney: Top Ten Tips for Avoiding Trouble

Immigration Attorney advice to keep your status secure and your visa and green card applications moving along smoothly by following these immigration tips.

1. Plan for delays. If you are in the United States and your work permit or status needs to be renewed, realize that U.S. Citizenship and Immigration Services (USCIS, formerly called the INS) is extremely backed up. Cope by turning in your application far in advance. This is particularly important if your legal status has an expiration date on it. If you fall out of status, the immigration authorities could arrest you.

2. Consider U.S. citizenship. If you have a green card, file for U.S. citizenship as soon as legally possible. This will not only protect you from deportation, but will also help you get a more secure status for your close family members. Most people have to wait five years after their green card approval before applying, but some people can apply sooner. For more information, see the USCIS website at www.uscis.gov.

3. Avoid summary removal. When arriving in the U.S. from overseas, be ready to convince the border official that you deserve your entry visa. These officials have a lot of power and they can send you back if they think you are a security risk or that you lied in order to get the visa. Tourists should be careful not to pack anything that looks like they’re planning a permanent stay, such as a résumé or a wedding dress.

4.Notify USCIS of address changes. If you’re spending more than 30 days in the U.S., you must notify USCIS of your changes of address, within ten days. You and every member of your family must send separate notifications. You can do so either by mailing in Form AR-11 (available on the USCIS website), or better yet, through USCIS’s online change of address service. Also, be sure to send written word of your new address to every USCIS office that’s handling an application of yours — otherwise, the office might not hear of the change.

5. File multiple visa petitions. If you plan to get a green card through a family member, see if more than one member of your family is eligible to submit the visa petition for you. For example, a brother and a sister who are U.S. citizens could both file for you, as could a U.S. citizen spouse or parent. That way if the waiting list in one category gets especially long, or if one person dies, you’ll have another option.

6. Don’t be late. Be extremely careful to arrive on time for any scheduled appointment with the USCIS, a U.S. embassy or consulate, or the U.S. immigration court. Arriving late — or not at all — can result in months of delays at best, and deportation from the U.S. at worst.

7. Avoid visa violations. Make sure you understand the fine print surrounding your visa, work permit, or green card, and follow the rules carefully. Violating even minor terms of your visa or green card — for example, working while you’re here as a tourist or helping to smuggle a family member over the border — can result in your visa being canceled or you being deported.

8. Copy and track paperwork. USCIS is famous for losing paperwork. Send all applications and other material by certified mail, with a return receipt, and keep a copy. They’re not only your proof of filing, but may become the main copies in the USCIS files if the original is never found.

9. Do your research. Be careful who you accept advice from. Rumors and friends can’t be relied on — everyone’s legal situation is different. Even USCIS employees sometimes give out wrong advice, for which you pay the consequences. Do your own research where possible, and if necessary take your unanswered questions to an immigration attorney or accredited representative whose reputation you’ve checked out.

10. Get help from above. If nothing else is working, contact your U.S. congressperson. They can usually make an inquiry for you, which often encourages the USCIS or consulate into taking appropriate action.

Evita Tolu, Immigration Attorney
Stientjes & Tolu LLC – Immigration Law Firm
9378 Olive Blvd., Ste. 325
St. Louis, MO 63132
314-872-3988 telephone

© 2009 Nolo

Entering the U.S.: What to Expect at the Airport or Border

Entering the U.S. may not be easy, even when you have a valid visa in hand says Evita Tolu, a Missouri Immigration Attorney.

The first person you meet on arrival in the United States — whether you come by air, land, or sea — will be an officer of Customs and Border Protection, or CBP. The officer will inspect your passport and documents, looking for verification that you’ve been given permission to enter the U.S., as well as any information that might prevent you from doing so. Have all your visa paperwork ready.

CBP officers are trained to be skeptical. Security is their first concern, and you may encounter delays as your name is checked against various computer databases. The officers are also on the lookout for people who might be using a tourist or nonimmigrant visa to gain entry to the United States for a permanent stay. Even if your visa and intentions are valid, if the officer finds a problem or believes you’re lying, you can be refused entry at the border, returned to your home country, and prohibited from returning for five years.

Be Prepared for Questions
Here are the most likely questions you’ll have to answer. However, the officer is free to ask you just about any question. You’ll increase your chances of being treated with respect by remaining polite and calm.

Why are you visiting the United States? Your answer must match your visa. If, for example, you have a visitor visa but say that you’re coming to find a job, you’ll be put on the next flight or bus home. Your answer must also show that you don’t plan to violate any U.S. laws.

Where will you be staying? The officer wants to know that you have clear plans for what you will be doing in the United States. If you have no previously arranged places to stay, the officer might question whether you should be allowed in.

Who will you be visiting? Again, the officer is looking to see that you have clear — and legal — plans.

How long will you be staying? The officer wants to know that you don’t plan to stay longer than you should. Even if your visa says “multiple entry” or “one year,” you may not be allowed to remain for that length of time — the little I-94 card you’re given by the officer will tell you the date by which you must leave.

How much money are you bringing? The officer wants to know that you will be able to cover your expenses in the United States.

Have you visited the United States before, and if so, did you remain longer than you were supposed to? If you have previously stayed in the United States for six months longer than you were allowed, you are not eligible to come to the United States again without special permission (unless you’ve waited outside the United States for at least three years). If your overstay lasted a full year, you’re expected to remain outside the U.S. for ten years before trying to return.

How often do you come to the United States? The officer is looking to see whether you are using nonimmigrant visas as a way of living in the United States — in which case you’ll be accused of misusing your visa and be denied entry.

Know Your (Lack of) Rights
Foreign nationals attempting to come to the United States, either temporarily or permanently, have very few rights during the application and screening process. You cannot have a lawyer represent you when you attempt to enter the U.S., nor are you allowed to call one if problems occur during your interrogation. Your bags can be searched without your permission, and CBP officials can ask you almost any question.

Only in rare cases, such as if you feared persecution in your home country, will you be allowed to appear before an immigration judge to prove that you should be allowed into the United States.

Be Prepared for a Luggage Search
The border official may also check your suitcases and personal possessions, so:

Make sure nothing that you bring appears to contradict your visa status. If you are coming as a tourist, don’t bring along a book on how to immigrate to the United States or a stack of résumés. You might have these things simply because you have future plans to apply for immigration, but the CBP won’t see it that way.

Do not bring illegal or questionable items. It may be legal in your country to carry a firearm (a gun), but it is not legal to bring it into the United States — and if you have one in your luggage, it could lead to your immediate removal. Make sure you are not carrying other illegal or questionable items, such as illegal drugs, pornography, or plants, fruits, and animals of types or species that are not allowed into the United States.

Evita Tolu, Immigration Attorney
Stientjes & Tolu LLC – Immigration Law Firm9378 Olive Blvd., Ste. 325
St. Louis, MO 63132
314-872-3988 telephone

© 2009 Nolo