It never fails. Whenever a new immigration provision is presented to Congress for consideration, or is proposed by the President or some other official in the Executive Branch, the media takes the ball and runs with it. It’s either presented as something it is not, or simply misunderstood to be something it’s not. Either way, the US audience, ranging from the general American John Q. Public demographic to the vulnerable 12 million undocumented demographic, gets excited, in different ways, and for different reasons. Notably, this provision will impact only limited number of prospective applicants, applicants who are ineligible to “adjust” status/ undergo all permanent residence processing in the U.S. and who are willing to visit a U.S. consular post in their home country for their “green card” interview.

The latest news has to do with an Obama administration initiative for processing “waivers of inadmissibility” and it proposes to streamline processing of certain applicants for permanent residence who under current law, must leave the US for an extended period for their final green card/ interview, and appear before a US consular officer in their home country. Instead of facing a 3 months or so wait to receive a decision on their waiver application while outside the US, the new proposal will allow for a wait as little as a few days outside the US, since the 3 months of processing is now being proposed to take place before the applicant’s departure.

And what is being decided in this period is an “I-601 waiver” application to excuse, or “waive”, the individual’s previous period of unlawful presence in the U.S. and consequent 3 or 10 year bars to reentry, where cases are approved only if the applicant can demonstrate that his denied reentry will pose extreme hardship for his U.S. citizen or permanent resident spouse or parent. Of course, there’s no guarantee all applicants for a waiver will be approved under this proposed program, but this new procedure will no doubt be of great comfort to families by letting them know ahead of time if the main obstacle (3 year bar) to their loved one’s reentry has been removed – and repeat, before the applicant leaves the US for their interview in their home country. Thus, if the applicant’s waiver application is denied, that decision will be known before any trip outside the US takes place. The applicant will then know there is no reason for the applicant to appear for their interview before a US consular officer in their home country, since he will know he will indeed be subject to a bar to reentry that has NOT been waived.

Again, this new provision is only at the proposal stage, and a final, working rule has yet to be implemented. In the meantime, no waiver filings will be decided in the US as proposed above. If implemented though, the rule will not impact applicants currently outside the U.S., who will continue to be subject to ordinary processing procedures now in place. Further, since this processing change is being presented as an act of Executive/Administrative “rulemaking” and not legislation, there is no need for congressional approval. All developments regarding implementation of this provision will continue to be reported on here.

PUBLISHED January 12, 2012 – “IMMIGRATION LAW FORUM”
Copyright © 2012, By Law Offices of Richard Hanus, Chicago, Illinois

The Administrative Appeals Office (“AAO”) is a specially designated unit within the Department of Homeland Security/Citizenship and Immigration Service charged with reviewing appeals of various immigration related petitions and applications.  Sometimes the choice of filing an appeal vs. simply re-filing the same application or petition with new evidence depends on a variety of factors, including the time it takes the Administrative Appeals Office to review the original decision and issue their own assessment.  Since processing times at the AAO can be quite prohibitive, re-filing a new petition or application with the office that has already issued a denial, but this time – with new evidence or authority, is indeed a bona fide option for applicants to consider after their initial filing is denied for a legal or factual deficiency.  It should also be noted though, that most every appeal to the AAO will first get reviewed by a supervisor from the unit that originally issued the denial, and if determined to have merit, the appeal will be treated as a request to reopen proceedings and effectuate a reversal, and without the filing ever being sent for AAO review, and subject to AAO processing delays.  The following are current AAO processing times:

**** “CURRENT” means “within the USCIS processing time goal of six months or less”

PUBLISHED December 14, 2011 – “IMMIGRATION LAW FORUM”
Copyright © 2011, By Law Offices of Richard Hanus, Chicago, Illinois

U.S. immigration law consumers, whether individuals or businesses, are a particularly vulnerable population when it comes to internet fraud.   The “individual” immigration law consumer is usually seeking to facilitate immigration status or entry into the U.S. for a spouse, future spouse, or other family member.  The “business”, or employment based immigration law consumer usually has its sights set on conferring immigration status on a valued, or to-be valued employee, or facilitate their entry into the U.S.  The immigration law consumer presents a wide spectrum of traits, ranging from eager and excited to desperate and fantasy-driven.  And when it comes to solutions to problems these populations present – especially in the family-based immigration law context -, the internet is there to tell it anything it wants to hear, with  the more money being charged, the more likely the audience will be inclined to buy what’s for sale.

A common device being seen lately is the internet site, or unsolicited email, seeking to convince its customer that it’s related to the U.S. government.  One blatant example involves an email being sent to unsuspecting foreign nationals across the U.S. and globe advising them they have won the U.S. visa lottery, and that a significant processing fee should be immediately forwarded to a government-sounding location for them to have a chance at a U.S. green card.    No doubt the scheme will likely pay off because the audience it is preying upon, no matter their level or education or common sense, includes the desperate and fantasy driven demographic referred to above.   If one really wants to believe something to be true, and needs it to be true, it’s truly amazing to watch how far that person will go to convince themselves that what they are buying is the real thing.   And the perpetrator usually gets away with it unscathed, because of the “Wizard of Oz” curtain the internet allows for, along with the tendency of the scammed party to feel too embarrassed or fearful to report being victimized and informing authorities of the transaction.

Another, less egregious scam involves internet sites with government-sounding names offering to provide and prepare forms for a fee, a fee the consumer is led to believe goes to the U.S. government.  In truth, the consumer is merely paying for a form or application that is already available for free on the Citizenship and Immigration Services’ government website, and will be forced to pay again when it comes to the actual filing of the form, and covering the true government processing fee   The simple rule of thumb is that if the website does not have a “.gov” Web address, it is not a government website.   For more information on the types of scams being marketed to U.S. immigration law consumers, along with a treasure trove of information on immigration law in general, visit the U.S. Citizenship and Immigration Services’ website at www.uscis.gov, and www.uscis.gov/avoidscams.  Further, all U.S. immigration forms and applications are available at no charge at www.uscis.gov/forms.

PUBLISHED October 7, 2011 – “IMMIGRATION LAW FORUM”
Copyright © 2011, By Law Offices of Richard Hanus, Chicago, Illinois

This past week the U.S. Department of Homeland Security/Citizenship and Immigration Services (CIS) announced the merger of the Employment Authorization Document (EAD) and Advance Parole Travel Document (AP) for certain applicants for adjustment of status applicants. Previously, CIS issued separate documents authorizing employment and international travel for eligible applicants for adjustment of status, and their issuance and renewal required two separate applications. Now, however, a single document will be issued to eligible, pending adjustment of status applicants to prove their ability to work lawfully in the U.S. as well as facilitate a return trip back into the U.S. following international travel. The document will be issued for a period of 1 or 2 years, depending on the how long the applicant’s adjustment of status application is expected to remain pending.

As a reminder, AP’s and EAD’s are available to foreign nationals undergoing permanent residence processing in the U.S. by way of the filing of Form I-485. To be eligible to file Form I-485, an applicant must be the beneficiary of a qualifying family-based, or employment-based visa petition, and where a visa is immediately available in the applicant’s particular visa category. However, applicants who are out of status for 180 days or more, at the time of the filing of their I-485 Adjustment of Status application are strongly advised NOT to travel internationally while awaiting their permanent residence processing – and even if they are issued an advance parole. For these types of out of status applicants, a 3 or 10 year bar to readmission will kick in upon their departure, leading to the likely denial of their I-485 application and non-issuance of their green card.

Lastly, as long as they are valid, EAD’s and AP’s that are not in a single document will continue to be honored for purposes of proving employment authorization or to facilitate reentry following international travel. Further, separate EAD’s and AP’s will continue to be issued to applicants under certain circumstances.

PUBLISHED February 15, 2011 – “IMMIGRATION LAW FORUM”
Copyright © 2011, By Law Offices of Richard Hanus, Chicago, Illinois

Adult U.S. citizens seeking to facilitate overseas immigrant visa processing for their spouse, under 21 year old children, or parents, have likely experienced delays in the processing of their I-130 visa petition filed with the California Service Center over the past few months.  That is because CIS California transferred the cases to the Texas Service Center thinking the staff power there would lead to quicker petition processing.  Well they were wrong and the cases apparently were not attended to, leading CIS officials to last week’s decision to have the vast majority of these petitions transferred back to the California facility to finally get processed.  Normal processing time for petitions for these categories of relatives is around 3 months, if not quicker. According to a recent CIS announcement, impacted parties should see progress in petition processing, if not final decisions, by month’s end.  I give CIS credit for at least trying!

PUBLISHED February 9, 2011 – “IMMIGRATION LAW FORUM”
Copyright © 2011, By Law Offices of Richard Hanus, Chicago, Illinois

With the DREAM Act out of the picture for now, the 15 million undocumented/out of status immigrants living in the U.S. are left wondering, what options for living legally in the U.S. are left? Of course leaving the U.S. is not an option for the vast majority of these immigrants – contrary to what the anti-legalization camp see as their next logical step. These individuals have already decided that life in the U.S. in an undocumented status is better than life as a legal resident in their home country. The option most of this population will pursue is to simply wait. At some point, our nation and the U.S. Congress will come to realize that wide scale deportations are not going to happen, and that a path to legalization is the only solution. In the meantime, as stated, for most it’s a waiting game, although the following options at legalization or adjusting status for the undocumented or visa overstay continue to be viable:

1)  Visa Overstays May Be Able to Adjust Status if: they are the spouse of a U.S. Citizen, a parent of an adult (over 21) U.S. citizen, or child (under 21) of a U.S. Citizen. This class of immigrant may have the option to adjust status in the U.S. without having to return to their home country for any step in the process, notwithstanding unauthorized employment or overstaying their authorized period of stay in the U.S. (does not include those entering as “crewman”, or K-1 fiancés who did not marry their petitioner). Spouses of U.S. citizens, parents of adult U.S. citizens, and under 21 children of U.S. citizens are known as “Immediate Relatives” in immigration law talk and do not require additional legal qualification for eligibility to adjust status in the U.S. such as coverage under INA Section 245(i) – see below – to adjust status in the U.S.

Other types of non-“Immediate Relative” family based immigration applicants or employment based applicants who are visa overstays may be able to adjust their status in the U.S. but only if they were included in some sort of family or employment based immigration filing submitted prior to April 30, 2001, or January 14, 1998 - pursuant to Section 245(i) of the Immigration and Nationality Act –see below.

2)  Entered Without Inspection (EWI): If you are the spouse of a U.S. Citizen, a parent of an adult (over 21) U.S. citizen, or child (under 21) of a U.S. Citizen who entered without being inspected by an immigration official (e.g. no visa), the option to adjust status in the U.S. only exists if you were previously included in some sort of family or employment based immigration filing submitted pursuant to Section 245(i) – see below.

Other types of non-“Immediate Relative” family-based or employment-based applicants who entered without visas (EWI) may be able to adjust their status in the U.S. but only if they were included in some sort of family or employment based immigration filing submitted prior to April 30, 2001, or January 14, 1998 – pursuant to Section 245(i) of the Immigration and Nationality Act.

3) EWI’s or Visa Overstays with an employer willing to facilitate a green card process, and they are a professional and/or have some special skills that may be scarce in the U.S. labor market, an employment based immigration filing may be an option if they are grandfathered under Section 245(i). Word of warning though: most candidates for this option may very well be waiting 5 years – give or take – before any type of immigration benefit, such as an employment authorization is in sight.

What is Section 245(i) of the Immigration Nationality Act? Section 245(i) allows for certain otherwise ineligible visa overstay/undocumented immigrants to undergo all steps in the U.S. immigration process in the U.S. and without having to return to a U.S. consular post in their home country (aka “245(i)grandfathering”). To be “grandfathered” under Section 245(i), the applicant must have been:

a.  included in some sort of family or employment based immigration filing submitted prior to April 30, 2001, and they were physically present in the U.S. on December 21, 2000 OR

b.  included in some sort of family or employment based immigration filing submitted prior to January 14, 1998 (with no physical presence requirement)

Relief in Removal Proceedings: If the visa overstay or undocumented immigrant gets arrested by immigration authorities and placed in removal proceedings, options to remain in the U.S. and even be awarded permanent residence by the Immigration Court indeed are available. Most notably, relief known as “Cancellation of Removal” allows those without status to be considered for a green card by the Immigration Court if: 1) they have been present in the U.S. for more than 10 years or more prior to being placed in removal proceedings. 2) they are of good moral character and 3) their U.S. citizen or permanent resident spouse, parent or child will suffer “exceptional and extremely unusual hardship” if they were forced to return to their home country.

For those who fear return to their home country due to persecution they might face on account of their race religion, political belief or “social group”, asylum-related relief (and eventually green card issuance) may be available from the Immigration Court.

PUBLISHED January 26, 2011 – “IMMIGRATION LAW FORUM”
Copyright © 2011, By Law Offices of Richard Hanus, Chicago, Illinois

On October 28, 2009, President Obama signed into law important immigration provisions to address the unjust consequences of slow Citizenship and Immigration Services processing, particularly relating to widows and widowers of U.S. citizens. The law also includes ameliorative provisions relating to other types of family relationships and petitions; the death of a petitioning US family member or principal beneficiary will no longer necessarily deal a fatal blow to a pending case. With regard to this latter category of petitioners, however, significant questions have now been answered.

Widows and Widowers of U.S. Citizens Benefit from New Liberal Provisions

Consistent with recent Department of Homeland Security policy, the new legislation effectively eliminates what was known as the “Widow Penalty.” Under previous law, foreign nationals who were the widows or widowers of U.S. citizens only qualified for an initial grant of U.S. residence if they were married for at least two years prior to their spouse’s death. Now, a foreign national spouse is eligible to seek U.S. permanent residence (by completing Form I-360), no matter how long they were married at the time of the U.S. citizen’s death, and regardless of whether their spouse ever initiated the U.S. immigration process or obtained approval of an I-130 petition. The law applies retroactively as well as to surviving spouses who were overseas at the time of their U.S. citizen spouse’s death. Thus spouses of deceased U.S. citizens who were ineligible due to the short term of the marriage can now benefit from U.S. immigration benefits, including foreign spouses who have never set foot into the U.S. — no matter how long ago they were widowed. Also, upon the death of a U.S. citizen, their surviving widows/widowers who were previously the subject of an I-130 petition now have their cases automatically converted/considered as I-360 widow/widower petition – and again, regardless of how long the couple was married at time of their U.S. citizen spouse’s death.

NOTE: 2 year Deadline!!!

Foreign nationals whose U.S. citizen spouses died before the enactment of the new law must apply for U.S. immigration benefits within two years of the enactment date before October 28, 2011. Otherwise, foreign nationals whose U.S. citizen spouse dies following the enactment of this law, must file for U.S. residence within two years of their spouse’s death.

Other Family Based Petitions Where Petitioner Dies Before Petition Approval

Basic immigration law says that if a family based U.S. citizen or resident petitioner dies, so does the petition. In the past, only if the petition was approved prior to the petitioner’s death, could the foreign family member seek to have the petition reinstated by way of a humanitarian reinstatement request. Now, under the new law, if any family based preference I-130 petition on file was unprocessed by the time of the petitioner’s death, CIS now has authority to continue the processing and approve the petition, as long as such continued processing is not determined to be “against the public interest.” This new provision only applies to beneficiaries of family based petitions who resided in the U.S. at the time of their petitioning relative’s death.

Further, as to I-130 petitions that were approved prior to the petitioner’s death, but before the availability of visa numbers in any of the family based preferences, the humanitarian reinstatement process must still be initiated and the request must be approved to preserve the viability of the petition to facilitate an immigration benefit. HOWEVER, based on recently released guidance, it looks like the bar to getting a case reinstated on humanitarian grounds just got lower (again, only for beneficiaries in the U.S. at time of the petitioner’s death) –with the applicable language reading: “While there are no other rules or precedents on how to apply this discretionary authority, reinstatement may be appropriate when revocation is not consistent with the “furtherance of justice, especially in light of the goal of family unity that is underlying premise of our nation’s immigration system.”

For surviving beneficiaries residing abroad, the usual humanitarian reinstatement process and tougher adjudicative standard will be at play, where the following factors will be taken into account and assessed:

• Impact of revocation on the family unit in the U.S., especially on the U.S. citizen or LPR relatives or other relatives living in the U.S. lawfully.
• Beneficiaries advanced age or poor health,
• Beneficiary’s having resided in the U.S. lawfully for a lengthy period,
• Beneficiary’s ties to his or her home country and
• Significant delay in processing the case after approval of the petition AND after a visa number has become available.

Other foreign national family members of a deceased who reside in the U.S. who were previously ineligible for U.S. immigration benefits, but have new eligibility based on the above law include:

• Derivative (spouse and children under 21 years) family members of a Deceased Principal Beneficiary of an Employment Based Immigration Petition (I-140)
• Certain T and U visa family members
• Certain Asylees/Refugees relative petition beneficiaries.

Like the federal statute at issue, the recently released guidance is quite complicated, and likely each person’s situation will require a careful individual assessment and analysis to determine exactly what benefits are available and which processes and standards govern.

PUBLISHED January 13, 2011 – “IMMIGRATION LAW FORUM”
Copyright © 2011, By Law Offices of Richard Hanus, Chicago, Illinois

As most people have come to learn by now, the DREAM Act – the legislative initiative to allow for the legalization of 1 million or so undocumented individuals who came to the U.S. as children – has been shot down by Congress. The very same Republican force that gave birth to this legislative proposal a few years back was pretty much responsible for its demise. And yes, 2 +2 = 5.

 PUBLISHED December 20, 2010 – “IMMIGRATION LAW FORUM”
Copyright © 2010, By Law Offices of Richard Hanus, Chicago, Illinois

Effective November 23, 2010, filing fees for most immigration applications and petitions are set to increase, on average, some 10-15%. On the other hand, filing fees for 6 categories of applications are actually set to be reduced, including for I-129F/Petition for Fiance, I-539/Application to Extend/Change Nonimmigrant Status, N-565 Application for Replacement Naturalization/Citizenship Document and I-131 – Application for Travel Document – but only when filed for Refugee Travel Document. Also, fee waivers based on an applicant’s economic hardship will be accepted in more types of application categories.

Approximately 90% of U.S. Citizenship and Immigration Services’ budget comes from the fees it collects for the various immigration related applications and petitions that get filed each year. For fiscal years 2008 and 2009, revenues collected – according to CIS – were significantly less than what was projected, thus prompting this new increase. For certain, the decrease in filings and revenues is not based on a decrease in demand for immigration benefits, such as for green cards, just that the population of eligible immigration benefit applicants is smaller and the options available for the tens of millions of interested applicants are fewer – especially for those in the U.S. without legal status.

It is important to note that the filing fee for standard N-400 Applications for Naturalization did NOT increase, although the required biometrics fee (which must accompany many types of commonly used applications) does increase from $80.00 to $85.00. Below is the new fee schedule (MAKE SURE TO ADD THE INCREASED $85.00 BIOMETRICS FEE TO APPLICATIONS SUCH AS I-485, I-90, N-400, I-751 and several others)

PUBLISHED November 17, 2010 – “IMMIGRATION LAW FORUM”
Copyright © 2010, By Law Offices of Richard Hanus, Chicago, Illinois

As of this week, the U.S. Department of Homeland Security/Citizenship and Immigration Services began issuing a new version of the Certificate of Naturalization for newly naturalized immigrants. The new document resembles the previous version, except that certain high tech security features have been added. Prospective applicants for naturalization should know that the procedures for applying for citizenship remain the same, including the requirement that 2 passport type photos still be included with each application – although the application process will now include the capture of an applicant’s digital photo at the time they appear for biometrics fingerprinting. Also, the millions of naturalized citizens who were issued previous versions of the certificate are not required to take action to obtain a new version certificate.

PUBLISHED October 27, 2010 – “IMMIGRATION LAW FORUM”
Copyright © 2010, By Law Offices of Richard Hanus, Chicago, Illinois