The Updated CSPA

The Updated Child Citizen Protection Act?

Question: I have heard there are some updates in the CSPA. Can you elaborate?

Answer: First, the The Child Status Protection Act (CSPA) amended the Immigration Nationality Act by changing how a foreign nationals determined to be a child for purposes of immigrant classification. The Act permits an applicant for certain benefits to retain classification as a “child,” even if he or she has reached the age of 21.USCIS has revised its guidance that modifies a prior interpretation of certain provisions of the CSPA.CSPA changes who can be considered to be a "child" for the purpose of the issuance of visas by the Department of State and for purposes of adjustment of status of aliens by USCIS.

The Act provides that if you are a U.S. citizen and you file a Petition for Alien Relative (Form I-130) on behalf of your child before he or she turns 21, your child will continue to be considered a child for immigration purposes even if USCIS does not act on the petition before your child turns 21. Children of lawful permanent residents also benefit if a Form I-130 is filed on behalf of their children.

Question: Who benefits under the new CSPA guidance?

Answer: The new guidance allows aliens who had an approved immigrant visa petition prior to the enactment of the CSPA, but had not yet applied for permanent residence (either an application for adjustment of status or an immigrant visa) on the date of enactment to benefit from the CSPA. Under prior guidance, the CSPA did not apply to such applicants. The new guidance includes many aliens who, subsequent to the enactment of the CSPA, never filed an application for permanent residence and aliens who filed an application for permanent residence but such application was denied solely based on the applicant’s age.

Question: Are there other considerations impacting eligibility requirements?

Answer: Yes. The new guidance does not include aliens who, prior to Aug. 6, 2002 (date CSPA was enacted), had a final decision on an application for permanent residence based on the immigrant visa petition upon which the applicant claimed to be a child. If an alien filed an application for permanent residence after the enactment of the CSPA, and the application was denied, that denial must be ‘solely based’ on a finding that the applicant was not a child because the CSPA did not apply. An I-485 can be denied for various reasons; if your I-485 denial was based for a reason other than for CSPA, then this revised CSPA guidance does not apply to you.
Finally, if you had an approved immigrant visa petition before August 6, 2002, and did not file an I-485 after the enactment of the CSPA, you could still benefit if (1) you are filing as an immediate relative or (2) your visa became available on or after Aug. 7, 2001, you did not apply for permanent residence within one year of petition approval and your visa becoming available.

Question: How do I know if I was denied solely based on CSPA?

Answer: The written denial decision you received from USCIS will state the basis for
the denial.

Question: Will it matter whether the child reaches the age of 21 before or after the enactment date of the CSPA to benefit from this revised policy?
Answer: No, provided the applicant did not have a final decision prior to Aug. 6, 2002 on an application for permanent residence based on an immigrant visa petition upon which the applicant claimed to be a child.

Question: Please explain the differences of benefit for an immigrant petition filed by a U.S. citizen and a Lawful Permanent Resident.

Answer: Immigrant Petition as a child filed by a U.S. Citizen: If the child is under the age of 21 on the date of the filed immigrant petition, he/she will not ‘age out’. He or she will be eligible for permanent residence as an immediate relative, provided that no final decision was reached prior to Aug. 6, 2002 on an application for permanent residence based on the immigrant visa petition upon which the applicant claimed to be a child.

Immigrant Petition as a child filed by a Lawful Permanent Resident: If the immigrant petition was approved and the priority date becomes current before the applicant’s ‘CSPA age’ reaches 21, the child will not ‘age out’, provided that no final decision was reached prior to Aug. 6, 2002 on an application for permanent residence based on the immigrant visa petition upon which the applicant claimed to be a child. In order for CSPA coverage to continue, the child must apply for permanent residence within a one-year of the date the priority date became current.

Question: How do I calculate my ‘CSPA age’?

Answer: For preference category and derivative petitions, your ‘CSPA age’ is determined on the date that your visa, or in the case of derivative beneficiaries, the principal alien’s visa, becomes available. Your CSPA age is the result of subtracting the number of days that your immigrant visa petition was pending from your actual age on the date that your visa becomes available. If your ‘CSPA age’ is under 21 after that calculation, you will remain a child for purposes of the permanent residence application.

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Brian D. Lerner is a Certified Specialist in Immigration and Nationality Law by the California State Bar Board of Legal Specialization. He is admitted to the U.S. Supreme Court and the 1st, 2nd, 3rd, 4th, 5th, 6th, 8th, 9th, 10th and 11th Circuit Courts of Appeal. He is also admitted to the California Supreme Court. This firm handles cases both nationally and worldwide. This firm does every aspect of immigration law including family and employment based petitions, deportation defense and criminal related immigration issues, asylum, naturalization, citizenship, appeals, nonimmigrant visas, immigrant visas, and all other areas of immigration law. An appointment can be made by calling (866) 495-0554 or (562) 495-0554. The Firm website is www.eimmigration.org.

Attorneys at U.S. Consulates

Attorneys helping at the Consulate?
Question: I have an appointment at the U.S. Embassy. Can I have an attorney help me? Is there a right to representation?
Answer: Actually, the basic answer is no. Most immigration lawyers are indifferent to going to the U.S. Consulates/Embassies. The primary reason for lawyers' indifference or aversion to involvement in the consular process is the fact that consuls have virtually absolute authority to make decisions concerning a client's case, with no meaningful review and no right for the lawyer to be present at the consulate to present legal arguments. A consular visa practice can be a humiliating experience--with doors to consulates barring entrance to lawyers, visa windows slammed shut, and telephone calls and letters left unanswered.
Question: What can a lawyer do to help me?
Answer: There is an appropriate role for attorneys to play in the visa process; the involvement of an attorney in a visa case does not signify anything amiss. The majority of attorneys are aware of and adhere to the rules of the game. In the sometimes complex world of visas, a good attorney can prepare a case properly, weed out “bad” cases, and alert applicants to the risks of falsifying information presented to the consular officer. The attorney can help the consular officer by organizing a case in a logical manner; by clarifying issues of concern; by avoiding duplication of effort (reducing interview time); and by providing the applicant with the necessary understanding of the intricacies of the visa process thereby easing the pressure on consular sections to provide information to the applicant.
Question: Even though my lawyer cannot go with me, can he communicate with the Consulate and visa versa?
Answer: The State Department's Foreign Affairs Manual (FAM) requires consular officers to recognize a lawyer-client relationship and correspond directly with lawyers. The FAM provides that a consular officer may accept a letter on printed letterhead from a lawyer asserting a lawyer-client relationship as proof of representation. U.S. Citizenship and Immigration Services (USCIS) Form G-28 is acceptable, but not required, as proof of a lawyer-client relationship.
Even when the applicant lives in the consular district and the lawyer is in the U.S., consuls are required to correspond directly with the lawyer. In all cases, consuls are permitted to correspond directly with the applicant as well, if a copy of the communication is given simultaneously to the lawyer. In immigrant visa (IV) cases, consular officers are required to notify the lawyer of record of action taken at the final immigrant visa appointment. However, many consulates do not comply with this requirement or if they do, they do so by way of a summary form letter.
Question: Is a lawyer barred from ever going to the interview?
Answer: Actually, each consular post continues to have the discretion to establish its own policies regarding the extent to which attorneys and other representatives may have physical access to the consulates or attend visa interviews. Whatever policies are set must be consistent and applied equally to all throughout that consular post. If the lawyer knows that lawyer presence may be permitted at the visa interview, the lawyer should consider appearing with the client at the interview. For example, the U.S. Consulate General in Vancouver, Canada currently has a policy of permitting lawyers to accompany their clients to the visa interview. The consular officer retains the discretion to decide to what extent the lawyer may participate during the interview. On the other end of the spectrum, consulates in Mexico have barred lawyers from even entering the consulates, let alone allowing attorney representation during the visa interview. Even at posts that do not permit lawyer presence at visa interviews, some consular officers will nevertheless meet with a lawyer to discuss the case generally and listen to legal arguments.
Thus, each Consulate or Embassy is different. However, an attorney can usually help you in some manner, even if it is not being physically present at the interview. ========================================================
Brian D. Lerner is a Certified Specialist in Immigration and Nationality Law by the California State Bar Board of Legal Specialization. He is admitted to the U.S. Supreme Court and the 1st, 2nd, 3rd, 4th, 5th, 6th, 8th, 9th, 10th and 11th Circuit Courts of Appeal. He is also admitted to the California Supreme Court. This firm handles cases both nationally and worldwide. This firm does every aspect of immigration law including family and employment based petitions, deportation defense and criminal related immigration issues, asylum, naturalization, citizenship, appeals, nonimmigrant visas, immigrant visas, and all other areas of immigration law. An appointment can be made by calling (866) 495-0554 or (562) 495-0554. The Firm website is www.eimmigration.org.

Military Naturalization

Question: I have served in Iraq for six months. Can I become a U.S. Citizen?

Answer: Members and certain veterans of the U.S. Armed Forces are eligible to apply for United States citizenship under special provisions of the Immigration and Nationality Act (INA). In addition, U.S. Citizenship and Immigration Services (USCIS) has streamlined the application and naturalization process for military personnel and those who recently discharged. Generally, qualifying service is in one of the following branches: Army, Navy, Air Force, Marine Corps, Coast Guard, certain reserve components of the National Guard and the Selected Reserve of the Ready Reserve.

Question: What are the qualifications?

Answer: A member of the U.S. Armed Forces must meet certain requirements and qualifications to become a citizen of the United States. This includes demonstrating: Good moral character; Knowledge of the English language; Knowledge of U.S. government and history (civics); and Attachment to the United States by taking an Oath of Allegiance to the U.S. Constitution. Qualified members of the U.S. Armed Forces are exempt from other naturalization requirements, including residency and physical presence in the United States.

Question: Where can I apply?

Answer: All aspects of the naturalization process, including applications, interviews and ceremonies are available overseas to members of the U.S. Armed Forces. An individual who obtains U.S. citizenship through his or her military service and separates from the military under “other than honorable conditions” before completing five years of honorable service may have his or her citizenship revoked.

Question: What about Service in Peacetime?

Answer: An individual may qualify for naturalization if he or she has: Served honorably for at least one year; Obtained lawful permanent resident status; and filed an application while still in the service or within six months of separation.

Question: What about Service in Wartime?

Answer: All immigrants who have served honorably on active duty in the U.S. Armed Forces or as a member of the Selected Ready Reserve on or after September 11, 2001 are eligible to file for immediate citizenship. This section also covers veterans of designated past wars and conflicts.

Question: How does one apply?

Answer: Every military installation has a designated point-of-contact to assist with filing the military naturalization application packet. Once complete, the package is sent to the USCIS Nebraska Service Center for expedited processing. That package will include: Application for Naturalization (USCIS Form N-400) (Members of the military are not charged a fee to file the Form N-400.); Request for Certification of Military or Naval Service (USCIS Form N-426);Biographic Information (USCIS Form G-325B)

Question: What if my relative who served has died in war?

Answer: The Immigration Act provides for grants of posthumous citizenship to certain members of the U.S. Armed Forces. Other provisions of law extend benefits to surviving spouses, children, and parents. A member of the U.S. Armed Forces who served honorably during a designated period of hostilities and dies as a result of injury or disease incurred in, or aggravated by, that service (including death in combat) may receive posthumous citizenship.

PERM Questions

More PERM Question

Question: PERM FAQS

Question: I have questions regarding a PERM. What recourse does the employer have in the event a labor certification filed after July 16, 2007 is denied?

Answer: If a labor certification is denied, the employer may make a request for reconsideration, in writing and within 30 days of the date of the determination, to the Certifying Officer who made the determination. For any application filed after July 16, 2007, the Certifying Officer will not reconsider a determination where the deficiency that caused the denial resulted from the employer’s disregard of a system prompt (for on-line applications) or other direct instructions accompanying the ETA Form 9089 or previously provided by the Certifying Officer.
Additionally, a request for reconsideration for any application filed after July 16, 2007 may only include documentation previously received from the employer in response to a request from the Certifying Officer or documentation that the employer did not have the opportunity to present previously to the Certifying Officer, but that existed at the time the application was filed, and was maintained by the employer to support the application. Where the documentation submitted is deemed not to satisfactorily cure the deficiency or where no documentation is provided, no further opportunity to present such documentation will be provided, i.e., no solicitation of such documentation will be made and the Certifying Officer will make a determination based solely on the information and documentation provided by the employer in its request.

Q. What if the employer’s Certification contains an error?

A. Requests for modifications to Applications for Permanent Employment Labor Certifications (ETA Form 9089) will not be accepted for any application submitted after July 16, 2007. If an employer receives a certification of an application which contains incorrect information due to an error made by the employer on the filed ETA Form 9089, the employer may request to withdraw the current certified application, and thereafter submit a new amended application for the same employer, position, and foreign worker, provided such request meets all regulatory requirements, including recruitment time frames.

If an employer receives a certification of an application which contains incorrect information due to Department of Labor data-entry error(s), the employer may file a Request for Reconsideration, in writing and within 30 days of the date of the certification, including any necessary documentary evidence, to the Certifying Officer at the National Processing Center (NPC) that issued the certification. The Certifying Officer will only consider documentation that existed at the time the application was filed and was maintained by the employer in support of the application.

Question: Are applications submitted for Schedule A occupations such as registered nurse petitions prohibited from seeking or receiving payment for activity related to obtaining permanent labor certification?

Answer: An employer may not seek or receive payment of any kind for any activity related to obtaining permanent labor certification, except from a party with a legitimate, pre-existing business relationship with the employer, if the work to be performed by the alien beneficiary will benefit that party. This prohibition applies to applications filed under current regulations or under regulations in effect prior to March 28, 2005.

Therefore, an employer filing a labor certification application for a Schedule A job opportunity is prohibited from seeking or receiving payment for any activity related to obtaining permanent labor certification, except from a party with a legitimate, pre-existing business relationship with the employer, if the work to be performed by the alien beneficiary will benefit that party. “Payment” includes, but is not limited to, monetary payments; deductions from wages or benefits; kickbacks, bribes, or tributes; goods, services, or in kind payments; and free labor. “Activity related to obtaining permanent labor certification” includes, but is not limited to, recruitment costs and attorneys’ fees, and includes payments made as an incentive to filing or as reimbursement for costs incurred in preparing or filing an application. An alien may pay his/her own costs, including attorneys’ fees for representation of the alien, except when the same attorney represents both the alien and the employer. In such instances, the employer must pay the alien’s attorneys’ fees.
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Brian D. Lerner is a Certified Specialist in Immigration and Nationality Law by the California State Bar Board of Legal Specialization. He is admitted to the U.S. Supreme Court and the 1st, 2nd, 3rd, 4th, 5th, 6th, 8th, 9th, 10th and 11th Circuit Courts of Appeal. He is also admitted to the California Supreme Court. This firm handles cases both nationally and worldwide. This firm does every aspect of immigration law including family and employment based petitions, deportation defense and criminal related immigration issues, asylum, naturalization, citizenship, appeals, nonimmigrant visas, immigrant visas, and all other areas of immigration law. An appointment can be made by calling (866) 495-0554 or (562) 495-0554. The Firm website is www.eimmigration.org.

The H-1B cap mess

The H-1B Cap Mess
Question: I will be filing an H-1B case on April 1, 2008. Last year, I understand that all H-1B's were used up in about 16 hours after filing. What might happen this year?
Answer:USCIS just published some rules to attempt to make the 'lottery' process for the H-1B's filed to be more fair this year. Under the interim final regulation, if the USCIS receives a sufficient number of petitions to satisfy the cap at any time during the first five business days on which petitions for the upcoming fiscal year may be received, all cap-subject petitions received during the first five business days will be included in the random-selection lottery. This should at least make it more fair in that it will give 5 days of filings for all cap cases to be considered for the lottery.
Question: How should the H-1B's be filed?
Answer: You can use various delivery services (e.g., DHL, FedEx, UPS, other approved couriers, etc.) through close of business from April 1-7, 2008. Close of business means 5:00 pm local time at the location of the service center. However, on the last day (April 7, 2008), USCIS will accept deliveries from couriers until 7:00 pm local time. Other than that last day, USCIS will accept deliveries from 6:00 am through 5:00 pm, local time.
Question: How are petitions filed via U.S. Postal Service (USPS) handled?
Answer: Unfortunately, USCIS does not consider the package received or timely filed until it is actually on-site at the Service Center. The service centers pick up correspondence delivered to the P.O. Box at one or more scheduled times during the day. Therefore, while customers may file applications by USPS at the P.O. Box, delivery to that P.O. Box does not ensure that the filing will be picked up by the USCIS the same day it is placed in the P.O. Box by the USPS, and thus, will not be considered timely filed.
Question: What about an H-1B petition that is aboard a delivery truck and in line for delivery prior to the time the CSC and VSC stop accepting deliveries, but does not get to the front of the line until after closing on April 7, 2008?
Answer: If at 7:00 pm on April 7, 2008 there are still trucks attempting to delivery packages, USCIS has indicated that the Service Centers will work out a process to get those packages into the system.
Question: What if I need a professional license to perform the position, but I cannot either get the license without an approved H-1B?
Answer: In this type of situation, the USCIS must see that the applicant is fully qualified to get the license and that it is only the policy of the licensing committee of that particular area of work that has created this 'catch 22' situation. USCIS can then approve the petition with the understanding that the applicant has one year to get the license and file an amended petition to show that he or she in fact got the necessary licensing.
Time is quickly running out for H-1B's. Therefore, if you can file, you should be preparing everything at this time.
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Brian D. Lerner is a Certified Specialist in Immigration and Nationality Law by the California State Bar Board of Legal Specialization. He is admitted to the U.S. Supreme Court and the 1st, 2nd, 3rd, 4th, 5th, 6th, 8th, 9th, 10th and 11th Circuit Courts of Appeal. He is also admitted to the California Supreme Court. This firm handles cases both nationally and worldwide. This firm does every aspect of immigration law including family and employment based petitions, deportation defense and criminal related immigration issues, asylum, naturalization, citizenship, appeals, nonimmigrant visas, immigrant visas, and all other areas of immigration law. An appointment can be made by calling (866) 495-0554 or (562) 495-0554. The Firm website is www.eimmigration.org.

Can my crime be Waived?

Can my crime be Waived?
Question: I have committed a crime, but have heard it is still possible to get residency. What can I do?
Answer: You may be eligible for a Waiver under 212(h) of the Immigration and Nationality Act.
Question: What grounds of inadmissibility does § 212(h) waive?
Answer: A § 212(h) waiver, if granted, waives the following criminal grounds of inadmissibility: crimes involving moral turpitude; a single offense of simple possession of 30 grams or less of marijuana; multiple criminal convictions where aggregate sentence was 5 years or more; prostitution and commercial vice activities; and serious criminal offenses involving a grant of immunity.
Question: Who can receive a § 212(h) waiver?
Answer: A § 212(h) waiver is available to certain “immigrants” (including specifically VAWA self petitioners – persons who have been abused by US Citizen spouses) who meet the statutory eligibility requirements and for whom the agency decides to exercise favorable discretion.
Question: What are the statutory requirements for a § 212(h) waiver?
Answer: First, the person must fit into one of the following categories: An immigrant charged with prostitution; an immigrant charged with any other criminal ground of inadmissibility that is subject to the waiver, where the criminal activities (necessitating the waiver) occurred more than 15 years before the date of the application for a visa, admission or adjustment of status; and admission would not be contrary to national welfare, safety, or security; and the person has been rehabilitated.
The immigrant must be the spouse, parent, or son or daughter of a U.S. citizen or LPR; and must establish that extreme hardship would befall the qualifying relative if admission were denied.
Additionally, if one is a battered spouse, they can apply for this waiver.
Next, the person cannot have been convicted of having committed, attempted or conspired to commit, or have admitted acts that constitute murder or criminal acts involving torture.
Third, “the Attorney General, in his discretion, and pursuant to such terms, conditions and procedures as he may by regulations prescribe, has consented to the alien’s applying or reapplying for a visa, for admission to the In what circumstances can a person apply for a § 212(h) waiver?
Question: In what circumstances can a person apply for a Waiver under 212(h)?
Answer: Persons in the U.S. seeking § 212(h) waivers generally either will apply for the waiver in conjunction with an application to adjust status or as a stand-alone application in removal proceedings. However, a person filing a stand-alone application in removal will also need a basis to avoid removal. Thus, stand-alone § 212(h) waivers are often filed by LPR's returning from a trip abroad, in which case pre-existing LPR status is maintained.
An LPR returning from a trip abroad arguably also could apply affirmatively for a § 212(h) waiver to U.S. Customs and Border Patrol. Such an affirmative application would be particularly useful if the person has not yet accrued 7 years of lawful residence in the United States, because otherwise the issuance of the Notice To Appear would cut off the continued accrual of physical presence.
Persons outside the U.S. can apply for a § 212(h) waiver in conjunction with an application for an immigrant visa at a U.S. consulate.
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Brian D. Lerner is a Certified Specialist in Immigration and Nationality Law by the California State Bar Board of Legal Specialization. He is admitted to the U.S. Supreme Court and the 1st, 2nd, 3rd, 4th, 5th, 6th, 8th, 9th, 10th and 11th Circuit Courts of Appeal. He is also admitted to the California Supreme Court. This firm handles cases both nationally and worldwide. This firm does every aspect of immigration law including family and employment based petitions, deportation defense and criminal related immigration issues, asylum, naturalization, citizenship, appeals, nonimmigrant visas, immigrant visas, and all other areas of immigration law. An appointment can be made by calling (866) 495-0554 or (562) 495-0554. The Firm website is www.eimmigration.org.

Am I eligible for 212(c)?

Am I Eligible for 212(c)?
Question: I committed a crime many years ago and am now in deportation/removal proceedings. I have heard that I may be eligible for 212(c) relief, but am not sure. Can you clarify?
Answer: First, for 212(c) relief, the crime must have been committed prior to April of 1996 and you must have plead guilty and you must have had Lawful Permanent Residence status for at least 7 years.
Question: I meet all of those requirements. I was convicted of attempted rape with force and I am being charged with a crime of violence. Do you see any problems?
Answer: Yes, there is a potential problem. There is a case issued by the Board of Immigration Appeals known as Blake. The Blake case makes a distinction on certain crimes as to whether one is eligible or not eligible for 212(c) relief. Essentially, it states the following. When one comes into the United States, they must be admissible. If they are not admissible, they cannot enter the U.S. While there are exceptions to this rule, we must consider the basis for whether one is admissible or not. For example, if someone has committed a drug trafficking offense, they would be inadmissible to the United States under certain provisions of the law.
Blake says that in order to be eligible for 212(c), the law must state that if one were to enter the U.S., that there would be a provision upon which they would be inadmissible under the same type of crime upon which landed them in removal proceedings. Thus, the initial question to ask is whether your crime of attempted rape would make you inadmissible if you were to enter the U.S.
Question: What if my crime is not clearly one that makes me inadmissible. What is it overlaps with provisions of the law that make me inadmissible?
Answer: This is a major issue. For example, your crime may well fall under an inadmissibility provision for crimes of moral turpitude, but not under a specific inadmissibility provision for attempted rape. In this case, Blake has made clear you would not qualify for 212(c) relief. However, a Second Circuit case has been issued called Carbone which has shed some light on this issue. The Second Circuit stated that the Board of Immigration Appeals cannot simply apply their 'overlapping' analysis as to a reason that 212(c) should be denied. Carbone basically ruled that if someone is inadmissible because of whatever reason, that 212(c) is applicable and available. However, depending which Circuit you are in will depend upon whether the “overlapping” standard is used or whether the Second Circuit case is followed.
Question: Other than a Crime of Moral Turpitude, does my crime make me inadmissible?
Answer: In this case, you would look carefully under section 212(a)(2) of the Immigration and Nationality Act. While there does not seem to be an exact match, you would have to argue the 'crime of moral turpitude'. Additionally, if you entered the U.S. Illegally and were present in the U.S., without being admitted, you could argue that you would be inadmissible under 212(a)(6). You could argue that as an aggravated felon, you are permanently ineligible for citizenship, and therefore, inadmissible under 212(a)(8). You would get a removal order as you are most likely ineligible for voluntary departure, and are therefore, would be inadmissible under 212(a)(9) as a foreign national previously removed. If prior to getting your Green Card, you were unlawfully present for more than 1 year and seek admission within 10 years, you could argue that you are inadmissible under 212(a)(9)(B).
While there are other provisions, these are the basic arguments. Additionally, since there seems to now be a split in how this qualification for 212(c) is handled ('comparable section of inadmissibility'), you may have to appeal the case up to the Circuit Courts and eventually submit a Writ of Certiorari to the U.S. Supreme Court to try and resolve the split under Equal Protection, Due Process and Vagueness grounds.
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Brian D. Lerner is a Certified Specialist in Immigration and Nationality Law by the California State Bar Board of Legal Specialization. He is admitted to the U.S. Supreme Court and the 1st, 2nd, 3rd, 4th, 5th, 6th, 8th, 9th, 10th and 11th Circuit Courts of Appeal. He is also admitted to the California Supreme Court. This firm handles cases both nationally and worldwide. This firm does every aspect of immigration law including family and employment based petitions, deportation defense and criminal related immigration issues, asylum, naturalization, citizenship, appeals, nonimmigrant visas, immigrant visas, and all other areas of immigration law. An appointment can be made by calling (866) 495-0554 or (562) 495-0554. The Firm website is www.eimmigration.org.

ICE Raids

What should I know about ICE Raids?
Question: What happens before a raid?
Answer: Immigration and Customs Enforcement (ICE) collect evidence against the company using traditional criminal investigative techniques such as the use of confidential informants(“CI”), cooperating witnesses (“CW”), body wiretaps, statements from former or current employees, data from other governmental agencies such as the Social Security Administration, Department of Labor, Wage and Hour, and the Office of Inspector General. Evidence can also be obtained through a routine I-9 audit. Raids result from “lead” driven investigations and the evidence is normally obtained during many months of investigation.
Question: What are some examples of the type of evidence that ICE collects?
Answer: Employee arrested with company ID gets grilled regarding his immigration status; how he got his job; whether any company representatives assisted in procuring false documents; whether the company has actual or constructive knowledge of undocumented status; how many other undocumented employees work at the facility. Often, in exchange for a work permit, the employee agrees to work as a confidential informant. Employee is arrested and it’s discovered that he received a Social Security letter advising that the number he was using didn’t coincide with SSA records.
Question: What does ICE do with the evidence it collects?
Answer: ICE makes an application for a search warrant before a federal magistrate or judge for
permission to search the employer’s worksite for the presence of undocumented employees and property that will be used as evidence that specific crimes have been
committed.
Question: What are the components of a criminal search warrant?
Answer: The order from the court authorizes that a search may be conducted within ten
days, during daylight hours, before a specific date. The order is signed and dated.
Question: What makes a raid one of the most effective tools employed by ICE?
Answer: The elements of surprise, intimidation and shock are successfully employed by ICE to catch a company off guard and to create chaos. Companies are unprepared for the hostile and intrusive entry of ICE agents on their premises and are unaware that they have rights that they can assert.
Question: What steps do ICE agents take when they raid a company?
Answer:Armed ICE agents surround the premises, effectively sealing all exits and routes of escape. The supervising agent serves the search warrant on either a receptionist or other company representative and alerts other agents via radio transmitters that entry has been made, thus allowing their entry. ICE may demand that all machinery be shut down, that no one leaves the premises without their permission, and that employees be corralled into contained areas such as the cafeteria room for questioning.
Question: What rights and responsibilities does a company have during a raid?
Answer: They can examine the search warrant to ensure that it is signed by the court, that it is being served within the permitted time frame, and note the scope of the warrant – the area to be searched and the items to be seized. Normally, the scope is quite expansive. Immediately fax it to your attorney. Contact your attorney and see if he can go to the facility while the raid is occurring as the raid usually last several hours or more to complete. The raid will not be postponed to await the arrival of an attorney. Obtain the name of the supervising agent and the name of a U.S. Attorney assigned to the case.
Be certain that if a raid is being executed that you know your rights.
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Brian D. Lerner is a Certified Specialist in Immigration and Nationality Law by the California State Bar Board of Legal Specialization. He is admitted to the U.S. Supreme Court and the 1st, 2nd, 3rd, 4th, 5th, 6th, 8th, 9th, 10th and 11th Circuit Courts of Appeal. He is also admitted to the California Supreme Court. This firm handles cases both nationally and worldwide. This firm does every aspect of immigration law including family and employment based petitions, deportation defense and criminal related immigration issues, asylum, naturalization, citizenship, appeals, nonimmigrant visas, immigrant visas, and all other areas of immigration law. An appointment can be made by calling (866) 495-0554 or (562) 495-0554. The Firm website is www.eimmigration.org.

The New Naturalization Test

The new Naturalization Test
Question: I heard there is a new naturalization test. What is going to happen and are there exceptions to taking it?
Answer: The new test indicates that people who have lived in the US for 20 or more years and who are 70 or older are eligible to take the naturalization test with 20 questions in lieu of 100. The new naturalization test did not change the regulations that allow exemptions for testing based on age and time as a permanent resident.
An applicant qualifies to take a modified civics test if on the date of filing the application, the applicant was 65 years old and has been a lawful permanent resident for at least 20 years. If this exception applies, the applicant will be administered a simpler version of the civics examination in the applicant's language of choice. This modified civics test is a sample of 20 civics questions from the list of 100.
The sample civics questions have been identified for applicants qualifying under this exception and will soon be announced by USCIS.
Question: After October 1, 2008 when the new test becomes effective, will the current rule "English Exemption for people 55 or older and resident in the US for 15 or more years" be still applicable?
Answer: Currently the people who meet these requirements are eligible to take the naturalization test in their native language. The new naturalization test did not change the regulations that allow exemptions for testing based on age and time as a permanent resident.
The English language requirement may be waived for an applicant who on the date of filing the application, was over 50 years old and has been lawful permanent resident for at least 20 years, or was over 55 years old and has been a lawful permanent resident for at least 15 years. If either exception applies, the applicant may take the civics examination in the applicant's language of choice.

Further, an applicant qualifies to take a modified civics test if on the date of filing the application, the applicant was 65 years old and has been a lawful permanent resident for at least 20 years. If this exception applies, the applicant will be administered a simpler version of the civics examination in the applicant's language of choice. This modified civics test is a sample of 20 civics questions from the list of 100 as stated above.
If applicants qualify for a waiver of the English proficiency requirement, they must bring an interpreter to their naturalization interview.
Question: The new test has a list of reading vocabulary and a list of writing vocabulary. Please explain how the reading and writing test will be administered? Will the applicants be required to make sentences using the vocabulary on the list?
Answer:The format for the reading portion of the redesigned English test is similar to the current test. Applicants will be provided with up to three chances to correctly read a sentence in English. USCIS has released a vocabulary list containing all of the words found in the redesigned test items. The content items for the reading portion focus on civics and history topics.
Thus, you will have to study the new items starting October 1, 2008.
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Brian D. Lerner is a Certified Specialist in Immigration and Nationality Law by the California State Bar Board of Legal Specialization. He is admitted to the U.S. Supreme Court and the 1st, 2nd, 3rd, 4th, 5th, 6th, 8th, 9th, 10th and 11th Circuit Courts of Appeal. He is also admitted to the California Supreme Court. This firm handles cases both nationally and worldwide. This firm does every aspect of immigration law including family and employment based petitions, deportation defense and criminal related immigration issues, asylum, naturalization, citizenship, appeals, nonimmigrant visas, immigrant visas, and all other areas of immigration law. An appointment can be made by calling (866) 495-0554 or (562) 495-0554. The Firm website is www.eimmigration.org.

Immigrating through Adoption

Can my crime be Waived?
Question: I would like to adopt a child from another country. Is it difficult to immigrate such a child?
Answer: Actually, children, birth parents and prospective adoptive parent(s) will have greater protections under the Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (Hague Adoption Convention), effective April 1. New safeguards administered by U.S. Citizenship and Immigration Services (USCIS) under the Hague include the creation of new forms and improved, centralized examination processes for Intercountry adoption applications and petitions under the Hague Adoption Convention.
The Hague Adoption Convention is an international treaty between convention member countries (www.travel.state.gov). The agreement provides a framework of rules and procedures for the countries to work jointly to ensure certain Intercountry adoption protections. These include providing adoptees with permanent and loving homes and looking after children’s best interests throughout the adoption process, thus preventing the abduction, sale or illegal traffic of children.
“These new protective and streamlining measures underscore our commitment to children, parents and prospective adoptive parents”, said Michael Valverde, acting Deputy Chief, USCIS Office of International Operations.
Question: Are there various forms that need to be completed?
Answer: There are new forms. The new forms being introduced are an Application for Determination of Suitability to Adopt a Child from a Convention Country (I-800A), and the Petition to Classify a Convention Adoptee as an Immediate Relative (I-800). The purpose of the I-800A is to review the suitability and eligibility of prospective adoptive parent(s), while the I-800 determines a child’s Convention classification eligibility.
Additionally, USCIS established a special unit to process all Hague Intercountry adoption applications and petitions at its USCIS National Benefits Center. The special unit will also provide customer service support to prospective adoptive parents who have filed Form I-800A or Form I-800.
To complete an international adoption and bring a child to the United States, prospective adoptive parent(s) must fulfill the requirements set by the United States U.S. Citizenship and Immigration Services in the Department of Homeland Security (USCIS), the foreign country in which the child resides and sometimes the state of residence of the adoptive parent(s). Although procedures and documentary requirements may seem repetitive, you should procure several copies of each document in the event they are needed to meet the requirements of USCIS, the foreign country and your home state. The process is designed to protect the child, the adoptive parent(s) and the birth parent(s).
Question: What is the basic procedures through USCIS?
Answer: The U.S. Immigration and Nationality Act (INA) is the U.S. immigration law regarding the issuance of visas to nationals of other countries, including children adopted abroad or coming to the United States for adoption. The basic statutory provision concerning adopted children is in INA Section 101(b)(1)(E). Which provides immigrant classification for "a child adopted while under the age of sixteen years if the child has been in the legal custody of, and has resided with, the adopting parent or parents for at least two years." This so-called "two-year provision" is for individuals who are temporarily residing abroad and wish to adopt a child in accordance with the laws of the foreign state where they reside. Most adoptive parents, however, are not able to spend two years abroad living with the child. Therefore, they seek benefits under another provision of the INA, Section 101(b)(1)(F), which grants immigrant classification to orphans who have been adopted or will be adopted by U.S. citizens. Under this section of the law, both the child and the adoptive parents must satisfy a number of requirements established by the INA and the related regulations, but the two-year residency requirement is eliminated. Only after it is demonstrated that both the parents and the child qualify, can the child be issued a visa to travel to the United States.
Your adoption agency or attorney will require specific documents, as will your state of residence. In general, all agencies, whether state or private, require proof of citizenship, marriage (if a married couple), health, financial stability and information about arrests or certification of a clean criminal record. In addition, the home study (a report on the family prepared by a licensed social worker or other person licensed to perform home studies) normally is required by both the foreign government and the USCIS. The local government of the country from which you wish to adopt, your chosen adoption agency, or attorney may request additional documents.

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Brian D. Lerner is a Certified Specialist in Immigration and Nationality Law by the California State Bar Board of Legal Specialization. He is admitted to the U.S. Supreme Court and the 1st, 2nd, 3rd, 4th, 5th, 6th, 8th, 9th, 10th and 11th Circuit Courts of Appeal. He is also admitted to the California Supreme Court. This firm handles cases both nationally and worldwide. This firm does every aspect of immigration law including family and employment based petitions, deportation defense and criminal related immigration issues, asylum, naturalization, citizenship, appeals, nonimmigrant visas, immigrant visas, and all other areas of immigration law. An appointment can be made by calling (866) 495-0554 or (562) 495-0554. The Firm website is www.eimmigration.org.

What is happening with the Backlog Centers?

Question: When is the official date that the Dallas and Philadelphia BECs will close?

Answer: Both BECs will close on 12/21/07.

Question: When will the BECs stop taking case inquiries from the public?

Answer: At this time the BECs’ capability to answer case questionsis limited due to the process of forwarding completed cases to the Federal Retention Centers for archiving purposes. All communication will cease on 12/21/07.

Question: After the BECs close on 12/21/07, whom do I contact with questions
regarding the disposition of my application?

Answer: Direct all disposition questions to the Chicago National Processing Center (NPC). However, the Chicago NPC will not have direct access to case files and will only be able to provide limited information. Contact the Chicago NPC via email at: bec.chicago@dol.gov (the subject line should be marked: Attn: Backlog) All mail the BECs receive just prior to closing will be forwarded to Chicago. All correspondence mailed to the BEC, but not received prior to closing, will be forwarded by the U.S. Postal Service to the Chicago NPC.

Question: If my case is denied, who will handle appeal requests after the BECs close?

Answer: Send all appeal requests for cases denied by either BEC to the Chicago National Processing Center.

Question: My case was denied and I have filed an appeal, but I have not received a decision. What will happen to my case?

Answer: For cases that are currently in the appeal process, in the event that a BALCA decision is not reached prior to the closing of the BECs, the Chicago NPC will track the appeal and take any further actions required by a BALCA decision. The employer will be contacted at the appropriate time regarding new contact information.

Question: My case is listed as “In Process” on PDS. If my case is not completed prior to the BECs’ closing on 12/21/07 will final action still be taken?

Answer: In the unlikely event a case is not completed prior to the BECs’ closing, the case will be completed by Office of Foreign Labor Certification (OFLC) personnel.

The application will be processed and the employer will be contacted as appropriate regarding final disposition.

Question: How long will the Public Disclosure System (PDS) remain active?

Answer: The system will remain active until all cases are completed. Cases in the appeal process will remain on PDS until BALCA reaches a decision.

Question: My case was closed at the State or Regional Office. Will the BEC be contacting me about my case?

Answer: No. Cases that received a final disposition at either the State or regional level, including being denied, closed, or withdrawn, would not have been sent to a BEC. Since the appeal period has expired on all such cases, there is no additional action that can be taken.

Question: After the BECs close, where do I send Freedom of Information Act (FOIA) requests?

Answer: Information on how to make a FOIA request can be found at http://www.doleta.gov/foia/. FOIA requests should be sent to the ETA National Office.

Question: Will BEC personnel still be available to discuss backlog applications after the BECs close?

Answer: No. All BEC federal personnel will be reassigned to positions not related to Foreign Labor Certification.

Thus, the new PERM process is now completely in place and almost all old Labor Certifications have been processed.

I would like to wish everyone a very happy holiday season and a very prosperous New Year's!
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Brian D. Lerner is a Certified Specialist in Immigration and Nationality Law by the California State Bar Board of Legal Specialization. He is admitted to the U.S. Supreme Court and the 1st, 2nd, 3rd, 4th, 5th, 6th, 8th, 9th, 10th and 11th Circuit Courts of Appeal. He is also admitted to the California Supreme Court. This firm handles cases both nationally and worldwide. This firm does every aspect of immigration law including family and employment based petitions, deportation defense and criminal related immigration issues, asylum, naturalization, citizenship, appeals, nonimmigrant visas, immigrant visas, and all other areas of immigration law. An appointment can be made by calling (866) 495-0554 or (562) 495-0554. The Firm website is www.eimmigration.org.

Do I need a new form to hire people?

What am I supposed to get from my new employees?

Question: I just hired three more people. I understand that there is a new I-9 Form. What do I need to do? Where can I get the new Form I-9?

Answer: Both Form I-9 and the Employer Handbook are available as downloadable PDFs at www.uscis.gov. Employers without computer access can order USCIS forms by calling our toll-free number at 1-800-870-3676. Individuals can also request USCIS forms and information on immigration laws, regulations, and procedures by calling the National Customer Service Center toll-free at 1-800-375-5283.

Question: What is the difference between the revised Form I-9 and the old one?

Answer: Five documents have been removed from List A of the List of Acceptable Documents:Certificate of U.S. Citizenship (Form N-560 or N-561), Certificate of
Naturalization (Form N-550 or N-570), Alien Registration Receipt Card (I-151), Unexpired Reentry Permit (Form I-327) and unexpired Refugee Travel Document (Form I-571)./

One document was added to List A of the List of Acceptable Documents. This is an unexpired Employment Authorization Document (I-766). All the Employment Authorization Documents with photographs that are in circulation are now included as one item on List A. Instructions regarding Section 1 of Form I-9 now indicate that the employee is not obliged to provide the Social Security Number in Section 1 of Form I-9, unless he or she is employed by an employer who participates in E-Verify. The section on Photocopying and Retaining Form I-9 now includes information about electronically signing and retaining I-9 forms.

Question: Can I accept documents that used to be on the Form I-9 but aren’t now?

Answer: No. Employers may only accept documents listed on the List of Acceptable Documents on Form I-9. When re-verifying employees, employers should ensure that they use the new Form I-9 with its updated list of acceptable documents.
Question: Are there any changes in the way the new Form I-9 is completed?
Answer: No. The updated form should be completed exactly the same way as the old one was. The only difference is the types of documents that employers may accept in Section 2.

Question: Is the Form I-9 available in different languages?

Answer: The Form I-9 is available in English and Spanish. However, only employers in Puerto Rico may have employees complete the Spanish version for their records. Employers in the 50 states and other U.S. territories may use the Spanish version as a translation guide for Spanish-speaking employees, but must complete the English version and kept it in the employer’s records. Employees may also use or ask for a translator/preparer to assist them in completing the form.

Question: What versions of Form I-9 are valid for use?

Answer: As of November 7, 2007, the Form I-9 with a revision date of June 5, 2007 is the only version of the form that is valid for use. The revision date is printed on the lower right corner of the form and states “(Rev. 06/05/07)N”. All previous versions of Form I-9, in English or Spanish, are no longer valid. The 1988 version of Form I-9 in Spanish expired in 1991.

Question: When should employers begin using the version of Form I-9 marked with a revision date of “(Rev. 06/05/07)N”?

Answer: Employers must use the amended Form I-9 (Rev. 06/05/07)N for all individuals hired on or after November 7, 2007. However, DHS recognizes that employers should be afforded a period of time to transition to the amended Form I-9. DHS will publish a Notice in the Federal Register announcing that it will not seek penalties against an employer for using a previous version of the Form I-9 during a 30 day transition period that begins on date of publication of the Notice. After the transition period, employers who fail to use Form I-9 (Rev. 06/05/07)N may be subject to all applicable penalties under section 274A of the INA, 8 U.S.C. 1324a, as enforced by U.S. Immigration and Customs Enforcement (ICE).
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Brian D. Lerner is a Certified Specialist in Immigration and Nationality Law by the California State Bar Board of Legal Specialization. He is admitted to the U.S. Supreme Court and the 1st, 2nd, 3rd, 4th, 5th, 6th, 8th, 9th, 10th and 11th Circuit Courts of Appeal. He is also admitted to the California Supreme Court. This firm handles cases both nationally and worldwide. This firm does every aspect of immigration law including family and employment based petitions, deportation defense and criminal related immigration issues, asylum, naturalization, citizenship, appeals, nonimmigrant visas, immigrant visas, and all other areas of immigration law. An appointment can be made by calling (866) 495-0554 or (562) 495-0554. The Firm website is www.eimmigration.org.

Is the Backlog Elimination Center Gone?

Are the Backlog Elimination Centers gone?

Question: I filed a Labor Certification years ago and it went to what I have been told is the Backlog Elimination Center. What is currently happening with that center and what can expect with my old Labor Certification? Are the Backlog Elimination Centers (BEC's) still open, or did they close?

Answer: As of September 30, 2007, the Backlog in the Permanent Labor Certification program has been eliminated, with nearly 99% of cases completed and the remainder awaiting responses from employers. Both of the BEC’s have started a transition and shutdown phase that will continue into December. The BEC’s will continue to use the general information email boxes as the communication source for a limited period. These addresses are: info@dal.dflc.us (Dallas BEC) or info@phi.dflc.us (Philadelphia BEC).

Question: My case is not yet completed; can I still find out the status of the case?

Answer: The online Backlog Public Disclosure System (PDS) will continue to be active. Case status can be checked at http://pds.pbls.doleta.gov.

Question: My case is still listed as “In Process” on PDS. Will the BEC complete my case?

Answer: Both of the BEC’s have started a transition and shutdown phase that will continue through December. During this time, they will complete any remaining cases. Employers or their designated attorneys or agents are strongly encouraged to respond to any dated (time sensitive) correspondence as soon as possible – and prior to specified deadlines to the extent possible – regarding remaining cases to facilitate a final disposition.

Question: One of my friends has a case is listed as Certified on PDS, but has not yet received his certification in the mail.

Answer: It may take up to three weeks to receive the certification by mail. The certification will be sent to the attorney of record or to the employer if there is no attorney of record. If the certification is not received after three weeks from the time it is listed on PDS as certified, email the appropriate BEC at the information email box as listed above. On the subject line, please use the identifier “Post-Certification Issue.”

Question: My case was closed at the State or Regional Office; will the BEC be contacting me about my case?

Answer: No. Cases that received a final disposition at either the State or regional level, including being denied, closed, or withdrawn, would not have been sent to a BEC. Since the appeal period has expired on all such cases, there is no additional action that can be taken.

Question: What if the applicant, attorney, or representative for the case did not respond in a timely manner to correspondence and the case was closed. Will the BEC consider re-opening the case?

Answer: No. When OFLC (i.e., the BEC) corresponds with employers, their attorneys, or agents, specific dates (deadlines) are given for required actions by the applicant to continue the case. If the appropriate, complete response is not received by OFLC postmarked by the required date, the decision regarding the case remains final. Likewise, if a timely response had not been received to a Notice of Findings, the decision to deny the case is final.

Question: What if the case was denied by the Certifying Officer at the BEC, but the employer or their attorney has appealed this decision to BALCA. Who will handle the case if further action is required by the BALCA decision?

Answer: In the event that a BALCA decision is not reached prior to the closing of the BEC's in December 2007, OFLC will track the appeal and take any further actions required by a BALCA decision. The employer will be contacted at the appropriate time regarding new contact information.
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Brian D. Lerner is a Certified Specialist in Immigration and Nationality Law by the California State Bar Board of Legal Specialization. He is admitted to the U.S. Supreme Court and the 1st, 2nd, 3rd, 4th, 5th, 6th, 8th, 9th, 10th and 11th Circuit Courts of Appeal. He is also admitted to the California Supreme Court. This firm handles cases both nationally and worldwide. This firm does every aspect of immigration law including family and employment based petitions, deportation defense and criminal related immigration issues, asylum, naturalization, citizenship, appeals, nonimmigrant visas, immigrant visas, and all other areas of immigration law. An appointment can be made by calling (866) 495-0554 or (562) 495-0554. The Firm website is www.eimmigration.org.

2007 10 24 DREAM ACT

wrote:

2007 10 24 DREAM ACT

Is the DREAM ACT just a dream?

Question: I have heard that Congress will take up a vote on the DREAM Act. Is it law? What is the DREAM Act?

Answer: No, it is not law at this time. However, The Development, Relief, and Education for Alien Minors Act (DREAM Act), first introduced in 2001, is bipartisan legislation that provides qualified undocumented students the opportunity to secure legal permanent status. Those eligible students would only receive permanent status if, over a number of years, they successfully complete several requirements.

Question: Why do we need the DREAM Act?

Answer: Unless these kids were born in the United States, children generally gain their immigration status from their parents. If their parents are undocumented or in immigration limbo, these children have no mechanism to obtain legal residency. These young people were brought to the US by their parents, many have spent the majority of their lives in the U.S. and consider themselves to be Americans. Like their U.S.-born peers, they dream of pursuing a higher education, but they are unable to do so because of the enormous barriers created by their lack of legal status. The DREAM Act would provide an avenue for these young people to acquire legal status and pursue a college degree. Providing a path for these motivated students to enhance their education, excel in their chosen field, and fully integrate in the US is a “win-win” for not only these students but society in general.

Question: Who benefits from the DREAM Act? What are its requirements?

Answer: Under current U.S. law, young people who were brought to the U.S. without documentation have no legal status even if they have spent most of their lives in the U.S. The DREAM Act would allow qualified young people to adjust their status to that of a conditional permanent resident if they have: Entered the U.S. before the age of 16; Been physically present in the U.S. for a continuous period of not less than 5 years immediately preceding the date of enactment; Earned a high-school diploma or its equivalent; Been a person of good moral character; and there is no criminal record and are not a danger to national security.

Additionally, to have the conditional basis of their permanent resident status lifted, students would have to satisfy one of the following requirements within 6 years of being granted conditional status: Earn a 2-year degree from a U.S. institution of higher education or complete at least 2 years of a bachelor’s degree program; or serve in the U.S. Armed Forces for at least 2 years, and, if discharged, receive an honorable discharge.

Question: How many undocumented students would the DREAM Act impact?

Answer: The population eligible to qualify for the DREAM act is finite. It is limited to those who were brought here as children and who have been in the U.S. for 5 years before the bill is enacted. Approximately 360,000 qualified high-school graduates could receive conditional residency. Over the next 13 years, the bill also would also provide incentives for another 715,000 youngsters (an average of 55,000 a year) currently between the ages of 5 and 17 to finish high school and pursue post-secondary education.

Question: Would the DREAM Act lead to increased immigration?

Answer: No, for two principal reasons: first, the age and physical presence requirements of the DREAM Act will serve to limit their opportunities to sponsor family members for immigration. Second, sponsoring family members is always a limited and lengthy process, with stringent income and other qualifying requirements.

Given the age of the DREAM Act population, the number of eligible family members would likely be very small. The only family members DREAM Act students could seek to sponsor are their children and spouses, and this “preference category” is subject to strict numerical limitation. To even qualify to sponsor a family member, the DREAM Act student must have arrived in the U.S. before his or her 16th birthday. Therefore, if the student were to have any children they would almost certainly have been born in the U.S. If, however, the student were to have a child or spouse living abroad, those family members would have at least a 5-year wait before becoming eligible to apply for residency (5 years is the current average visa application backlog, but the actual wait time for individuals from many countries is far longer). Undocumented spouses already living here would have to leave the U.S. for 10 years before becoming eligible to immigrate to the U.S.

Thus, try contacting your representative in Congress for a ‘yes’ vote on the DREAM Act.

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Brian D. Lerner is a Certified Specialist in Immigration and Nationality Law by the California State Bar Board of Legal Specialization. He is admitted to the U.S. Supreme Court and the 1st, 2nd, 3rd, 4th, 5th, 6th, 8th, 9th, 10th and 11th Circuit Courts of Appeal. He is also admitted to the California Supreme Court. This firm handles cases both nationally and worldwide. This firm does every aspect of immigration law including family and employment based petitions, deportation defense and criminal related immigration issues, asylum, naturalization, citizenship, appeals, nonimmigrant visas, immigrant visas, and all other areas of immigration law. An appointment can be made by calling (866) 495-0554 or (562) 495-0554. The Firm website is www.eimmigration.org .

 

Can I still become a Citizen without knowing English?

Question: I have a friend who is quite elderly and just has not been able to learn English. Can he ever become a U.S. Citizen?

Answer: On September 18, 2007, U.S. Citizenship and Immigration Services (USCIS)
released a memorandum giving guidance on the adjudication of Form N-648, Medical Certification for Disability Exceptions.
This is the form necessary to begin a process to attempt to waiver the English requirement where the applicant has a medically determinable physical or mental impairment that renders him or her unable to demonstrate a proficiency of the English language or knowledge of U.S. history and government.

Question: What are the basic contents of the memorandum?

Answer: The memorandum begins by noting that Form N-648 be submitted as an attachment to the applicant's N-400, Application for Naturalization. The memorandum advises that the applicant should submit Form N-648 at the time when the N-400 application is filed, but that neither the submission of Form N-648 after the filing of the N-400 nor the submission of multiple Form N-648s is, by itself, sufficient grounds to reject a request for an exception. Nevertheless, the submission of late or multiple Form N-648s may raise credible doubts about the veracity of the medical certifications or justify additional scrutiny to ensure the applicant is entitled to the exception unless there is evidence of changed facts or circumstances that would explain the basis for filing multiple forms.

Question: What should basically be included in the N-648 package to try to get the English requirement waived?

Answer: It should include 1) an explanation of the origin, nature, and extent of the medical condition that is established and documented by medically acceptable clinical or laboratory diagnostic techniques, including a list of the medically acceptable clinical or laboratory diagnostic tests employed in reaching the diagnosis that the applicant has a mental and/or physical condition preventing him or her from learning English; 2) an explanation of how the applicant's diagnosed medical condition or impairment so severely affects the applicant that it renders him or her unable to learn or demonstrate English proficiency and/or knowledge of U.S. history and government; 3) an attestation that the disability has lasted, or is expected to last, 12 months or longer; and 4) an attestation that the disability is not the direct effect of the illegal use of drugs.

Question: What if the adjudicator thinks my friend is committing fraud?

Answer: Adjudicators have been instructed that they are not to presume the existence of fraud merely based on the number of applicants who seek a medical examination from a particular medical professional, noting that, applicants of an immigrant community commonly seek the care and services of medical professionals who share the same language, culture, ethnicity, and/or nationality and that this practice is not, in and of itself, an indication of fraud. If the adjudicator has a reason to suspect fraud, the adjudicator is instructed to consult with the Office of Fraud Detection and National Security (FDNS). If the FDNS does not provide a final response within 120 days from the date of the initial interview, the adjudicator is instructed to proceed with the adjudication of the application.

Question: Can the adjudicator simply deny the application?

Answer: If the adjudicator denies the application in whole or in part on credible doubts about or the deficiencies of an N-648, the adjudicator must explain the reasons why the credible doubts and deficiencies are preponderant over favorable medical evidence submitted on behalf of the applicant. Merely stating that the applicant has failed to meet the requirements for the waiver is not sufficient.
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Brian D. Lerner is a Certified Specialist in Immigration and Nationality Law by the California State Bar Board of Legal Specialization. He is admitted to the U.S. Supreme Court and the 1st, 2nd, 3rd, 4th, 5th, 6th, 8th, 9th, 10th and 11th Circuit Courts of Appeal. He is also admitted to the California Supreme Court. This firm handles cases both nationally and worldwide. This firm does every aspect of immigration law including family and employment based petitions, deportation defense and criminal related immigration issues, asylum, naturalization, citizenship, appeals, nonimmigrant visas, immigrant visas, and all other areas of immigration law. An appointment can be made by calling (866) 495-0554 or (562) 495-0554. The Firm website is www.eimmigration.org.

Asylum: Can I still apply?

Asylum: Can I still apply?

Question: I have been in the U.S. for several years. Now, I want to apply for asylum. Is there going to be any problem?

Answer: By statute, an asylum application must be filed within one year after the date of your arrival in the U.S. unless you show either the existence of changed circumstances which materially affect your eligibility for asylum or extraordinary circumstances that directly relate to the delay in filing the application.
In other words, if you do not file your asylum application timely and cannot successfully overcome the bar by fitting into an exception, you will be found ineligible to apply for asylum whether or not you are a refugee and have suffered persecution.

Question: What constitutes one year in this context?

Answer: Asylum Officers usually begin by counting backwards, using the receipt date which is stamped on the asylum application in your file as the filing date for the date the one-year period ends. If you have filed an earlier application, in other words, one previous to the application that you are using at the interview, make sure to mention it to the Asylum Officer. Mention this whether you filed the application two months before the one you are using or 10 years before the one you are using. It is quite possible that the older application is already in your “alien” or “A” file. It is also possible that the Asylum Officer can verify an older date of filing by looking on certain computer systems. At the very least, the Asylum Officer should take testimony about any earlier filings. The Asylum Officer should use the earlier date of filing as your client's filing date.
The term “one year” actually means 364 days, not 365 days. However, if the date of your application was received by USCIS or INS was a Saturday, Sunday, or legal holiday, you will be given an extra day. So, if you are close, make sure to ask the Asylum Officer to look at the calendar to check what day it was when your application arrived at immigration. Another thing to note when your filing date is very close to that one year mark is that, although applications are considered to be filed when received by the Service Center, your application will be considered timely if you can demonstrate that the application was mailed within the one year period. You can only do this, however, by presenting documentary evidence, such as a post office or Federal Express receipt. Testimony won't do in this instance.

Question: When does the one-year period begin?

Answer: The one-year period begins from your most recent entry into the United States. Therefore, if you entered the U.S. on numerous occasions, make sure to begin counting the one-year period from the most recent entry, regardless of whether the most recent entry was a lawful or unlawful entry. Of course, lawful entries are the easiest ones to track, both for you and for the Asylum Officer. If your most recent entry was a lawful one, submit a copy of the I-94 or the entry stamp in your passport with the asylum application and bring the original to the asylum interview. If you filed his or her asylum application within 364 days of that entry, he or she will not be barred under this rule.

If your most recent entry was without inspection, you must demonstrate to the Asylum Officer by clear and convincing evidence that you filed the asylum application within 364 days of that entry. That can be difficult to do. If you have a passport with entry stamps and/or visas for other countries that document where they were just prior to an entry into the United States, submit them with the asylum application. Submit any airline tickets or bus tickets for travel from within the United States that corroborate testimony regarding entry dates. If you cannot find any such documentation, you can present affidavits from people who came to meet or picked you up. Think about bringing these people as witnesses to testify at your interview. Testimony from these people, who would be placed under oath at the interview and could testify as to the date they first met you and would carry more weight than an affidavit would.

There are many different issues to look at, but first you need to get past the one-year issue.
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Brian D. Lerner is a Certified Specialist in Immigration and Nationality Law by the California State Bar Board of Legal Specialization. He is admitted to the U.S. Supreme Court and the 1st, 2nd, 3rd, 4th, 5th, 6th, 8th, 9th, 10th and 11th Circuit Courts of Appeal. He is also admitted to the California Supreme Court. This firm handles cases both nationally and worldwide. This firm does every aspect of immigration law including family and employment based petitions, deportation defense and criminal related immigration issues, asylum, naturalization, citizenship, appeals, nonimmigrant visas, immigrant visas, and all other areas of immigration law. An appointment can be made by calling (866) 495-0554 or (562) 495-0554. The Firm website is www.eimmigration.org.

2007 09 19 Family Unity

wrote:

2007 09 19 Family Unity

Family Unity: What is it?

Question: My parents got their Green Cards many years ago and filed for something called Family Unity for me. I am their son and am sing and over 21 years old. I keep getting my work permit renewed, but do not have any idea when or if I will ever get the Green Card. Can you help?

Answer: Persons who may be eligible to adjust under this section are aliens who have filed for class membership with the Attorney General, before October 1, 2000, in one of three legalization lawsuits: (1) Catholic Social Services, Inc. v. Meese; (2) League of United Latin American Citizens v. INS, vacated sub nom. Reno v. Catholic Social Services, Inc. or (3) Zambrano v. INS. In order for your parents to qualify for adjustment, they had to establish that they entered the U.S. before January 1, 1982, and thereafter resided in continuous unlawful status through May 4, 1988. Your parents would also have to establish that they were continuously physically present in the U.S. from November 6, 1986, through May 4, 1988. Furthermore, they would have had to demonstrate basic citizenship skills. The question then becomes how you can ultimately get the Green Card

First, Section 1504 of the LIFE Act Amendments provides that the Attorney General may not remove certain spouses and children of aliens eligible to adjust under LIFE Legalization and shall grant employment authorization to those eligible spouses and children for the period of time in which they have been afforded Family Unity protection. This is why you continually get your work permit renewed. Eligibility. Aliens eligible to benefit from the Family Unity provisions of the LIFE Act Amendments are those who: (1) are currently in the U.S.; (2) are the spouse or unmarried child of an alien who is eligible for adjustment under LIFE Legalization; and (3) entered the U.S. before December 1, 1988, and were residing in the U.S. on such date. Thus, at the time you received the Family Unity benefits, you must have been under 21 years old.

Question: What if I am over 21 years old now?

Answer: This means under certain interpretations by USCIS that you are no longer eligible for Family Unity. However, USCIS seems to have