Waivers for permanent residents in removal or deportation if they were not eligible for their green card

Permanent residents in removal or deportation may be eligible for waivers, re-adjustment or other relief from removal, such as asylum, even if they were not eligible for their green card at the time they received it. Residents may also have a statute of limitations argument if ICE waits more than five years to place them in removal proceedings

Green card holders who have lived in the US for many years may be shocked to suddenly find themselves in removal proceedings, facing deportation, because they were not technically eligible for permanent residency at the time they entered. At the time they became a resident, they did not meet one of the requirements for their green card. If ICE has waited more than five years to initiate removal proceedings, they may argue that the statute of limitations pursuant to 8 USC 1256(a) has passed. Or, they may be eligible for a waiver under INA 237(a)(1)(H), which waives fraud at the time of becoming a resident, or under INA 212(k), if the inadmissibility was not known to, and could not have reasonably been discovered before the time of departure. Additionally, they may be eligible to re-adjust to permanent residency. Thus, even if you were not technically eligible to become a permanent resident, you still may be eligible for relief from removal and be able to stay in the US with your green card.

Let us take as an example, Analisa from Calabria Italy. Analisa’s permanent resident father petitions for his daughter as an adult unmarried child. They receive an approval on the I-130 relative petition. Because she is an adult, she must remain unmarried throughout the entire process to receive her green card. If she marries, her relative petition will be automatically revoked because there is no family preference category for married children of permanent residents. Any married child of a permanent resident is simply not eligible for the green card.

Her dear dad prepares the immigrant visa application forms and documents. He does it himself from the U.S., with minimal input from his daughter. Dad likes to be in charge. Since she had minimal involvement in the whole immigration application process, she was never informed that if she married, she would not be eligible for her green card.

She goes to the interview at the US Consulate and is issued an immigrant visa. Shortly before she comes to the U.S., she marries her childhood love, Giovanni, but does not tell her parents or family right away.

At the time she enters the U.S., she becomes a lawful permanent resident. She then petitions for her husband Giovanni, and he comes to the US also as a resident. They have two beautiful US citizen children. Seven years go by.

She applies for naturalization, and is fingerprinted. USCIS reviews her file, and refers her case to ICE.

Suddenly, Analisa is placed in removal proceedings for not having been in possession of a valid immigrant visa at the time she entered the US. The Notice to Appear in immigration court charges her with violating the Immigration and Nationality Act, INA Section 237(a)(1)(A), as being inadmissible at the time of entry or of adjustment of status or violates status: “Inadmissible aliens – Any alien who at the time of entry or adjustment of status was within one or more of the classes of aliens inadmissible by the law existing at such time is deportable”. ICE also may or may not charge her with fraud.

First, did US ICE wait too long to put her into removal proceedings? Whether she has an argument that the statute of limitations has passed depends upon the jurisdiction in which she is living. If she resides within the Third Circuit, yes, her attorney can make a motion to terminate based upon ICE initiating proceedings after the statute of limitations.

According to the INA, 8 USC 1256(a), ICE would have had to initiate removal proceedings within five years of the date of Analisa’s becoming a permanent resident, based on her lack of eligibility at the time she was granted residency. Because it was seven years between the date she became a resident and the date ICE issued the Notice to Appear, the statute of limitations has passed and the Immigration Judge should terminate removal proceedings. However, this will work in the Third Circuit but not in other jurisdictions. So, if she resides in New York, most likely she will not win on a statute of limitations argument.

However, she would be eligible for a 212(k) waiver, if she can prove she really did not know she had to remain unmarried throughout the process, and that it would not have been reasonable for her to know. The other option is a waiver under 237(a)(1)(H) which waives fraud at the time of becoming a permanent resident, as long as the individual is the spouse, parent, son or daughter of a U.S. citizen or permanent resident. She may also be eligible for re-adjustment to permanent residency.

Thus, if you were actually not eligible for your green card at the time you received it, you still may be eligible for relief from removal and be able to remain permanently in the U.S. Of course, you will need a competent attorney to represent you in immigration court and for presentation of the waivers and any other applications you may be eligible for.

Copyright 2020 © Heidi J Meyers, all rights reserved.

H-1B Registration Process for Spring 2020

Employers who wish to file cap-subject H-1B petitions for this fiscal year, must first comply with the registration process, which runs from March 1st to March 20th 2020. The employer must first create an account through myuscis.gov, prior to March 1st.

The purpose of the registration period is to allow employers to file basic information about the Company and basic biographic data about each proposed beneficiary, and then to have USCIS run the lottery and select which registrants will receive H-1B visa numbers.

Once a registrant is selected and receives a visa number, the employer will then be able to file an H-1B petition on his or her behalf.

In order to register a potential beneficiary, the employer simply has to provide: 1) the employer’s legal business name; 2) any dbas (doing business as) trade names; 3) FEIN (federal employer identfication number; 4) primary U.S. office address; 5) name, title and contact information of the responsable employee or executive who will be signing the papers.

Only very basic information about the beneficiary will be required: 1) complete name; 2) gender; 3) does the beneficiary hold a master’s or higher degree from a U.S. institution, and eligible for the advanced degree exemption?; 4) country of birth and country of citizenship; 5) Passport number.

No information about the job offer is required, so no need to submit any job titles or job descriptions. The employer also does not need any certified LCA (Labor Condition Application) prior to registering. Registrations may be edited prior to the end of the registration period, if there are any typographical errors or changes to make.

When the registration is submitted online, the authorized signatory is certifying under penalty of perjury that all the information is true and correct. The employer has to pay a $10 registration fee for each potential beneficiary (registrant).

However, even though no certified LCA is required to register, it may be a good idea to get your LCAs certified prior, as once a registrant is selected to receive a visa number, the employer will then need to be ready to file an H-1B petition, which of course requires a pre-certified LCA.

Attorneys may submit registrations on behalf of employers. Attorneys also need to créate their own account with myuscis.gov.

If a registrant, meaning a beneficiary, is selected through the lottery, the employer should be able to file an H-1B petition on April 1st or the first business day after. USCIS has stated that it intends to notify employers no later than March 31st 2020 if their registrant has been selected. However, if an employer is unable to file the H-1B petition during the first week in April, it is not a tragedy, as the USCIS rule provides that USCIS will set a 90-day window to file the actual H-1B petitions, once the registrants who will receive H-1B visa numbers are selected.

Copyright 2020 © Heidi J Meyers, all rights reserved.

Interfaith marriage, religious minority marriage & US immigration

In order for the U.S. State Dept or DHS (Department of Homeland Security) to recognize a marriage for immigration purposes, the marriage must be legal in the place where it is contracted. Not only that, there must be documentary proof the marriage actually took place, unless the country recognizes common law marriage. Religious minorities in certain countries have difficulty obtaining proof of the legality of their marriage. Certain countries also ban interfaith marriages. This creates immigration issues for religious minorities as well as for interfaith couples.

The danger that religious minorities and interfaith couples face in their home countries may also make them eligible for asylum, and is a strong factor in favor of a grant of cancellation of removal.

Example 1: Hindu marriage in Pakistan. Our first example is a Hindu couple, Vishnu and Adhiti from Punjab Pakistan. Vishnu marries his wife Adhiti in Pakistan in 1999. There was no procedure for registration of Hindu marriages in Pakistan prior to the change in the law in 2017.

In 2015, Vishnu goes to the U.S. on a B visa and in 2016, he changes status to H-1B. He misses his beloved Adhiti and their two children. Adhiti goes to the U.S. Embassy in Islamabad to apply for an H-4 visa. She has no certificate from the Hindu temple that married them. Adhiti contacts the Hindu temple where they were married, but the elderly Hindu priest has died and there is no one to help her.

The U.S. Embassy denies her H-4 visa because she lacks any proof of legal marriage. The fact that they have two children does not convince the consular officer. Pakistan does not recognize common law marriage, and because of the Pakistan government’s prior lack of recognition of Hindu marriage, they have no marriage registration from the government. Not only do they not have any government-issued marriage certificate, they also do not have any certificate from the temple which performed their marriage. So they do not have documentary proof that they are actually married.

Even if they did have a temple certificate and were able to satisfy the U.S. Embassy, this would not satisfy USCIS for any applications later on. USCIS would request proof of legal marriage recognized by the government, which depends upon the law of the country where the marriage was contracted.

However, Pakistan’s parliament passes the Hindu Marriage Act, and it is signed into law in 2017. The Act applies retroactively to Hindu marriages that took place prior to the Act, and makes them legal.

After the Hindu Marriage Act goes into effect, Adhiti goes to the local marriage registrar and fills out the Shadiparat (Certificate of Hindu Marriage). She completes the Shadiparat form with her and her husband’s basic information, and where and when she was married. Both Adhiti and Vishnu sign the form, along with two witnesses and the local registrar issues them a marriage certificate. See, Pakistan Act No. VII of 2017 “An act to provide for the solemnization of marriages by Hindu families and for matters ancillary and incidental thereto”, http://www.na.gov.pk/uploads/documents/1491458181_468.pdf See also, Sara Raza, “The Hindu Marriage Act 2017: A Review”, Lums Law Journal Vol 4., https://sahsol.lums.edu.pk/law-journal/hindu-marriage-act-2017-review

They will then have adequate proof of their marriage. Thus, after the change in the law in Pakistan in 2017, Vishnu would be able to have his wife to come to the US. on the H-4 visa.

Let’s change the scenario a little. Suppose Adhiti is desperate to come to the U.S. prior to the change in the law. Is there another option for her? Yes, there is the B-2 visa, which is an option for unmarried partners. According to the Foreign Affairs Manual, 9 FAM 402.2-4(B)(5), the B-2 visa is appropriate for co-habiting partners, and members of the household of the principal, if the principal has a long-term nonimmigrant status. See, https://fam.state.gov/fam/09FAM/09FAM040202.html. For example, the principal may have H-1, L-1, O-1, F-1, J-1, A, G, or NATO status. For any of these long-term nonimmigrant statuses, the cohabiting partner may apply for B-2 status if he or she is not eligible as a derivative.

So, she may apply for a B-2 visa by proving to the U.S. Embassy that she and Vishnu have been living together and have a long-term relationship. Because they have two children, this should be easy to prove.

The B-2 is also an option for gays who are unable to marry in their home countries, or for other permanent couples who for whatever reason do not believe in the institution of marriage.

Example 2: Christian marriage in Morocco. In June 2018, Reuters reported on the marriage of a convert to Christianity, Loubna and her husband Kamal in Morocco. Kamal is also Christian. Because of threats from people in their conservative home town, they had to have their wedding ceremony in the office of a human rights organization in the capital of Rabat. See, https://www.reuters.com/article/us-morocco-religion/christians-want-marriages-recognized-in-morocco-idUSKCN1J4231. Morocco does not recognize Christian marriages as legal, only those of Muslims and Jews. Because Loubna and Kamal’s Christian wedding is not recognized as legal by the Moroccan government, neither Loubna nor Kamal would qualify for derivative immigration status if one was granted any kind of nonimmigrant visa or the green card.

This scenario is similar to our first scenario. Supposing Loubna got an L-1A as an executive or managerial transferee, to come to the U.S., her husband Kamal would not qualify for a derivative L-2, but he would be able to qualify for a B-2 visa as her cohabiting partner.

Example 3: marriage of a Hindu and a Christian interfaith couple in India. In India, interfaith marriages are regulated by the Special Marriage Act, 1954. The Act requires that an interfaith couple must publish the intention of their marriage with the government for at least 30 days prior to the wedding. Both Indian nationals, Christian Mary and Hindu Ramesh love each other and wish to marry. Due to fear of religious extremists who oppose interfaith marriage, attacking them and their families to prevent their marriage, they are too scared to go through the process of publishing their marriage for 30 days prior to the wedding. Instead, they have a simple Hindu ceremony and do not register their marriage with the government.

In order for this to be a different scenario from our first example, suppose they both depart India and enter the U.S. If both are physically present in the U.S., and one obtains immigration status, the other will not qualify as a derivative because they are not legally married. Their marriage is not recognized in the place where it occurred. The easiest solution is to just get married again here in the U.S.

Example 4: Marriage of a Muslim woman and non-Muslim man in Algeria. Fatima, a Muslim young woman from Algeria, comes to the U.S. on an F-1 student visa to attend college. On the college campus, she meets Bob, your average American white male from Iowa, who is a Lutheran protestant. They fall in love. Brimming with idealism, they decide to go to Algeria together for Bob to meet Fatima’s parents and to propose marriage. Fatima’s parents advise her that although they think Bob is a very nice person, he is not suitable for marriage. The parents, although, do ask Bob if he has considered converting to Islam. Bob cannot contemplate praying five times per day, nor fasting for even one day, let alone a whole month. Furthermore, he has been eating ham since he was young and is not about to give it up. Bob answers no, he is not willing to convert, but that he loves Fatima and would work hard to make her happy. The parents are then implacably opposed to their marriage.

Regardless of the position of the parents regarding their daughter’s potential interfaith marriage, Algerian law forbids the marriage of a Muslim woman to a non-Muslim man. Thus, it is not legally possible for them to get married in Algeria. Even if they were to find a sympathetic Imam to perform the marriage, it still would not be legal.

Meanwhile, Fatima’s F-1 student visa has expired and she needs to apply for a new one. Fatima and Bob discuss that once she gets her F-1 visa renewed, they will be able to marry in the U.S. However, this is problematic. In order to qualify for the F-1 visa, one must prove that one’s intention in coming to the U.S. is only temporary, and that the F-1 will return to his or her home country at the end of their stay. If Fatima plans to marry Bob, a U.S. citizen, and stay permanently in the U.S., she could later be accused of immigration fraud.

The solution here is for Bob to file a fiancée petition, with USCIS, and demonstrate that he and Fatima have a genuine relationship, that they are not marrying for immigration purposes, and they plan to spend their lives together. Bob must prove they plan to marry within 90 days of Fatima’s entry into the U.S. He may have to show their specific plan for the wedding. Once USCIS approves the K-1 fiancee petition, it will be forwarded to the U.S. Embassy in Algiers for an interview.

Here, the B-2 will not be appropriate, because they are students and have not lived together. Anyway, Fatima objects to living together until after they marry.

Example 5: Interfaith marriage of a Christian and a Jew in Israel. Israeli Jewish Uri falls in love with Anastasia, an Orthodox Christian who is also Israeli. Because interfaith marriage is illegal in Israel, and Anastasia does not want to convert, they travel to Cyprus, and have a big fat wedding with all the family and friends. They get a legal marriage certificate from Cyprus.

Anastasia later on becomes eligible to immigrate to the U.S. through her U.S. citizen mother. Uri will be her derivative and will be able to immigrate at the same time and they will both become permanent residents. It does not matter that both are Israeli citizens and that both live in Israel where interfaith marriage is illegal. Because their interfaith marriage was legal in Cyprus, where it occurred, the US State Dept and DHS will consider them to be legally married.

Example 6: Muslim marriage in UK, which is not registered. It is perfectly legal for Muslims to marry each other in England, but unfortunately many Muslim marriages are not registered with the government. Sixty percent of Muslim women in the U.K. who have had a traditional Muslim wedding ceremony with a Nikkah, have not had their marriages legally registered with the government. This is not a problem of British law, which does not discriminate against Muslim marriage. It is a problem of the Muslim community not registering the marriages civilly. See, https://www.theguardian.com/world/2017/nov/20/women-uk-islamic-wedding-legal-rights-civil-ceremony-marriage Apparently, more than 90% of mosques are not registering Muslim marriages under civil law.

Suppose Aisha and Muhammad Rehman have a Muslim marriage contract, a Nikkah at a mosque in London and have had a shadi. In order for one to be the derivative of the other for U.S. immigration purposes, all they have to do is register their marriage civilly.

Thus, should your status as an interfaith or minority religious couple make a difficult or impossible to legally marry in your home country, you may have a number of options. First, get married in another third country where it is legal. Second, the partner can come to the U.S. on a B-2 visa if he or she is unable to get derivative status from the principal’s long-term nonimmigrant status. Third, if both partners are here in the U.S., just get married again (the kids love it!). You can call it a renewal of vows. Fourth, if one partner is a U.S. citizen, he or she can sponsor the other for a K-1 fiancee visa, and they then marry within 90 days of entry.

Finally if you face danger in your home country due to your status as an interfaith couple or religious minority, you may be eligible for asylum, withholding of removal or relief under the Convention Against Torture in the U.S. Additionally, the fact that you will be in danger if you return to your home country due to your status as an interfaith couple or religious minority, will be a strong factor in favor of a grant of cancellation of removal.

Copyright 2019 © Heidi J. Meyers all rights reserved.

Does government collection of social media data violate First Amendment rights to freedom of expression and association?

Two organizations of documentary filmmakers are suing the US State Department and DHS for violating their First Amendment rights and placing them in fear for their lives, in order to stop the government’s requirement that all visa applicants provide all their social media identifiers, including pseudonymous ones, during the past five years. This requirement applies even to those foreign nationals who have lived in the US for many years and who travel abroad to obtain a visa and return to the US. The US government is also retaining this private information, and sharing it with other government agencies, possibly for years to come, so it is an ongoing violation of rights.

The Doc Society is a non-profit “committed to enabling great documentary films and connecting them to audiences globally” See, https://docsociety.org/. The International Documentary Association supports nonfiction filmmaking and filmmakers, and provides educational seminars, promotes collaboration and sharing of ideas among the filmmaking community, as well as tours for American films. See, https://www.documentary.org/programs.

They allege that the requirement of providing all social media information violates their First Amendment expressive and associational rights. It chills protected speech by forcing them to provide access to the government of “their personal, creative and political activities online”, and putting their lives in danger, as well as their family’s lives. Complaint, p. 2. See, https://www.brennancenter.org/sites/default/files/2019-12/Complaint%20Doc%20Society%20v%20Pompeo.pdf

Many of their member filmmakers live in authoritarian countries, and their work draws attention to human rights abuses as well as political and social issues, and is often critical of their own and other governments. They also use their protected speech to connect with other filmmakers, artists and advocates.  “In recent months, authoritarian and other rights-abusing regimes, including some U.S. allies, have used information gleaned from social media to identify, locate and detain human rights advocates, journalists and political dissidents-and even, in some instances, to have them killed” Complt, p. 4.

U.S. officials may disclose their social media identifiers to foreign governments, or fail to protect their social media from being inadvertently disclosed to third parties. Moreover, once the US government has all their social media identifiers, including their pseudonymous one, they may be subject to continuing, ongoing surveillance by the US government of their political and artistic activities.

This also harms American-born filmmakers, because it makes it much more difficult for them to discover and spotlight the talent and work of filmmakers abroad and to learn about issues foreign filmmakers face. It deprives American-born filmmakers of being able to hear the speech that foreign filmmakers would have otherwise shared on social media. It also means that they will no longer be able to attract many filmmakers and others from abroad to come to the US and participate in their events, screenings and conventions, causing an ongoing large loss of revenue.

In addition to violating the First Amendment of the US Constitution, the complaint also alleges that the requirement to provide social media information violates the APA (Administrative Procedure Act), and is arbitrary and capricious.

The case was filed in the U.S. District Court for the District of Columbia, Doc Society and International Documentary Association v. Michael Pompeo, Sec of State and Chad Wolf, Acting Sec of DHS, Docket No., 1:19-cv-03632, on December 5, 2019 and is currently pending.

Copyright 2019 © Heidi J Meyers, all rights reserved.

Employers & Foreign Nationals with Delayed Immigration Cases Can Go to Federal Court to get a Decision

Employers and their employees with H-1B, Ls or Os pending for many months or more than a year have the option of going into federal district court in order to get their petitions adjudicated by USCIS. Similarly, foreign nationals and their US citizen husbands or wives with marriage cases (or other relative petitions), as well as applications for adjustment to permanent residency, that have been delayed for years have the option of going into federal court. The employer or individuals, though an attorney, may file a petition for a writ of mandamus in the federal district court in order to force USCIS to promptly make a decision on the case. See 28 U.S.C. 1361.

The petition for a writ of mandamus may also be used effectively with large groups of immigrants negatively affected by US government processing delays. An example would be the preliminary injunction issued by the federal judge in Afghan and Iraqi Allies v. Pompeo, 1:18-cv-01388-TSC (D. District of Columbia) where the government was taking more than three to five years (since the case has been ongoing, it is now four to six years) to adjudicate SIV (Special Immigrant Visa) applications on behalf of Afghans and Iraqis who had worked on behalf of the US government, for example as interpreters for the US Armed Forces, in very dangerous conditions. These brave individuals had risked their lives in the service of the US government, how could the same US government delay their applications to come to the US for three or more years?

Regarding petitions for writ of mandamus filed by employers or individual family members, the US Attorneys Office often tries to settle these cases, and just have USCIS adjudicate the case and quickly issue a decision. Thus, it is an effective means to get an answer on a case where the government has been sitting and not doing its job. You will not see much published case law on writs of mandamus precisely for that reason, that the government is usually anxious to settle.

What do you need to be able to file for a writ of mandamus? First, you need a meritorious case that is thoroughly documented. The writ of mandamus only gets the government to adjudicate your case, the petition does not ask that it be approved. Basically, you are saying that it is the government’s job to adjudicate immigration cases, this case has been pending for an unreasonable amount of time, and the judge should tell the government to do its job and make a decision on the case.

Second, you need to show that you have made many efforts to get the USCIS or DHS to adjudicate your case – by writing letters, calling, making infopass appointments, etc., but the USCIS has still not given you an answer. One of the requirements for a writ of mandamus is to show “exhaustion of administrative remedies”. This means that, before going into federal court, you made every effort to repeatedly try to get the government to made a decision on your case, so you have “exhausted” every other avenue and going to federal court is a last resort.

Third, you need to show that the delay is “unreasonable”. How long a delay must be to be “unreasonable” depends on the particular facts of the case. In certain cases, the case may be delayed months or years past what USCIS has published is their current processing time (you can find processing times on their web site at USCIS.gov). However, the posted USCIS processing time may itself be unreasonable if it is contrary to Congress’s intention in the statute or longer than specified by federal regulations. A delay may also be unreasonable where the petitioner employer, beneficiary employee or family member petitioners or applicants may be harmed because of the delay. For example, with our brave Afghan and Iraqi interpreters and other personnel who worked for the US military and government, they or their family members may be gravely injured or killed by the Taliban or other anti-American groups while the US government dawdles in adjudicating their cases. Another example is an employer who needs an H-1B worker to start a project by a certain date, otherwise the company will suffer a great economic loss, not only on the particular project but perhaps also lose future business of the client.

Fourth, as mentioned above, you cannot ask the federal court for an approval, you can only ask under the writ of mandamus for a decision. Should the case be denied, you would have to file separately in federal court to challenge the denial.

Filing in federal court is complex and time consuming, and you will need a competent immigration attorney to assist you.

Copyright 2019 © Heidi J Meyers, all rights reserved.

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