Recent Blog Posts

How long will my waiver (601) take if I go overseas?

Ricky Malik — Fri, 17 Feb 2012 13:45:00 GMT

I am oftentimes asked by people who are ineligble to get Lawful Permanent Residency (LPR/greencard) in the United States about going overseas to complete a waiver process, known commonly as an I-601.

The risk and fear is that it will take too long and may get denied. Both are reasonable concerns and many people feel that if they leave it will take years. While this is true in a few cases, generally, if after consulting with my office we decide to proceed with an overseas petition process, the wait times can be as short as a few months or generally in the 6-12 month range. Below are the latest processing times.

As you can see the majority of cases are completed within 6 months, except for El Salvador which takes just less than a year for 100% completion, Honduras which takes over year, and England where the Consulate clearly takes their time.

Ricky Malik, Esq.

Can I Recapture and Retain an Earlier Priority Date?

Ricky Malik — Thu, 16 Feb 2012 14:40:00 GMT

Yes, in certain circumstances per 8 CFR 204.2(a)(1)(iii)(F)(4), 204.2(I)(3) and 204.2(a)(4) for derivative beneficiaries of marriage based petitions.

Recapture is complicated and it is highly advisable to discuss your matter with a qualified Immigration Attorney before filing a recapture 485 and checking box H "Other Basis" with an explanation.

Ricy Malik, Esq.

Can I apply for a work permit (EAD) even if my case was denied and is on appeal?

Ricky Malik — Wed, 15 Feb 2012 16:12:00 GMT

Yes! According to USCIS-NBC in meeting held in October 2011 with AILA, even if your case has been denied by USCIS, and then subsequently denied by an Immigration Judge, you can still apply and get your work permit while your case is on appeal before the Board of Immigration Appeals (BIA) or later if your case is with the Cirucit Court of Appeals in your area.

You must demonstrate proof of the pending appeal in the form of

a copy of the file stamped Form EOIR-26 where block 6 indicates that the Form I-485 is at issue in the appeal
a file stamped copy of the Petition for Review wherein the alien is appealing the fact that the BIA affirmed the IJ’s denial of the Form I-485,
or in cases where an Appeal of an I-485 has been remanded to a lower court, to the BIA or Immigration Court, a copy of the Court Order remanding the matter.

Ricky Malik, Esq.

www.rmlegal.com

TPS Work Authorization Automatically extended while application is pending

Ricky Malik — Wed, 11 Jan 2012 15:21:00 GMT

Many Temporary Protected Status (TPS) applicants and especially their employers are concerned that their work permits expire while they are waiting for their new card. However, as in previous years, all TPS applicants work permits are automatically renewed as long as they file for their renewal timely.

This means that even if a TPS work permit (employment authorization docment - EAD) has an expired date on it, it is still valid due to the blanket automatic extension announced by immigration (USCIS). See the below documents that can be used by both employer and employees:

Federal Register:

Ricky Malik, Esq.

greencard@mail.com

TPS El Salvador Renewed - 2012

Ricky Malik — Wed, 11 Jan 2012 14:40:00 GMT

Temporary Protected Status (TPS) for El Salvador has been renewed.

Applicants must register by March 12, 2012. USCIS notices, including Federal Register below:

Ricky Malik, Esq.

Immigration Attorney

The U Visa Regulations - Federal Register

Ricky Malik — Tue, 10 Jan 2012 17:15:00 GMT

The U Visa Regulations:

Ricky Malik, Esq.

www.rmlegal.com

Federal Register on Proposed Provisional Waiver

Ricky Malik — Tue, 10 Jan 2012 02:00:00 GMT

Ricky Malik, Esq.

www.rmlegal.com

USCIS on 601 Waivers

Ricky Malik — Sun, 08 Jan 2012 17:35:00 GMT

USCIS Office of Public Engagement: I-601 Notice of Intent

U.S. Citizenship and Immigration Services sent this bulletin at 01/06/2012 10:32 AM EST

Dear Stakeholders-

U.S. Citizenship and Immigration Services (USCIS) posted a Notice of Intent in the Federal Register outlining a proposed change to its current process for the filing and adjudication of waivers of inadmissibility relating to unlawful presence.

The proposed process would allow certain individuals seeking permanent residence through their U.S. citizen immediate relatives to apply for waivers of inadmissibility before leaving the U.S. for their interview at a U.S. Embassy or Consulate overseas.

The proposal reflects the Administration’s steadfast commitment to maintaining the integrity of immigration law, promoting family unity and improving overall efficiency in the immigration system. This change would decrease the time eligible individuals are separated from their U.S. citizen relatives and would only apply in cases where U.S. citizens would suffer extreme hardship as a result of prolonged separation.

USCIS will host a stakeholder engagement on January 10, 2012 at 2:00 pm (EST) to provide an overview of how these proposed process changes may affect filing and adjudication as well as address questions and concerns from stakeholders. Please see the attached invitation for more information.

Kind Regards,

Office of Public Engagement

U.S. Citizenship and Immigration Services

www.uscis.gov

USCIS Release on New Process for Waivers

Ricky Malik — Sat, 07 Jan 2012 18:52:00 GMT

In the Federal Register on Monday, January 9, 2011 a new proposed provision will be publshed allowing many undocumented immigrants to process their waivers while inside the United States. For many years, certain immigrants were afraid to leave the United States to process their "greencards" because they feared their waivers (pardons) would be denied thereby barring re-entry into the United States for 10 years.

Now the Obama administration is changing the law to allow immigrants to process the waivers inside the United States taking away the risk of going overseas and getting denied. However, the immigrant will still have to leave the U.S. to pick up his/her immigrant visa but will not wait for months or years while the waiver is being processed. This concept of still having to leave will please the Republican oppostion as they have been proponents of legalization only if ther person goes overseas to get their visas. This seems like a good compromise on its face that should please all sides.

Below is the release from USCIS:

Ricky Malik, Esq.

www.rmlegal.com

Major Proposed Change in Immigration: New Process for Waivers to be decided in the United States

Ricky Malik — Fri, 06 Jan 2012 16:30:00 GMT

There is a major proposed announcement changing the Immigration process for many foreign nationals who are illegal in the United States. At present, many people must travel outside the United States and wait months if not years to seek forgiveness (a waiver) to re-enter the U.S.

Now, the Obama administration is proposing to allow certain relatives of U.S. Citizens to apply for the waiver and wait inside the United States. Then once the immigrant petition (I-130) and waiver (I-601) have been approved, the foreign national can go to simply and expeditiously pick up the visa from their home embassy or consulate.

The proposal was preliminary announced this morning and will become official once published in the Federal Register on Monday, January 9, 2012.

Below is the Advance copy of the USCIS notice that would allow certain immediate relatives of U.S. Citizens to request INA 212(1)(9)(B)(v) unlawful presence waivers, prior to departing the U.S. for consular processing of their immigrant visa application.

Ricky Malik, Esq.

Immigration Attorney

Children up to age 25 can file for VAWA self-petition

Ricky Malik — Sat, 03 Dec 2011 17:05:00 GMT

USCIS issued a memo clarifying that a child continues to be eligible to file a VAWA self-petition beyond the age of 21, up to the age of 25, as long as the abuse was one of the cental reasons for the delay in filing. The abuse however must have occurred at the latest, on the day before the applicant turned 21 and the applicant must be unmarried even at the time of filing.

Full memo below:

Ricky Malik, Esq.

www.rmlegal.com

The ICE Detainer

Ricky Malik — Fri, 02 Dec 2011 16:35:00 GMT

On occasion (all the time in Prince William County, VA), when a non-citizen is pulled over or arrested by law enforcment for traffic or criminal violations, ICE place a detainer, a hold, on that person. A detainer is a request by ICE for the local police department or jail to hold the person for up to 48 hours while ICE determines if they should take that person into immigration custody.

While ICE is getting better, the 48 hour rule is not complied with as much as should be the case. ICE issues its detainer request on form I-247 which is shown below. As you can see, in CAPS and bolded is the language "MAINTAIN CUSTODY OF ALIEN FOR A PERIOD NOT TO EXCEED 48 HOURS."

Ricky Malik, Esq.

www.rmlegal.com

The Expansion of VAWA to include battered or abused parents of U.S. Citizens

Ricky Malik — Thu, 01 Dec 2011 13:25:00 GMT

USCIS released a memo addressing the ability of abused and battered parents of U.S. Citizens to file VAWA self-petitions. USCIS correctly intrepreted the intent of Congress in the Immigraition and Nationality Act (INA) to include the ability to step parents and adoptive parents to self-petition:

"An abused parent, stepparent, or adoptive parent of a U.S. citizen is therefore eligible to apply for VAWA relief pursuant to 201(a)(1)(A)(vii) provided that the self petitioner is a “parent” (as defined in section 101(b)(2)) and has or had a qualifying relationship to a U.S. citizen son or daughter. Additionally, the qualifying relationship must have been in existence at the time of the abuse and at the time of filing."

Full memo:

Ricky Malik, Esq.

www.rmlegal.com

Immigration High Court further limits Cancellation of Removal eligibility

Ricky Malik — Wed, 30 Nov 2011 16:45:00 GMT

The Board of Immigration Appeals (BIA) further limited a non-citizen's ability to apply for Cancellaition of Removal issuing a decision disallowing a 212(h) waiver to be used to overcome certain criminal grounds.

Cancellation of Removal for non-greencard holders is available to stop the removal (deportation) of an immigrant who can prove s/he has been in the United Sates for 10 years, establish good moral character, and demonstrate that close family members would suffer exceptional or extremely unusual hardship if the immigrant were to be deported.

In Matter of Busatamante, 25 I&N Dec. 564 (BIA 2011), the immigrant has been convicted of possession of 20 grams of Marijuana. A 212(h) waiver exists to forgive an immigrant who possessed less than 30 grams. Bustamante applied for a 212(h) waiver to apply for forgiveness for the 20g and then demonstrate how badly his family would suffer if her were to be deported.

Unforutnately, the Immigration high court did not agree and closed the door for many immigrants to use the 212(h):

Ricky Malik, Esq.

www.rmlegal.com

Temporary Protected Status (TPS) renewal notices for Nicaragua and Honduras

Ricky Malik — Tue, 29 Nov 2011 15:35:00 GMT

Notices and Federal Register for Temporary Protected Status (TPS) renewals for Nicaragua and Honduras.

TPS Honduras extension 2011

Ricky Malik, Esq.