Recent Blog Posts

Travelling outside the United States as a Dreamer (DACA)

Ricky Malik — Fri, 01 Feb 2013 03:45:00 GMT

A young client who was recently granted legal status and work authorization under the Deferred Action for Childhood Arrivals (DACA) program asked me if he could travel outside the United States. His life had changed so much in the last few months. For the first time in his life he was legal and could work.

He knew no other country than the United States since he had been here as long as he could remember and asked me if he could travel to his native country.

I told him that he may apply for permission and obtain what is known as "Advance Parole" to travel outside the United States and return. Traveling without Advance Parole would mean his newly acquired, long awaited deferred status would expire.

In order to obtain Advance Parolet as a Dreamer, you must file a form I-131 and demonstrate that you have a compelling reason related to (1) your current employment, (2) education, or (3) humanitarian purposes. I told him though this may change in the future, his reasons for travelling must be related to one of the three reasons.

Ricky Malik, Esq.

Free Provisional Stateside Waiver Evaluation-Online and Confidential!

Ricky Malik — Tue, 29 Jan 2013 22:04:00 GMT

Fill out my online form.

For more on the Provisional Waiver, click here.

Can I apply for a Provisional Waiver if I am in removal (deportation) proceedings?

Ricky Malik — Mon, 14 Jan 2013 14:00:00 GMT

We are fielding questions about whether someone in removal proceedings or who has been ordered removed (deported) can apply under the new Provisional Waiver Process.

The Answer

If you are currently in removal proceedings, they need to be "administratively closed" so that you can apply for the Provisional Waiver (I-601A). Once the waiver has been approved, you will need to "re-calendar" those proceedings and have them "terminated" or "dismissed." You must make sure they are terminated or dismissed before you depart the United States. You don't want to inadvertantly execute your own removal order.

If you already have an order of removal or deportation against you, then you will first need to seek to have your case re-opened by filing a "Motion to Reopen." If that motion is granted, then when appropriate, you will need to have your proceedings administratively closed while you seek the provisional waiver. After the waiver is approved, you will need the proceedings terminated or dismissed before you depart the United States.

In both above scenairios, you will more than likely need a seasoned and experienced attorney guide you.

Ricky Malik, Esq.

dream@rmlegal.com

USCIS: I am an immediate relative of a U.S. Citizen. How do I file for a provisional unlawful presence waiver?

Ricky Malik — Sat, 12 Jan 2013 15:00:00 GMT

Information from USCIS on the New Provisional Waiver Process:

New ICE Detainer policy - December 21, 2012

Ricky Malik — Fri, 11 Jan 2013 15:24:00 GMT

The director of Immigration & Customs Enforcment, John Morton, released a memorandum on December 21, 2012 that if implemented will significantly scale back the application of detainers by federal, state and local law enforcement.

Under the new guidance, ICE should issue a detainer only where (1) they have reason to believe the individual is an alien subject to removal from the United States AND (2) one or more of the following conditions apply:

the individual has a prior felony conviction or has been charged with a felony offense;
the individual has three or more prior misdemeanor convictions;
the individual has a prior misdemeanor conviction or has been charged with a misdemeanor offense if the misdemeanor conviction or pending charge involves-
- violence, threats, or assault;
- sexual abuse or exploitation;
- driving under the influence of alcohol or a controlled substance;
- unlawful flight from the scene of an accident;
- unlawful possession or use of a firearm or other deadly weapon;
- the distribution or trafficking of a controlled substance; or
- other significant threat to public safety;3
the individual has been convicted of illegal entry pursuant to 8 U.S.C. § 1325;
the individual has illegally re-entered the country after a previous removal or return;
the individual has an outstanding order of removal;
the individual has been found by an immigration officer or an immigration judge to have knowingly committed immigration fraud; or
the individual otherwise poses a significant risk to national security, border security, or public safety.

Video: Who Qualifies for the new Provisional Waiver?

Ricky Malik — Wed, 09 Jan 2013 16:22:00 GMT

Ricky Malik, Esq.

Lawful Permanent Resident (LPR) Card Codes

Ricky Malik — Wed, 09 Jan 2013 14:00:00 GMT

A lot can be determined by just looking at the category on a Lawful Permanent Resident (LPR) card.

DHS has the burden to prove LPR's inadmissiblity

Ricky Malik — Tue, 08 Jan 2013 14:00:00 GMT

When a permanent resident (LPR or greencard holder) travels overseas and returns, s/he is NOT to be treated as what is known as seeking admission (or an applicant for admission) into the United States.

The Board of Immigration Appeals (BIA) clarifed in Matter of Rivens, 25 I&N Dec. 623 (BIA 2011) that to establish that a returning LPR is to be treated as an applicant for admission, rather than not an applicant for admission as stated above, the government has the burden of proving by clear and convincing evidence that one of the six exceptions listed in §101(a)(13)(C) applies.

Those exceptions are if the person:

has abandoned or relinquished that status,
has been absent from the United States for a continuous period in excess of 180 days,
has engaged in illegal activity after having departed the United States,
has departed from the United States while under legal process seeking removal of the alien from the United States, including removal proceedings under this Act and extradition proceedings,
has committed an offense identified in section 212(a)(2), unless since such offense the alien has been granted relief under section 212(h) or 240A(a), or
is attempting to enter at a time or place other than as designated by immigration officers or has not been admitted to the United States after inspection and authorization by an immigration officer

So if you are a permanent resident and stopped at re-entry at the airport or other port of entry by the Customs and Border Patrol (CBP), it will be on the DHS to prove by clear and convincing evidence that you fall into one of the above six categories.

Ricky Malik, Esq.

I want to apply for Provisional Waiver, but my case is already at NVC?

Ricky Malik — Mon, 07 Jan 2013 12:10:00 GMT

Many people are wondering what to do if they want to apply under the new provisional waiver process that was announced on January 3, 2013, but their visa petitions (130's) have been approved and their case is already at the National Visa Center (NVC)?

If you do not already have a consulate interview notice (dated before January 3, 2013), then you must notify NVC immediately after you have paid the immigrant visa processing fee and before you apply for the provisional unlawful presence waiver and to inform them that you will be applying for a provisional waiver.

Ricky Malik, Esq.

dream@rmlegal.com

How do you prove "Extreme Hardship"?

Ricky Malik — Sat, 05 Jan 2013 05:22:00 GMT

The new provisional waiver process that was published in the Federal Register on January 3, 2013 has brought out a lot of questions about what consitutes "extreme hardship." This is after all the standard that must be proven to USCIS. It is important to understand the hardship is not to the foreign national, but rather to the qualifying relative.

While there is no bright line test as to what constitutes extreme hardship, and it is evaluated on a case by case basis, it can include, but is not limited to: family separation, economic hardship, medical issues, country conditions abroad, and any other difficulty or harm faced by the qualifying relative(s).

The lead Immigration Court case from the Board of Immigration Appeals (BIA) isMatter of Cervantes, 22 I&N Dec. 560 (BIA 1999) which lists as factors:

the presence of lawful permanent resident or United States citizen family ties to this country;
the qualifying relative’s family ties outside the United States;
the conditions in the country or countries to which the qualifying relative would relocate and the extent of the qualifying relative’s ties to such countries;
the financial impact of departure from this country;
significant conditions of health, particularly when tied to an unavailability of suitable medical care in the country to which the qualifying relative would relocate.

Extreme Hardship is proven differently and uniquely in each case and is personal to each family and can be proven in the absence of severe medical issues. Consider hiring an attorney for a process as complex as a waiver.

Ricky Malik, Esq.

New Provisional Waiver Rule Released

Ricky Malik — Thu, 03 Jan 2013 20:45:00 GMT

After almost a year of waiting, the new Provisional Waiver rule was relesed on January 3, 2013 with an effective date of March 4, 2013. The new rule allows foreign nationals who have been unlawfully present in the United States for more than 180 days to complete the majority of the process and waiting in the United States. Before the rule, which will take effect on March 4, 2013, spouses, parents and children of US Citizens would often times have to wait months to years outside the United States to ask for a waiver (pardon). Now, the immigrant petition, waiver and national visa center (NVC) processing will all be done while the family can remain together in the United States.

Eligibility to apply:

1. You must be present in the United States at filing and be fingerprinted;

2. Your only immigration violation is that you were unlawfully present (undocumented) for 180 days or more in the U.S.;

3. Your visa petition must be filed by a US Citizen Immediate Relative (spouse, parent or child over 21);

4. You must show extreme hardship to your US Citizen spouse or parent(s), not to your child(ren);

5. You must file Form I-601A with an approved I-130 and proof the immigrant visa fee has been paid to the Deparment of State (NVC).

Below are the regulations as published in the Federal Register. All the reasons you may want to consider hiring an attorney are in those details.

Ricky Malik, Esq.

Immigration Attorney

Nonimmigrants: Who Can Study?

Ricky Malik — Sun, 26 Aug 2012 23:03:00 GMT

A question often asked is if persons on nonimmigrant visas (and their spoused and children) can study while in the United States. The following document from ICE provides guidance.

Ricky Malik, Esq.

www.rmlegal.com

Virginia DMV confirms Deferred Action students will be able to obtain Driver's Licenses!

Ricky Malik — Mon, 20 Aug 2012 03:33:00 GMT

Good news! A common question we are asked by Deferred Action (DACA) applicants is whether they can get driver's licenses. In Virginia, the answer is "yes."

"The Virginia Department of Motor Vehicles (DMV) has confirmed in writing that young people granted "deferred action" by Immigration Customs Enforcement at the Department of Homeland Security will be eligible for Virginia driver's licenses and ID's. The statement was made in response to a request from the American Civil Liberties Union of Virginia sent to DMV Commissioner Richard Holcomb."

Ricky Malik, Esq.

dream@rmlegal.com

Deferred Action (DACA) Applications and Crimes, Convictions, Arrests and Charges

Ricky Malik — Sun, 19 Aug 2012 12:18:00 GMT

An area the Law Offices of Ricky Malik, PC has always gained expertise in is the intersection of immigration with criminal convictions. The new Deferred Action for Childhood Arrivals (DACA) program raises issues about what crimes or convictions will prevent someone from applying.

Before reading the below list of disqualifiers, please note that the Deparmtent of Homeland Security (DHS) has stated that "the decision to defer action in a particular case is an individualized, discretionary one that is made taking into account the totality of the circumstances. Therefore, the absence of the criminal history, or its presence, is not necessarily determinative, but is a factor to be considered."

Attorney: Even if you have been convicted of the below offenses, USCIS will review each application on a case-by-case basis and depending on the totality of circumstances and humanitarian equities, can grant deferred action.

You are ineligible if you have been convicted:

1. A felony: If the crime is classified a felony under law for which imprisonment of more than 1 year may be imposed, it is a disqualifier.

Attorney: So even if it is classified a felony, BUT if it is not punishable by more than 1 year, then it will NOT prevent you from applying.

2. A significant misdemeanor: A crime that is punishable with jail from 6 days to 1 year AND is an crime of domestic violence, sexual abuse or exploitation, burglary, unlawful possession or use of a firearm, drug distribution or trafficking or, driving under the influence (DUI), OR if it is crime which you actually served 90+ days in jail.

Attorney: (A) a DUI is a disqualifier, but is Driving While Intoxicated (DWI) not? Eg. in Maryland DUI's and DWI's are different offenses. (B) A suspended sentence will not count towards the 90 days. (C) Noting the above italicized section, it is possible that a person's positives and good deeds can overcome a negative factor.

3. Three (3) or more misdemeanors not occurring on the same date and not arising out of the same act, omission, or scheme of misconduct.

Attorney: (A) Often times a person is charged with multiple offenses at once ie. possession of a fictitious ID, false ID to a police officer, forgery, uttering, etc. Unless they are from separate moments, they will not count against an applicant. (B) A minor traffic offense, including driving without a license, will not be considered a misdemeanor for purposes of this process. So even if an applicant has 3 or more driving without a license convictions, that person still qualifies.

For more information about eligibility contact me at dream@rmlegal.com or call our office toll free at 877-577-VISA.

Ricky Malik, Esq.

How is "currently in school" defined for the Deferred Action Program?

Ricky Malik — Sat, 18 Aug 2012 19:20:00 GMT

We are receiving many questions about the "school" requirment for DACA: "Can I enroll in a GED program now?", "What if I completed High School in my country, can I enroll in school now?", "Do I still need to be in school?", "Do I need to go back to school?",

The DACA program is flexible.

To meet the “currently in school” requirement you must be enrolled in school on the date you submit a request for consideration of deferred action under this process. This means that you can enroll now in a program and apply for DACA.

Types of programs that qualify:

1. General Educational Development (GED) programs or its equivalent;

2. English as a Second Language (ESL) program as a prerequisite to your placement in postsecondary education, job training, or employment;

3. Educational, Literacy, or Career Training (including Vocational training) programs that are designed to lead to placement in postsecondary education, job training, or employment;

4. Public or Private elementary, middle, junior high, high school, or secondary school.

Contact our office if you would like to recieve a free evalution of your eligiblity for Deferred Action or email me at dream@rmlegal.com

Ricky Malik, Esq.