In the United States v. Windsor, the Supreme Court struck down Section 3 of the Defense of Marriage Act (DOMA) as unconstitutional. This monumental decision, which was the culmination of years of tireless work by thousands of advocates the world over, opened up the much needed availability of immigration beneifts to same-sex couples. USCIS reacted fairly quickly to open the doors to a segment of the population that had been denied equal access to immigration benefits that so many others had priviledged to have.

This now means gay and lesbian couples can petition for each other in all immigration contexts that were previously reserved for hetro-sexual couples. To name just a few of the types of immigration cases that are now available to both hetro and homo sexual couples:

• Greencard (LPR) through marriage to a US Citizen or Permanent Resident;
• K-1 Fiance Visa;
• K-3 Spouse of a US Citizen Visa;
• Violence Against Women Act (VAWA) self-petitions;
• Cancellation of Removal requiring a qualifying relative;
• Waivers requiring a qualifying relative- 212(h), 212(i);
• Diversity Visa;
• Asylum and Refugee derivative beneficiaries;
• Prosecutorial Discretion for those in Immigraiton Proceedings;
• Provisional Stateside Waiver Process (I-601A) and Overseas Waivers;
• Derivative beneficiaries of non-immigrant visas (F-4, K-2, H-4, E-2, etc.);
• Following to join and accompnaying to join.

There should not longer be any type of immigration benefit not availabe to a same-sex couple.

We at the Law Offices of Ricky Malik, PC proudly represent same-sex couples and applaud the decision. Please contact us for a confidential consultation to discuss your options. We are discrete and fully aware not all couples are open about the circumstances of their relationship and we do everything to respect and honor your wishes.

Ricky Malik, Esq.

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.

For more on the Provisional Waiver, click here.

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

Information from USCIS on the New Provisional Waiver Process:

Ricky Malik, Esq.

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

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.

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

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.

Ricky Malik, Esq.

www.rmlegal.com

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

The Board of Immigration Appeals in Matter of Cruz De Ortiz issued a decision overturning the long held belief by many that your greencard (LPR) status cannot be taken away once five (5) years passes. The BIA held that INA 246(a) rescission of LPR status is available beyond 5 years for those who obtained Immigrant Visa from Consulate.

That is good news for those who adjusted status inside the United States (usually through form I-485), but those who entered on an Immigrant Visa from their embassies are not protected by the five year statue of limiations rule. Case below.

Cruz De Ortiz

Ricky Malik, Esq.

www.rmlegal.com

B-1 in Lieu of H-1B or H-3

Foreign nationals who would ordinarily be granted H-1B or H-3 (training) status may be admitted with B-1 visas provided that they are paid from abroad. For a B-1 in lieu of H-1B visa, the foreign national must present proof that he or she will remain employed by his or her overseas firm. A person in B-1 in lieu of H-1B status may provide local services for a limited time.

Note, it is essential that the remuneration or source of income for services performed in the United States continue to be provided by the business entity located abroad


Ricky Malik, Esq.
Attorney at Law

B-1 Business
Visa permits a person to come to the United States temporarily for attending business meetings or trade shows, buying goods, conducting research, or other commercial activities.

To qualify you must demonstrate:
-The purpose of your trip is for business
-You plan to stay for a specific, limited period of time
-You have social and economic ties outside the United States and you will return at the end of your visit

Examples of B-1 activities . The FAM sets forth many examples of permissible B-1 activities.  (See also INS Office of Business Liaison, Employment Information Bulletin 99-03, "Permissible Activities for a B-1 Business Visitor" (June 2000).

§     Professional athletes playing in tournaments, events, and competitions;
§     Members of boards of directors attending meetings;
§     Installing equipment purchased from overseas pursuant to a contract, or service or repair of commercial or industrial machinery;
§     Religious activities;
§     Attending conferences or seminars;
§     Setting up an E-2 enterprise-but not running it;
§     Consulting and meeting with clients;
§     Observing and conducting business;
§     Crew joining a vessel.
§     Engaging in commercial transactions (i.e., buying or selling) which do not involve gainful employment in the United States;
§     Negotiating contracts;
§     Consulting with business associates, including attending meetings at a U.S. corporation;
§     Litigating;
§     Participating in scientific, educational, professional, or business conventions, conferences or seminars;
§     Undertaking research.
§Professors on Honorarium only.
§Certain Chefs and Cooks, Religious Workers, Ministers, Personal Domestic Servants, Professional athlete, airline employee, elective clerkship students, commercial truck drivers, attending executive/professional seminars, race track personnel, etc.
§    Installation, service, or repair of commercial or industrial equipment.[1]

Key questions (if any one is answered YES, then visa will NOT be issued):

1.     Will the individual be compensated (i.e., beyond reimbursement for expenses or per diem) from a U.S. source?

2.     Will the individual, even if uncompensated, perform services for which a U.S. worker would have to be hired or are the services inherently part of the U.S. labor market?

3.     Are the services primarily benefiting the U.S. entity as local work or hire (as contrasted with benefiting the alien him or herself or the foreign employer in furtherance of international trade)?

This case tries to close the door on K-1 entrants adjusting through subsequent marriages to US Citizens.

Nonetheless the case does help clarify one issue that we have run into before, namely that "A fiancé(e) visa holder may be granted adjustment of status ... even if the marriage to the fiancé(e) visa petitioner does not exist at the time that the adjustment application is adjudicated, if the applicant can demonstrate that he or she entered into a bona fide marriage within the 90-day period to the fiancé(e) visa petitioner."

This is good news for those K-1 entrants who did marry in good faith within the 90 days but whose relationships may have unfortunately failed. Matter of Sesay.

Sesay K-1
Ricky Malik, Esq.
www.rmlegal.com

U.S. Citizenship and Immigration Services (USCIS) announced that it is now issuing employment and travel authorization on a single card for certain applicants filing an Application to Register Permanent Residence or Adjust Status, Form I-485. This new card represents a significant improvement from the current practice of issuing paper Advance Parole documents.

The card looks similar to the current Employment Authorization Document (EAD) but will include text that reads, “Serves as I-512 Advance Parole.” A card with this text will serve as both an employment authorization and Advance Parole document. The new card is also more secure and more durable than the current paper Advance Parole document.