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.

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.

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

1. a copy of the file stamped Form EOIR-26 where block 6 indicates that the Form I-485 is at issue in the appeal
2. 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,
3. 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

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

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

An Immigraiton Judge should consider new evidence submitted in support of a renewed I-751 with a waiver of the joint filing requirement regardless of whether the evidence was previously considered by DHS. Matter of Herrera Del Orden, 25 I&N Dec. 589 (BIA 2011).

Herrera Del Orden

Ricky Malik, Esq.

www.rmlegal.com

The Eleventh Circuit Court of Appeals dealt a blow to the arugment that Temporary Protected Status (TPS) beneficiaries who entered initially without inspection can adjust status pursuant to INA 245(a). See decsion below in Serrano vs. Attorney General.

Serrano TPS 11th Circ

Ricky Malik, Esq.

www.rmlegal.com

ICE relesase a Frequently Asked Questions (FAQ) on August 30, 2011 on its new process to prioritize immigration cases for removal. See below:

Ricky Malik, Esq.

www.rmlegal.com

The Immigration world has been abuzz in recent weeks following releases from the White House and DHS. There has been a lot of "stuff" put out there and we want to help you get to the truth, using facts. To do so we need to understand the lead up.

On June 17, 2011, two memos were released by ICE chief, John Morton, (both embeded below), now known as the "Morton Memos":

• Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens, U.S. Immigration and Customs Enforcement.

prosecutorial-discretion-memo -

• Prosecutorial Discretion: Certain Victims, Witnesses, and Plaintiffs, U.S. Immigration and Customs Enforcement

On August 18, 2001, Department of Homeland Security Secretary, Janet Napolitano annonced the process of implementing the Prosecutorial Discretion (PD) memos in a letter to 22 Senators. Secretary Napolitano announced the creation of a special task force to review on a case by case basis the 300,000 plus people who are currently in removal (deportation) proceedings in order to determine if those who are prioritzed to be deported are indeed going to be removed. It is clear from the later paragraphs of the letter (below) that this is not an amnesty nor a compreshensive legalization program (So please beware of scams from notaries and lawyers alike).

That same day, the White House blogged stating the administration will not be "focusing our resources on deporting people who are low priorities for deportation. This includes individuals such as young people who were brought to this country as small children, and who know no other home. It also includes individuals such as military veterans and the spouses of active-duty military personnel...applying common sense guidelines to make these decisions, like a person’s ties andcontributions to the community, their family relationships and military service record."

We welcome ICE prioritizing removals rather than the deport 'em all policy we have seen in recent years. Only time will tell if this is political hot air or a meaningful change in policy enforcement.

Ricky Malik, Esq.

www.rmlegal.com

-Supplemental Security Income (SSI)
-Cash assistance from the Temporary Assistance for Needy Families (TANF) program
-State or local cash assistance programs for income maintenance (general assistance programs)

Others that do not lead to a negative determination:
-Medicaid and other health insurance and health services (including public assistancefor immunizations and for testing and treatment of symptoms of communicable diseases, use of health clinics, short-term rehabilitation services, prenatal care and emergency medical services) other than support for long-term institutional care
-Children's Health Insurance Program (CHIP)
-Nutrition programs, including the Supplemental Nutrition Assistance Program(SNAP) commonly referred to as Food Stamps
-the Special Supplemental Nutrition Program for Women, Infants and Children (WIC)
-the National School Lunch and School Breakfast Program, and other supplementary and emergency food assistance programs
-Housing benefits
-Child care services
-Energy assistance, such as the Low Income Home Energy Assistance Program(LIHEAP)    
-Emergency disaster relief    
-Foster care and adoption assistance    
-Educational assistance (such as attending public school), including benefits under theHead Start Act and aid for elementary, secondary or higher education    
-Job training programs
-In-kind, community-based programs, services or assistance (such as soup kitchens,    
crisis counseling and intervention, and short-term shelter)
-Non-cash benefits under TANF such as subsidized child care or transit subsidies
-Cash payments that have been earned, such as Title II Social Security benefits,government pensions, and veterans' benefits, and other forms of earned benefits
-Unemployment compensation



Ricky Malik, Esq.
Law Offices of Ricky Malik

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.

What action should you take in light of INA 204(l):

If you or a family member had their cases denied due to the death of a petitioner, you need to file an untimelymotion to reopen your case, or if you have not yet filed, file now.

---

USCIS has for years denied cases when the petitioner (USC Spouse or other relative) died while the petition was pending.  Nowsection 204(l) permits the approval of a visa petition as well as any adjustment (residency) application and related application, if the alien seeking the benefit resided in the United States when the qualifying relative died AND continues to reside in the United States on the date of the decision on the pending petition or application; and is at least one of the following:

-The beneficiary of a pending or approved immediate relative visa petition;

-The beneficiary of a pending or approved family-based visa petition, including both the principal beneficiary and any derivative beneficiaries;

-Any derivative beneficiary of a pending or approved employment-based visa petition;

-The beneficiary of a pending or approved Form I-730, Refugee/Asylee Relative Petition;

-An alien admitted as a derivative “T” or “U” nonimmigrant; or

-A derivative asylee under section 208(b)(3) of the Act

USCIS  has unfortunately narrowly interpreted the term “qualifying relative” and is inferring  through their recent memo that it means an individual who, immediately before death, was:

-The petitioner in a family-based immigrant visa petition under section 201(b)(2)(A)(i) or 203(a) of the Act;

-The principal beneficiary in a family-based visa petition case under section 201(b)(2)(A)(i) or 203(a) of the Act;

-The principal beneficiary in an employment-based visa petition case under section 203(b) of the Act;

-The petitioner in a refugee/asylee relative petition under section 207 or 208 of the Act;

-The principal alien admitted as a T or U nonimmigrant; or

-The principal asylee, who was granted asylum under 208 of the Act.

The Administrative Appeals Office published a postive case that addressed burden of proof. Hopefully, USCIS adjudicators will use this case as their guide when deciding cases.  In Matter of Chawathe, 25 I&N Dec. 369 (AAO 2010) it was held that:

"In most administrative immigration proceedings, the applicant must prove by a preponderance of evidence that he or she is eligible for the benefit sought.

Even if the director has some doubt as to the truth, if the petitioner submits relevant, probative, and credible evidence that leads the director to believe that the claim is "more likely than not" or "probably" true, the applicant has satisfied the standard of proof. Matter of E-M-, 20 I&N Dec. 77, 79-80 (Comm'r  1989), followed.

If the director can articulate a material doubt, it is appropriate for the director to either request additional evidence or, if that doubt leads the director to believe that the claim is probably not true, deny the application or petition."