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.

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

Matter of Rivens, 25 I&N Dec. 623 (BIA 2011) (full case below):

"(1) In order to establish that a returning lawful permanent resident alien is to be treated as an applicant for admission to the United States, the Department of Homeland Security has the burden of proving by clear and convincing evidence that one of the six exceptions to the general rule for lawful permanent residents set forth at section 101(a)(13)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(13)(C) (2006), applies.

(2) The offense of accessory after the fact is a crime involving moral turpitude, but only if the underlying offense is such a crime."

INA 101(a)(13) states:

(A) The terms "admission" and "admitted" mean, with respect to an alien, the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.

(B) An alien who is paroled under section 212(d)(5) or permitted to land temporarily as an alien crewman shall not be considered to have been admitted.

(C) An alien lawfully admitted for permanent residence in the United States shall not be regarded as seeking an admission into the United States for purposes of the immigration laws unless the alien-

(i) has abandoned or relinquished that status,

(ii) has been absent from the United States for a continuous period in excess of 180 days,

(iii) has engaged in illegal activity after having departed the United States,

(iv) 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,

(v) 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

(vi) 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.

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

The Board of Immigraiton Appeals in Matter of FIGUEROA detemined that "When an application for Temporary Protected Status that has been denied by the United States Citizenship and Immigration Services (“USCIS”) is renewed in removal proceedings, the Immigration Judge may consider any material and relevant evidence, regardless of whether the evidence was previously considered in proceedings before the USCIS."

Figueroa TPS

Ricky Malik, Esq.

www.rmlegal.com

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

Ricky Malik, Esq.

www.rmlegal.com

Ricky Malik, Esq.

www.rmlegal.com

On Monday, September 26, 2011, the Washington Post published a story about Paula Godoy, a client of the Law Offices of Ricky Malik, P.C. Ms. Godoy was in her final hours before deportation and at the 11th hour, through hard work, we won a stay of removal. For the full story, wonderfully written by Post report Eli Saslow, see below.

Amid new guidelines, Va woman’s deportation case comes down to the last minute - The Washington Post
For one Guatemalan woman, a race against the deportation clock - The Washington Post

Ax1 module231

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

Cases to consider when seeking a continuance:

Matter of Hashmi, 24 I&N Dec. 785 (BIA 2009)

(1) An alien's unopposed motion to continue ongoing removal proceedings to await the adjudication of a pending family-based visa petition should generally be granted if approval of the visa petition would render him prima facie eligible for adjustment of status. Matter of Garcia, 16 I&N Dec. 653 (BIA 1978), followed.

(2) In determining whether good cause exists to continue such proceedings, a variety of factors may be considered, including, but not limited to: (1) the Department of Homeland Security's response to the motion to continue; (2) whether the underlying visa petition is prima facie approvable; (3) the respondent's statutory eligibility for adjustment of status; (4) whether the respondent's application for adjustment merits a favorable exercise of discretion; and (5) the reason for the continuance and any other relevant procedural factors.

Matter of Rajah, 25 I&N Dec. 127 (BIA 2009)

1) In determining whether good cause exists to continue removal proceedings to await the adjudication of a pending employment-based visa petition or labor certification, an Immigration Judge should determine the alien's place in the adjustment of status process and consider the applicable factors identified in Matter of Hashmi, 24 I&N Dec. 785 (BIA 2009), and any other relevant considerations.

(2) An alien's unopposed motion to continue ongoing removal proceedings to await the adjudication of a pending employment-based visa petition should generally be granted if approval of the visa petition would render him prima facie eligible for adjustment of status.

(3) The pendency of a labor certification is generally not sufficient to warrant a grant of a continuance.

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)?

"News Releases

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."

BRAZIL, CANADA, CHINA (mainland-born), COLOMBIA, DOMINICAN REPUBLIC, ECUADOR, EL SALVADOR, GUATEMALA, HAITI, INDIA, JAMAICA, MEXICO, PAKISTAN, PERU, PHILIPPINES, POLAND, SOUTH KOREA, UNITED KINGDOM (except Northern Ireland) and its dependent territories, and VIETNAM .

Remember, winning the lottery does not ensure you will be granted a greencard.  There are many factors to consider.  Full instructions below:




Ricky Malik, Esq.

Click Here.

Ricky Malik, Esq.
greencard@mail.com

The last comprehensive legalization program had a filing deadline of sunset on April 30, 2001.  In general, section 245(i) of the Immigration and Nationality Act allowed an otherwise admissible alien who has an immediately available immigrant visa to apply for adjustment of status upon payment of a $1,000 surcharge, even though the alien entered the United States without inspection in violation of section 245(a) or is barred by section 245(c) of the Act.  While this program entered many years ago, many people may still be able to benefit through the concept of grandfathering.  Grandfathering 245(i) is available to a person (and possibly his immediate family members) if an immigrant petition or labor certification was filed before the deadline of 245(i) for that foreign national and was "approvable when filed."  If this is the case, then the foreign national can adjust status, that is obtain permanent residency a.k.a. a greencard through a subsequent petition.

For further relevant guidance, see below: