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November 06, 2013
  Immigration Options for Same-Sex Couples
Posted By Ricky Malik

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.

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January 31, 2013
  Travelling outside the United States as a Dreamer (DACA)
Posted By Ricky Malik

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.

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January 29, 2013
  Free Provisional Stateside Waiver Evaluation-Online and Confidential!
Posted By Ricky Malik
Fill out my online form.

For more on the Provisional Waiver, click here.

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January 14, 2013
  Can I apply for a Provisional Waiver if I am in removal (deportation) proceedings?
Posted By Ricky Malik

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.

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January 12, 2013
  USCIS: I am an immediate relative of a U.S. Citizen. How do I file for a provisional unlawful presence waiver?
Posted By Ricky Malik

Information from USCIS on the New Provisional Waiver Process:

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

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January 09, 2013
  Video: Who Qualifies for the new Provisional Waiver?
Posted By Ricky Malik

Ricky Malik, Esq.

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January 07, 2013
  I want to apply for Provisional Waiver, but my case is already at NVC?
Posted By Ricky Malik

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.

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January 04, 2013
  How do you prove "Extreme Hardship"?
Posted By Ricky Malik

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.

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January 03, 2013
  New Provisional Waiver Rule Released
Posted By Ricky Malik

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

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February 17, 2012
  How long will my waiver (601) take if I go overseas?
Posted By Ricky Malik

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.

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January 09, 2012
  Federal Register on Proposed Provisional Waiver
Posted By Ricky Malik

Ricky Malik, Esq.

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January 08, 2012
  USCIS on 601 Waivers
Posted By Ricky Malik

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

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January 07, 2012
  USCIS Release on New Process for Waivers
Posted By Ricky Malik

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.

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November 18, 2011
  Immigration can take your Greencard (LPR) away after 5 years
Posted By Ricky Malik

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.

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June 15, 2011
  B-1 vs. H-1B/H-3
Posted By Ricky Malik

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

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June 14, 2011
  The B-1 Business Visitor
Posted By Ricky Malik

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)?

[1] In such cases the contract of sale must specifically require the seller to provide such services or training, and the alien must possess specialized knowledge essential to the seller's contractual obligation to perform the services or training and must receive no remuneration from a U.S. source. These provisions do not apply to an alien seeking to perform building or construction work, whether on-site or in-plant except for an alien who is applying as a B-1 for the purpose of supervising or training other workers engaged in building or construction work, but not actually performing any such building or construction work.

Contact the Law Offices of Ricky Malik, P.C. to schedule a consultation with an experienced and qualifed attorney.

Ricky Malik, Esq.

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May 13, 2011
  Big K-1 Fiance Visa case from the Board
Posted By 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.

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February 26, 2011
  USCIS to Issue Single Employment Authorization and Advance Parole Card for Adjustment of Status Applicants
Posted By Ricky Malik

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.

Ricky Malik, Esq.
Attorney at Law
American Immigration Lawyers Association Member
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February 23, 2011
  March 2011 Visa Bulletin Released
Posted By Ricky Malik
The Department of State has released the Visa Bulletin for March 2011.

Petitioning for foreign born employees and family members can be a far more complicated process without the assistance of a good attorney.  If you have family members you would like to invite to the United States or if you wish to petition for employees, contact the Law Offices of Ricky Malik, P.C. and schedule a consultation with one of our experienced attorneys.  Our office represents businesses and individuals in Virginia, Maryland, Washington, DC and throughout the United States and world.

Click Here to view the March 2011 Bulletin .

Ricky Malik
Immigration Attorney
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January 11, 2011
  Indians can apply for Visas at any U.S. Consulate regardless of applicant's residence
Posted By Ricky Malik

Ricky Malik, Esq.
Immigration Attorney
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June 30, 2010
  Visa Fees at U.S. Consulates and Embassies to Increase effective July 13, 2010
Posted By Ricky
New Fees (click here)
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The information on this Virginia Lawyer / Law Firm website is for general information purposes only. Nothing on this or associated pages, documents, comments, answers, emails, or other communications should be taken as legal advice for any individual case or situation. This information on this website is not intended to create, and receipt or viewing of this information does not constitute, an attorney-client relationship. The Law Offices of Ricky Malik, P.C. represents clients in all 50 states of the United States and the World over, including Manassas, VA, Prince William County, Arlington, Fairfax, Centreville, Alexandria, Falls Church, Roslyn, Washington, DC, Loudon County, Lorton, Woodbridge, Virginia, Takoma Park, MD, Langley Park, Bethesda, Rockville, Hyattsville, Montgomery County, Prince George's County, Columbia, and Baltimore, Maryland.