Category Archives: The Legal Immigrant – Immigration Blog

5 Benefits of Having Immigration Counsel at In-Person Interview with USCIS

When you receive notice of your in-person interview with U.S. Citizenship & Immigration Services (USCIS), you might be tempted to attend it without counsel to save on legal fees.  Many applicants, however, end up spending more money down the line because they did not have a qualified attorney helping them deal with unexpected problems at the interview.

If you filed the application or petition on your own, you could tell yourself the wait is over and the interview is just a formality before USCIS grants the immigration benefit. If you had counsel helping you with the filing, you might decide her presence at the interview is excessive because your important questions have already been addressed.

But the advantages of having reputable, experienced counsel appear with you at the interview far outweigh the disadvantage of incurring legal fees for representation.

In-person interviews with USCIS are necessary to obtain most immigration benefits, including asylum, permanent residence (green card) and naturalization (U.S. citizenship). The interview usually occurs at the USCIS Field Office with jurisdiction over the applicant’s place of residence.

As of October 2, 2017, under the Trump Administration, USCIS began to phase-in interviews for the following:

• Employment-based adjustment of status/green card applications  (Form I-485, Application to Register Permanent Residence or Adjust Status) filed on or after March 6, 2017, in the EB-1, employment based first preference, EB-2, employment based second preference, and EB-3, employment based third preference.

• Refugee/asylee relative petitions (Form I-730, Refugee/Asylee Relative Petition) for beneficiaries who are in the United States and are petitioning to join a principal asylee/refugee applicant.

Previously, except in certain situations such as when a criminal record or unlawful presence existed, applicants in these categories were not scheduled to attend an in-person interview with USCIS for their applications to be adjudicated.

USCIS plans to gradually expand interviews to other immigration benefits. It notes the change is in line with Trump’s Executive Order 13780, “Protecting the Nation From Foreign Terrorist Entry Into the United States,” and is part of the agency’s  efforts to improve the detection and prevention of fraud and enhance the integrity of the immigration system.

Here are 5 main benefits of having immigration counsel at your in-person interview with USCIS:

1. Provide protection against excessive screening or vetting

The in-person interview is a screening and vetting procedure for persons seeking immigration benefits to reside or stay long-term in the United States. While USCIS officers are trained to be professional, courteous, and respectful of your legal rights, some may turn (or may seem) hostile when there is reason to believe the applicant is committing immigration fraud, is a danger to the community, or is ineligible for or undeserving of the benefit sought.

Interviews with USCIS are not supposed to be adversarial in nature. They are meant to gather complete and accurate information (both favorable and unfavorable) to properly adjudicate the case, not to find a reason to deny the requested benefit.

Nevertheless, due to shifts in immigration enforcement priorities under the Trump Administration, there are now more reports of applicants being arrested and detained by U.S. Immigration & Customs Enforcement (ICE) at their interviews  with USCIS. These cases normally involve beneficiaries attending I-130 interviews who have prior or outstanding removal orders and have remained unlawfully in the country.

Prior to the interview, the attorney can review your criminal record and immigration history to evaluate the risks of interview attendance. While attorneys have no authority to stop ICE from lawfully apprehending or detaining an applicant at the USCIS interview, they may ask critical questions to verify where the applicant will be held and the next steps in the detention and removal process. Bear in mind, however, that absent an express agreement, the attorney is not obligated to represent you beyond the scope of the interview with USCIS.

In less complicated cases — such as where ICE apprehension or detention is unlikely because the only violation is a visa overstay — your having counsel at the interview is still crucial. Attorney appearance encourages the USCIS officer to remain professional and courteous and stick to relevant issues.

2. Clarify unclear questions and complex issues

At the in-person interview, the USCIS officer may ask for any information related to questions on the application forms, your eligibility for the benefit sought, your marital history, your manner of entry into the U.S., your admissibility to the U.S. (such as any arrests, charges or convictions, or misrepresentations made to an immigration official), your educational background, and your past and present employment (including the documents you used to obtain a job in the United States).

When a USCIS officer asks a vague or unclear question, the attorney may request clarification to ensure the applicant understands what is being asked. If the attorney knows the answer is factually or legally incorrect, she may also ask the officer to rephrase the question or point to objective records in the file to show the applicant is mistaken.

3. Help prevent unnecessary delays and complications

USCIS stated the new interview requirement, which became effective on October 2, 2017,  will amount to approximately 17% of the agency’s total workload. Thus, longer processing times and increased delays in all adjudications , especially interview-based applications, are expected.  These days, USCIS is taking one year or more to adjudicate green card and naturalization applications, as opposed to six to nine months in the past.

At the interview, you should strive to present all the necessary information and requested documents to facilitate approval. Otherwise, it may take several weeks or months for USCIS to issue a Request for Evidence or Notice of Intent to Deny, to which you must respond within a specified time frame (e.g. 87 days and 30 days, respectively.)

Your attorney can help you figure out what you need to bring to the interview, based on the instructions in the interview notice and the unique facts of your case. The attorney is also better equipped to evaluate whether a favorable decision or adverse notice is expected, depending on what occurred at the interview, and prepare you for next steps.

4. Serve as an advocate

Unlike in court hearings before a judge, interviews with USCIS do not involve your attorney asking you direct questions to solicit testimony. The USCIS officer asks the questions and  you provide the answers.

Questions on issues that may seem inappropriate or unimportant to you might be relevant to your eligibility for the immigration benefit and be in line with USCIS policy. Having counsel at the interview helps you determine when it’s better to answer, ask for clarification, or object (for good cause).

Your attorney cannot respond to questions the USCIS officer directs to you or coach you on how to respond to questions. She may, however, advise you on legal issues or raise objections to inappropriate questions or, as a last resort, ask to speak with a supervisor (particularly if the interview becomes argumentative or antagonistic).

Having an attorney present at the interview helps to protect and advocate your legal rights. If USCIS instructs you to provide a sworn, written statement on a controversial point, the attorney can help verify that you understand what you are providing and signing.

Counsel can further help you to avoid misrepresenting material facts to the USCIS officer and explain unfavorable information to defuse a difficult situation. They advise you on pitfalls and weaknesses in your case that will likely be at issue in the interview. They determine when and how to best present testimony and documentary evidence to highlight positive factors or offset negative factors in your case.

It is rare for interviews to be  video-recorded. Without counsel, it will be just the USCIS officer and you (and possibly your interpreter) in the interview room. The officer will takes notes for the file, but you typically will not have access to them unless you submit a Freedom of Information/Privacy Act Request, which normally takes several months to process. Moreover, in the FOIA response, the agency may redact, or black out, any information protected by one of the nine FOIA exemptions to prevent certain harms, such as an invasion of privacy, or harm to law enforcement investigations.

An attentive attorney at the interview will carefully observe the discussion and take informative notes on questions asked and answers given. If USCIS issues a Notice of Intent to Deny or other adverse notice based on purported discrepancies and inconsistencies at the interview, an attorney may provide a credible explanation on what was said in the interview and how it was conducted. It won’t just be your word against the allegations of the interviewing officer.

5. Add credibility to your claim

Having an attorney present does not mean you have something to hide. On the contrary, many USCIS officers prefer applicants to bring counsel to the interview for it to run more smoothly and efficiently.

In addition, because attorneys have a duty of candor to the tribunal, their presence generally adds credibility to your claims.  An attorney cannot knowingly present false information or false documents or perpetuate fraudulent claims without running afoul of the professional responsibility rules.

The attorney can help prepare you for interview by describing what questions to expect and which issues are likely to arise, and how to best address them. They can further prepare and submit a legal brief to stave off concerns and persuade the officer to approve your case.

Conclusion: Bring Counsel to the Interview

There are many applicants who attend their interviews without counsel and get their applications or petitions approved. But these cases are usually very well-documented with positive information and no adverse factors to consider. It is hard to know exactly how your interview will go.

Many things can go wrong at the interview with USCIS, which may lead to severe consequences including denial decisions and even a Notice to Appear in removal proceedings before an Immigration Court. For example, the USCIS officer may conduct separate interviews of the U.S. citizen (I-130 petitioner) and his foreign national spouse (I-485 applicant) and determine they entered into a sham marriage for immigration purposes. The officer may review the entire immigration history and/or criminal record of a naturalization applicant and find that he is not only ineligible for citizenship, but is subject to removal from the United States.

Even if you prepared and filed the application or petition with USCIS on your own, or with the help of an immigration consultant or online immigration service, you may have counsel enter her appearance at the interview by submitting a Form G-28, Notice of Entry of Appearance as Attorney, to the USCIS officer.  Once the G-28 is accepted, the appearance will be recognized until the matter is concluded (absent a withdrawal of representation).

In some cases, the interview goes so well that having counsel seems to be an added expense with no benefit. But more than likely, counsel’s presence at the interview contributes to the successful outcome, even though you might not be able to measure the effects. And when the stakes are high, it’s better to be over-prepared than under-prepared and to err on the side of caution by having counsel at the interview.

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This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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Timely Filed H-1B Cap-Subject Petition + Complete Response to RFE = A True Success Story

On October 26, 2017, U.S. Citizenship & Immigration Services, California Service Center, approved an H-1B cap-subject petition that Dyan Williams Law PLLC filed for a non-profit organization on behalf of one of its preschool teachers. First, we had to file the petition in early April 2017 for it to be randomly selected in the H-1B lottery and reviewed on the merits. Next, we had to submit a timely Response to Request for Evidence (RFE) that fully addressed USCIS’ doubts on the position being a specialty occupation, which is a key H-1B requirement.

The H-1B petition, filed on April 3, 2017, was subject to the congressionally mandated, annual cap of 65,000 H-1B visas, which is commonly known as the “regular cap”. By April 7, USCIS announced it received enough H-1B petitions to reach the cap for its computer-generated random selection (lottery) process and, as of April 11, would reject and return all unselected petitions.

On April 14, USCIS issued a Form I-797C, Receipt Notice confirming the petition was selected in the lottery and was pending for review. Being chosen in the lottery was a win, by itself, because the petitioner’s prior cap-subject petition for the same beneficiary was not selected in the previous fiscal year. Fortunately, the beneficiary qualified for F-1 extension of post completion Optional Practical Training (OPT) and H-1B cap-gap benefits, which permitted her to work between the end of her F-1 status and the start of her H-1B status.

In July, after three months of waiting for further updates, we received USCIS’ Form I-797E, Request for Evidence, instructing the petitioner to submit a response by October 2. USCIS added that failure to submit all evidence requested at one time may result in the denial of the petition.

In particular, USCIS questioned whether the preschool teacher position is a “specialty occupation” that requires the theoretical and practical application of a body of highly specialized knowledge and a bachelor’s degree or higher in the specific specialty, or its equivalent.

The Service relied on the U.S. Department of Labor’s Occupational Outlook Handbook (OOH), which indicates a preschool teacher is an occupation that does not require a bachelor’s degree in a specific speciality as a normal, minimum for entry into the position. USCIS explained, “There is no standard for how one prepares for a career as a Preschool Teacher and no requirement for a degree in a specific specialty.”  It concluded the proffered position cannot be considered to have met this criterion.

Because normal industry standards indicates a bachelor’s or higher degree or its equivalent is not typically required for entry into a preschool teacher position, we had to show how at least one of the remaining three criteria is met:

1. the degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, an employer may show that its particular position is so complex or unique that it can be performed only by an individual with a degree

2. the employer normally requires a degree or its equivalent for the position

3. the nature of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree in a specific speciality

By narrowing down the petitioner’s industry to a certain category of organizations that require their preschool teachers to have at least a bachelor’s degree in early childhood education, elementary education, child psychology or related field, we established the position at issue is a specialty occupation.

To support the Response to RFE, I counseled the petitioner in gathering critical documentary evidence to meet the remaining three criteria. This included helping the petitioner prepare an affidavit (written testimony) and collect support letters from directors of similar organizations explaining why they normally require their preschool teachers to have at least a bachelor’s degree in a specific specialty.

We also presented various preschool teacher job postings at similar organizations requiring at least a bachelor’s degree in a specific specialty, as well as description pages from the organizations’ websites showing how similar they are to the petitioner’s organization.

In addition, we submitted documentary evidence demonstrating why the petitioner is held to a higher industry standard, for accreditation purposes, and its preschool teacher position is thus so specialized, complex or unique that it can be performed only by an individual with at least a bachelor’s degree in early childhood education, elementary education, child psychology or a related field.

To strengthen the Response to RFE, I prepared and submitted a legal memorandum discussing how the petitioner met its burden of proof and how the preschool teacher position at this non-profit entity meets at least one of the remaining three criteria to be classified as a specialty occupation for H-1B status.

Citing to the support letters and preschool teacher job postings from other employers, I explained the bachelor’s degree requirement is common to the industry in parallel positions among similar organizations. By describing the accreditation application and curriculum development processes used by the petitioner, I further described why it normally requires a bachelor’s degree or its equivalent for the position and why the job duties are so specialized and complex that only an individual with the degree can perform them.

I also recommended we obtain an expert opinion report confirming the preschool teacher position is unique and requires at least a bachelor’s degree in a related specialty, despite the OOH indicating no such degree is typically needed to enter the profession. By contacting a reputable evaluation service, I was able to procure such a report from a qualified professor of early childhood education.

After submitting a timely Response to RFE, we filed a Form I-907, Request for Premium Processing Service, which requires USCIS to issue a decision (approval or denial), RFE, or Notice of Intent to Deny within 15 calendar days, or refund the processing fee.

Within a week, USCIS approved the H-1B cap-subject petition and granted the beneficiary a change of status from F-1/OPT to H-1B. Getting the H-1B petition selected in the lottery, plus ultimately receiving an approval brought relief and joy to both the petitioner and beneficiary, who continue to have an employer-employee relationship.

To date, under the Trump Administration, there has been no congressional changes in law related to H-1B petitions or H-1B visas. But on April 18, 2017, President Trump signed the Buy American and Hire American Executive Order, which seeks to create higher wages and employment rates for U.S. workers and to protect their economic interests by rigorously enforcing and administering U.S. immigration laws. It also directs DHS, in coordination with other agencies, to advance policies to help ensure H-1B visas are awarded to the most-skilled or highest-paid beneficiaries.

Data provided by USCIS shows that between January and August 31, the agency issued 85,000 RFEs related to H-1B visa petitions – a 44% increase over the same period last year.  Meanwhile, the total number of H-1B petitions received by USCIS during this same period rose by less than 3 percent.

An RFE is issued after USCIS receives the petition and the reviewing officer concludes there is insufficient evidence or information to approve the case. The maximum response time for the petitioner is 84 days (12 weeks), although in some cases an additional 3 days is given to account for mailing time. An RFE delays the H-1B decision by several weeks or months and increases stress for both the petitioner and beneficiary seeking the H-1B status or visa.

It is becoming more common for USCIS to issue RFEs on the basis that the proffered position is not a specialty occupation. In The New York Times article, Is Anyone Good Enough for an H-1B visa?, an op-ed contributor wrote that he received two RFEs on this issue prior to receiving an H-1B denial. He notes:

My two requests for evidence asked me to prove my job was a “specialty occupation” – that is, work that only someone with a bachelor’s degree or higher can do. My work involves artificial intelligence and big data, and my letters of support came from an authority in my industry and veteran start-up investor, and a Nobel Peace Prize winner. But it wasn’t enough to convince the government that my job requires advanced skills. 

Not only does the job have to require a bachelor’s degree, the degree must also be in a related speciality. With tougher scrutiny and higher obstacles being placed on H-1B petitions, it is especially important for petitioners and beneficiaries to hire experienced immigration counsel to advise them in the application process, from start to finish.

Each fiscal year, H-1B petitioners strive to file cap-subject petitions in early April to be counted in the annual lottery. Whether you plan to file an H-1B petition or have received an RFE or denial on an H-1B petition already filed, contact Dyan Williams Law to obtain a consultation or inquire about representation.

In a consultation or through representation, we will apply our breadth of experience, unique skills and creative thinking to help you resolve your situation to the fullest extent possible.

Cheers,

Dyan Williams

Founder & Principal Attorney
Dyan Williams Law PLLC
(612) 225-9900
dw@dyanwilliamslaw.com

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This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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Priority Date Recapture and Retention in Family-Based Immigration

Family-based immigration can take many years to complete due to slow processing times, huge backlogs, and the limited number of visas available in the family-sponsored, preference categories.

The priority date marks the immigrant visa/green card applicant’s place in the visa queue.  Being able to recapture and retain an old priority date from a previously filed petition in a new petition makes a big difference.

The priority date is when USCIS received the Form I-130, Petition for Alien Relative, from the U.S. citizen or permanent resident petitioner on behalf of the beneficiary.

During the process, certain changes in family circumstances may lead to complications, delays, and even termination of the case. An example is when an unmarried son of a U.S. citizen petitioner marries or when a minor child beneficiary turns age 21 before he immigrates.

Some situations involve automatic conversion from one preference category to another, where the old priority date is kept.  Others require the filing of a new, I-130 immigrant petition, which might not allow priority date recapture and retention.

Family-Sponsored, Preference Categories

There is no limit on the number of immigrant visas/green cards available to immediate relatives.  An immediate relative is the spouse or unmarried, minor child (under age 21) of a U.S. citizen, as well as the parent of an adult U.S. citizen (age 21 or older).

Family-sponsored, preference categories, however, have a maximum number of visas available each fiscal year.  Congress allocates visas to each preference category as follows:

First: (F1) Unmarried Sons and Daughters, age 21 or older, of U.S. Citizens:  23,400 plus any numbers not required for fourth preference.

Second: Spouses and Children, and Unmarried Sons and Daughters of Permanent Residents:  114,200, plus the number (if any) by which the worldwide family preference level exceeds 226,000, plus any unused first preference numbers:

A. (F2A) Spouses and Unmarried Children, under age 21, of Permanent Residents:  77% of the overall second preference limitation, of which 75% are exempt from the per-country limit;

B. (F2B) Unmarried Sons and Daughters (21 years of age or older) of Permanent Residents:  23% of the overall second preference limitation.

Third: (F3) Married Sons and Daughters of U.S. Citizens:  23,400, plus any numbers not required by first and second preferences.

Fourth: (F4) Brothers and Sisters of Adult U.S. Citizens:  65,000, plus any numbers not required by first three preferences.

Priority Date

Immigrant visas or green cards may be issued in family-sponsored, preference categories only when the priority date is current.

A priority date is current if the I-130 petition was filed before the cut-off date listed in the U.S. Department of State’s monthly Visa Bulletin for that category. The Visa Bulletin lists two different dates to track: the Application Final Action Dates (AFAD) and the Dates for Filing Applications (DFA).

AFADs are the cut-off dates that determine when an immigrant visa becomes available to Form DS-260, Immigrant Visa applicants or Form I-485, Adjustment of Status (green card) applicants, depending on their priority date, preference category, and country of chargeability.

The DFA chart was first introduced in the October 2015 Visa Bulletin. DFAs are the cut-off dates that determine when Immigrant Visa applicants – depending on their priority date, preference and category – should receive notice from the DOS’ National Visa Center (NVC) instructing them to submit their documents for consular processing. Each month, USCIS also determines whether eligible applicants in the U.S. may use the DFA chart, instead of the AFAD chart, for filing I-485 applications.

Automatic Conversion of Preference Categories 

While a family-based immigration case is pending, beneficiaries may move from one category to another, or lose immigrant visa eligibility altogether, due to changes in circumstances.

Federal regulations at 8 CFR 204.2(i) provide for automatic conversion from one family-sponsored, preference category to another, and allow for recapturing and retention of the old priority date in the following situations:

Preference Category Situation in which petition is automatically converted and old priority date is recaptured and retained

 

Immediate Relative/IR

Unmarried, minor child (under age 21) of U.S. citizen

 

Child marries: convert from Immediate Relative/IR to Third Preference/F3

 

Child turns age 21 and is not protected by the Child Status Protection Act (CSPA): convert from Immediate Relative/IR to First Preference/F1

 

First Preference/F1

Unmarried adult son or daughter (age 21 or older) of U.S. citizen

Son or daughter marries: convert  from First Preference/F1 to Third Preference/F3
Second Preference A/F2A

Minor child (under age 21) of permanent resident

Petitioner becomes a naturalized U.S. citizen while child is under age 21: convert from Second Preference A/F2A to Immediate Relative/IR. NOTE: A new I-130 petition must be filed in the Immediate Relatives category if the child was listed only as a derivative beneficiary in an I-130 petition for the petitioner’s spouse, and is not already a principal beneficiary of an-130 filed by petitioner.

 

Petitioner becomes a naturalized U.S. citizen after child, who is protected by CSPA, turns 21: convert from Second Preference A/F2A to First Preference/F1.  NOTE: If there is more backlog in the F1 category, the beneficiary may NOT opt out of the automatic conversion.  The petitioner may refrain from applying for naturalization to prevent adverse effects on the child.

 

Child turns 21 and is not protected by CSPA: convert from Second Preference A/F2A to Second Preference B/F2B

Second Preference B/F2B

Unmarried adult son or daughter ( age 21 or older), of permanent resident

Petitioner becomes a naturalized U.S. citizen: convert from Second Preference B/F2B to First Preference/F1. NOTE: If there is more backlog in the F1 category, the beneficiary may opt out of the automatic conversion and stay in the F2B category by sending a request letter to USCIS, NVC or U.S. Consulate.

 

Third Preference/F3

Married son or daughter of U.S. citizen

Son or daughter divorces: convert from Third Preference/F3 to Immediate Relative/IR (if under age 21) or to First Preference/F1( if 21 or older)

 

In most cases, no new I-130 petition has to be filed when automatic conversion applies. The petitioner just has to notify USCIS, the National Visa Center or the U.S. Consulate of the conversion.

Priority Date Recapturing or Retention

Generally, an earlier priority date may be recaptured and retained if it is the same petitioner filing for the same beneficiary (including derivative beneficiaries) and the prior I-130 was not terminated or revoked.

Beneficiary Gets Married

Marriage of the beneficiary leads to automatic conversion in certain situations. For example, if an unmarried, minor child (under age 21) of a U.S. citizen marries, the petition is automatically converted from the Immediate Relatives to F3 category, but the original priority date is kept.

If an unmarried adult son or daughter (age 21 or older) of a U.S. citizen marries, the petition is automatically converted from the F1 to to F3 category, but the original priority date is kept.

In contrast, if an unmarried child (under age 21) of a permanent resident (F2A category) or  unmarried adult son or daughter (age 21 or older) of a permanent resident (F2B category) marries, the petition is automatically revoked or terminated as a matter of law because there is no category for permanent residents to file for married children. Even if the child/son/daughter divorces, he or she cannot regain the status of a F2A or F2B preference because the I-130 was revoked.  An annulment, however, might serve to reinstate the second preference status.

If the permanent resident parent becomes a U.S. citizen and then files a new petition for the child/son/ daughter in the F3 category, a new priority date will apply and the old priority date cannot be recaptured.

Beneficiary “Ages Out” (Turns Age 21) and Is Not Protected by CSPA

INA § 203(h)(3) states that if a child “ages out” (turns age 21) and is not covered by age-out protections under the Child Status Protection Act (CSPA), the petition for him or her will be automatically converted to the appropriate preference category.

Eligibility criteria for CSPA include:

  • Beneficiary must have a pending or approved visa petition on or after August 6, 2002
  • Beneficiary must not have had a final decision on an application for adjustment of status or an immigrant visa before August 6, 2002.
  • Beneficiary must “seek to acquire” permanent residence within 1 year of a visa becoming available. USCIS interprets “seek to acquire” as having a Form I-824, Application for Action on an Approved Application or Petition, filed on the child’s behalf or the filing of an adjustment/green card application or immigrant visa application. The date of visa availability means the first day of the first month a visa in the appropriate category was listed as available in the Department of State’s visa bulletin or the date the I-130 petition was approved, whichever is later.

A CSPA formula is used to determine the child’s “CSPA age.” USCIS will take the child’s age at the time an immigrant visa number became available and deduct the time the I-130 petition was pending from the child’s age. If the result is less than 21 years of age, he keeps the same preference category provided he seeks to acquire permanent residence within one year of  when an immigrant visa or green card becomes available.

When the minor child of a U.S. citizen turns 21 and is not protected by CSPA, he or she is converted from the Immediate Relative to F1 category.

When the minor child of a permanent resident turns 21 and is not protected by CSPA, he or she is converted from the F2A to F2B category.

Derivative Beneficiary “Ages Out” (Turns Age 21) and Is Not Protected by CSPA

A derivative beneficiary includes a minor child (under age 21) of a principal beneficiary of an I-130 petition. When the derivative child turns 21 and “ages out,” the child is no longer eligible to immigrate as a derivative beneficiary of the I-130 petition for her parents. Therefore, a new petition must be filed for the former derivative child as the principal beneficiary.

INA § 203(h)(3), regarding the retention of priority dates, states, “If the age of an alien is determined [by the CSPA calculator] to be 21 years of age or older for the purposes of [retaining status as a derivative beneficiary in the preference categories], the alien’s petition shall automatically be converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition.”

In a 2009 case, Matter of Wang, the BIA found that while the language in section 203(h)(3) is ambiguous, Congress intended for priority dates to be retained only when the same petitioner filed a second petition for the same beneficiary. The BIA held that retention of the old priority date was “limited to a lawful permanent resident’s son or daughter who was previously eligible as a derivative beneficiary under a second-preference spousal petition filed by that same lawful permanent resident.” The BIA found § 203(h)(3) did not apply to derivative beneficiaries in other categories.

Matter of Wang interpreted INA § 203(h)(3) narrowly, holding that the priority date may only be retained if the second preference petition is filed by the same petitioner. The case involved a beneficiary from China whose LPR parent filed a petition for him in the F2B category. He had a petition previously filed on his behalf by his brother under the F4 category. He sought to recapture the old priority date under the F4 category. But the BIA held he could not recapture the original priority date because the petition under the F2B category required a different petitioner and sponsor than the original petition under the F4 category.

In its June 2014 decision in Scialabba v. Cuellar de Osorio, the U.S. Supreme Court agreed with the BIA’s holding. The Supreme Court read section 203(h)(3) to allow only derivative children of beneficiaries of F2A petitions (for spouses and children of permanent residents) to retain the priority date of their parent’s original petition.

The Supreme Court’s decision supersedes earlier appellate court holdings, such as Khalid v. Holder, in which the Fifth Circuit Court of Appeals rejected Matter of Wang and held that the CSPA priority date retention applies to all petitions where derivative beneficiaries may “age out,” not just to second-preference petitions.

To recapture the priority date, the new petition must be filed by the same, original petitioner. The priority date cannot be recaptured in a situation like in Matter of Wang, where the original petitioner was a U.S. citizen brother and the second petitioner was a permanent resident father. The rule set forth in Matter of Wang, and upheld by the U.S. Supreme Court in Scialabba, limits situations in which a priority date may be recaptured in a new I-130 filing.

Derivative beneficiaries under any other preference category besides F2A may not retain the priority date of the petition where their parents were principal beneficiaries. These other derivative beneficiaries include the children of unmarried sons and daughters of U.S. citizens (First Preference/F1); the children of unmarried sons and daughters of permanent residents (Second Preference B/F2B); the children of married sons and daughters of U.S. citizens (Third Preference/F3); and the children of siblings of U.S. citizens (Fourth Preference category, F4).

Scenario 1Maria is the principal beneficiary of an I-130 petition filed by her permanent resident spouse, Thomas, in the F2A (spouse of permanent resident) category. Maria’s daughter, Ana, is included in the petition as a derivative beneficiary. But Ana ages out (turns age 21) and may no longer follow to join the principal beneficiary.

The original petitioner, Thomas, then files an I-130 petition for Ana in the F2B (adult, unmarried daughter of permanent resident) category. Ana may recapture the old priority date because she was the derivative of an F2A beneficiary.

Scenario 2: Maria is the principal beneficiary of an I-130 petition field by her U.S. citizen brother, Joaquin, in the F4 (sister of adult U.S. citizen) category. Maria’s daughter, Ana, is included in the petition as  a derivative beneficiary. But Ana ages out (turns age 21) and can no longer follow to join the principal beneficiary.

The original petitioner, Joaquin, may not file an I-130 petition for Ana because there is no category for nieces of a U.S. citizen. Ana’s now permanent resident mother, Maria, then files an I-130 petition for her in the F2B (adult, unmarried daughter of permanent resident) category. Ana may not recapture the old priority date because she was the derivative of an F4 beneficiary.

Ana’s immigration process will be delayed more in Scenario 2 because, unlike in Scenario 1, she cannot retain the priority date of the parent’s original I-130 petition. Because she has aged out, she needs to have a new I-130 petition with a new priority date filed for her.

Petitioner Naturalizes

When a permanent resident petitioner becomes a naturalized U.S. citizen, he may request an upgrade of his I-130 petition for his spouse from the F2A to Immediate Relatives category. But if he did not file an I-130 petition for his minor child (under age 21), and simply listed him as an F2A derivative beneficiary on the I-130 petition for his spouse, he will need to file a new I-130 petition for the child in the Immediate Relatives category. The old priority date may be recaptured to help the child immigrate earlier with the spouse.

When a permanent resident petitioner becomes a naturalized U.S. citizen, his I-130 petition for a minor child who turns 21, but is protected by CSPA, will convert from the F2A to F1 category. If there is more backlog in the F1 category, the beneficiary may NOT opt out of the automatic conversion.

When a permanent resident petitioner becomes a naturalized U.S. citizen, his I-130 petition for a an unmarried son or daughter (age 21 or older) will convert from F2B to F1 category. If there is more backlog in the F1 category, the beneficiary may opt out of the automatic conversion and stay in the F2B category by sending a request letter to USCIS, NVC or U.S. Consulate.

Conclusion

The priority date (i.e. the date the I-130 petition was filed with USCIS) determines when you may immigrate to the United States or adjust to permanent resident status.

Determining whether a beneficiary or derivative beneficiary is protected by CSPA after aging out (turning 21) is complicated. Seeking to recapture and retain an earlier priority date to reduce immigration delays can be tricky.

Consult an experienced immigration attorney to fully evaluate your situation, including whether CSPA applies or whether an old priority date may be recaptured and retained.

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This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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Photo by: Kevin Haggerty

 

DREAMers Face Uncertainty as Trump Administration Ends DACA and Leaves the Fight Up to a Divided Congress

On his campaign trail,  President Trump said he would “immediately terminate” DACA – the Deferred Action for Childhood Arrivals program introduced by the Obama Administration in June 2012.  Although it took several months to make a decision, the Trump Administration issued a memorandum on September 5, 2017, to end the program.

As of this date, no new, initial DACA applications will be accepted. Current DACA holders whose benefits expire on or before March 5, 2018, may file for a renewal, valid for 2 years, by October 5, 2017.

Almost 800,000 eligible, undocumented immigrants have received DACA as a temporary relief from removal, which includes work authorization valid for two years. Commonly known as “DREAMERs,” DACA holders include undocumented immigrants who came to the U.S. as minors before age 16, have lived in the U.S. since June 15, 2007, are currently in school or have graduated from high school, have no serious criminal history, and meet other eligibility requirements.

DACA, however, has always been a temporary relief subject to rescission by a new Administration and which provided no path to lawful nonimmigrant status, permanent residence, or citizenship.

The DACA program was introduced by the Obama Administration in a  June 15, 2012 memorandum from then DHS-Secretary Janet Napolitano, titled Exercising Prosecutorial Discretion With Respect to Individuals Who Came to the United States as Children. Critics viewed it as an unconstitutional use of power by the Executive Branch. Supporters saw it as an extension of prosecutorial discretion related to immigration enforcement priorities and necessary protection for undocumented immigrants who came to the United States as children and grew up in the country.

Federal court litigation ensued, in which a Texas-led coalition of 26 states  — including Alabama, Arizona, Arkansas, Florida, Georgia, Idaho, Indiana, Kansas, Louisiana, Maine, Michigan, Mississippi, Montana, Nebraska, Nevada, North Carolina, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, West Virginia and Wisconsin — filed a lawsuit to stop the expansion of DACA and the introduction of a similar relief, Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program.

In January 2017, after taking office, President Trump stated in an interview with ABC’s David Muir that a new policy would be issued within weeks, but that DACA recipients “shouldn’t be very worried.” He further commented: “I do have a big heart. We’re going to take care of everybody…But I will tell you, we’re looking at this, the whole immigration situation, we’re looking at it with great heart.”

Meanwhile, Attorney General Jeff Sessions continued to hold a hardline, calling DACA an “unconstitutional” act by Obama that has “denied jobs to hundreds of thousands of Americans by allowing those same illegal aliens to take those jobs.” Sessions made the announcement in a September 5th news conference that the Trump Administration will phase out the DACA program.

On Twitter, following Sessions’ remarks, President Trump wrote, “Congress now has 6 months to legalize DACA (something the Obama administration was unable to do.) If they can’t, I will revisit this issue!”

In a written statement issued after Sessions’ announcement, Trump said, “I am not going to just cut DACA off, but rather provide a window of opportunity for Congress to finally act.”

“We will resolve the DACA issue with heart and compassion — but through the lawful democratic process — while at the same time ensuring that any immigration reform we adopt provides enduring benefits for the American citizens we were elected to serve,” Trump added.

There are at least four bills being discussed in Congress that provides protection to DREAMErs. They include the Dream Act, sponsored by Sens. Dick Durbin, D-Ill., and Lindsey Graham, R-S.C; Recognizing America’s Children (RAC) Act, sponsored by Rep. Carlos Curbelo, R-Fla.; American Hope Act, sponsored by Rep. Luis Gutierrez, D-Ill.; and BRIDGE Act, sponsored by Rep. Mike Coffman, R-Colo. The first three creates a path for citizenship or permanent resident status if applicants meet certain requirements. The fourth seeks to codify the current DACA program into law and extend it for three years (but offers no path to permanent residence or citizenship), giving Congress more time to enact comprehensive immigration reform.

Trump gave Congress six months to fix the broken immigration system, but there are diametrically opposed viewpoints within the Senate and House: some call for tougher border security and immigration enforcement, while others seek protection from removal and a pathway to permanent residence and citizenship for certain undocumented immigrants who came to the U.S. as minors.

Congress has struggled for several years to resolve big legislative issues like immigration. As such, six months make a very short period to tackle the monumental problem of DACA holders losing protection from removal and authorization to work in the United States.

With a divided Congress, the fate of DREAMers is uncertain. In addition to filing for DACA renewal, if eligible, and tracking legislative action in Congress, DACA holders should consult an immigration attorney to discuss other more concrete, existing immigration options.

This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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Photo by: Lian Xiaoxiao

Trump Administration ends DACA: no new applications accepted as of September 5, 2017; renewal applications accepted up to October 5, 2017

On September 5, 2017, the Trump Administration announced the ending of Deferred Action for Childhood Arrivals (DACA) program – a temporary immigration relief that was introduced by the Obama Administration on June 15, 2012. In the Memorandum on Rescission of Deferred Action for Childhood Arrivals (DACA) from DHS Acting Secretary Elaine Duke, and related FAQs, the Administration set forth the following steps to end the program:

Initial DACA (Form I-821D) applications and related applications for Employment Authorization Document (Form I-765): U.S. Citizenship & Immigration Services (USCIS) will adjudicate, on a case-by-case basis, properly filed initial DACA requests and associated applications for work authorization that were received by September 5, 2017. All initial DACA requests received after September 5 will be rejected.

DACA Renewal (Form I-821D) applications and related applications for Employment Authorization Document (Form I-765): USCIS will adjudicate, on a case-by-case basis, properly filed renewal DACA requests and associated applications for work authorization, from current DACA holders, that were received by September 5, 2017.

USCIS will also accept and adjudicate DACA renewal requests from current DACA holders whose benefits will expire on or before March 5, 2018, as long as they are received by October 5, 2017.

USCIS will reject all DACA renewal requests that do not fit this criteria, including all applications received after October 5, 2017.

Applications for Advance Parole (Travel Document) Based on DACA Grants: As of September 5, USCIS will not approve any new DACA-based applications for Advance Parole/travel document (Forms I-131). USCIS will administratively close all pending applications for advance parole and refund the filing fees.

The Department of Homeland Security (DHS) will generally honor the validity period for previously approved applications for Advance Parole, but the U.S. Customs & Border Protection (CBP) retains the authority to determine whether to admit persons who present themselves at a U.S. port of entry, as a matter of discretion. USCIS also retains authority to revoke or terminate an advance parole document at any time.

Why is the DACA program ending?

The DACA program was implemented by a June 15, 2012 memorandum from then DHS-Secretary Janet Napolitano, titled Exercising Prosecutorial Discretion With Respect to Individuals Who Came to the United States as Children.

The Obama Administration planned to expand the DACA program in February 2015 and introduce the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program in May 2015. These plans, however, were halted after a Texas-led coalition of 26 states filed a lawsuit in the U.S. District Court for the Southern District of Texas to stop the rollout.

On February 16, 2015, U.S. District Court Judge Andrew Hanen in Texas issued a temporary injunction blocking the implementation of the expanded DACA and the new DAPA.  On June 23, 2016, the U.S. Supreme Court issued a 4-4 opinion in United States v. Texas that allowed the  temporary injunction to stand.

In a June 29, 2017 letter to Attorney General Jeff Sessions, Texas and nine other states requested that DACA be phased out and DHS rescind the June 15, 2012 memorandum and not renew or issue any new DACA permits. They stated that if the Trump Administration agrees to rescind the June 15, 2012 DACA memorandum, they will voluntarily dismiss their lawsuit pending in the Southern District of Texas; otherwise, the complaint will be amended to challenge the existing DACA program.

During his election campaign, President Trump promised to end DACA. After Trump took office on January 20, then-Secretary of Homeland Security John Kelly rescinded the DAPA policy in June 2017. USCIS, however, continued to approve both initial and renewal DACA applications.

In its decision to end the DACA program, the Trump Administration considered the federal court rulings in ongoing litigation and the September 4, 2017 letter from the Attorney General to the DHS Acting Secretary, noting that DACA was an “unconstitutional exercise of authority by the Executive Branch” and calling for a wind-down process.

Who is affected?

Almost 800,000 persons have received DACA since the program began in June 2012. DACA holders include undocumented immigrants who came to the U.S. as minors before age 16, lived in the U.S. since June 15, 2007, are currently in school or have graduated from high school, have no serious criminal history, and meet other eligibility requirements.

How does the ending of the DACA program affect DACA holders? 

Employment Authorization 

DACA holders with a currently valid Employment Authorization Document (EAD) may continue to work lawfully in the United States. DHS does not plan to terminate or revoke any previous grants of DACA or work permits solely due to the ending of the program.

Advance Parole/Travel Authorization

DACA holders with a valid Advance Parole document, who are outside the United States, should be able to reenter the country. But Advance Parole has never guaranteed admission to the United States by the CBP, which maintains authority to decide whether to grant entry or deny it. The DHS may also revoke or terminate a grant of Advance Parole at any time, including when the DACA holder is outside the United States, which would prevent reentry to the country.

Immigration Enforcement

In the FAQs related to the September 5, 2017 memorandum ending DACA, the Trump Administration stated ,“[i]nformation provided to USCIS in DACA
requests will not be proactively provided to ICE and CBP for the purpose of immigration enforcement proceedings, unless the requestor meets the criteria for the issuance of a Notice To Appear or a referral to ICE under the criteria set forth in USCIS’ Notice to Appear guidance.

Explore Other Options

The DACA program provides authorized stay, work authorization, and temporary protection from removal (deportation), but no lawful nonimmigrant status or path to permanent residence. DACA recipients ought to be exploring other options to legalize their status, preferably before the program ends.

For example, if you are a DACA holder who is married to a U.S. citizen, your spouse may file an I-130 immigrant petition for you, and you may seek to obtain an immigrant visa at the U.S. Consulate or adjustment to permanent resident status within the United States in the immediate relatives category.

Adjusting to permanent resident status requires lawful admission to the United States. If you entered the country unlawfully, without presenting yourself for inspection, you normally must depart the country to apply for the immigrant visa overseas. Departure from the United States (without Advance Parole) triggers the 3/10 year unlawful presence bar.

Section 212(a)(9)(B)(i)(I) of the Immigration & Nationality Act (INA) states the 3 year bar to re-entry applies if you were unlawfully present in the U.S. for more than 180 days, but less than one year, and then depart the U.S. prior to commencement of removal proceedings. The U.S. government adds up all the days you were unlawfully present in the U.S. in a single ongoing period or stay (i.e. continuous period of unlawful presence).

The 3-year bar does not apply if you depart the U.S. after the Notice to Appear in removal proceedings is filed with the immigration court, following service of the NTA on you. But leaving the U.S. while you are in removal proceedings or being issued a removal order carries other immigration consequences.

Section 212(a)(9)(B)(i)(II) of the INA states the 10 year bar to re-entry applies if you were unlawfully present in the U.S. for one year or more, and then depart the U.S. The U.S. government adds up all the days you were unlawfully present in the U.S., even if they were from different periods or stays (i.e. the aggregate period of unlawful presence).

You begin to accrue unlawful presence only after April 1, 1997 and once you turn age 18.

The 3/10 year bar to re-entry is triggered only if you leave the U.S. This does not mean you should never leave the U.S. to legalize your immigration status, but you should know there are risks to your departure. (Illegally re-entering or attempting to illegally re-enter the U.S. further complicates your case and triggers a permanent bar under certain circumstances.)

A person who is inadmissible due to the 3 year/10 year bar may not receive an immigrant visa before the 3 year/10 year bar expires without first obtaining an I-601 waiver or I-601A waiver under section 212(a)(9)(B)(v) of the Immigration & Nationality Act.  To be eligible for the waiver, you must have a qualifying relative (U.S. citizen or permanent resident spouse or parent) who will suffer “extreme hardship” if you are not granted the immigrant visa and admitted to the United States.

Consult an Immigration Attorney

The American Immigration Council issued a September 5, 2017 Practice Advisory describing other possible forms of relief, such as adjustment of status, U and T visas, asylum, and special immigrant juvenile status.

DACA holders must consult an experienced immigration attorney to discuss whether they are eligible for other immigration options that are more lasting than DACA and could lead to permanent resident status.

This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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 Photo by: Antony Theobald