Category Archives: immigrant petition

Parole in Place Plan Will Allow Certain Undocumented Spouses and Children of U.S. Citizens to Get Green Cards Through I-485 Adjustment, Instead of Consular Processing

On June 18, the Biden Administration announced a “Parole in Place” plan to allow certain undocumented spouses and children of U.S. citizens to apply for permanent residence within the U.S., instead of needing to depart for Immigrant Visa processing. The Fact Sheet: President Biden Announces New Actions to Keep Families Together provides basic information on the program, which the Administration says will promote family unity.

The Administration estimates there are about 500,000 spouses and 50,000 children (or stepchildren) of U.S. citizens who will benefit from this program. Under current law or policy, they cannot adjust to permanent residence because they were not inspected and admitted lawfully into the United States. There are risks to departing the U.S. to apply for the Immigrant Visa abroad, even when it is based on an approved I-130 immigrant petition filed by their U.S. citizen spouse or parent.

Critics argue this amounts to “amnesty” for individuals who came to the U.S. without proper visas or travel documents. While the high number of migrant encounters and unlawful entries at the Southwest Land Border (between U.S. and Mexico) is alarming, family unity has been a bedrock of U.S. immigration.

If implemented, the proposed program strikes a delicate balance between creating lawless open borders and initiating mass deportation, which are both extreme and unworkable measures. Whether it will survive possible legal scrutiny or is really “political pandering” are reasonable but separate questions.

The exact application process – such as required forms, filing fee and documentary evidence – has yet to be decided. Until a proposed rule is published in the Federal Register and public comments are accepted and reviewed, it will not go into effect as a final rule. USCIS will reject any filings related to this process received before the official start date, which might begin in late summer 2024.

Who Will Benefit from the Parole in Place Program?

The Parole in Place program is intended to benefit certain green card applicants who:

  • are physically present in the U.S. without inspection and admission or parole;
  • are legally married to a U.S. citizen OR are legally the children or stepchildren of a U.S. citizen, as of June 17, 2024;
  • have been continuously present in the U.S. for 10 years or more, as of June 17, 2024;
  • do not pose a threat to public safety or national security;
  • are otherwise eligible to apply for adjustment of status; and
  • merit a favorable exercise of discretion.
[NOTE: For U.S. immigration purposes, a “child” is an unmarried person under the age of 21. If the person is a “stepchild”, the marriage between the U.S. citizen and the biological parent must have occurred before the stepchild turned 18.]

Spouses and children of U.S. citizens who are not physically present in the U.S. as of June 17, 2024, have not been continuously present in the U.S. since June 17, 2014 or earlier, have a serious criminal record that poses a risk of harm to the public or nation, or have negative factors that make them ineligible for or undeserving of adjustment of status will not benefit from this program.

How Will the Parole in Place Program Expand Who May Apply for Adjustment to Permanent Residence?

Under statutory law, INA 245(a) (8 USC §1255), an applicant must have been “inspected and admitted or paroled” into the United States to apply for adjustment of status. The Form I-485, Application to Register Permanent Residence or Adjust Status, is filed with USCIS by qualified applicants seeking a green card while they are inside the U.S.

If they do not qualify for I-485 adjustment, they could still be eligible for Immigrant Visa processing at the U.S. Consulate or U.S. Embassy abroad. But a departure carries risks, including long-term or permanent separation from their family in the U.S., if the visa is denied.

Even spouses or children of U.S. citizens are not eligible for INA 245(a) adjustment if they have not been inspected and admitted or inspected and paroled into the United States, which is a key requirement.

An eligible applicant who did not enter the U.S. with proper admission, but later receives Parole in Place will meet one major requirement for adjustment of status.

Upon receipt of a properly filed Parole in Place application, USCIS will decide, on a case-by-case basis, whether to grant parole in the favorable exercise of discretion. In its Fact Sheet: DHS Announces New Process to Promote the Unity and Stability of Families, USCIS states it will aim to detect potential fraud, consider the applicant’s immigration record and criminal history (if any), and perform background checks and national security and public safety vetting in the process.

What are the Advantages of the Parole in Place Plan?

1. Eligible parolees may apply for employment authorization and receive temporary protection from removal

In general, a person who is granted parole may apply for an Employment Authorization Document (EAD) or work permit by filing a Form I-765, Application for Employment Authorization, with USCIS under category (c)(11). Furthermore, parole serves as a temporary relief from removal (deportation) for a certain period of time.

2. A Parole in Place grant will allow the applicant to meet the “admission and inspection” requirement for adjustment of status under INA 245(a)

Under current U.S. immigration law or policy, applicants who did not enter the United States with proper inspection and admission or parole cannot adjust to permanent residence. They must instead depart the U.S. to apply for the Immigrant Visa abroad.

A departure from the U.S. triggers the 3/10-year bar under INA 212(a)(9)(B) if they accrued unlawful presence lasting more than 180 days, starting at age 18. Thus, they need to file for and obtain a Form I-601 waiver (if they are abroad) or Form I-601A provisional waiver (if they are in the U.S) to receive the Immigrant Visa before the 3/10-year bar expires.

To get the waiver, the applicant must prove they have a qualifying relative (U.S. citizen or permanent resident spouse or parent) who will face extreme hardship if they are not permitted to re-enter the United States as an immigrant. “Extreme hardship” is often very difficult to prove. It must be at a higher level than the ordinary hardship resulting from family separation or the qualifying relative’s relocation to the applicant’s home country for family unity.

If the Form I-601 waiver application is denied by USCIS, the Immigrant Visa applicant is left stuck outside the U.S. (until the unlawful presence bar expires). If the Form I-601A provisional waiver is denied, the applicant might decide to forego the Immigrant Visa process and remain in the U.S. without authorization and risk the possibility of removal (deportation) due to the unlawful presence.

Under the proposed policy, eligible applicants who would otherwise have to apply for a green card through consular processing may request Parole in Place from USCIS to meet the “inspection and parole” requirement for INA 245(a) adjustment of status.

What are the Limitations of the Parole in Place Plan?

1. Parole in Place, by itself, does not make the applicant a permanent resident or provide lawful nonimmigrant or immigrant status

Obtaining Parole in Place does not guarantee permanent residence and only gives you temporary, authorized stay. It is also not a direct path to U.S. citizenship. Applicants must first be granted permanent residence and maintain this status for three or five years before they meet one of the requirements for naturalization.

Parole allows an applicant – who entered the U.S. without proper inspection and admission – to otherwise meet just one of the eligibility criteria for I-485 adjustment. Being lawfully admitted or paroled into the United States is one requirement to filing for permanent residence when the applicant is already physically present in the country. But, by itself, it is not enough to get a green card.

2. Parole in Place does not excuse the applicant from meeting all other eligibility requirements for I-485 adjustment of status and USCIS’ favorable exercise of discretion.

Except for Immediate Relatives (e.g. spouses and children of U.S. citizens) and certain other visa categories, green card applicants must have continuously maintained lawful status since entry into the United States. Otherwise, if they ever violated their status or fell out of status, they do not qualify for INA 245(a) adjustment.

There are also inadmissibility grounds that prohibit the grant of permanent residence. Some of the most common are INA 212(a)(6)(C)(i) (fraud or willful misrepresentation of material facts to obtain U.S. immigration benefits), INA 212(a)(2)(A) (certain criminal convictions), and INA 212(a)(9)(A) (removal orders). If you have an inadmissibility bar, you will be denied adjustment of status unless you qualify for and receive the necessary waiver from USCIS. Some inadmissibility bars, such as INA 212(a)(2)(C) due to controlled substance trafficking, cannot be waived in green card applications.

In addition, spouses and children of U.S. citizens must have an approved Form I-130 immigrant petition filed on their behalf to apply for family-based permanent residence. The U.S. citizen must show, by a preponderance of evidence, there is a real spousal relationship or parent-child/stepchild relationship to get an I-130 approval. Furthermore, if the noncitizen spouse is found to have previously entered a sham marriage to a prior petitioner to obtain U.S. immigration benefits, USCIS is prohibited from approving a subsequent (new) I-130 petition under INA 204(c).

For more information on the I-485 adjustment of status application process, see:

Who is Eligible (and Not Eligible) for Adjustment to Permanent Resident Status?

Adjusting to Permanent Resident Status Under INA 245(a): Bars, Exceptions and Exemptions

A Key Requirement for I-485 Adjustment of Status: Inspection and Admission OR Inspection and Parole

How Will the Parole in Place Program Take Effect?

The Parole in Place program is expected to be implemented by federal rulemaking, not by Congressional action, which is more complex. Due to political polarization, ideological cohesion, and lack of bipartisanship in today’s 118th Congress and prior Congresses, the U.S. immigration system has been broken for decades. There is no real agreement on how to fix this deep-rooted problem, which has no simple solutions. The last major comprehensive reform was The Immigration Reform and Control Act (IRCA) passed by the 99th Congress and signed into law by President Ronald Reagan on November 6, 1986.

Under the federal rulemaking process, USCIS (DHS) may implement a new rule by publishing a Notice of the Proposed Rulemaking to the Federal Register for the public to view at http://www.federalregister.gov. This notice allows the public to comment on whether or not a rulemaking should be initiated. The comment period normally takes at least 30 to 60 days. After the comment period closes, the agency reviews and analyzes all the comments. Then it decides whether to implement the proposed rule, modify it, or withdraw it.

A federal rule is issued by agencies, such as DHS, that govern how laws will be applied. It is not the same as statutory law passed by Congress. Statutory law under INA 212(d)(5) (8 U.S.C. 1182(d)(5) does allow parole authority to be exercised, but only on a case-by-case basis, for urgent humanitarian reasons or a significant public benefit, and for a temporary purpose.

To endure possible legal challenges in courts, the Parole in Place program must not contradict U.S. immigration laws (or Congress’ intent when it passed the laws). This is even more critical with the U.S. Supreme Court’s June 28th decision to strike down the Chevron doctrine. In Loper Bright Enterprises, it found that courts do not have to defer to federal agencies’ regulations interpreting ambiguous laws. Courts may instead apply their own interpretation of unclear statutes.

Parole in Place for military families has existed for at least a decade. But now that the U.S. Supreme Court has overturned Chevron, the DHS will have to make an even stronger case for certain undocumented spouses and children of U.S. citizens. Although the Parole in Place plan is expected to become a temporary fix, a federal rule now carries less weight.

Consult a qualified U.S. immigration attorney to discuss any potential Parole in Place benefits that may apply to you. This is NOT new law. Currently, it is a proposed program by Executive Action, which will not go into effect until it is published as a final rule in the Federal Register.

Beware of “notarios” and other consultants who make false promises to get you to pay them fees. If you rely on bad advice, you could put yourself in a worse position to legalize your U.S. immigration status and might further end up in removal (deportation) proceedings.

To watch YouTube video, click HERE.

To listen to podcast, click HERE.

To read the transcript, click HERE

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The Legal Immigrant provides general information only from Dyan Williams Law. It is based on U.S. immigration laws, regulations and policies that are subject to changeDo not consider it as legal advice. The sharing or receipt of this information does not create an attorney-client relationship.

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I-601 Waiver + Immigrant Visa = A True Success Story

Five years after being found inadmissible under INA 212(a)(6)(C)(i), our client finally received her Immigrant Visa to join her U.S. citizen spouse in the United States. Consistent with normal processing time, USCIS took 10 months to approve her Form I-601 application for waiver of inadmissibility, which we prepared and filed on her behalf.

But due to the U.S. Consulate’s administrative delays and a Presidential Proclamation suspending entries from the client’s home country, it took almost three more years for her to get the visa.

In episode 13 of The Legal Immigrant, you will learn:

1) The U.S. immigration problem when you have a permanent bar under INA 212(a)(6)(C)(i), i.e., fraud or willful misrepresentation of material fact to obtain a U.S. immigration benefit. 

2) The two main solutions to receive an Immigrant Visa or green card (permanent residence) when you have a section 212(a)(6)(C)(i) inadmissibility bar:

a) A motion to reconsider requires you to have a factual basis, legal ground, and procedural means to get the bar removed.

b) Form I-601 waiver application under INA 212(i) requires you to have a “qualifying relative” who will face “extreme hardship” if you do not immigrate to the United States. 

  • A qualifying relative is the U.S. citizen or permanent resident spouse or parent of the applicant. 
  • Extreme hardship must result to the qualifying relative if that person stays in the U.S. without the applicant or relocates to another country to be with the applicant. 

3) The type of documentary evidence and legal argument that are required to receive an I-601 waiver.  This includes medical records on any chronic medical conditions the U.S. citizen spouse (or other qualifying relative) suffers, and reports on lack of medical resources in the visa applicant’s home country. 

4) The outcome of a true success story, which included more obstacles and long delays after the I-601 was approved. Due to the U.S. Consulate’s 221(g) administrative processing and a 212(f) Presidential Proclamation suspending entries from certain countries, it took almost three more years for the applicant to get the Immigrant Visa.

The couple remained committed to one another despite their separate residences and long-distance relationship. Our client finally became a permanent resident after she was initially refused the visa under INA 212(a)(6)(C)(i).

This is a true success story at Dyan Williams Law.

To hear more on the I-601 Waiver + Immigrant Visa success story, click HERE for Episode 13 on The Legal Immigrant podcast or find it on Apple Podcasts or Google Podcasts

To watch the YouTube video, click HERE.  

To read the transcript, click HERE

The Legal Immigrant provides general information only from Dyan Williams Law. Do not consider it as legal advice. Each case is different. Even cases that seem similar can have different outcomes. 

Have you been charged with fraud or misrepresentation? If you’re applying for an immigrant visa or permanent residence and have this lifetime bar, you need an I-601 waiver. Otherwise, if the bar was made in error, you might be able to get it removed through a motion to reconsider.

To receive advice on fraud or misrepresentation issues, you may submit an email to info@dyanwilliamslaw.com or online message at www.dyanwilliamslaw.com.

Dyan Williams, Esq. 

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

COVID-19 Vaccination Required for Green Card Applicants, Starting October 1st

The U.S. Centers for Disease Control and Prevention (CDC) has a new requirement that will affect all green card applicants. Starting October 1, 2021, intended immigrants must receive full doses of the COVID-19 vaccine to immigrate to the U.S. This new requirement affects eligibility for permanent residence on health-related grounds.

COVID-19 has been added as a Class A medical condition that bars a person from the United States.  Class A inadmissibility includes a communicable disease of public health significance per regulations under the Department of Health and Human Services; and a failure to present documentation of having received vaccinations against vaccine-preventable diseases. 

As of October 1st, the COVID-19 vaccine will be among the vaccines required for applicants to obtain lawful permanent residence, either through the I-485 green card application with USCIS or through an Immigrant Visa application at the U.S. Embassy.

Section 212(a)(1)(A)(ii) of the Immigration and Nationality Act states applicants for permanent residence must present proof that they are vaccinated against vaccine-preventable diseases, which include mumps, measles, rubella, polio, tetanus and influenza type B and hepatitis B, and receive any other vaccinations against vaccine-preventable diseases recommended by the Advisory Committee for Immunization Practices.

In episode 12 of The Legal Immigrant, you will learn:

1) The ACIP has now recommended COVID-19 vaccination for the age-appropriate, general U.S. population. The CDC says this means the COVID-19 vaccination is now required to immigrate to the U.S.

2) The CDC does not recognize natural immunity. Its instructions state, “Laboratory tests for COVID-19 immunity must not be used for the civil surgeon exam. The applicant is required to receive the vaccine series regardless of evidence of immunity or prior COVID-19 infection.” The CDC asserts, “The duration of immunity due to natural infection is still being investigated and might not protect the applicant throughout the immigration process.” 

3) What is an acceptable COVID-19 vaccination and proof of vaccination

  • Approved COVID-19 vaccines are those authorized for use in the United States or those listed for emergency use by the World Health Organization. 
  • Personal attestation that you have been vaccinated is not enough. 
  • Showing immunity or recovery from a prior COVID-19 infection is not a permissible basis for a vaccination waiver. 

Acceptable evidence of vaccination includes – 

  • An official vaccination record;
  • A medical chart with physician entries pertaining to the vaccination, including dates you received the vaccine, name or manufacturer and lot number; or,
  • Appropriate medical personnel attestation.

4) What is the COVID-19 vaccination requirement

The designated civil surgeon who performs the medical examination and completes the Form I-693, Report of Medical Examination and Vaccination Record, must confirm the applicant received all doses of the COVID-19 vaccine. The I-693 is part of the green card application within the United States.  A similar medical exam process is performed by a panel physician and required for Immigrant Visa applicants abroad. 

5) What are the exemptions to the vaccination requirement

Blanket waiver – 

  • Applicant is not age appropriate, i.e. too young to receive the vaccine
  • Applicant has medical contraindication to the vaccine
  • Applicant does not have access to an approved COVID-19 vaccine, i.e. no COVID-19 vaccine is routinely available in the state where the civil surgeon practices

Individual waiver – 

  • Applicant refuses to take the vaccine on religious or moral conviction grounds
  • USCIS – not the civil surgeon or CDC – decides whether to grant the individual waiver on religious or moral conviction grounds

6) If an applicant refuses one or more doses of a COVID-19 vaccine series and is not eligible for a waiver of this requirement, the civil surgeon will document the vaccine requirements as incomplete.  On health-related grounds, the applicant will be deemed inadmissible for a Class A condition and will be found ineligible for permanent residence. 

7) As of August 12, 2021, USCIS temporarily extended the validity period for Form I-693 from two years to now four years. For decisions on Form I-485 green card applications issued on or before September 30, 2021, USCIS may accept an otherwise valid Form I-693 if:

  • The civil surgeon’s signature is dated no more than 60 days before the applicant filed the I-485; and
  • No more than four years have passed since the date of the civil surgeon’s signature

8) If you have weighed the risks and benefits, and do not want to take the COVID-19 vaccine for U.S. immigration purposes, you will have to get a completed medical exam report before October 1st. Then you must file your I-485 application within 60 days. 

9) Starting October 1, all green card applicants will have to take the vaccine unless they qualify for a waiver or exemption.

This is general information only and is not legal advice. To request a consultation, you may submit an email to info@dyanwilliamslaw.com or online message through our website’s contact form.

Subscribe to The Legal Immigrant podcast at Apple Podcasts or other apps.

To listen, click HERE for Episode 12 on The Legal Immigrant podcast or find it on Apple Podcasts or Google Podcasts.

If you prefer to read, click HERE for transcript of episode 12.

Resources cited:

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The Legal Immigrant podcast and this article provide general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for your situation. The sharing or receipt of this information does not create an attorney-client relationship.

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Biden Administration Proposes Immigration Bill to U.S. Congress: The U.S. Citizenship Act of 2021

On January 20th (day 1 of the Biden Administration), the White House announced it is sending a bill to Congress to reform major parts of the U.S. immigration system.

It includes an earned roadmap for certain undocumented immigrants, Dreamers, TPS holders, and immigrant farmworkers to apply for green cards and, eventually, U.S. citizenship. 

Other proposed changes include reducing the backlog in family-based and employment-based immigration; recapturing unused visas; allowing intended immigrants with approved family petitions to join relatives in the U.S. on a temporary basis while they wait for green cards to become available;  and eliminating the 3/10-year unlawful presence bars to re-entry. 

The bill authorizes additional funding to deploy new screening technology at U.S. ports of entry and to address the root causes of migration in the Central American region.

As of the date of this blog post, the bill has not been formally introduced in either the House or the Senate. It will NOT become law unless passed by Congress and signed by the President. 

To hear more about the proposed bill, click HERE for Episode 6 on The Legal Immigrant podcast. And if you want to encourage others to listen to the show, please post a 5-star rating and positive review on Apple Podcasts or other app!

Resource cited:

See also:

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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 your situation. Each case is unique and even cases that seem similar may have different outcomes. The sharing or receipt of this information does not create an attorney-client relationship.

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Form I-129F Approval + K-1 Visa Grant = A True Success Story

A U.S. Consulate issued the K-1 fiancée visa to our client, after it denied her requests for an F-1 student visa renewal. The switch allowed the applicant to avoid the INA 214(b) requirement to establish nonimmigrant intent. The setbacks were overcome with careful documentation to support the Form I-129F, Petition for Alien Fiancé(e), and thorough preparation for the K-1 visa process.

The applicant first consulted me after the U.S. Consulate used INA 214(b) to twice deny her requests for the student visa renewal. She had assumed USCIS’ approval of her application for F-1 reinstatement — after she fell out of status for three years — would automatically lead to the visa issuance.

After one more failed attempt to get the student visa, we agreed to switch to the K-1 visa based on her recent engagement to her U.S. citizen fiancé.

I advised the applicant and her U.S. citizen fiancé on the Form I-129F petition, including the documentary evidence to submit to get an approval. It took four months for USCIS to approve the petition, which is the first step in the K-1 visa process.

Within a month, we received notice from the National Visa Center to proceed with the next step of filing the Form DS-160, K-1 visa application. After receiving all the forms and documents, the U.S. Consulate scheduled her for a visa interview in April 2020.

Unfortunately, due to COVID-19 restrictions that began in March 2020, the Consulate cancelled the interview. At the time, our client was also traveling in Europe and got stuck there for several months.  The K-1 visa interview was eventually rescheduled in December 2020. Our client was also able to return to her home country in time for the visa interview.

I counseled her on submitting the DS-160 visa application, the police certificates, the medical exam report, and the Form I-134, Affidavit of Support.

I confirmed that her prior F-1 visa refusals would not be a problem. She had fallen out of F-1 status for three years, starting in 2015. She departed the U.S. to visit her family abroad, after USCIS approved her Form I-539 application for F-1 reinstatement. USCIS agreed her failure to maintain status was due to circumstances beyond her control.

Her being out of status for three years did not make her inadmissible for 10 years under INA 212(a)(9)(B). No USCIS or Immigration Judge had officially found that she violated her F-1 status, before she filed her Form I-539 application. Under the policy that existed at the time, she did not accrue unlawful presence toward the 3/10 year unlawful presence bar. She also had no other inadmissibility grounds, such as a criminal record or fraud/misrepresentation to obtain a U.S. immigration benefit.

The U.S. citizen petitioner was unemployed and did not meet the income requirement to sponsor her. But her uncle agreed to submit a Form I-134 as a joint sponsor.

I also advised the client on what to expect at the visa interview, including questions on her U.S. visa history, biographic data, and her relationship with her US citizen fiancé.

Despite the obstacles in her case, she was finally issued the K-1 visa in January 2021. She has 6 months to enter the United States on the K-1 visa before it expires.

Upon arrival in the United States on the K-1 visa, she will have 90 days to marry the U.S. citizen petitioner. Following the marriage, she may file a Form I-485 application for permanent residence. If the marriage occurs outside the 90-day timeframe, she may still file for the green card, but the U.S. citizen must file a Form I-130 petition with the Form I-485 application.

When she submits the I-485 application, she may include a request for a work permit and travel authorization. The K-1 visa is for a single entry to the U.S. and does not provide work authorization. While her green card application is pending, USCIS may process her work card and travel document.

If the marriage occurs and the I-485 application is approved, as expected, our client will become a permanent resident of the United States. If the marriage is at least 2 years old at the time of the I-485 approval, she will get a 10-year green card without conditions. Otherwise, she will get a conditional residence card valid for 2 years. She will then need to file a Form I-751 petition to remove conditions and maintain her green card status.

This is a true success story.

Cheers,

Dyan Williams

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

For more details, listen to Episode 5 on The Legal Immigrant podcast.

RESOURCES: 

From K-1 Fiancé(e) Visa to Green Card

K-1 fiancé(e) visas aren’t just for mail-order brides (but still carry strict requirements)

Coming to America to Get Married and Get a Green Card: B-2 or K-1 Visa?

Coming to America to Get Married and Get a Green Card: B-2 or K-1 Visa? – VIDEO

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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 your situation. Each case is unique and even cases that seem similar may have different outcomes. The sharing or receipt of this information does not create an attorney-client relationship.

SUBSCRIBE           CONTACT