On June 28, 2018, USCIS published Policy Memorandum entitled “Updated Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Deportable Aliens.” 

Starting October 1, 2018, USCIS started issuing NTA (referrals for deportation) in some cases where they denied a I-485 or I-539 application and the applicant is out-of-status.

Now, USCIS is expanding its right to issue a NTA to other applications as well. It will result in more cases being referred for deportation (removal) to Immigration Court.

Beginning November 19, 2018, USCIS will apply the memorandum to the following denied applications and petitions:

I-914/I-914A, Application for T Nonimmigrant Status
I-918/I-918A, Petition for U Nonimmigrant Status
I-360, Petition for Amerasian, Widow(er), and
I-360 VAWA Special Immigrant (Violence Against Women Act self-petitions) and 
I-360 Special Immigrant Juvenile Status petitions)
I-730, Refugee/Asylee Relative Petitions when the beneficiary is present in the US
I-929, Petition for Qualifying Family Member of a U-1 Nonimmigrant
I-485 Application to Register Permanent Residence or Adjust Status (with the underlying form types listed above).

U, T, VAWA, SIJS are humanitarian applications. Previously, a denial usually didn't result in deportation. This policy changes on November 19, 2018.

Read here.

On October 1, 2018, for the first time in history, Immigration Judges were assigned a quota and ordered to complete 700 cases per year (3 cases per day), and will be penalized if over 15% of their decisions are overturned on appeal.

In addition, AG has limited their authority to grant continuances or to administratively close cases where applicants are eligible to apply for an immigration benefit under immigration law.

The American Bar Association has stated that “such quotas have serious implications for decisional independence.” Instead the ABA recommends establishing the immigration courts as Article 1 courts, independent of any executive agency and less susceptible to political currents. 

What do the performance review standards require?

Under the new standards, which are set to go into effect on Oct. 1, 2018, to receive a “satisfactory” review an immigration judge must:

• Complete 700 cases per year, and
• Maintain a remand rate (from the Board of Immigration Appeals and circuit courts) of fewer than 15 percent per year.

Additionally, for a “satisfactory” review an immigration judge must meet at least half of the following benchmarks:

• Issue decisions within three days of completing a merits hearing in 85 percent of non-status detained removal decisions
• Issue decisions within 10 days of completing a merits hearing in 85 percent of non-status non-detained removal decisions (unless completion is prohibited by statute, such as cancellation caps)
• Decide motions within 20 days of receipt in 85 percent of their cases
• Make bond decisions on the day of the hearing in 90 percent of cases
• Complete individual hearings on the initial scheduled hearing date in 95 percent of the cases (unless the Department of Homeland Security does not produce a detained respondent), and
• Issue decisions in 100 percent of cases on the day of the initial hearing in credible fear and reasonable fear reviews (unless DHS does not produce a detained respondent).

Immigration judges are part of the executive branch of government within the Department of Justice reporting to the Attorney General. 

Case completion goals of 700 per year translates into completing – issuing a removal order or granting relief such as asylum, cancellation or adjustment – nearly three cases per day, and it does not account for the hours an immigration judge must spend conducting master calendar hearings, bond hearings, attending trainings and reviewing case files. It is hard to imagine how a judge could ever give fair consideration to three cases per day, while simultaneously preparing for upcoming hearings, writing decisions on complex cases and responding to motions (within newly proscribed time limits.) 

On June 28, 2018, U.S. Citizenship and Immigration Services (USCIS) issued updated guidance that aligns its policy for issuing Form I-862, Notice to Appear, with the immigration enforcement priorities of the Department of Homeland Security.
​
A Notice to Appear (NTA) is a document given to a foreign national that instructs them to appear before an immigration judge on a certain date.

The issuance of an NTA commences removal proceedings against the foreign national. Under the new guidance, USCIS officers will now issue an NTA for a wider range of cases where the individual is removable and there is evidence of fraud, criminal activity, or where an applicant is denied an immigration benefit and is unlawfully present in the United States.

Deferred Action for Childhood Arrivals (DACA) recipients and requestors are exempted from this updated guidance when: (1) processing an initial or renewal DACA request or DACA-related benefit request; or (2) processing a DACA recipient for possible termination of DACA. As explained in the concurrently issued DACA-specific guidance, USCIS will continue to apply the 2011 NTA guidance to these cases. USCIS will also continue to follow the existing DACA information-sharing policy regarding any information provided by a DACA requestor in a DACA request or DACA-related benefit request.

USCIS, along with ICE and CBP, has legal authority under current immigration laws to issue NTAs. New USCIS Policy Memorandum updates the guidelines USCIS officers use to determine when to refer a case to ICE or to issue an NTA.

​The revised policy generally requires USCIS to issue an NTA in the following categories of cases in which the individual is removable:

• Cases where fraud or misrepresentation is substantiated, and/or where an applicant abused any program related to the receipt of public benefits. USCIS will issue an NTA even if the case is denied for reasons other than fraud.
• Criminal cases where an applicant is convicted of or charged with a criminal offense, or has committed acts that are chargeable as a criminal offense, even if the criminal conduct was not the basis for the denial or the ground of removability. USCIS may refer cases involving serious criminal activity to ICE before adjudication of an immigration benefit request pending before USCIS without issuing an NTA.
• Cases in which USCIS denies a Form N-400, Application for Naturalization, on good moral character grounds because of a criminal offense.
• Cases in which, upon the denial of an application or petition, an applicant is unlawfully present in the United States.

The revised policy does not change the USCIS policy for issuing an NTA in the following categories:

• Cases involving national security concerns;
• Cases where issuing an NTA is required by statute or regulation;
• Temporary Protected Status (TPS) cases, except where, after applying TPS regulatory provisions, a TPS denial or withdrawal results in an individual having no other lawful immigration status;
• DACA recipients and requestors when: (1) processing an initial or renewal DACA request or DACA-related benefit request; or (2) processing a DACA recipient for possible termination of DACA.

Under separate policy guidance issued concurrently, USCIS officers will continue to apply PM 602-0050, Revised Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Removable Aliens, dated November 7, 2011, to the issuance of NTAs and Referrals to ICE for DACA recipients and requestors.

New memo 1 ,general NTAs, and memo 2, DACA NTAs (both issued on June 28, 2018).

Under new June 28 2018 USCIS policy memo, USCIS will issue a Notice to Appear or NTA on its own initiative without referral to ICE, and place individuals in removal or deportation proceedings in immigration court upon denial of an application, if a person is deemed removable on the date of denial.

It will affect many people on H-1B work visa, their spouses, foreign students on F-1 student visa. This new policy will further backlog our immigration courts, and can result in more people becoming inadmissible and requiring waivers if applying for a visa at the U.S. embassy or consulate.

Briefly in Russian:

В соответствии с новыми правилами, опубликованными USCIS 28 июня 2018, Иммиграционная служба США будет передавать дела в иммиграционный суд и выдавать повестки в суд сами, без участия иммиграционной полиции ICE. Такие повестки в суд на депортацию будут выдаваться после отказа в заявлении поданном в USCIS, если заявитель потерял легальный статус на момент получения отказа. Ожидается, что суды станут еще более перегружены, и многие иностранные студенты F-1 student visa, и люди на рабочих визах H-1B получат повестки на депортацию, что ранее было крайне редко. 

#USCIS #ICE #NTA #NoticetoAppear #immigration #immigrant #immigrationcourt #deportation #removal

​"An attorney recently reported the following: at a Master Calendar hearing, an immigration judge advised that if on the Individual Hearing date, both the court and the ICE attorney do not believe the respondent is prima facie eligible for asylum based on the written submissions, the judge will deny asylum summarily without hearing testimony.  The judge stated that other immigration judges around the country were already entering such summary judgments, in light of recent decisions of the Attorney General.I have been telling reporters lately that no one decision or policy of the AG, the EOIR Director, or the BIA should be viewed in isolation.  Rather, all are pieces in a puzzle.  Back in March, in a very unusual decision, Jeff Sessions certified to himself a four-year-old BIA precedent decision while it was administratively closed (and therefore off-calendar) at the immigration judge level, and then vacated the decision for the most convoluted of reasons.  Matter of E-F-H-L-, had held that all asylum applicants had the right to a full hearing on their application without first having to establish prima facie eligibility for such relief.  It was pretty clear that Sessions wanted this requirement eliminated.
On January 4 of this year,  Sessions certified to himself the case of  Matter of Castro-Tum, in which he asked whether immigration judges and the BIA should continue to have the right to administratively close cases, a useful and common docket management tool.  On January 19, the BIA published its decision in Matter of W-Y-C- & H-O-B-, in which it required asylum applicants to clearly delineate their claimed particular social group before the immigration judge (an extremely complicated task beyond the ability of most unrepresented applicants), and stated that the BIA will not consider reformulations of the social group on appeal.  
On March 5, 2018, Sessions vacated Matter of E-F-H-L-.  Two days later, on March 7, Sessions certified to himself an immigration judge’s decision in Matter of A-B-, engaging in procedural irregularity in taking the case from the BIA before it could rule on the matter, and then completely transforming the issues presented in the case, suddenly challenging whether anyone fearing private criminal actors could qualify for asylum.
On March 22, Sessions certified to himself Matter of L-A-B-R- et al., to determine under what circumstances immigration judges may grant continuances to respondents in removal proceedings.  Although this decision is still pending, immigration judges are already having to defend their decisions to grant continuances to their supervisors at the instigation of the EOIR Director’s Office, which is tracking all IJ continuances. 
On March 30, EOIR issued a memo stating that immigration judges would be subjected to performance metrics, or quotas, requiring them to complete 700 cases per year, 95 percent at the first scheduled individual hearing, and further requiring that no more than 15 percent of their decisions be remanded.  On May 17, Sessions decided Castro-Tum in the negative, stripping judges of the ability to manage their own dockets by administratively closing worthy cases.
On June 11, Sessions decided Matter of A-B-, vacating the BIA’s 2014 decision recognizing the ability of victims of domestic violence to qualify for asylum as members of a particular social group.  In that decision, Sessions included headnote 4: “If an asylum application is fatally flawed in one respect, an immigration judge or the Board need not examine the remaining elements of the asylum claim.”  The case was intentionally issued on the first day of the Immigration Judges training conference, at which the need to complete more cases in less time was a repeatedly emphasized.
Within the past few months, the immigration judges have been warned that their livelihood will depend on their completing large numbers of cases, without the ability to grant continuances or administratively close cases.  They have had the need to hold a full asylum hearing stripped away, while at the same time, having pointed out to them several ways to quickly dispose of an asylum claim that until weeks ago, would have been clearly grantable under settled case law.
There has been much discussion lately of EOIR’s improper politicized hirings of immigration judges.  The above developments have created something of a Rorschach test for determining an immigration judge’s ideology.  
The judges that conclude from the above the best practice is to summarily deny asylum without testimony are exactly the type of judges the present administration wants on the bench.  They can find a “fatal flaw” in the claim - either in the formulation (or lack thereof) of the particular social group, or in the lack of preliminary documentation as to the persecutor’s motive, the government’s inability to protect, or the unreasonableness of internal relocation, and simply deny the right to a hearing.  It should be noted that these issues are often resolved by the detailed testimony offered at a full merits hearing, which is the purpose of holding such hearings in the first place.
On the other hand, more thoughtful, liberal judges will find that in light of the above developments, they must afford more time for asylum claims based on domestic violence, gang threats, or other claims involving non-governmental actors. And in doing so, they will find it extremely difficult to meet the completion quotas set out by the agency with Sessions’ blessing. The removal of Castro-Tum’s case from the docket of Judge Morley is clearly a warning that the agency does not wish for judges to behave as independent and impartial adjudicators, but rather to act in lockstep with the agency’s enforcement agenda.
There is another very significant issue: most asylum claims also apply for protection under Article III of the U.N. Convention Against Torture.  Unlike asylum, “CAT” relief is mandatory, and as it does not require a nexus to a protected ground, it is unaffected by the AG’s holding in A-B-.  So won’t those judges pondering summary dismissal still have to hold full hearings on CAT protection?  It would seem that a refusal to hold a full CAT hearing would result in a remand, if not from the BIA, than at the circuit court level."
Opinion by Jeffrey S. Chase, immigration attorney and former immigration judge you can read here.

On April 06, 2018, in Matter of Jose MARQUEZ CONDE,  BIA reaffirmed our holding in Matter of Pickering and reiterated that we interpret the definition of a “conviction” to include convictions that have been vacated as a form of post-conviction relief—for example, for rehabilitative purposes—and we will continue to give them effect in immigration proceedings.

However, we consider convictions that have been vacated based on procedural and substantive defects in the underlying criminal proceeding as no longer valid for immigration purposes.

In addition, to promote national uniformity in the application of the immigration laws, BIA will now apply Matter of Pickering, which we have applied in every circuit except for the Fifth Circuit, on a nationwide basis. In this regard, BIA modified Pickering insofar as it exempts the application of its holding in cases arising in the Fifth Circuit. See Matter of Pickering, 23 I&N Dec. at 624 n.2.

BIA decision.

On October 8, 2017, the White House released a list of immigration priorities addressing border security, interior enforcement, and a merit-based immigration system. 

The priority list calls for the hiring of 10,000 ICE agents, 300 federal prosecutors, 370 immigration judges and 1,000 ICE attorneys.  

The Department of Homeland Security would be authorized to raise and collect fees from visa services and border crossings to fund border security and enforcement activities. 

The border security measures include funding the southern border wall, ending the abuse of the asylum system, discouraging illegal re-entry by enhancing penalties and expanding categories of inadmissibility, and improving expedited removal of undocumented immigrants.

Making E-Verify mandatory, putting an end to sanctuary cities by authorizing and incentivizing states and localities to help enforce federal immigration laws, and improving visa security (which was recently declared unconstitutional by a federal judge).

With regards to the merit-based immigration system, the White House's priority list reiterates what was previously announced on August 2, 2017, when President Trump unveiled the revised RAISE Act (Reforming American Immigration for Strong Employment). This law would reduce the number of eligible family-based green cards and create a new point-based system for awarding green cards. 

Specifically, the RAISE Act would establish a 30-point threshold for green cards, awarding an applicant higher point totals for higher-salaried jobs, professional degrees, English-speaking ability, younger applicant age, higher future salary, extraordinary achievements, and an applicant’s investing $1.35 million or more in the United States.

Some of these new immigration priorities were previously announced in the form of President's executive orders, proclamations and memos:

• January 23, 2017 EO: Protecting American Jobs and Workers by Strengthening the Integrity of Foreign Worker Visa Programs
• January 25, 2017 executive orders: Enhancing Public Safety in the Interior of the United States and the Border Security and Immigration Enforcement Improvements
• February 20, 2017 memo: Implementing the President's Border Security and Immigration Enforcement Improvement Policies
• March 6, 2017 EO:  Protecting the Nation from Foreign Terrorist Entry into the United States
• March 6, 2017 Memo: Implementing Immediate Heightened Screening and Vetting of Applications for Visas and Other Immigration Benefits, Ensuring Enforcement of All Laws for Entry into the United States, and Increasing Transparency Among Departments and Agencies of the Federal Government and for the American People
• April 18, 2017 EO: Buy American and Hire American
• September 24, 2017 presidential proclamation:  Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats

​If these priorities/proposals will become law, what does this mean for employers/employees? 

Employers will face higher costs in sponsoring foreign workers for visas, and for the employees it will become increasingly difficult to meet a high point-based system threshold in order to obtain a green card.
There will be additional delays in visa issuance due to the additional screening required. There will be litigation, and not all of the priorities will become the law.

On Friday, June 23, 2017, in Jae Lee v United States the U.S. Supreme Court ruled in favor of an immigrant, a lawful permanent resident for over 30 years, whose lawyer (criminal defense attorney) falsely told him that pleading guilty to a drug distribution charge in a criminal case would not lead to his deportation. 

The court ruled that attorney's incompetence and ineffective assistance of counsel will give an immigrant another chance to reopen his criminal case.

Two justices dissented: the evidence in criminal case was exceptionally strong. The police had found large quantities of drugs (ecstasy) at his home, the defendant was preparing to distribute these drugs at his restaurant, and prosecutors were prepared to present a witness ready to testify. 

“In the face of overwhelming evidence of guilt and in the absence of a bona fide defense, a reasonable court or jury applying the law to the facts of this case would find the defendant guilty,” Justice Thomas wrote. “There is no reasonable probability of any other verdict.”

“A defendant in petitioner’s shoes, therefore, would have suffered the same deportation consequences regardless of whether he accepted a plea or went to trial,” he wrote. “He is thus plainly better off for having accepted his plea: Had he gone to trial, he not only would have faced the same deportation consequences, he also likely would have received a higher prison sentence.”

Read more here.

Read the court decision here.

Briefly in Russian:

23 июня 2017 Верховный Суд США опубликовал решение по делу иммигранта, постоянного жителя США более 30 лет, родом из Южной Кореи, который был обвинен в попытке распространения и прожажи огромного количества наркотических веществ (экстази) в своем ресторане. Так как иммигрант получил неверный совет от своего защитника в уголовном деле, который ему сказал "ты был постоянным жителем США более 30 лет, никто тебя не депортирует, признавай свою вину и получишь меньше лет в тюрьме". В результате признания своей вины по делу о наркотиках иммигрант был направлен на депортацию.

По решению Верховного Суда, уголовное дело против иммигранта будет открыто опять, и ему будет предоставлена возможность доказать свою невиновность в суде.

Двое судей выразили несогласие с мнением большинства, объяснив это тем, что доказательства и свидетельские показания по делу были настолько серьезные, что у иммигранта просто не было никаких шансов выиграть свое дело в суде присяжных, и приговор возможно был бы намного более серьезный, если бы он не признал свою вину и пошел с суд.

​Решение суда тут.

​

The 9th Circuit Court of Appeals held that the defendant had no Fifth Amendment due process right to hire counsel in the expedited removal proceeding under 8 U.S.C. § 1225, and that he cannot demonstrate prejudice from the failure to notify him of the right to withdraw his application for admission under 8 U.S.C. § 1225(a)(4).

As a result, the panel concluded that the defendant’s 2012 expedited removal could be used as a predicate for his illegal reentry conviction, and affirmed the denial of the defendant’s motion to dismiss the indictment and the subsequent judgment and sentence as well as the revocation of his supervised release. 

"We find that Peralta had no Fifth Amendment due process right to hire counsel in the expedited removal proceeding and that he was not prejudiced by the government’s failure to inform him of the possibility of withdrawal relief."

"When we refer to the “right to counsel” in this case, we mean the right of an alien to hire counsel at no expense to the government. We do not refer to a right to government-appointed counsel."

The decision was published on Feb 7, 2017 and can be found here.

In Russian:

Апелляционный суд 9-го федерального округа опубликовал решение 7 февраля 2017, где решил, что обвиняемый не имеет конституционного права на адвоката когда он находится в иммиграционном процессе "ускоренной депортации" из США, так называемая expedited removal.

Суд уточнил, что это решение распространяется на тех, кто находится под ускоренной депортацией, не пробыл в США более двух лет, и здесь имеется в виду право нанять адвоката за свой счет (так как в иммиграционном праве США не существует права на бесплатного защитника, как, например, в уголовном процессе). В иммиграционном суде США в процессе, который не является "ускоренной депортацией", у обвиняемого обычно есть конституционное право нанять адвоката за свой счет. Решение суда тут.

A an adult Korean adoptee who is awaiting deportation from an immigration detention center in Washington State because he lacks American citizenship, even though he has lived in the United States since he was 3 years old.

Last month, an immigration court denied his final request to stay in the United States.

Officials at South Korea’s Ministry say they know of at least five adoptees who were deported back from the United States. But advocates for Korean adoptees say there may be more than twice as many, some undocumented.
Tossed back to a country they had left decades ago, these adoptees were once again foreigners struggling to adapt to an unfamiliar culture and language.

This can happen to a person who was adopted from a foreign country without following a proper procedure for applying for legal document, a proof his or her US citizenship. Sometimes people don't even realize the seriousness of their situation and lack of legal status in the United States until it's too late.

​Read more here. 

TRAC, Nov. 10, 2016 -

TRAC has just published the ninth in its long running series of reports covering each Immigration Judge's decisions on asylum cases. The latest report series consists of 268 separate reports and includes each Immigration Judge who decided at least 100 asylum cases between FY 2011 and FY 2016.

Each individual report provides a short biography for that judge, along with details on the judge's overall denial rates during this six year period. Separate charts provide a time series view of the judge's decisions year-by-year, along with a comparison of the judge's denial rate as contrasted with the rate for the nation as a whole, along with a comparison with just those judges sitting on the same court.

Some judge's asylum denial rate could be as low as 30%, while another judge's denial rate could be almost 100%.

​For example, in 2016, Omaha, Nebraska Immigration Court asylum denial rate is approx. 80%. Average national denial rate is approx. 50%.

To see any particular Judge's denial rate statistics, use the drop down menu.

Reasons for judge-to-judge differences in asylum denial rates are highlighted including whether the asylum seeker was represented or not, and the countries from which these individuals came. This is contrasted with patterns for the United States as a whole. Information presented is current through the end of September 2016.

To view a particular judge's report, go to:
http://trac.syr.edu/immigration/reports/judgereports/

For an index to the full list of TRAC's free immigration tools go to:
http://trac.syr.edu/imm/tools/

Post-Election DACA update and resources provided by ILRC.

November 10, 2016
 

• President-elect Donald Trump pledged to end DACA immigration program when he becomes President. He will be inaugurated on January 20, 2017. Until that time, DACA will remain in place and USCIS will continue to process both initial and renewal DACA requests. 

The risk. Those who receive or apply for DACA will not necessarily be targeted for deportation. Administrative programs like this have never been used for wholesale deportation in the past. It would be extremely costly for the government to try to deport all 700K+ DACA recipients. However, we do not really know what to expect. Anything is possible.
 
Initial DACA applications. For those who have not yet applied for DACA, the processing of those applications is taking long enough now that they would likely not be adjudicated until after January 2017, and it is possible the DACA program will not exist by then. Therefore, at this point potential applicants’ efforts to assemble an initial DACA application and pay the filing fees (which go up in December 2016) may result in no benefit and expose them to DHS.
 
DACA renewals. It is unknown whether the next Administration will terminate existing DACA grants or instead not allow DACA recipients to renew. Those who have already received DACA are known by the government. Therefore, renewing DACA does not carry a new risk. In fact, renewing DACA may mean a DACA recipient can have a work permit until it expires one to two years into the next Administration. One risk, however, is again that the renewal might not be adjudicated before Trump becomes President, and the effort and money to renew will be for nothing. People who file to renew soon may be successful, as DACA renewals are currently being processed in 8 weeks with USCIS' upgraded system. The cost may be offset by loans and other funding available through Mission Asset Fund, the Mexican Consulate, some DACA collaboratives and/or other programs.
 
Advance parole. At this point, advance parole may be a little bit harder to get, because processing time is three months or more, which would put approvals (even if filed today) and subsequent travel in February 2017. Emergency advance parole requests, however, may still be useful in helping people travel and subsequently adjust status under 245(a). 
 

•  What the Future Holds

 

• Based on Trump’s campaign rhetoric and the new composition of Congress, we do not expect a comprehensive immigration reform that includes legalization to be introduced in the coming years.

 

• We do not expect expanded DACA or DAPA to make it through the courts.

 
It is possible that some states will try to introduce additional state legislation creating benefits and some protections for immigrants like California has done. Some other states may introduce legislation that increases immigration enforcement at the local level.
 

• What Immigrants Can Do Now

 
People should go to a legal services provider to be screened for any possible immigration options other than DACA for which they may already be eligible.
 
The ILRC has a comprehensive client intake form to assist practitioners in screening. It can be found online at https://www.ilrc.org/screening-immigration-relief-client-intake-form-and-notes.
 
The Immigration Advocates Network maintains a national directory of more than 950 free or low-cost nonprofit immigration legal services providers in all 50 states. It can be found online at https://www.immigrationlawhelp.org.
 
Community members should be warned of fraudulent service provider schemes and educated about how to seek competent immigration help. The ILRC has created community education flyers about this available in English and Spanish available online at https://www.ilrc.org/anti-fraud-flyers.
 

• People should know their rights when in contact with an immigration agency.

 
The ILRC has created Red Cards to help both citizens and noncitizens defend themselves against constitutional violations during ICE raids. These cards provide citizens and noncitizens with information about how to assert their constitution rights and an explanation for ICE agents that the individuals are indeed asserting their constitutional rights. Go https://www.ilrc.org/red-cards for more information and contact us at[email protected] to order.
 

• People should continue to avoid negative interaction with law enforcement. Something like a DUI or conviction related to drugs can have irreversible negative immigration consequences.

 

• If filing to renew DACA, applicants need to be aware that the filing fee increases to $495 on December 23, 2016.

 
Information provided by ILRC.
 

A case from New York: a couple of immigration attorneys, paralegals and other office workers in three law firms in NY were convicted in 2014 for a conspiracy to commit immigration fraud pursuant to 18 U.S.C. § 371. The group was a part of a multi-year conspiracy helping Chinese clients to submit fraudulent asylum applications to federal immigration authorities. 

In 2015, the Second Court of Appeals upheld the convictions. 

This is the most widely-spread kind and unethical kind of immigration fraud. Stay away from the lawyers or "consultants" who offer to help to prepare and submit on your behalf any fraudulent immigration application, petition or form. Never sign any blank immigration forms. Beware of immigration fraud. It can end in a criminal conviction, deportation to follow and other serious consequences.

Briefly in Russian: Несколько адвокатов, юристов, помощников адвоката и сотрудников 3-х юридических фирм в Нью-Йорке были признаны виновными и приговорены к тюремному заключению от 1 года до 4 лет за оказание "услуг", заключающихся в подготовке обманных заявлений на политическое убежище для клиентов из Китая. Они составляли заведомо ложные заявления, придумывали истории своим клиентам, разучивали с ними истории преследования и тренировали их как отвечать на вопросы, чтобы убедить офицера в asylum office или судью в реальности их выдуманных историй, с целью получения политического убежища и затем вида на жительство, и гражданства США.

Держитесь подальше от адвокатов, фирм и "консультантов" или "нотариусов", которые предлагают такие нелегальные и неэтичные услуги. Помните, что и для них и для вас это может закончится печально: судимость, тюремное заключение, депортация и т.п. Такие преступные группировки существуют во многих штатах, не только в Нью-Йорке. За многими из них следит ФБР и сотрудники Департмента Гос Безопасности DHS.

Помните, что поодача заведомо ложного или обманного заявления на политическое убежище или другого иммиграционного заявления или петиции - это уголовнонаказуемое преступление.

Read more here.

Manhattan U.S. Attorney Preet Bharara said, “As the jury found, Feng Ling Liu, Vanessa Bandrich, and Rui Yang assisted immigrants in obtaining asylum status under false pretenses, including by using concocted tales of persecution. These defendants will now join the 27 others who have been convicted in connection with this sprawling immigration fraud scheme.”

According to the Indictment filed in Manhattan federal court, public court filings, and the evidence admitted at trial:

Liu, a lawyer, operated two law firms—the Law Offices of Feng Ling Liu and Moslemi and Associates Inc.—both of which assisted aliens from China in obtaining asylum status through fraud. Liu and her employees profited by creating and submitting asylum applications containing false stories of persecution purportedly suffered by alien applicants. Bandrich worked as a lawyer at one of Liu’s firms, Moslemi and Associates Inc. In that capacity, she prepared certain clients to tell false stories of persecution in immigration court proceedings related to their asylum application. Bandrich also opened a separate law firm, Bandrich and Associates Inc. (Bandrich firm), that assisted clients in obtaining asylum status through fraud. Yang was an office worker at the Bandrich firm and helped the firm’s clients prepare their false asylum applications.

The appelate court upheld the convictions and sentences of a New York City attorney and three law office workers alleged to have been part of an elaborate scheme to fraudulently secure asylum for hundreds of Chinese immigrants. 

The appeals court said the evidence was “more than sufficient” to support the conviction of Vanessa Bandrich, the named partner and lone attorney at Bandrich & Associates, on one count of conspiracy to commit immigration fraud.

In the same ruling, the panel upheld an 11-month prison sentence for office worker Guo Qin Miao and a 41-month prison term given to Yuchang Miao. Yuchang Miao, an alleged ringleader of the scheme, managed a Manhattan law office and was married to Feng Ling Liu, another lawyer convicted in the scheme.

​And more details here. 

Any suspected immigration fraud, including asylum fraud, or other criminal activity can be reported by phone or email to ICE, a law enforcement branch of DHS. Click here. 

Putro v. Lynch, 7th Circuit Court of Appeals decided this case on July 07, 2016. This case clarified application of a joint filing exemption for an alien seeking to obtain unconditional lawful permanent resident status as a result of her marriage to a U.S. citizen, when applying as a widow after the death of her/his US citizen husband (USCIS Petition I-751).

Vera Putro, a citizen of Latvia, married a U.S. citizen in 2004 and based on that marriage gained conditional permanent residency. Her residency did not become unconditional, however, because her husband passed away before they could petition jointly to remove the conditions. Putro petitioned on her own to have the conditions removed. U.S. Citizenship and Immigration Services construed the petition as a request for a discretionary waiver of the joint-petition requirement, denied the waiver, and ordered Putro removed.

Decision: The Court of Appeals for the 7th Circuit decided that in fact, Putro did not need a waiver because her husband’s death during the conditional period exempted her from the joint-filing requirement. In mistakenly evaluating her petition as a request for a waiver, the agency erroneously placed on Putro the burden of proving that the marriage was bona fide.

The Court of Appeals granted petition and remanded the case to Immigration Judge for determination under the proper standard. 

Finally, after 8 years the petitioner might have her petition for unconditional permanent resident status approved (it's not approved yet, merely was remanded for another review and decision following the correct standard of proof by the same IJ immigration judge). When the I751 is approved, she will become eligible to apply for USA citizenship as well (because it's been over five years since the grant of her conditional residence in 2006).

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To read in Russian - please scroll down. По-русски смотрите внизу страницы.
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Facts: Ms. Putro first entered the U.S. on a 4-month, foreign exchange student visa in 1999 and overstayed. In November 2004 she married Michael Zalesky, a U.S. citizen. Putro was granted conditional legal permanent residence (“LPR”) status as the spouse of a U.S. citizen in July 2006, see 8 U.S.C. § 1186a(1); 8 C.F.R. § 216.1. Four months later, in November, Zalesky died. Zalesky’s untimely death complicated Putro’s immigration status. To gain unconditional LPR status, Putro and Zalesky had to jointly petition the agency for removal of the conditions within the 90-day period before the second anniversary of her obtaining conditional permanent residency (i.e., between mid-April and mid-July of 2008). See 8 U.S.C. § 1186(c)(1)(A), (d)(2); 8 C.F.R. § 216.4(a)(1). Of course filing a joint petition was no longer possible, so in June 2008 Putro filed a Form I-751 Petition to Remove Conditions on Residence, checking the box specifying that she sought a waiver of the joint-filing requirement because her spouse had died.

USCIS had denied her I-751 petition filed as a waiver for failure to prove a good faith marriage.

She reapplied in Immigration court removal proceedings, and was denied again. The IJ immigration judge denied Putro’s application for the waiver of the joint-filing requirement and concluded that she was removable. The IJ found that Putro had failed to establish by a preponderance of the evidence that she and Zalesky had a bona fide marriage. Her testimony and that of her witnesses, he said, was “unpersuasive.” The government, in contrast, had presented “reliable” evidence that family members and Armstrong had told investigators that the marriage was a fraud.

Putro appealed to the Board of Immigration Appeals, but it upheld the IJ’s ruling and dismissed her appeal.

On petition for review, Putro argued that the IJ had misapplied the standard of proof, and at oral argument we ordered the parties to submit supplemental briefing on how this case is affected by the decision in Matter of Rose, and particularly the portion of the decision in which the Board states:
[T]he death of a petitioning spouse during the 2-year conditional period excuses the general requirement that a petition to remove the conditional basis of an alien spouse’s status must be “joint.” Thus, a separate waiver under section 216(c)(4) of the Act is not required if the surviving spouse timely files an I-751 petition requesting removal of the conditional basis of his or her status and appears for a personal interview. 25 I. & N. Dec. 181, 182 (BIA 2010).
We agree with Putro that the IJ mishandled her petition to remove conditions on her status by construing it as a request for a waiver of the joint-filing requirement rather than recognizing that she qualified for an exemption of that requirement. Because Zalesky died within the two-year conditional period and Putro timely petitioned to remove her conditional status, she should have been excused from the joint-filing requirement. Matter of Rose, 25 I. & N. Dec. at 182.

This conclusion was applied in the only federal appellate decision (an unpublished one) to address the issue. See Zerrouk v. U.S. Att’y. Gen., 553 F. App’x. 957, 959 (11th Cir. 2014) (recognizing exemption of “joint” filing requirement for alien whose spouse dies within two-year conditional period, but concluding that substantial evidence supported determination that marriage was not bona fide).
Moreover, the discretionary waiver does not even apply to Putro, because that waiver requires that the marriage be “terminated (other than through the death of the spouse).” 8 U.S.C. § 1186(c)(4)(B). That requires divorce or annulment, see Memorandum from Donald Neufeld, Acting Assoc. Director, USCIS, to Directors, I-751 Filed Prior to Termination of Marriage (Apr. 3, 2009). Though Putro separated from her husband before his death, they never divorced, and the marriage was terminated by his death.

The error was significant because it had the effect of shifting the burden of proof that Putro’s marriage to Zalesky was bona fide. Because the IJ thought that Putro needed a waiver, he placed the burden of proof on her and ultimately found that she failed to establish by a preponderance of the evidence that she had a bona fide marriage. Had the burden of proof properly been applied, the government would have had to demonstrate by a preponderance of the evidence that the marriage was not bona fide. See Matter of Rose, 25 I. & N. Dec. at 185; 8 U.S.C. § 1186a(c)(3)(D); cf. Lara v. Lynch, 789 F.3d 800, 804 (7th Cir. 2015) (noncitizen applying for discretionary waiver of joint filing petition bears burden of proving that marriage at time of inception was bona fide). Moreover, unlike a grant of the waiver—which is discretionary—the agency “shall” remove the conditional basis of the petitioner’s status as long as he or she meets the petitioning requirements and the government cannot disprove that the marriage is bona fide. See 8 U.S.C. § 1186(a)(3)(B).

This case must be remanded to the agency so that the IJ can evaluate her petition under the proper standard of proof. See Matter of Rose, 25 I. & N. Dec., at 184–85. Accordingly, we GRANT the petition and REMAND the case for determination under the proper standard.

Read the text of the decision of the 7th Circuit Court of Appeals here. 
Or you can download file here.

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D07-07/C:14-2430:J:Williams:aut:T:fnOp:N:1788032:S:0

Вкратце по-русски:

Вера Путро, гражданка Латвии, приехала в США в 1999 году по летней программе по обмену студентов,  J1 summer work-travel program. Она осталась в США нелегально, и через много лет вышла замуж за американского гражданина. Ее первая условная грин карта была утверждена без особых проблем в 2006. Через 4 месяца после этого ее американский муж умер от передозировки наркотиков. В 2008 Вера подала петицию на постоянную грин карту сама, без участия мужа (так как он к тому времени уже не мог поставить свою подпись по причине своей смерти). По фактам дела не понятно, но скорее всего Вера не проконсультировалась со знающим адвокатом перед подачей петиции, и подавала петицию либо сама, либо при помощи кого-то, кто не является экспертом в этой области права.

В результате, Вера получила отказ от USCIS и ее дело передали на депортацию с иммиграционный суд. 

Судья также приняла решения отказать Вере в виде на жительстве (постоянной грин карте) и приказала ей выехать из США (депортация).

Вера подала аппеляцию в следующую инстанцию, и там тоже получила отказ и указание покинуть страну.

В конце концов через 8 лет после начала этой эпопеи (дело тянется с 2008 г), Аппеляционный Суд 7 Округа США принял решение в пользу Веры. Но это еще не конец пути. Суд передал ее дело на повторное рассмотрение в суд нижестоящей инстанции с указаниями пересмотреть дело еще раз, и принять решение на основании ПРАВИЛЬНОЙ ИНТЕРПРЕТАЦИИ ЗАКОНА. Как оказалось, все предыдущие суды просто напросто неверно трактовали закон и неправильно применяли закон к Вериной ситуации. Вот такая простая ошибка стоила человеку 8 лет ее жизни и многих тысях долларов, потраченных на адвокатов и судебные разбирательства.

В конце концов, если ее петицию утвердят (пока еще только передали на повторное рассмотрение), то Вера сможет сразу же подать заявление на американское гражданство (так как прошло более 5 лет), если она докажет, что соответствует всем требованиям закона о гражданстве.

​Текст судебного решения на английском тут: 

It’s a common problem: some unauthorized immigrants in USA are eligible to become legal residents using already existing laws and regulations. In many cases, they just don’t know about their eligibility and how to apply due to a lack of resources and information. They also find it difficult to navigate the complex immigration process by themselves.

A UCLA study found that individuals in removal (deportation) proceedings who had a lawyer were 15 (!) times more likely to apply for relief from removal than those without lawyers, and 5.5 times more likely to be granted or approved some sort of legal status that permitted them to stay in the United States.

Unlike criminal defendants, however, unauthorized immigrants don’t have a constitutional right to a government-funded lawyer (no "free lawyers" or public defenders in immigration court proceedings).

According to the UCLA study, only 37 percent of all immigrants, and 14 percent of detained immigrants, are represented by lawyers. Children also go unrepresented in immigration court.

Many immigrants often erroneously consider themselves qualified to "do it yourself", or consult unauthorized "immigration consultants" or "Notarios", who are not lawyers, while others can't afford a lawyer.​

It's advisable not to file any immigration petitions and applications with USCIS without first consulting a qualified immigration attorney. If you have been referred for removal to immigration court, you must retain an attorney to represent you in the court. 

По-русски:

Одна из очень распространенных проблем среди иммигрантов и незаконных иммигрантов (так называемых "нелегалов") в США, это то, что многие даже не подозревают, что имеют право подать заявление на какие-то иммиграционные бенефиты, включая грин карту (вид на жительство). А если и знают об этом, то не понимают все тонкости системы, и не знают как и когда можно подать такое заявление, как подать правильно, как получить положительное решение а не отказ.

Некоторые считают себя достаточно компетентными подать свои заявления самостоятельно, или используют услуги так называемых "консультантов", которые оперируют нелегально и без лицензии, и не являются адвокатами. У некторых просто нет средств.

К сожалению, в иммиграционной системе и суде в США нет права на бесплатного иммиграционного адвоката (даже в суде, и даже детям). Либо вы нанимаете защиту и платите за их услуги, либо иногда можно получить помощь по сниженным расценкам или бесплатно в местных организациях (но там строгий отбор и они берут небольшой процент дел), либо вы сами представляете свои интересы в иммиграционной суде и органах госбезопасности США.

По статистике, только 37% всех иммигрантов в США имеют адвоката или законного представителя, и только 14% иммигрантов находящихся в заключении имеют своего адвоката. Это пугающая статистика, учитывая, что многие и по-английски толком говорить не могут, не то что грамотно составить заявление.

Возраст также не имеет значения. Маленьким детям суд не обязан предоствлять защитника. Как сказал один иммиграционный судья, " я могу все прекрасно объяснить и 3-х летнему ребенку, так что ему не нужен адвокат в моем суде..."

Рекомендуется не подавать никакие заявления в иммиграционные органы без предварительной консультации с адвокатом, не говоря уже о суде.

Read more here.

In the very first days of the January 2016, ICE (Immigration & Customs Enforcement) started raids, targeting undocumented immigrants. 

This document is an excellent overview of your rights:

What to do in the event of an ICE raid (at your work, home, in the mall or other public place). What questions you must answer and when you shall remain silent. 

Know your RIGHTS. Read and download a pdf file here. You can save or memorize your local and state free legal services or community organizations contact numbers, or your attorney's number, and carry their contact numbers. You can print out the card on page 8 and carry it with you, as well.

https://www.justice4all.org/wp-content/uploads/2013/05/Know-your-rights-in-case-of-raids-English.pdf

On Friday, October 16, 2015, a federal judge in Texas declined to order Texas officials to institute a temporary fix so children of undocumented immigrants born in the United States can get their birth certificates while a lawsuit filed by their parents is being tried.  

Instead of issuing a temporary injunction order sought by the plaintiffs (the undocumented immigrants who were denied their U.S. citizen children's birth certificates), U.S. District Judge Robert Pitman ruled that the case should proceed through the full hearing process given the complexity of the issues involved. 

Pitman’s ruling comes two weeks after attorneys for the families told the judge that the children’s civil rights had been violated because county registrars, by order of the Texas Department of State Health Services, would not issue birth certificates because the parents did not present one or more acceptable forms of ID. More than 30 families have joined the suit since the initial complaint was filed in May.

“Although the Plaintiffs have provided evidence which raises grave concerns regarding the treatment of citizen children born to immigrant parents, this case requires additional determinations which can be made only upon development and presentation of an evidentiary record,” Pitman wrote in a 27-page decision.

The parents in the lawsuit contend that IDs previously used to obtain the vital records, specifically the Mexican Consular ID (called the matrícula consular) and foreign passports, were accepted in some counties just months ago until the department amended its policies without warning.

Now, some of the undocumented immigrants parents can't request their US-born children's birth certificates because the parents lack proper and acceptable by the Organs of Vital Statistics photo ID documents.

Texas Attorney General Ken Paxton called the ruling an “important first step in ensuring the integrity of birth certificates and personal identity information. Before issuing any official documents, it’s important for the state to have a way to accurately verify people are who they say they are through reliable identification mechanisms.”

Read news here and court opinion here. 

As of July 2015, backlog of pending immigration cases in all Immigration Courts: see here. 


Average wait for an individual hearing in Immigration Courts in USA: see here.  


To see denial and approval rate by specific immigration judge, select an individual judge's name here.

In Russian: 

Российская газета "Новые Известия" опубликовала дельную статью про опасность "бесплатных юридических консультаций". Журналисты проинтервьюировали некоторых моих московских партнеров и коллег. 

Как известно, бесплатный сыр бывает только в мышеловке. Ты получаешь то, за что заплатил.

Хороший компетентный и этический адвокат НЕ будет предоставлять консультацию (давать юридический совет) бесплатно. В оказании юридических услуг самое главное - это получить правильный совет и знать что делать и как поступить.  

Среди "юридических фирм" и "иммиграционных консультантов" попадается немало мошенников или недобросовестных и малограмотных "специалистов". Особенно много вебсайтов на интернете, которые в поисковике выходят в самом начале как реклама (так как вебсайт платит за такое выгодное размещение) и нелицензированных "иммиграционных консультантов" или "нотариусов", которые предлагают "первую" консультацию бесплатно и готовы перезвонить потенциальному клиенту в течение 5 минут. Что следует дальше, об этом люди не задумываются. А им навязывается контракт на завышенную сумму, с ненужными сервисами или предлагаются ненужные или вредные для дела действия (которые дорого стоят). После предоставления бесплатной консультации, такому специалисту ведь нужно как-то заработать на клиенте (на которого было потрачено время) -- если уж не брать оплату за консультацию, то ее используют как ловушку для доверчивых граждан, готовых повестись на обман.

Следует иметь в виду, что хороший опытный адвокат не будет и не имеет права давать "гарантии" успеха или гарантии выигрыша вашего дела. Опытный адвокат ценит свое и ваше время, и для того, чтобы проконсультировать клиента ей/ему нужно изучить ваши обстоятельства и проанализировать возможные варианты и осложнения перед тем как давать платный (ни в коем случае не бесплатный совет). 

Хорошая статья обо всем этом в Новых Известиях, с консультациями моих Московских партнеров и коллег.

On November 20, 2014, the President announced a series of executive actions. However, not all of these initiatives have been implemented, and USCIS is not accepting any DAPA or expanded DACA applications at this time. 

Beware of anyone who offers to help you submit an application or a request for any of these actions before they are available. You could become a victim of an immigration scam. 

If you need legal advice on immigration matters, make sure that the person you rely on is an attorney who is authorized to give you legal advice. Only an attorney or an accredited representative working for a Board of Immigration Appeals-recognized organization can give you legal advice. An immigration attorney can be licensed in any state because immigration law is federal law. It's important to consult an experienced and knowledgeable attorney before submitting any immigration applications.

The Internet, newspapers, radio, community bulletin boards and local businesses storefronts are filled with advertisements offering immigration help. Not all of this information is from attorneys and accredited representatives. There is a lot of information that comes from organizations and individuals who are not authorized to give you legal advice, such as “notarios” and other unauthorized representatives. The wrong help can hurt. Here is some important information that can help you avoid common immigration scams.

Here are some examples of common immigration scams:

**Telephone Scams**.

Do not fall victim to telephone scammers posing as USCIS personnel or other government officials. In most instances, scammers will:

• request personal information (Social Security number, Passport number, or A-number);
• identify false problems with your immigration record; and
• ask for payment to correct the records.

If a scammer calls you, say “No, thank you” and hang up. These phone calls are being made by immigration scammers attempting to take your money and your credit card information. USCIS will not call you to ask for any form of payment over the phone. Don’t give payment over the phone to anyone who claims to be a USCIS official.

If you have been a victim of this telephone scam, please report it to the Federal Trade Commission (FTC). Learn more about telephone scams and telephone scammers’ techniques by visiting Federal Trade Commission-Telemarketing-Scams. 

**"Notario Publico"**.

In many Latin American countries, the term “notario publico” (for “notary public”) stands for something very different than what it means in the United States. In many Spanish-speaking nations, “notarios” are powerful attorneys with special legal credentials. In the U.S., however, notary publics are people appointed by state governments to witness the signing of important documents and administer oaths. "Notarios publico,” are not authorized to provide you with any legal services related to immigration.

Please see the National Notary Association website "What is a Notary Public" for more information.

**Local Businesses who are not law firms and not attorneys or lawyers**.

Some businesses in your community “guarantee” they can get you benefits such as a:

• Visa
• Green Card
• Employment Authorization Document

These businesses sometimes charge you a higher fee to file the application than even a licensed attorney (but will tell you that attorneys charge more "for the same work"). They claim they can do this faster than if you applied directly with USCIS. These claims are false. 

**Dot-com websites - operated by non-attorneys or people not authorized to give legal advice**.

Some websites offering step-by-step guidance on completing a USCIS application or petition will claim to be affiliated with USCIS. Many of these websites are scammers or fraudsters, often taking money for blank forms or minimal assistance without attorney supervision.

USCIS has its own official website: www.uscis.gov with:

• Free downloadable forms
• Form Instructions
• Information on filing fees and processing times

Do not pay for blank USCIS forms either in person or over the Internet. You can download forms for free at www.uscis.gov.

Do not pay to a non-attorney (not a lawyer) for help with immigration paperwork, applications, affidavit. Oftentimes, they give you wrong advice and can potentially damage your chances of ever becoming a permanent resident (getting a green card).

**Green Card Lottery or DV Lottery scams**.

Once a year in fall, the Department of State (DOS) makes 50,000 diversity visas (DVs) available via random selection to persons meeting strict eligibility requirements and who come from countries with low rates of immigration to the United States. During this time or often around the year, it is common for immigration scammers to advertise in emails or websites that reference either the:

• DV lottery
• Visa lottery
• Green Card lottery

These emails and websites often claim that they can make it easier to enter the annual Diversity Immigrant Visa Program. Some scammers even identify you as a DV lottery “winner” and ask for significant amount of money "helping get a visa". These emails and websites are fraudulent. 

The only way to apply for the DV lottery is through an official government application process (Department of State website, and only when it's open, during an application period which is usually in October-November only). DOS does not send emails to applicants. 

On or after May 1st, you can visit the Department of State website to verify if you are actually a winner in the DV lottery. 

If need help, consult a licensed attorney (not one of the "green card lottery" websites).

**INS doesn't exist. It's been replaced by DHS and USCIS**.

To this day, some local businesses, websites, "notarios"  and individuals make reference to the Immigration and Naturalization Service (INS). This agency no longer exists! 

If someone refers to USCIS as "INS", it's a sign that they are not an attorney, but rather someone unqualified with little knowledge in immigration matters.

INS was dismantled on March 1, 2003, and most of its functions were transferred from the Department of Justice to three new components within the newly formed Department of Homeland Security. U.S. Citizenship and Immigration Services (USCIS) is the component that grants immigration benefits. The other two components are U.S. Immigration and Customs Enforcement and U.S. Customs and Border Protection.

All official correspondence regarding your immigration case will come from USCIS. USCIS will communicate with you and your attorney by mail, by mailing you notices, approved work permit and green card through USPS (postal service).

If you need a legal assistance, we will be glad to help. Our contact information is here.

Read here. 

Almost daily, I hear from some of our callers: "I don't need legal consultation, I don't want to hire an attorney. I have only one or two very simple (or quick, or easy) questions, and I want an attorney to answer my questions right now and free of charge because my questions are so simple, quick, and easy!"

I will try to explain why this request doesn't make any sense and how to get proper legal advice.

U.S. immigration law is very complex and constantly changing. There have been no major immigration reforms or amnesties in the past few years (which requires a law to be approved by Congress and signed by the President). However, there have been significant changes introduced by our current and former administrations and the executive branch of the government: executive actions; executive orders of the President; USCIS and DHS memorandums and policy guidance; official and unofficial practice advisories; and changes through our judicial branch (federal and immigration courts), such as, the decisions by the BIA, AAO, Courts of Appeals, US Supreme Court, and even by federal district court judges (for example, an injunction by a federal judge can place on hold an executive order of the President of the United States).

U.S. immigration law is federal in nature and is the same in all states. However, it may apply differently to your situation depending on your background, your place of residence or domicile, US embassy in the country where you apply for a visa, etc.

An experienced immigration attorney may be able to guide you and advise you about specifics, loopholes, various options, and can spot possible problems before they happen, even if it seems to you that your case is pretty straightforward and you have only "one quick question". A seemingly simple or quick question not always can be answered with a simple "yes" or "no" answer. You may not realize it, but a situation may have a lot of hidden issues or variables depending on your venue, court jurisdiction, your factual circumstances, your arrest and criminal record, your family situation and status, prior legal assistance, prior legal actions and applications filed, or even timing, etc.

You can find a lot of useful immigration-related INFORMATION on our Blog. We compiled useful information and links: USCIS forms and fees, case status inquiry, processing times, AR-11 Change of Address, Department of State and NVC, and much more here. Hope you find this information helpful!

To ask basic questions about USCIS immigration forms, filing fees or to inquire about status of your pending case, you can contact USCIS, Department of Homeland Security, by calling their 800 Customer Service Hotline (number is on their website), or send an e-request via a webportal at USCIS website. Case status can be checked online, as well. Immigration courts, U.S. embassies and consulates and National Visa Center each have their own hotlines, call centers or other ways to contact them.

To receive a case-specific legal advice you should talk to a lawyer. Before a lawyer can advise you, we usually email you our confidential immigration questionnaire, and ask you to complete and return it to us. In some cases, we can ask you to email us copies of your immigration forms, paperwork, personal documents. When an attorney reviews your answers to our questionnaire and your documents, it helps her to get to know you, your situation, and decide what legal and/or visa options you shall consider, what are your best chances of obtaining certain visas and immigration benefits, how and when can you bring your family to USA, are you eligible for permanent residency or a green card in the United States, are you eligible to apply for U.S. citizenship, how can your children become U.S. citizens, etc.

It's important that you provide truthful, accurate and complete answers to our questions because an attorney's advice to you is based on information you provide to an attorney. It could be dangerous to give misleading, incomplete or incorrect answers to an attorney.

An attorney or a lawyer is often called "a counselor in law". It means that an attorney counsels and advises you, helps you to understand your situation better, anticipates any possible future issues or complications, offers guidance, and a long-term strategy and planning for yourself and your family.

Legal advice is never a simple "yes" or "no" answer, it's never "use this form"  or "this is the link where you can find all information and all answers you need". Legal advice or consultation is like going to see a doctor. A doctor will ask you questions, take your vitals and administer necessary tests, then she will be able to diagnose you and offer you an appropriate treatment plan. The same is true about work of a good and ethical attorney. An attorney will have to ask you a number of questions, review your documents and paperwork, and only then she will be able to advise you, and offer you guidance and counsel.

In order to avoid mistakes and future complications, it's smart to consult an attorney before starting any legal, immigrant or visa process. Consultation with knowledgeable and ethical attorney should serve as a preventative measure and a way to establish a roadmap and plan your future.

In over twelve years of practice as an immigration attorney in the United States, I have come across of many unfortunate individuals who got themselves into trouble after reading and following wrong advice on internet forums, listening to their friends, co-workers, relatives and neighbors advice, or paying to complete their "paperwork" to an unlicensed "immigration consultant", or "notario", or "tax preparer", or somebody else who speaks their native language in their immigrant community but has no proper training and is not a licensed attorney. In some of these cases, individual's chances of living in USA legally can be permanently destroyed. Some people can become permanently banned from the United States, no matter how many close family members (wife, kids, parents) and other ties they have in USA. Immigration law is very complex and unforgiving, and non-compliance, fraud or misrepresentation could bring consequences more severe than penalties in an average criminal case. Where a convicted criminal can usually expect to be released from prison after a number of months or years and be reunited with his family, a person who was deported and permanently banned from USA may never be able to reunite with his family and loved ones in the United States. Lack of knowledge or bad advice is not an excuse in immigration law. "Simple mistakes" in immigration law context could be costly and often irreversible.

Do yourself a favor and consult a knowledgeable immigration attorney before filing any applications or petitions with the USCIS Department of Homeland Security, or before submitting any visa applications online. You can also schedule a consultation to seek a second opinion, if not sure that your current or former attorney's advice is correct as applies to you. When you have questions or need legal advice you can email us to schedule a consultation. We will be glad to help you.

Administrative Appeals Office (AAO) non-precedent decision approving EB-1 green card for a researcher applying Kazarian two-step test.

The Director of the USCIS Texas Service Center, denied the employment-based immigrant visa petition in EB-1 category. The matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be sustained.

The petitioner is a professor and researcher who primarily studies avian brood parasites, i.e., birds that lay their eggs in the nests of other bird species. The petitioner seeks classification as an alien of extraordinary ability (EB-1) pursuant to section 203(b)(1)(A) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1153(b)(1)(A). ... 

While this appeal was pending, the U.S. Court of Appeals for the Ninth Circuit issued a decision concluding that USCIS should reserve any evaluation of the record evidence that otherwise meets the plain language requirements of the regulatory criteria for a separate and subsequent "final merits determination." Kazarian v. USCIS, 596 F.3d 1115, 1121-22 (9th Cir. 2010). 

The two-step review articulated in Kazarian provides a reasonable interpretation and application of the existing regulatory standard. To promote consistency, USCIS has adopted this two-step review process for cases arising both within and outside the jurisdiction of the Ninth Circuit. Thus, the proper procedure for evaluating an extraordinary ability visa petition is twofold. First, we will analyze the record and count the number of evidentiary criteria met, without imposing novel substantive or evidentiary requirements beyond those set forth by regulation. Second, if the petitioner submits evidence that meets at least three of the criteria, we will then review the record in its totality in a final merits determination to determine if the alien is one of that small percentage of individuals who have risen to the very top of their field, has sustained national or international acclaim, and that his or her achievements have been recognized by others in the field of expertise.

At the second step, we consider not only the quantum of evidence, but also its quality (including relevance, probative value, and credibility). See Matter of Chawathe, 25 I&N Dec. at 376 (citing Matter of E-M-, 20 I&N Dec. 77, 80 (Comm'r 1989)). If the record establishes that it is more likely than not that the individual has sustained national or international acclaim and recognition in the field of expertise, and is one of that small percentage who has risen to the very top of their field ofendeavor, the petitioner has met his or her burden of proof. ... 

[T]he petitioner has established eligibility for the benefit sought under section 203(b )(1 )(A) of the Act. ... 

The decision of the director is withdrawn. The petition is approved." Read the full text of the AAO non-precedent decision here.

There are a few things that went wrong in this sad story and several important tips and rules for every immigrant in USA to remember:

1) almost every immigrant living in the United States, especially, a conditional resident, is required by law to notify USCIS of their new address within 10 days, which can be done online by submitting an electronic version of the form AR-11. Here is the link: https://egov.uscis.gov/coa/displayCOAForm.do 

2) any conditional resident MUST file a petition to remove conditions from residence within the 90-day period before expiration of their green card (USCIS form I-751). There are some exceptions. Forgetting to do so, can result in a removal order (deportation). Here is the link to the form and instructions: http://www.uscis.gov/i-751 

3) if your green card had expired (there is always an expiration date printed on your card), you should not travel internationally,... and Mexico is a foreign country.

4) you should never hire an "immigration consultant" or "Notario" -- but only hire an "immigration attorney" or "immigration lawyer", who is a licensed professional authorized to offer legal advice. Consultants, tax preparers, notarios are not authorized to give advice regarding your immigration situation and can't help with immigration paperwork, they are breaking the law.

5) also, keep in mind that even an attorney doesn't have an obligation to remind you about the deadlines for any *future* immigration petitions you might have to file (petition to remove conditions, application to renew a green card, application for citizenship). It's up to you to calendar these important dates and keep a track of important future applications with USCIS. I usually remind my former clients about these deadlines, but I am not required to do so because an attorney's representation ends at the conclusion of each case.

6) if her conditional green card was indeed "extended", then she should have had an official Receipt Notice, USCIS Form I-797, with the date granting her one-year extension.

If you need legal help, you are welcome to email our office. Don't wait until it's too late!

Story follows below...

Tuesday, February 10, 2015 
WEST HOLLYWOOD, Calif. (KABC) --

Sergey Nikitin lives with his wife and five children in West Hollywood. The Los Angeles realtor, however, is being kept apart from his family from what he says is a clerical error that's turned into an immigration nightmare. 

Nikitin's wife, Anya Bondareva, is currently behind bars. She was detained by federal authorities while trying to cross the border near San Diego. 

"She was crying and she was in shock. She couldn't believe what was even happening," Nikitin said. 

He became a U.S. citizen 15 years ago and married his wife, a Russian native, in 2008. Following their marriage, Nikitin hired an immigration consultant in L.A. to handle her paperwork.

Bondareva received a conditional green card, but Nikitin says the consultant failed to secure a permanent green card.

"I should have checked it myself. It was just one of those things that I relied that they would tell me when it comes up and it needs to be done," Nikitin said. 

Bondareva was granted an extension on her conditional green card that had expired. Earlier this year, the couple flew to Mexico and crossed back into the U.S. without any problems. Nikitin says they even met with immigration officials assuming their paperwork was being processed. 

"When they called the immigration service he was under the impression that it was still pending," said Stephanie Alcala, Nikitin's attorney. 

But last week when the couple tried to cross back into the U.S. from Mexico, Bondareva was detained. 

"That was the worst feeling ever," Nikitin said.

It turns out, after Bondareva's green card expired, a deportation order was issued. Nikitin says that because of a change of address in L.A., they were not notified of a hearing, leading to her being taken in.

Nikitin spoke to his wife over the telephone and says that she broke down in tears when she learned that she could be behind bars for weeks, perhaps months.

"She was crying for some time. She couldn't even speak," Nikitin said. "It's horrible. The children keep asking for her, and I can't even imagine what she is going through. This seems like extreme punishment for a paperwork issue."

Bondareva is being held in a federal detention facility near San Diego. Nikitin's five children are currently staying with relatives in Russia. He is staying in a San Diego hotel to be near his wife.

Alcala says Bondareva will likely be deported. Once that happens, she will have to request an in-person hearing to reapply for the permanent green card.

Read at http://abc7.com/news/west-hollywood-family-split-apart-due-to-immigration-paperwork-foul-up/512688/