Question: I have heard that the provisional waivers have expanded. I have a prior deportation order and have been so afraid to have my spouse petition me because I thought I could not file a provisional waiver inside the US. I thought I would have to leave the US and ‘hope’ that the waiver was approved. Is it true that this has changed?
Answer: Yes, the applicability of the provisional waiver has been expanded. Remember, that the provisional waiver would apply only in the case where you normally would not have been inadmissible on any other grounds other than unlawful presence in the US. It allows you to file here in the US while you are here in the US. If successful, then it would mean you would actually only have to leave under normal circumstances to the US Consulate for only a few days and then you would return as a lawful permanent resident.
The Department of homeland security (or DHS) had adopted changes discussed in the proposed rule. The new modifications include: (1) Clarifying that all individuals seeking provisional waivers, including those in removal proceedings before the Executive Office for Immigration Review (EOIR), must file applications or provisional waivers with USCIS.
(2) Allowing individuals to apply for provisional waivers even if USCIS has a reason to believe that they may be subject to other grounds of inadmissibility.
(3) Eliminating the proposed temporal limitations that would have restricted eligibility for provisional waivers based on DOS visa interview scheduling.
(4) Allowing individuals with final orders of removal, exclusion, or deportation to be eligible for provisional waivers provided that they have already applied for, and USCIS has approved,
an Application for Permission to Reapply for Admission into the United States After Deportation or Removal Form I–212 and
(5) Clarifying that DHS must have actually reinstated a removal, deportation, or exclusion order in order for an individual who has returned to the United States unlawfully after removal to be ineligible for a provisional waiver on that basis.
So it is a very positive development. If you have a prior deportation order and have filed the Permission to Re-enter AND it is approved, then you will be eligible to file the Provisional Waiver. This development is surprising considering the increased efforts of ICE to deport as many people as it can and to restrict opportunities to people who are not here in the US legally.
Question: I’m not 100% sure if I qualify and/or if I have a deportation order. What should I do?
Answer: It would be very important for you to obtain the advice from a qualified immigration attorney as to whether you have or do not have a deportation order and whether you should or should not file a Permission to Re-enter and then at what point you would become eligible to file for the provisional waiver.
Question: How long will this take?
Answer: The Permission to Re-enter will take about 1 year and the Provisional Waiver will take another 6 months.
Question: I have been outside the US for 8 months and have friends who went back to the U.SA. and were forced to give up their Green Card and then enter on a B2 Visitor Visa. Will that happen to me?
Answer: If there is an absence of intent to permanently reside in US coupled with objective circumstances, lawful permanent residents (LPRs) can lose their status even if they visit the US often. An LPR may have multiple residences, but US residence must be the permanent one. In other words, LPR status may be lost if abandoned. Possession of reentry permit does not prevent DHS from inquiring as to whether the holder abandoned his residency; it simply prevents the DHS from relying solely on the duration of the absence as a basis to determine abandonment. Further, a reentry permit does not bar DHS from refusing admission to the holder and placing him in removal proceedings.
Question: This sounds scary. What do I do?
Answer: First of all, while it is possible to lose your residency, you cannot be forced to sign the paper giving up your right to be a lawful permanent resident. Thus, the first item you want to do is to NOT SIGN ANYTHING. It is your right to not sign and they cannot force you to sign. Additionally, DHS (the officer at the port of entry) cannot force you to take a B2 Visitor Visa instead. You must request to see an Immigration Judge. This will make is so that you will be placed into proceedings to see the Immigration Judge to argue whether or not your residency has been abandoned or not.
Question: How can I protect myself?
Answer: First, if you will be gone for a while from the US, you must keep your assets in the US. Keep a lease if you can. Pay US taxes. Hold furniture in the US. Keep the bank account, etc.
Question: Is there a maximum time that I cannot come back with my Green Card?
Answer: Yes. It will allow you entry to the U.S. up to 354 days after you have left. Thus, do not leave more than 1 year at a time.
Question: Is all lost if I’m gone more than 1 year?
Answer: No. You will be able to file an Application at the Consulate to show you did not abandon your residency in the US and to explain the reasons for the lengthy departure (i.e., taking care of your sick mother, testifying in some case, working on estate matters, etc.) and if granted, you will be able to get paroled into the US.
Question: What is the burden of proof? Meaning how much do I have to prove to win?
Answer: Once a colorable claim to LPR status is made, the burden is on DHS to prove abandonment by clear, unequivocal and convincing evidence. Thus, you must just show a reasonable claim that you did not abandon your residency and then DHS has a much higher burden of showing in fact you did abandon your residency. In fact, clear, unequivocal and convincing is an extremely high burden for them to meet. This makes winning on your part easier.
Question: I have a roommate who left an abusive relationship. She actually filed a Temporary Restraining Order against this person. Court was yesterday. She went to Court to testify in front of the Judge so that he would rule in her favor and her abuser would not come within 100 yards from her and hurt her again. She won the temporary restraining order, but when she was leaving the Courthouse, she was apprehended by ICE. She is now in detention. Can ICE do this?
Answer: Yes, if the person they apprehend is inside the U.S. and here illegally, they can be apprehended. It is unfortunate and chilling that ICE has decided to do this for people at Court and coming out of Court. What message will this send? It will send the message that people who are illegal and who are victims of crime, that they should not go and get justice against those persons who committed the crime on them. In this exact case upon which you have asked the question, she probably would have kept taking the abuse from the person committing domestic violence on her and she would have lived in fear every day that he is around the corner and will abuse her more.
It also emboldens the accuser and the perpetrator. They will know the fear that the person who is not here legally has and will use that against them. They will commit their crimes on the victims and then tell them if they are reported to the police that ICE will be called and they will be deported.
ICE’s decision to do this is deplorable. They have no sense of how this will affect victims. You can already see statistics. People here illegally are reporting much less crimes. This is not because there are less crimes, but because they are afraid of the police, of ICE and of being deported. In fact, there are probably more crimes actually being committed.
Question: My friend said that ICE wanted to force her to sign her deportation papers. She felt compelled to do this. However, she luckily read something that she has a right not to sign. What can be done?
Answer: You are correct. She did the right thing by not signing. Now, she will have an opportunity to fight her case in Immigration Court. She might qualify for VAWA, or the U Visa, or the T Visa or possibly the S Visa. There are other avenues as well.
Question: Could she have resisted the ICE Official?
Answer: Most likely not. However, she had and has a right to not speak to the officer and not to answer questions. She should simply say “I am choosing not to speak to you as that is my legal right and I am going to have my Immigration Attorney help me.”
Question: She is in detention now. Can she get out?
Answer: Yes, a Motion for a Bond Redetermination can be made. It will show she is not a flight risk and not a danger to the community. If granted, then she will be released during the pendency of the deportation hearings. I certainly understand the reluctance to report crimes. However, the way to help yourself is to see an Immigration /Deportation Attorney who can see if and what you might qualify for under the U.S. Immigration Laws. ICE only wants to deport you. If you will see an Immigration Attorney in sufficient time, then you might very well be able to be helped and to later obtain legal status.
Question: I will be applying for asylum. I’m not exactly sure of the process, but if I lose, will I be deported?
Answer: Clients who have arrived in the United States and who have not been issued a Notice to Appear (NTA) will apply for asylum "affirmatively," meaning that they will be interviewed at an asylum office, and an asylum officer (AO) will decide their case. Such clients are sometimes called "applicants." The application is made by mail to a U.S. Citizenship and Immigration Services (USCIS) Service Center, and includes Form I-589, Application for Asylum and for Withholding of Removal. The place where the client lives determines which service center should receive the package.
The client can bring a friend or family member to the interview to act as an interpreter, if needed, as well as an attorney. If interpretation is used, the AO will use a phone monitor to ensure that the interpreter is providing accurate service. All family members who are included in the application should appear at the interview. However, the AO typically does not need to speak to anyone other than the principal applicant.
An asylum interview is non-adversarial, meaning that no government attorney is there to oppose the case. The AO is neutral. In practice, the purpose of an asylum interview is for the AO to assess the client's credibility. At the conclusion of the interview, the client's attorney may summarize key facts and legal issues for the AO to consider.
At some asylum offices, the client is notified that he or she should return to the asylum office to receive the AO's decision. In n many cases a decision is mailed instead. Note that it will take in some places 2 to 4 years to actually receive the interview.
The AO can make one of three decisions about an asylum claim. First, the AO may grant the case. The client will be mailed a letter outlining his or her rights and benefits as an asylee, a stamped I-94 card showing asylee status, and an Employment Authorization Document (EAD).
Second, the AO may deny the case. This can only happen if the client is in lawful status, such as F-1 student. An AO can only deny the case if the client has a legal status to fall back on.
Before denying the case, the AO will usually send a Notice of Intent to Deny (NOID) that outlines his or her concerns, such as inconsistencies in the client's testimony. The client will have an opportunity to respond and provide additional evidence. If the AO is still unconvinced that the case has merit, he or she will deny it. As with approvals, the client will get written notice of the denial.
Question: If it is denied, what happens?
Answer: Clients who have been issued a NTA are in removal proceedings. Clients may receive an NTA because they filed affirmatively but were referred to court by an AO. Also, clients who have passed a Credible Fear Interview similarly go before an Immigration Judge. This process will take 1 to 2 years depending on the backlog of the Court.
Question: What if I lose at the Immigration Court?
Answer: You will then have 30 days in which to appeal to the Board of Immigration Appeals. This is still an administrative body. It will take about 1-2 years to receive a decision by the BIA.
Question: What happens if I lose at the BIA?
Answer: This will be your first opportunity to appeal via what is known as a Petition for Review. This is when it will actually go to the Circuit Courts of Appeal and be heard by three Justices. This usually takes another year.
Question: What if I will lose at the Circuit Court of Appeal?
Answer: This means that you can do a Petition for Rehearing En Banc. This is when it still stays at the Circuit Court of Appeal, but is transferred to the entire panel of Justices, not just 3. This takes about another 6 months.
Question: What if I lose the Petition for Rehearing?
Answer: You would then do a Writ of Certiorari to the U.S. Supreme Court. To get to this point, many times, it will take 8 to 10 years.
A business visa attorney can let you know all types of visas that you might be able to apply for under U.S. Immigration law. Depending on your situation, the type of visa will differ. For example, a business visa attorney might tell you about the H-1B. For example, the H-1B is for people who have college degrees. The business visa attorney will explain that the H-1B is referred to as the specialty occupation visa. The job itself must reflect the reality of the position requiring the use of the college degree. The business visa attorney would explain that you could not be a cashier with an electrical engineering degree and still expect to get the H-1B. There are only 65,000 H-1B Visas per year. The business visa attorney may elaborate that those are usually gone in the first week that the door opens in which to apply for the H-1B (which is April 3.) It is time to apply right now, so don’t wait.
However, there are many type of business visas that do not require a college degree. For example, there is the O-1 Visa. The business visa attorney explains that the O-1 is for people who are extraordinary in whatever it is that they do. There are several requirements for the O-1 as would be elaborated by the business visa attorney. You must be able to establish that you have extraordinary ability in your field. Essentially, the O-1A visa is for people who are recognized as being at the very top of their field and who are coming to the United States to continue work in that field. To establish eligibility for an O-1A visa you must either have received a major, internationally recognized award, similar to a Nobel Prize, or submit evidence that affirmatively answers at least 3 of the 8 categories as put forth and explained by the business visa attorney. Those areas are as follows: Have you received a lesser nationally or internationally recognized prize or award for excellence in the field of endeavor? Are you a member of any associations which require outstanding achievements of their members as judged by recognized national or international experts?
Is there published material in professional or major trade publications or major media about you which relates to your work in the field? Other questions/categories as explained by a business visa attorney are as follows: Have you participated on a panel or individually as a judge of the work of others in the same or in an allied field of specialization? Have you made original scientific, scholarly or business-related contributions of major significance? Have you authored scholarly articles in professional journals or other major media? Have you been employed in a critical or essential capacity for organizations and establishments that have a distinguished reputation? Have you or will you command a high salary or other remuneration for your services?
Yet other types of business visas involve investments. For example, there are the E-2 and the L-1. These are visas for persons who want to either start their own business in the U.S., or in the alternative, to open up a branch office in the U.S. Thus, the business visa attorney will explain that the E-2 will require about $100,000 investment, but you can run your own business and come to the United States to make your dream come true. The L-1 requires much less investment, but would require that you have very good records for the company you are running in your home country. The typical business visa attorney will know that many countries do not keep good records and are running businesses without invoices and contracts and tax records. These types of businesses are not very good businesses for the L-1. Another type of related investment visa is the E-1 and the E-1 deals with trading with your home country. Therefore, if the business does at least 50% of its work trading with the home country, then the E-1 might be the best way to proceed forward.
The B1 can be used if you want to come into the United States to negotiate contracts for your company in your home country, or if you have to do temporary training or attend conferences. These are very short duration visas and can be quickly issued.
Another type of business visa if your from Canada or Mexico is the TN Visa. The TN is somewhat related to the H-1B, except there are no limitations on the amount of TN’s and some TN’s do not require a college degree. In any event, if you want to get a business visa, be sure that you find an experienced business visa attorney.
Question: I’m so afraid to open my door now. I’ve heard ICE agents are doing round-ups and just deporting people left and right. What can I do?
Answer: All people living in the United States, including undocumented immigrants, have certain US Constitutional rights. If you are undocumented and immigration (ICE) agents knock on your door, know that you have the following rights:
• You do not have to open the door. You do not have to open the door or let the officers into your home unless they have a valid search warrant signed by a judge.
o An ICE deportation warrant is not the same as a search warrant. If this is the only document they have, they cannot legally come inside unless you verbally agree to let them in.
o If the officers say they have a search warrant signed by a judge, ask them to slide it under the door or hold it up to a window so you can see it.
o If the warrant does not have your correct name and address on it and is not signed by a judge you do not have to open the door or let them inside.
o If at any point you decide to speak with the officers, you do not need to open the door to do so. You can speak to them through the door or step outside and close the door.
• You have the right to remain silent. You do not need to speak to the immigration officers or answer any questions.
o If you are asked where you were born or how you entered the United States, you may refuse to answer or remain silent.
o If you choose to remain silent, say so out loud.
In fact, your immigration attorney should give you a ‘know your rights card’ which you can show the officer.
Brian D. Lerner is a certified specialist in Immigration and Nationality Law as approved by the California Bar, Board of Legal Specialization. He has been a certified specialist for over 15 years and has been practicing law for over 25 years. The Law Offices of Brian D. Lerner will give you a free consultation and has offices in Long Beach and Carson, California and Quezon City, Philippines. You can e-mail Brian Lerner directly at blerner@californiaimmigrati on.us or make an appointment by calling 562-495-0554 or self-scheduling an appointment at blerner.checkappointments.c om. Either way, he will try to help you and your family.