August 2015
Published by the Law Offices of Alena Shautsova, 2908A Emmons Ave, Brooklyn, New York 11235
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― Mahatma Gandhi
- Alena Shautsova’s Activities as a Delegate to the House of Delegates of the American Bar Association
Many of you have called my office this week and were not able to reach me as I was out of state. I have decided to include here a brief overview of my activities outside of the office, so you too can share any concerns with me regarding the points I will mention here and contribute to the process of improving our justice system.
The reason for my recent travel was my service as a delegate to the American Bar Association House of Delegates (the “HOD”). The HOD meets twice a year during its Annual and Mid-year meetings. In between, I also participate in the House of Delegates meetings for the New York State Bar Association.
The American Bar Association is one of the largest, if not the largest professional organization of lawyers in the United States. It also includes members outside of the U.S. Currently, it has about 400,000 members. The House of Delegates is a policy making body of the ABA. It’s primary purpose is to establish the ABA’s policies through adopting proposed resolutions or proposals on various topics concerning justice system in the U.S. For example, this Annual Meeting’s topics included protection against domestic violence for the same sex couples; expungement of juvenile delinquency records; protection against sexual harassment for students on campuses; transparency in financing for legal education; and many other issues, including standards of representation in Immigration. As one can tell, the points that we discuss and vote on at the HOD concern a wide spectrum of topics and eventually, hopefully, will result in legal implementation by the State and Federal government. Another important issue that was discussed during this past meeting was the Future of the Legal profession. Attorneys, judges and government officials around the U.S. recognize that we need to improve access to justice and modify the current system so that it is affordable and transparent. Here is where I would like to hear from you. Many of you have probably faced a situation when you tried to do something yourself in terms of obtaining legal help and faced significant obstacles and/or ended up in a worse situation than before. What would you suggest would have been helpful: more do-it-yourself forms? A free, even if a short one, consultation with an attorney? Would you trust a trained professional, but not an attorney to handle your matter? Would you like to see more samples of filled out forms? What your greatest difficulty in the legal process? If you are an attorney, what do you think has to be done so that more lawyers would be able to help more clients, including indigent population? Please, reach out to me at a.shautsova@gmail.com. I will be happy to hear from you.
Finally, if you are a non-lawyer and you might think that nobody cares about your problems and there is no help out there, you are wrong. There is a large community of people who do care, and you just need to reach out to them. It may not be easy, and may take some time, but there is help and there are people who are committed not only to increase their personal wealth, but to serve their country and their people… for one who believes that justice for one person does not matter, denies justice to everybody.
CHALLENGES COVERED HEREIN:
Adjusting your Status when you are eligible seems simple at first glance. You read the directions and provide answers the questions correctly (and TRUE!), submit your supporting documents and wait. You wait, and wait, and wait and FINALLY you get a response with a yellow notice known as a “Request for more Evidence (RFE)”
“It’s over” (you think), there isn’t any evidence in my possession that I can submit additionally to overcome this RFE…”
Think again!
Outlined below will be solutions for the five (5) most difficult RFE’s to overcome as well as some good tips on how to avoid an RFE from these particular issues to begin with. Those RFEs will have similar language:
1. “You have said that you Entered Without Inspection (EWI) based on the evidence submitted it has been determined that you are ineligible to adjust your status at this time and/or you cannot prove your physical presence from the date specified as your entrance.”
2. Bona Fide Marriage – “It has been alleged that your marriage to a US Citizen Spouse is fraudulent. Please submit additional evidence to prove your marriage bona fide.”
3. “It has been determined that you are ineligible to adjust status based on the fact that you have accrued Unlawful Presence within the United States.”
4. “Your Sponsor for form I-864 Affidavit of Support does not meet the income requirements to sponsor you.”*
*This does not include any glitches in the USCIS system which are easily rectified by resubmitting tax returns and a short cover letter. Mostly these glitches result from individuals who make over $100,000 as it is believed that the software only reads the last 5 digits (although USCIS will never confirm this) if the person for example makes $110,000 you may receive an RFE because the software read $10,000 instead.
5. “Through further investigation it has been discovered that the applicant has a Prior Order of Deportation that was not disclosed.”
Now, let’s see if the scary RFE can be overcome.
“The good lawyer is not the man who has an eye to every side and angle of contingency, and qualifies all his qualifications, but who throws himself on your part so heartily, that he can get you out of a scrape.”– Ralph Waldo Emerson
ENTERED WITHOUT INSPECTION
If a person entered without inspection, it is best that he/she consults with an attorney prior to submitting any documents to Immigraiton. The reason is that there are just few situations when a person wihtout inspection and admission or parole can adjust his/her statuts. Those exceptions include:
1. Parole in Place – For immiediate relatives of past or present US Military personnel, with a special application, a person can be paroled to the US without leaving the US. It is done in a USCIS office, and allows a person to solve the issue of illegal entry.
2. Very specific instances of applications under VAWA ( “Violence against Women’s Act”): the beneficiaries of self-petiion based on abuse may adjust their status even if they entered the US without inspection in most cases. Again, fact specific analysis is needed here.
3. Some applicants who entered the US without inspection and subsequently were granted asylum in the U.S., will not need to prove inpection and admission for the adjutsment of status step.
4. Grandfathering exception: those who had petition for immigration benefits filed for them long time ago (prior to 1998 or prior to April 30, 2001 (in the latter case a proof of physical presence on December 21, 2000 is required)
5. Persons who are adjusting based on U, S or T status may proceed without proof of inspeciton or admission
Now, most people do not fall into these categories and as such are unable to adjust their status without the help of a waiver. There are many waivers available to cure different issues when adjusting status and it can be confusing to choose the one suitable for one’s particualr situation. The number one most applicable remedy for applicants that find themselves in this situation would be an I-601A Waiver. This will insure that both issues that come from EWI, no inspection, and unlawful presence will be rectified. For detailed information watch video on I-601A Waiver.
BONA FIDE MARRIAGE
A Bona Fide Marriage can be difficult to prove on paper for some people, as a simple marriage certificate and signatures on I-130/ I-485 forms do not suffice when it comes to USCIS. The best practice in this situation is to submit as much evidence as possible, and if you really do not have any, start buiding the evidence! Every officer who is reviewing your case will take a different approach. Some are really satisified with a detailed testimony, and some would want to see the backs of bank checks from the joint account… There was one instance when a couple came into my office after the husband was told he cannot adjust his status despite the fact that the couple had 2 common children. The problem was seprate tax returns a tax advisor prepared for the husband and wife trying to minimize their tax burden. I exaplained to them, that “savings” on one side may result in large expenses on the other side when ICE will try to remove the husband… I explained to them the different evidences that USCIS looks for to prove a Bona Fide marriage as well:
a. Pictures – in different places, happy faces, with other people in the pictures.
b. Insurance policies with a spouse listed as beneficiary – This is a very strong proof of Bona Fide Marriage as God forbid something happen, one of you is giving the benefits to your spouse and not your parents or siblings. Some employers provide insurance protections to their workers, so one may not need to purchase an additional policy and just needs to update the existing one.
c. Affidavits of family and friends – The more the merrier as they say,… it is highly unlikely that two people together can be such hermits that they never see any friends or family (although not unheard of). Affidavits from friends and family explaining how you were introduced, the way you treat one another, and how you speak about your spouse to those people can greatly improve the validity of your marriage in the eyes of a USCIS officer.
UNLAWFUL PRESENCE
Similar to an EWI unlawful presence can be remedied in limited instances. The difference in this response is usually that you entered legally into the US but fell out of status. For an immediate relative this can be remedied without the need for a waiver, as the waiver is pretty much automatically granted. For those who are adjusting through a permanent resident spouse, the waiver is nesssary. For this you must demonstrate an extreme hardship to a US family member… Unlawful presense is a frequent issue with adjustment based on employment based petition. The reason is that many do not realize that when they change the status many times, or change employers or overstay their visas, even if those issues are overlooked during the visa or status process, they will be revisted by the USCIS at the time of the adjustment. That is why help of a competent attorney is needed from the start. Due to comlexity of issues and their varitey I would not be able to provide any possible suggestions here. I can just say simply: you have to see a good lawyer if you are charged with unlawful presence.
I-864 AFFIDAVIT OF SUPPORT
Different issues with affidavit of support form I-864 can be resolved simply by correcting mistakes on the form, resubmitting it or finding a joint sponsor. A joint sponsor is needed in every case where the petitioner’s income falls below the minimum outlines in I-864P form. Some people like to ask me if they can use assets to meet the requirements. Can they? Sure they can, then only issue is that they should have so much assets that usually they still do not have enough… and assets have to be of a kind that can be liquidated within a year… so, trust me it is much easier to find a joint sponsor, or even to use the non-citizens earnings in some case to meet with threshold.
Now, an important reminder: the affidavit of support form is a contract between the sponsor, the immigrant and the US government. It can be and will be in most cases enforced in court (State or Federal). It is an important document with important consequences, so the signer has to read it carefully before leaving his/her print on it.
PRIOR ORDER OF DEPORTATION
“Prior order of deportation” is a scary discovery by USCIS for the consequences may range from immediate removal proceedings or re-instatement of prior removal; accusations of fraud; and / or denial. The most common mistake people make is that they believe that what happened 20 years ago faded away… The USCIS has an advance storage system of everything one did in terms of immigration pretty much ever and forever. It means that in virtually every case of adjustment by a person who had any issues at the border, had been placed in removal before or simply spent in the US a considerable amount of time, a FOIA request has to be placed prior to the filing of anything. This being said, do not be surprised if the FOIA request will return as “denied due to the subject being a fugitive” if in fact, the person has an outstanding deportation/removal order. Now, the most common solution for the outstanding order of deportation would be motion to reopen filed with the court which last had jurisdiction over the applicant’s case. If granted, it will allow the person to receive adjustment of status.
The bottom line is that if the adjustment of status or a green card is important to you, you need to proceed with caution, with the help of an attorney. If you cannot afford a lawyer, try applying with the legal services that provide free legal aid and non-for profit organizations. There is always a solution if one is looking for it!
- SUCCESS STORIES: CITIZENSHIP IS GRANTED
Author: Citizenship attorney Alena Shautsova
I would like to share stories of three of my clients whose application for naturalization were recently granted. I will change their real names but will preserve the facts. Client X came to my office after X’s application for citizenship was denied as the reviewing officer found X lacked good moral character. Because X came after the appeal time has run, we could not file a notice for re-hearing. In the denial letter X was told to wait for 5 years before re-applying for citizenship. X came to my office when approximately a year of wait time was left. Now, the important issue here was that had X had a competent attorney present with X at the first interview, X would not have been denied and received citizenship much sooner. Why? Because the lawyer who was filling out X’s papers failed to correctly respond to one question on the application form: at the time of the application X had some taxes due and had a payment plan in place on how to pay them off to the government. But the lawyer answered the question in the negative. As a result, the reviewing officer suspected that X wanted to game the system and lied on his application. X did not have sufficient ability to explain what happened, the lawyer who submitted the application did not attend the interview. X had to wait for 5 years before X could re-apply! However, the new interview was also filed with challenges. Now the tricky part was that there is a question on the application form as to if an applicant ever lied to the Immigration authorities… One may regard that unchallenged finding of the officer that X lied on his first application, should cause positive answer on the new application, and if the answer is in the negative, a new accusation of fraud may follow… This time though, I was by X’s side and was able to explain to the officer what happened, and that X never intended to lie on application, and in fact was assured by previous attorney that X should have responded to the question the way X did… The application was granted this time…
Another client of mine, Y’s, application for naturalization was granted after we able to create a plan on how to approach the English and history test portion of the process. Y came to office feared that Y will never become a citizen due to English language test requirement. After talking to Y and inquiring as to Y’s education and experience in the US, we decided that Y’s fears are unfounded, and rather than trying to apply for a waiver of these requirements, Y shall try studying English and the U.S. history. In fact, almost a year later, Y was granted citizenship, and the officer actually praised Y for advance knowledge of the history requirements. Here, Y did not apply for the medical waiver, as Y did not need it. Some people fear obstacles before they actually meet them and see that they have an ability to overcome them.
It was not the case for my other client Z who had disabilities and was not able struggling with the history and English test requirements. So, after several attempts to learn the language, we determined that it is best if Z appeals to help of a health professional who evaluated Z and concluded that Z should be exempted from the test requirements. Z, likewise, was successful with the citizenship application, but this time we had to take a different route.
Each case is different, and a competent attorney has to see the best way to serve client’s interest in each particular case.
- Processing Times THE USCIS PROCESSING TIMES:
https://egov.uscis.gov/cris/processTimesDisplay.do
- The Administrative Appeals Office http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=dfe316685e1e6210VgnVCM100000082ca60aRCRD&vgnextchannel=dfe316685e1e6210VgnVCM100000082ca60aRCRD
- Labor Department Processing Times
The following link provides approximate times for PERM processing periods:
http://icert.doleta.gov/#fragment-2
- Nonimmigrant Visa Wait Times
Depending on your location, the US Department of State provides the following approximate visa wait times:
http://travel.state.gov/visa/temp/wait/wait_4788.html?post=Kyiv&x=86&y=13
Watch our Videos: https://www.youtube.com/channel/UCBSrIQswMdYh_T1qToEZRrQ
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