Navigating Immigration Status Adjustments and Legal Updates

November 2015

Published by the Law Offices of Alena Shautsova, 2908A Emmons Ave, Brooklyn, New York 11235

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Emergency Travel While Adjustment of Status is Pending

Author: Green Card Attorney Alena Shautsova

It has always been the case that one who applied for a permanent resident status while in the U.S. cannot travel outside the U.S. without a special permission if he/she does not wish to forego his/her application. For a while it was also the case that one who gets this special permission, could not return back to the U.S. without a waiver due to unlawful presence bar.

After the Board of Immigration Appeals decided Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012), AOS (adjustment of status) applicants may travel overseas using an advance parole document, even if they accumulated unlawful presence time in the U.S. and safely come back. However, what to do if the person filed for the permission to travel, and while waiting for it he/she has an urgent need to go overseas?

The practice varies , but at least in New York, such an applicant has a chance of receiving an emergency advance parole. For this, an applicant must personally come to the USCIS field office and present evidence to support the need to travel, evidence of the relationship, if applicable, a Form I-131, and the proper form fee. Also, a requester has to meet the expedite criteria under the USCIS guidelines.

Another important thing to remember: if the applicant had a prior order of removal, criminal convictions and other “immigration issues” that may cause him/her inadmissible (apart from unlawful presence), such a person should not travel overseas even using an advance parole. It is so because Matter of Arabally applies only to the issue of inadmissibility under INA 212(a)(9)(B) (unlawful presence). It does not “waive” other grounds for inadmissibility.

Adjustment Options for K-1 Visa Entrants

VAWA attorney Alena Shautsova

A K-1 visa is issued to a fiancé of the U.S. citizen who is willing and able to get married to the U.S. citizen within 90 days of arrival. If everything goes well, the couple gets married and later, they apply for adjustment of status for the non-citizen. The marriages by K-1 visa holder and a U.S. citizen are subject to Marriage Fraud Immigration provisions, and conditional residency requirements. It means that within 90 daysprior to the second anniversary of the “green card” status, the beneficiary will have to submit a joint petition to remove the condition. This scenario works only when everything goes according to the couple’s plan.

However, life is life and not everything and not always develops as we plan it. The situations differ, and that is why it is best if a K-1 visa entrant speaks to an attorney. However, I will cover here common scenarios.

A K-1 visa entrant did not marry U.S. citizen within 90 days and remained in the U.S.

This is one of the worst case scenarios because the law says that a K-1 visa holder who did not get married within 90 days of entry to the petitioning US citizen, cannot change her/his status to a non-immigrant or immigrant status in the US. The only option for such a person would be to file for asylum if the person qualifies for it, of course.

A K-1 visa entrant did marry their U.S. citizen fiancé, but the U.S. citizen appeared to be abusive and the permanent resident documents were not submitted by / with the U.S. citizen. In this case, the K-1 visa holder can self-petition him/herself under VAWA provisions. It will not be easy to receive a permanent residency this way, because USCIS holds a position that I -360 should not be the basis for adjustment for the K-1 holders. At the same time, if the abuser is the U.S. citizen who sponsored the fiancé, the USCIS may still grant adjustment K-1 holder’s status. Recent BIA decision support this position.

A K-1 visa entrant married the U.S. fiancé and got divorced. Can he/she adjust? Maybe. It depends on the length of the marriage, and if the U.S. citizen will be willing to execute the I -864 form affidavit of support and if the fiancé finds a different exception to the public charge rule.

The K-1 visa entrant did not marry the U.S. citizen fiancé but later got married to a different U.S. citizen and qualified for VAWA. Unfortunately, K-1 entrant will not be able to adjust here, because the abuser is not the original fiancé visa petitioner.

It must be noted that the implementation of law regarding K-1 visa holder’s adjustment of status is still being shaped. However, one should remember, that he/she always has an option of leaving the U.S. and applying for a waiver of unlawful presence (which works of course only in the cases of an adjustment based on a new marriage with a U.S. citizen).

Discrimination based on Credit Score and Other protected Grounds under NYC Human Rights Laws

Employment Discrimination Attorney Alena Shautsova (PLEASE PUBLISH THIS IN BLOGS ON EMPLOYMENT WEBSITE)

In May of 2015 New York Mayor signed into law a bill that bars employers from using job seekers’ credit score during the hiring process. “Every New Yorker applying for a job deserves a fair shot — and we are committed to protecting the rights of our workers and making sure that every New Yorker has the opportunity to succeed,” de Blasio said in a statement. “This bill will remove a barrier to employment and ensure that people are judged on their merits and ability, rather than unrelated factors.” It means that a refusal to hire based on one’s credit score or history, or even a requirement to present one’s credit history/score may cause employer to be liable for damages, and attorney’s fees.

The Bill 261-2014 does have a number of exceptions to this general rule. Under the local law of the City of New York No 37 those exceptions are as follows:

(1) an employer, or agent thereof, that is required by state or federal law or regulations or by a self-regulatory organization as defined in section 3(a)(26) of the securities exchange act of 1934, as amended to use an individual’s consumer credit history for employment purposes;

(2) persons applying for positions as or employed:

(A) as police officers or peace officers, as those terms are defined in subdivisions thirty-three and thirty-four of section 1.20 of the criminal procedure law, respectively, or in a position with a law enforcement or investigative function at the department of investigation;

(B) in a position that is subject to background investigation by the department of investigation, provided, however, that the appointing agency may not use consumer credit history information for employment purposes unless the position is an appointed position in which a high degree of public trust, as defined by the commission in rules, has been reposed.

(C) in a position in which an employee is required to be bonded under City, state or federal law;

(D) in a position in which an employee is required to possess security clearance under federal law or the law of any state;

(E) in a non-clerical position having regular access to trade secrets, intelligence information or national security information;

(F) in a position: (i) having signatory authority over third party funds or assets valued at $10,000 or more; or (ii) that involves a fiduciary responsibility to the employer with the authority to enter financial agreements valued at $10,000 or more on behalf of the employer.

(G) in a position with regular duties that allow the employee to modify digital security systems established to prevent the unauthorized use of the employer’s or client’s networks or databases.

It must be noted that the exceptions listed above are not carte blanche for the financial industry to check credit score of all of its potential workers. This was specifically emphasized during the City Council hearings.

In addition, if usage of the credit score/history has a disparate effect on the group of employees, this in its turn may result in findings of unlawful discrimination based on protected grounds. Example: an employer lawfully checks credit history of its potential employees, however, rescinds job offers for majority of African American candidates whose score is “poor” and does not do it for White applicants.

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