April 2018
Published by the Law Offices of Alena Shautsova, 2908A Emmons Ave, Brooklyn, New York 11235
175 Eileen Way, Syosset NY 11791
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“Be the change that you wish to see in the world.”
― Mahatma Gandhi
NEWS FLASHES:
Watch Our Videos:
1. Legally Speaking: Cancellation of Removal for Permanent Residents
2. Legally Speaking: 212H Waiver – Forgiveness of certain Aggravated Felonies
3. Ins and Outs of Work Permits (EAD)
- How to Help Your Spouse to Get a US Green Card
Author: US Marriage Green Card Attorney Alena Shautsova
You are a US citizen; you have met a love of your life, you guys got married and started sharing your lives. Unfortunately, your spouse is “undocumented. Soon you realized that without “legal papers” in the US, you guys could not apply for a mortgage, share health insurance or even file a proper tax return. In most cases, the ‘undocumented” portion of the problem can be fixed.
- Legal Entry
The first step in determining if you will be able to help your spouse is to figure out if your spouse entered the US “legally” or were inspected and admitted or paroled. If a spouse entered with a visa or on a visa waiver program, it is perfect. Hopefully, you guys still have a record of that legal entry. If not, often it is possible to restore it, but as practice shows, for that, a spouse will likely have to show at least a copy of the admission stamp in his/her passport.
Interestingly, the admission into the US has to be only “procedural.” That is why at times and places it is possible to argue that a person was legally admitted when he/she was “waived in” at the border, or used a false identity to enter the US.
In some jurisdictions, a grant of TPS is considered admission.
Parole is a whole different story. Legally, it is distinguished from admission. But for “fixing” one’s status based on a marriage to a US citizen, parole will also do. An individual who traveled outside the US and came back using parole can adjust. For example, a person who was granted TPS or is in asylum pending status may ask for advance parole to travel. Sometimes, it is possible to ask for advance parole even if you have an order of deportation/removal. There is also something called “parole in place” which is widely used by family members of military personnel. Parole in place is when a person “paroled” into the US without leaving the country.
When you have a legal entry, even if you overstayed your visa by ten years or more, and do not have other issues, you can get a green card based on a marriage/petition by your US citizen spouse. The “unlawful presence” will be forgiven, as well as unauthorized employment.
- No Legal Entry
If your spouse cannot show legal entry, then he/she will either have to qualify for a 245(i) exception, or apply for a waiver. Your spouse will not be able to get a green card without leaving the US. If unlawful presence is the only issue, your undocumented spouse may qualify for an I 601A waiver. If the waiver is approved, your spouse will travel to his/her home country and return with an Immigrant visa.
- Criminal convictions
Another common issue on the way to a green card would be criminal charges/ convictions. In many cases, it is possible to obtain a waiver if the chargers make a person inadmissible. See 212(h) waiver video.
- Prior Immigration History
Perhaps, the hardest are cases where your spouse had a prior immigration history: an order of deportation/removal, or grant of voluntary departure, or at times, re-entry after deportation/removal. Sometimes, there will be an old allegation of marriage fraud or a claim of US citizenship. Those are the hardest cases, and in each case a couple would have to see an attorney prior to attempting to file anything. Sometimes, it is possible to reopen an old case; sometimes, it is possible to file for multiple waivers, or argue that certain grounds of inadmissibility do not apply based on facts and/or law at the applicable time.
If you are looking for solutions for your spouse, call us to book an appointment at 917-885-2261.
- NOID in Asylum Cases
Author: Asylum lawyer Alena Shautsova
NOID or Notice of Intend to Deny is a document that might receive from a US asylum office after he/she appeared for an interview. While it is not a denial, it is an indication that an asylum officer intends to deny your claim. The notice usually will specify the reasons for such intent: perhaps, it will reveal inconsistencies between the applicant’s testimony and country conditions; inconsistencies between the evidence presented, or sometimes will point out at the legal flaws in one’s case.
How to Avoid NOID
To avoid NOID, an applicant has to prepare very well. When it is not possible to predict the coming of a NOID, it is possible to supply a detailed account of events that prepare for the interview well. Often, an asylum officer does not confront applicant with inconsistencies listed in NOID during the interview, however. Basically, an applicant would have to “predict” the problematical issues of his/her case and will have to try arguing them in the initial submission by providing sufficient country conditions reports, letters of support, medical records, etc. Submission of expert reports can be very helpful to establish the reasons of why an applicant cannot relocatewithin his/her home country to avoid persecution or why the government of the home country cannot protect the applicant.
Evidence apart from the applicant’s own testimony is very important. At times, an applicant is inconsistent in his/her testimony for a variety of reasons: stress, forgetfulness, desire to make his/her story better. This may cause a negative credibility findings by an asylum officer. However, other evidence in the case may overcome those findings. As the U.S. Court of Appeals for the Fourth Circuit stated in Lin v. Holder, “Although adverse credibility determinations are generally fatal to an asylum claim, an applicant can still prevail if she can prove actual past persecution through independent evidence.” See Lin v. Holder, 736 F.3d 343, 354 (4th Cir. 2013) (citing Camara v. Ashcroft, 378 F.3d 361, 369 (4th Cir. 2004)). Another court held “an adverse credibility determination does not alleviate the IJ’s duty to consider other evidence produced by an asylum applicant,” and that “the failure to consider [applicant’s] corroborating evidence was an error.” Olivares v. U.S. Att’y Gen., 2013 U.S. App. LEXIS 23511, *5 (11th Cir. 2013) (quoting Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1287 (11th Cir. 2005)). See also, AlHarbi v. INS, 242 F.3d 882 (9th Cir. 2001); Zahedi v. INS, 222 F.3d 1157 (9th Cir. 2000).
At other times, an asylum officer may regard the entire application as not credible where only a portion of the testimony was, in fact, found not credible. In such cases, if a portion of the testimony is not credible, it does not mean that the entire case is not credible and there is case law to this effect. Examples: Matter of T-Z-¸24 I&N Dec. 163, 165 (BIA 2007), Serna-Garcia v. Att’y Gen., 346 Fed. Appx. 778 (3d Cir. 2009), Lin-Jian v. Gonzales, 489 F.3d 182, 191 (4th Cir. 2007).
How to Respond to NOID
Once NOID is received, a person usually has very limited time to respond to it (no more than 16 days, as a rule). Nevertheless, NOID has to be responded to. Depending on the issues raised by NOID, additional evidence, if available can be submitted: letters of support, expert reports, country conditions documents. Importantly, if an applicant has a benefit of professional representation, a legal brief has to be submitted with legal arguments providing a sufficiency of the applicant’s claim.
If you are looking for solutions for your asylum case, call us to book an appointment at 917-885-2261.
- 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
Visit our resources on Asylum, Recent Changes in Immigration laws and Processing times:
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