SHAUTSOVA’S UPDATE
VOLUME 100, November 2019
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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Watch Our Videos:
- Important tips on how to fill out USCIS form I-485 (https://www.youtube.com/watch?v=FyfBNZFUoCc&t=23s)
- US Supreme Court Says CBP Cannot Search Electronic Devices At Border Without Reasonable Suspicion (https://www.youtube.com/watch?v=458mRGdvNt8&t=24s)
- No EAD For Many Asylum Seekers Says New Proposed Rule (https://www.youtube.com/watch?v=TWvKj28Dyw0&t=39s)
- Can You Expedite a Decision When an Immigration Case Gets Stuck? (https://www.youtube.com/watch?v=4BqJ0At9MvU&t=2s)
- Can One Become a US Citizen If He or She Does Not Speak English? (https://www.youtube.com/watch?v=GKFtAMP4eqE&t=2s)
- When to Use I864, I864A or I864EZ Explained (https://www.youtube.com/watch?v=fSXpQGdLKXg&t=19s)
- SIJ and TPS Updates (https://www.youtube.com/watch?v=g3XY9P7Frsc&t=14s)
- Using Expert Witness For Asylum Claim (https://www.youtube.com/watch?v=z6PczMPEdnc&t=208s)
- Former Conditional Residents Will Be Able to Readjust Without the Court Proceedings
Author: New York Immigration attorney Alena Shautsova
When a person receives status of permanent resident before his or her marriage is more than 2 years old, or if a person is an investor, he or she usually will become a conditional resident, with the residency given for 2 years. That condition from residency will have to be removed by filing a special petition (I 751 for married couples) within 90 days of the second anniversary of the green card status. Quite often, however, couples fall apart before such a petition is either filed or decided. A person whose marriage was entered in good faith may still proceed on his or her own, by submitting I-751 and requesting a waiver from the joint filing. In such a case, the filing deadline for I751 petition will not apply. Often, however, if a person missed their deadline to submit I -751, he or she would receive a letter from USCIS stating that their conditional resident status was terminated. And here is where the confusion lasted for about 30 years…
Back in 1991 Board of Immigration Appeals in the Matter of Stockwell issued a decision that when a conditional resident’s status is terminated by USCIS, the person can re-adjust their status if a new petition is granted for them and they can adjust otherwise. USCIS, however, did not follow it as such, relying on the following logic: conditional residence is still a residence, and under the law only a judge may terminate one’s permanent resident status, and that section 245(d) prohibits adjustment for those who hold conditional resident status. With that in mind, if a person who received a letter that their conditional residence was terminated for failure to submit I-751, would try to get a new green card based one a new marriage, USCIS would deny or administratively close new I485, arguing that only a judge could terminate the previous residency status… In such a case, a person had no choice but to pursue I-751 on their own, asking USCIS for a waiver of the joint filing or seek to be placed in removal proceedings where his/her status would be first terminated by the judge and then the judge would grant a new green card based on new marriage.
Finally, just recently, USCIS decided to change its long-lasting position and stated that from now on:
An alien with CPR status is generally ineligible to adjust their status on a new basis under the provisions of section 245(a) of the Immigration and Nationality Act. However, USCIS may adjust an alien’s status if their CPR status has been terminated and:
- The alien has a new basis for adjustment of status;
- The alien is otherwise eligible to adjust status; and
- USCIS has jurisdiction over the adjustment of status application.
Time spent in the prior CPR status does not count toward the residency requirements for naturalization.
This guidance applies to adjustment of status applications filed with USCIS on or after Nov. 21, 2019.
It means that from now on, if a person’s conditional residence status was terminated, and the person re-married to a US citizen and has an approved I 130 or, has I -360 form, etc. the person will be able to get a new green card or permanent resident status.
If you need a consultation regarding the adjustment of status issues, please call us at 917-885-2261.
- SUCCESS STORY: FROM DACA TO GREEN CARD
Client X had DACA and an order of removal… She was brought to the US as a child. US is her home; she grew up to be a productive member of the US society, saving people’s lives, paying taxes; a good wife and daughter. Yet, an old order of removal prevented her from adjusting her status based on her marriage to a US citizen, or taking educational trips overseas. With the threats of DACA’s termination, she had to act, and the time was NOW. The first thing we did was to collect her entire file from both USCIS and EOIR. Because she first filed for DACA with a different attorney, it was important to collect all the filings before we started work on her case. Typically, a person with an old removal order who now is married to a US citizen, would like to try to file for a waiver, once his or her proceedings a reopened and terminated. However, recently, the Immigration judges were told not to terminate the proceedings any longer… Also, typically, someone who was placed in removal proceedings before he or she accumulated more than 10 years in the US, would not qualify for cancellation of removal before the judge. However, in this case, the ever-changing US Immigration laws played in our favor. As we were preparing her motion to reopen with the immigration judge we learned that first, when she was a child, she was never properly served with the notice to appear, and second, due to new US Supreme court decision, her time for file for cancellation of removal, rather than choosing double waiver round, had not stopped running due to defective notice to appear. We seized the opportunity and declared that she would be filing for cancellation of removal. The case was noted for an Individual hearing in about 8 months after reopening. After an emotional testimony, an Immigration judge granted my client’s request for cancelation of removal. Now, X is able to stay united with her family, will not have to travel back to her unsafe home country to get an Immigrant visa, and the burden of uncertainty and stress related to her Immigration status that was dragging her and her family down for years is lifted!
- Visa Bulletin: policy/bulletin.html
- 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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