USCIS Director Alejandro Mayorkas recently proposed a regulatory change in the processing of Waivers of Inadmissibility, which could potentially affect thousands of immigrants and their families. The purpose of the regulation is to reduce the time that US citizens are separated from their spouses and children in certain cases. Under the current regulations, a person who has entered the United States illegally, and was not paroled into the US, or eligible for amnesty under previous law, may have to return to their home country and wait for a visa to be issued. The problem is that if the person has accumulated unlawful presence, the person may be subject to a bar of 3 or 10 years before being able to return to the US.

Under the proposed change, the waiver could be filed in the US and a decision would be made without requiring the person to leave prior to  a decision on the waiver. The same hardship requirements must be demonstrated, and the waiver would only be for unlawful presence – not for criminal activities. If the waiver is granted, the person would then be required to leave the US and have an interview in their home country. After the interview, the person could reenter the US.

It is anticipated, according to Director Mayorkas’s Press Conference of January 6, 2012, that the change could take place before the end of this year.

Due to the complexity of the waiver process, it is recommended that a waiver applicant seek legal counsel for assistance.

For more on this subject, see our post on www.immigrationnewsradio.com.

Cancellation of Removal for Non-Permanent Residents

My story is pretty typical of many Mexicans who have come to America to find work, and send money back home to help other family members.  Back in 1992, it was easy for migrant workers to come across the border to work in the fields for large companies. At first, I worked in Texas, then over the year have worked in a number of states.

I was actually detained by Immigration in 1993, and advised me I was in deportation proceedings, which meant I would have to go to see a judge about my status and whether or not I could remain in the US. However, because I was always moving, I never received the paperwork advising me of the exact time and place of the court. Years later, I learned that the case had been “administratively closed” since I was not personally served with the notice to go to court, and they did not have my address.

Cancellation of Removal for Non-Permanent Residents – Arrests

Fourteen years later, I was arrested again by Immigration, and put in deportation proceedings again. By then, I had married a Mexican lady who was also here illegally. Although we met in the US, we wanted to be able to have our family at the wedding, so a few years ago we went back home, and then paid a “coyote” to get us back across the border. It took two years to have my first preliminary hearing (Master hearing), and then over the next several months, I had three other Master hearings before a final, or Individual hearing, was scheduled. The hearing was canceled, and then rescheduled, but this hearing had to be canceled as well, so that my final day in court occurred five years after my second arrest by Immigration authorities and 18 years after my first arrest.

My wife did not testify, because she was afraid to go to court, and our son was too young, so I did not want him to be in court. I explained my situation to the judge; that basically, I came to America for a better life; to work and be able to provide for my family. I paid federal income taxes every year, and one time, when I was out of work, I got a business license and started my own company. For a short period of time, we received Medicaid and food stamps.

I never committed a serious crime, but I have had about ten traffic tickets over the years. If I can, I want to stay here. We are renting a house; I have three cars, (fully paid for), and I want my US citizen child to go to school in the United States.

YOU BE THE JUDGE – SHOULD HE BE GRANTED CANCELLATION OF REMOVAL FOR NON-PERMANENT RESIDENTS AND BE ABLE TO STAY?

(To know what the law says, see the article, Cancellation of Removal for Non-Permanent Residents)

Cancellation of Removal: Immigrant Profile No. 1

I came to America from Kingston, Jamaica when I was 12 years old. I had lived with my aunt since I was a baby because my mother had left me to marry someone in the United States. She was able to get her green card through this marriage, and eventually my step father filed a petition for me to join them. I graduated from high school, but had no interest in college. It was really a subject that was never discussed. For the most part, I did some construction work or found odd jobs here and there. I was laid off two years ago, so started my own car detailing business. I have a license, pay taxes most years, and still live with my mother, but I have a girlfriend and a seven month old baby who live in an apartment.

Every week I spend some time with my daughter and her mother, and give them money as I can. My girlfriend doesn’t work, and I only make about $10,000 dollars a year, so it has been hard to keep everything going.

After a recent trip to Jamaica to visit my aunt, I was stopped at the airport and questioned by immigration officers. They questioned me about my arrest and “no contest” plea to possession of less than 20 grams of marijuana, and my arrests for armed burglary and intent to sell drugs. I explained that the armed burglary and intent to sell charges were dropped. Another appointment for deferred inspection was scheduled for me to report to them to produce documents concerning all of my arrests.

When I got to the appointment, I was not allowed to go home. Instead, I was sent to a detention center and put into removal proceedings. After a preliminary hearing with the judge, government attorney, and my attorney, a final hearing was scheduled for about a month later.

Eligible for Cancellation of Removal?

My lawyer said he would file an application for Cancellation of Removal, which if I won, would allow me to be able to stay in the US with my family. At the final court hearing, it was revealed that I had not been truthful in my Cancellation of Removal application when I stated neither I, nor any of my family, had received government assistance. In fact, Medicaid paid the medical costs for the birth of my child. When my tax returns were reviewed, it was also revealed that I had falsely claimed dependents in order to receive a large refund and there were some years I did not file taxes, but should have.

All of my family is here and all of them are citizens. Although I love my aunt and have been to Jamaica 4 or 5 times to visit her, I don’t want to leave at this point. I am 29 now, and want to work hard for my little girl and see her grow up.

What do you think? Should he be granted Cancellation of Removal and be permitted to remain in the US? Give us your comments below.

To find out potential results, visit our website www.immigrationnewsradio.com to review an article entitled: Cancellation of Removal for Lawful Permanent Residents: How a “Joint” Can Lead to Deportation”.

Thinking About Applying For A Green Card Through Marriage?

It is absolutely lawful to apply for a green card through marriage with a United States citizen or permanent resident. This particular marital relationship with a foreign national is sometimes referred to as a green card marriage. It’s essential to recognize, that a so called green card through marriage is only legitimate under immigration regulations when it isn’t just a charade to get an immigration status. It, however, should also be noted that the laws concerning applying for a green card through marriage are frequently misunderstood.

In a nutshell, it is perfectly legal to apply for a green card through marriage knowing you”ll receive an immigration benefit, provided that the primary reason for the marital relationship was specifically based on mutual love and affection. It is only unlawful where acquiring an immigration status is the only true purpose of the marital relationship.

Applying for a green card through marriage to a U.S. citizen

If you and your husband or wife were lucky enough to fall in love and then choose to reap the lawful benefits of this country’s magnificent immigration system, you may apply for a green card through marriage. If the marriage is to a US citizen, the foreign national spouse is, for immigration purposes, an “immediate relative” and a visa (green card) is immediately available. If your husband or wife is a lawful permanent resident, that is, if they are not a U.S. citizen, but rather they have a green card, the rules are slightly different as you will see further below.

Even where a foreign national gets married to a US citizen while in removal (deportation) proceedings, the regulations offers an opportunity for proving there is a valid and genuine relationship. There is, of course, a heightened level of suspicion in these cases, but if you can demonstrate by clear and convincing proof that you have a bona fide (valid) relationship you can still get a green card and avoid being ordered removed by an immigration judge.

Alright, now that you’ve learned that your lawful green card marriage to a U.S. citizen should be regarded as a very positive thing indeed, let’s turn more specifically to applying for a green card through marriage permanent resident.

The 3 Steps to Acquiring a Green Card Through Marriage to a Permanent Resident

1. The Department of Homeland Security/USCIS approves the immigrant visa petition you submit for your foreign national spouse.

2. A spousal immigrant visa must be available for your husband or wife (listed on the State Department’s visa bulletin).

3. Should your husband or wife not be in the U.S. at the time the petition is actually approved and an immigrant visa is available, your husband or wife would be advised to visit to the United States Consulate in order to complete processing the immigrant visa. In the event your better half is actually lawfully within the U.S. at the time the visa petition is approved and an immigrant visa is available, they could opt to apply for their green card by adjusting status.

Confused? Let’s take a moment to recap the rules for applying for a green card through marriage to a permanent resident. If you’re a permanent resident (i.e., a green card holder) and your spousal petition is approved, your foreign national husband or wife would be advised via the National Visa Center/ Department of State whenever a visa becomes available. Should your foreign national spouse be outside the U .S. when you receive the approval notice, they will need to visit the U.S. consulate to finish their visa processing. However, there are some cases in which your spouse may have additional options when you’ve applied for a green card through marriage. For example, if any approvable petition was submitted on their behalf as a direct or derivative beneficiary prior to April 30, 2001, they could possibly benefit pursuant to INA § 245(i). Remember to seek the advice of one of our Bradenton Immigration lawyers to discuss the issue in further detail.

In most cases where a visa number is not currently available, you will have to be patient until one is available. Be aware that your husband or wife may have to leave the U.S. to avoid unlawfully overstaying and accumulating unlawful presence time.

A word about conditional status: If you are granted a green card through marriage and you’re married less than 24 months you’ll be issued what’s referred to as conditional permanent residency status and your green card will be valid for only two years. In these circumstances you must submit a petition to remove these conditions within ninety days of the second anniversary of acquiring conditional status.

Warning: If you are thinking about getting a  green card through marriage and you got married only to acquire an immigration benefit then we’re sorry tell you that you’ve got what is referred to in immigration law a “sham marriage” and you’re simply not eligible to obtain any benefit whatsoever. To submit an application on such circumstances is a criminal offense.

Good News: But the good news is that if you wish to apply to obtain a green card through marriage based upon the traditional values of love and affection, you should not be worried in any way. The U.S. boasts a long-standing immigration policy of welcoming legally married foreign nationals as lawful permanent residents.

Please contact us to assist you in applying for a green card through marriage.

Arizona’s efforts to crackdown on public benefits for illegal aliens results in lawsuit

In an article by Howard Fischer of Capitol Media Services, it was reported that Gov. Jan Brewer and top Republican leaders lashed out Tuesday at the League of Arizona Cities and Towns for its lawsuit challenging a new law designed to crack down on illegal immigrants getting public benefits.

“At a time when Arizona is suffering from budget deficits of unprecedented proportions and the state is struggling to meet the basic needs of its citizens, it is outrageous and shocking that the League of Cities and Towns would challenge legislation designed to protect the very entities that it was intended for,” the governor said. Brewer said Arizona voters have shown several times, starting with the 2004 election, that they do not want taxpayer money going to help those in the country illegally. She said changes approved by lawmakers in an August special session will plug holes in that law.” …Attorneys for the cities say the law is flawed because the language about illegal immigration was not enacted in a separate bill of its own, but included in a larger measure dealing with the state budget. That, the lawsuit claims, makes the maneuver unconstitutional. House Speaker Kirk Adams, R-Mesa, said that requiring cities to do more to crack down on services to illegal immigrants is related to the budget. See “GOP blasts league of cities for suit vs. immigrant law” published 11/25/2009.

New G-28 Attorney Representation Form

Attorneys should note that a new G-28 form has been approved by the USCIS. While the old form can be used “until further notice” and filings will not be rejected for failure to use the new form, attorneys and others using the G-28 should begin making the change.

H1B visas for current season about to go off.

Due to the cap on H1B specialty workers visa for nonimmigrants being exceeded in recent years, the result was a shortfall in filings for FY 2010. However, lately there has been a rapid increase and it is believed that H1Bs for FY 2010 will soon go off. Employers with current needs should act quickly and it is not too early to start planning for the FY2011 filing season which begins on April 1, 2010.