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POSTING DATE: October 22, 2018
Immigration News & Updates eNewsletter © 2011 - 2018
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Questions & Answers
This Week's Immigration News
Question: Hi Ms Pedersen, my situation is as follows: I came here in January 2014 on a F1 Student Visa which expired in December 2017. I got married to my wife (an American citizen) on May 6th 2018. I wanted to know if and what I can do to regain legal status and if I can achieve that without having to leave the country. I also wanted to know if I have to send a copy of my marriage license to my embassy.
Answer: Since you entered the U.S. legally, even though you later fell out of immigration status, you are eligible to file for your Residency inside the U.S. (called adjustment of statues) and stay here during the entire green card process. You do not need to leave the U.S. and do not need to send a copy of your marriage license to the embassy. Under current processing times, its taking up to 6 months to receive your work/travel permit once we file your case, then another 1 ½ for your marriage interview to be scheduled, then another 2 weeks to receive your Green Card. Let me know if you want me to handle your residency case.
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How Do I Appeal My Case Now That It Has Been Denied?
The USCIS recently announced that beginning November 1, 2018, the required residency medical examination (form I-693) will once again be valid for two years from the date it is signed by a civil surgeon. However, the new policy adds a restriction on validity of the exam prior to submission, now requiring that medical exams be submitted to the USCIS within 60 days of issuance. Medical exams submitted later than 60 days from the date of issuance will be rejected.
As a result, it’s always best to have the medical exam performed just prior to residency case submission. The change in policy is due in part to extremely lengthy USCIS residency case processing, often taking from one to two years in some cases. Under the current policy until November 1st, medical exams are only valid for one year, which routinely requires residency applicants to obtain a new medical exam to take to their scheduled residency interview.
U.S. Congressional Senate Race – Where Do The Florida Candidates
Stand On Immigration Issues? You Need To Know!
Similar to the Florida Governor’s race, the Senate contest between Democratic Senator Bill Nelson and Republican Governor Rick Scott is in full swing heading into the upcoming midterm elections on November 6th. Scott is seeking to take Nelson’s Senate seat by attempting to appeal to Florida voters, including Hispanics and other immigrant citizens. Scott’s problem is his glaring record of voting against immigrants’ rights in Florida and of fully supporting most of Trump’s immigration policies, with the exception of the administration’s recent “family separation” policy.
As Governor of Florida, his poor record on immigration has come back to haunt him. He has consistently refused to allow immigrants without status to obtain Driver’s Licenses and IDs, even promising to bring an Arizona-style immigration law to Florida, which would allow law enforcement to stop individuals to verify their immigration status. Scott says he supports DACA, but his record contradicts that claim. In 2013 he vetoed a bill passed by the Florida legislature which would have allowed Dreamers to obtain state-issued driver’s licenses in Florida, thus killing the measure and leaving millions of young immigrants without a legal right to drive or obtain official identification.
Senator Bill Nelson, on the other hand has consistently supported immigrants’ rights, DACA Dreamers and adamantly opposes Trump’s cruel family separation policy. He has voted in favor of every Senate bill to provide immigrants with legal status, including amnesty. Unfortunately, both houses of Congress are controlled by Republicans, and as a result, comprehensive immigration reform legislation continues to fail in the Senate. The only hope for immigration reform lies with the Democrats gaining a majority in Congress, a longshot, but possible with overwhelming support from Florida Hispanics and immigrant voters. Here’s a quick review of how each candidate stands on major immigration issues.
Rick Scott (Republican Governor):
Supports most of Trump’s strict immigration enforcement measures and is a proponent of building the Wall.
Supports Real ID and is against allowing immigrants without legal status to obtain a Driver’s Licenses or Florida IDs. He vetoed a bill which would have allowed Dreamers to obtain state-issued driver’s licenses in Florida, thus killing the measure and leaving millions of young immigrants without a legal right to drive or obtain official identification.
Supports E-Verify to require all businesses in Florida to check the immigration status of employees prior to hiring
Since he recently began running for the Senate seat now held by Senator Bill Nelson, he says he now supports DACA status and opposes providing a “Pathway to citizenship” for Dreamers, but his past record does not reflect those positions.
Opposes Trump’s policy of separating parents from their children at the U.S.-Mexico border
Unclear whether he supports or opposes comprehensive immigration reform, often called “Amnesty” which will allow immigrants to obtain legal immigration status
Bill Nelson (Democratic Senator):
Opposes Trump’s strict immigration enforcement measures, instead favoring compassion over enforcement
Opposes building the Wall, instead favoring more efficient forms of advanced electronic surveillance to secure the border.
Opposes Real ID, E-Verify, instead favors against allowing immigrants without legal status to obtain a Driver’s Licenses and Florida IDs
Supports DACA and favors providing a “Pathway to citizenship” for Dreamers
Supports comprehensive immigration reform, often called “Amnesty” which will allow immigrants to obtain legal immigration status
Question: I read something you wrote about filing early for my green card and I want to know if it applies to me. My husband is a resident and cant apply for his citizenship for three more years. I came up here to the US in 2016 for a visit, we got married and I stayed here. I just had a baby earlier this year and we are anxious to file my immigration papers. So we want to know if I can file for my green card early according to the new announcement. You said some people qualify and some don’t. I hope I qualify but I don’t want to apply if it will get me deported. Thanks again for your help.
Answer: That is a great question and very important to know before filing any application with the USCIS. In your case, you are not eligible to file your residency application early. This is because you are inside the U.S. and have fallen out of legal immigration status. The law is very different for spouses and minor children of residents, compared with those of U.S. Citizens. Spouses and minor children of U.S. Citizens who entered the U.S. legally, but fell out of legal status are still eligible to file for residency inside the U.S.. However the opposite is true for spouses and minor children of residents, since the law does not provide them a right to adjust status in the U.S. if their status has expired. In such cases, these family members must wait until the resident becomes a U.S. Citizen. In your case, you have been very wise not to apply for residency up to this point. You will need to wait until your husband becomes a U.S. Citizen, then at that time we can apply for your residency safely. I hope this was helpful to you.
Question: I filed for residency last year through my American wife. My work and travel authorization was only good for one year and they are expiring next month. I just applied for the renewal and I have a few questions. My current travel authorization is still valid until November 25, can I still use that to travel up till then? My drivers license will expire next month at same time as my work authorization card, will they give me a new one if I use my work authorization renewal receipt? The same for my work, the HR dept wants to see my work renewal, what should I say? How long will it take to get my renewals issue by the immigration service? Thanks.
Answer: Very important issues:
Employment Work Authorization Documents, also called an EAD or as I call them, work permits, issued as part of the residency process are automatically extended for 180 days past expiration, as long as a renewal application is pending. However, even though work authorization is technically extended, the permit itself shows expired and some driver’s license offices and many employers do not accept the 180 extension without proof. The USCIS website clearly notes the automatic extension, but there is no law or code which can be provided to employers and others requiring valid work authorization in some circumstances. To ensure that my clients are able to continue working and extend their drivers licenses, I provide them with a copy of the USCIS automatic extension announcement.
Advance Parole Documents, which I call a travel permit on the other hand are not automatically extended and have to be renewed in order to travel. However, once a renewal is filed, the applicant cannot leave the U.S. until it is approved, even with the current unexpired permit which is still valid. If an applicant files the renewal, then leaves the U.S., the renewal is automatically denied. It’s a really, really ridiculous, stupid rule but nevertheless, it can lead to real inconvenience if it is not followed.
It’s also important to know that work and travel permit renewal processing can take 180 days or more to be approved, so it’s best to apply for renewal as soon as possible once the permits are 180 days from expiration. Do not apply before that date, because that will lead to rejection or denial.
So in your case, your work permit is automatically extended for 180 days, you can visit our site and get a link to printout the USCIS 180 day extension announcement so you can continue to work and get your driver’s license renewed. However, you cannot travel once you file your travel permit renewal, so either travel now, then file it once you return to the U.S. or wait until the renewal is issued.
***WARNING*** Scams Targeting Immigrants On the Rise
Scammers are always looking for new ways to cheat unsuspecting victims, particularly vulnerable immigrants. This includes phone calls and email scams perpetrated by criminals who are impersonating immigration, IRS, FBI or other U.S. officials. The Department of Homeland Security (DHS) warns that a new scheme involves calls from what appears to be a DHS, USCIS or U.S. Immigration and Customs Enforcement (ICE) officer demanding that payment for an immigration issue involving a family member be wire or electronically transferred to a bank account provided by the caller or that gift cards be purchased and sent to the caller. Similar calls are made requesting payment for tax debts owed. The common theme involves threats of arrest or deportation if the victim fails to comply with the demand.
These phone scams often include emails and "robo-calls" making "urgent" callback requests, which appear to come from U.S. government agencies, but DO NOT BE FOOLED! IRS email scams often have a link, directing the victim to “download your record of account transcript.”, then request personal information, such as your date of birth, place of birth, social security number, bank account or credit card numbers, which criminals later use to steal identities and even money from the victim’s bank account.
It’s important for immigrants to safeguard themselves and their families from criminals. No U.S. government official or agency will ever call or email an individual requesting payment of any kind. Genuine requests for taxes or fees are sent by a governmental department and payments are made directly to U.S. government agencies.
Officials do not issue threats or demands, that is like a “red flag” to victims that the call is from a scammer. U.S. agencies advise those who receive such calls to hang up.
What Happens When Your Immigration Case Is Denied?
Understanding Appeals And Motions
With increasing frequency under the Trump administration, more and more immigration cases are being denied.
And unfortunately, denials have significantly increased since September 11, 2018, when a new USCIS policy was implemented which encourages officers to deny immigration cases without first giving applicants and petitioners the opportunity to provide additional documentation to prove eligibility.
As a result, it’s vital to know what remedies exist once a case is denied and whether fling for review is appropriate. In many cases, USCIS denials can be appealed to the Administrative Appeals Office (AAO) or Board of Immigration Appeals (BIA) within 33 days, with the denial notice including an advisory to that effect. Some types of immigration petitions cannot be appealed and denials include an advisory to that effect as well. However in most such cases, even when an appeal is not legally available, a motion (MTR) can still be made within 33 days of the denial, to request that the denial issued by the USCIS be reviewed or reconsidered.
Couple this with the administration’s plans to shortly begin issuing deportation notices to most applicants whose cases are denied and it leaves the future of our entire immigration system in question.
With that said, it’s really important to understand that even though an appeal or request for review or reconsideration is available in most cases, that does not mean that it is wise or even prudent to file one. When an immigration case has been denied because eligibility for the benefit does not exist, filing an appeal or motion will not result in an approval and is really just a waste of time and money. The USCIS filing fee for appeals and motions is $675 and in no way guarantees a final approval. Many applicants believe that since the denial notice mentions the appeal, that means that if they file one, the case will be approved, but in reality nothing can be further from the truth. In fact, the majority of all appeals and motions are denied.
For example, when a Resident files for naturalization but has not been physically inside the U.S. for at least 913 days in the past five years (or 548 for early naturalization based upon marriage to a U.S. Citizen), with very few exceptions, eligibility does not exist. Similarly, when an U.S. Citizen files to sponsor a non-qualifying family member like grandchild or a resident files to sponsor a married child, no eligibility exists. In these and other cases, filing an appeal or request for review is simply a waste of $675.
In contrast, there are some circumstances when it may be wise to file an appeal or review request, for instance in cases where the USCIS issued a request for evidence and you never received it, so were unable to provide the documents requested by the deadline or where legal eligibility exists and the initial petition was well documented, but still denied. For instance in a family based I-130 when the USCIS issues a request for evidence asking for a copy of a sponsor’s Certificate of Citizenship, but since the request was never received, the case was denied for failure to submit the document by the deadline. Similarly when an interview notice was issued by the USCIS but never received by the applicant and the case was denied for the applicant’s failure to attend the interview. Or when an I-130 petition was filed for a qualifying family member in an immigration category with long waiting lines which would necessitate waiting many more years, were the case be required to be re-filed, like that for a sibling or married child which would mean enduring another 12 to 14 years waiting if the denial were to stand. In such cases, an appeal or motion may very well be worthwhile.
In other cases where USCIS processing times are relatively short, it is often simply best to just re-file the case again, since appeals and motions can often take from six months to several years to be decided. Interestingly, when an appeal or motion is filed, ironically, it’s frequently the same USCIS officer who originally denied the case, that gets to review or reconsider the case and either affirm the original denial or reverse it and approve the case. In an appeal case, if the USCIS officer decides not to approve the case, the appeal will automatically be sent to the AAO or BIA for a final decision. For Motions, the officer’s decision not to reopen or reconsider is final.
An appeal is based upon the argument that the denial was based upon either an error in the application of the law or the officer’s interpretation of law to the facts of a case. A motion can either be requested to reopen a case, based upon new facts or documents not available to have been previously submitted with the original application or to reconsider the case, due to the USCIS having misapplied or misinterpreted the law and/or facts of the case or both.
The decision whether or not to file an appeal or motion is important and should be based upon well informed, intelligent reasoning about the likelihood for success, not simply the notion that since the denial says I can appeal, I will. And as more restrictive policies are implemented by the USCIS which will make it riskier for certain applicants to remain in the U.S. following a denial, the issue of the timing of appeals and motions becomes more critical. As a result, it often best to seek immigration advice from a qualified attorney regarding eligibility for any immigration application BEFORE filing and if denied, guidance on whether or not to proceed with an appeal or motion.
The Future Of America’s Immigration System Is At Stake
Early Voting Starts Today! Find Our Your Voting Location
Everyone knows that Democrats want to take back Congress to put a check on Trump and protect America from his escalating despotism. But what you don’t hear much about is what will happen to immigrants if the Republicans continue to hold power in the House and Senate. If that happens, soon after the upcoming mid-term elections (early voting starts today in Florida), Trump and Republicans will begin to move very swiftly to consolidate power in order to carry out his anti-immigrant agenda.
Republicans will systematically introduce legislation in Congress to reduce and restrict overall legal immigration (the goal is by 50%), including possibly eliminating most family immigration other than that for spouses and children.
The only thing that has prevented Trump’s ultimate scheme from being implemented up to now, is Republican members of Congress worried that immigrant voters would vote against them in the midterms, if they passed strict immigration bills before the election. After that, there is nothing to stand in their way to prevent them from overhauling our entire U.S. immigration system, changing it from the land of immigrants to the land of those who can buy the right to immigrate through wealth or advanced education.
Now, as never before, U.S. Citizen have the power to stop Trump from trampling on the American Dream. Even though this is a mid-term election, it’s really a presidential election in a way, giving the power back to the people to put a on the presidency. Voting for all Democrats on the ballot will assure that the “People” will retain the right to live in freedom and liberty instead of under constant threats and fear. Remember choosing not to vote is in fact a vote for Trump and his immigration policies!
You have no excuse, get out to the polls today! Most Broward and Dade county locations are open from 7am to 7pm. Make it a family affair, get together with other family members for breakfast, then head for the polls. Remember, anti-immigrant voters will be out in full force, and they are highly motivated by bigotry and racism to vote to keep immigrants out. Show America that you are more motivated to keep the American Dream alive, the land of immigrants, a beacon for the world, an inspiration to all who come to our shores to be all you can be, that is our America. You know from the news that Mail-in and absentee ballots can be disqualified and thrown out without the voter ever knowing, so proudly go to your local polling place and vote in person.
USCIS Announces Policy Changes For Medical Examinations