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POSTING DATE: December 3, 2018
Immigration News & Updates eNewsletter © 2011 - 2018
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This Week's Immigration News
Question: Hi, I got my residency through my American wife and I just applied for my citizenship last month and did my fingerprints already. Once I get my citizenship I want to sponsor both my parents. I have a few questions about that. My parents are asking about my younger sister who is 13, whether she can immigrate at the same time as them and I am sure she can, I just want to make sure from you first. Also, they want to know how long it will take for me to get my citizenship and then how long after that should they plan to move here to Florida?
Answer: As long as you are age 21 or older, once you obtain your U.S. Citizenship, you can sponsor your parents (each one separately) for their U.S. Residency. Since you just applied last month, you can plan on about 6-9 months processing for your Naturalization interview and another several weeks for your Swearing-In Ceremony where you receive your Citizenship Certificate. After that you can file for your parents and the current processing time is about 10 to 12 months for them to be able to join you here in Florida. However, under current law, your younger sister will not be able to immigrate along with either parent as a “dependent”. Instead, once one of your parents receives their U.S. Residency, they can file to sponsor your sister. As a minor child (under age 21), it will take 1 1/2 to 2 years for an Immigrant Visa to be available for her to Immigrate to the U.S. in the F2A category for minor children of U.S. Residents. Let us know if you want us to handle your parents and sister’s Residency cases.
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Your I-94 Card Is Like Gold, Keep It Safe For The Future!
Since 2013, Foreign Nationals entering the U.S. no longer receive a paper card called an I-94 upon entry (which gave the date of entry and date upon which the individual must leave the U.S.), but are instead issued instructions on how to download and printout their I-94 report from the CBP website. This is great, because it provides a secure way to access the individual’s entry information for future use. However, up until 2013, those entering the U.S. were issued a small paper called an I-94 (Arrival/Departure) Card by Immigration inspections. This card is one of most important immigration-related documents issued to foreign nationals and it has the date of entry and the required date for exit clearly written on it.
USCIS Issues Update On New Deportation Policy -
Here’s The Good & Bad News
Unfortunately, ill-informed friends, relatives and unscrupulous immigration centers still advise foreign nationals that there is no problem in overstaying in the U.S., as long as an I-130 family petition has been filed for them. Please take my advice - maintain your legal status while inside the U.S. at all times and only request an extension of your tourist visa period of stay in extreme circumstances, keeping in mind the new NTA policy. Also understand that even while you may be able to obtain one six month extension, a second request for an extension is very risky and highly likely to be denied.
To recap, among the only relatives who can still adjust status (obtain Green Cards) in the U.S. once they have overstayed are Spouses, Minor Children and Parents of U.S. Citizens and Cubans (CU6) and those who qualify under the old 245(i) rule. Under the current Trump Administration, the worst thing an Immigrant can do is to apply for U.S. Residency in the U.S. when they have overstayed. Not only will they be denied, but could very likely be deported as well. Stay safe! This document is typically the ONLY evidence that a foreign national has to prove legal entry into the U.S. up until 2013. Without it, it is nearly impossible to apply for any type of immigration visa in the U.S. As a result, those who have lost the card and wish to change or adjust status, must apply for a replacement card which generally takes up to six months or more to receive a replacement I-94 card after application and costs $445 (Form I-102).
Another important tip is for Foreign Nationals to remember to avoid allowing their period of authorized stay in the U.S. to expire, since once it has expired, under current immigration regulations, it is impossible to change or adjust status inside the U.S., (with the exception of being the spouse, minor child or parent of a U.S. citizen who is sponsoring them.) All too frequently immigrants are incorrectly advised that as long as they entered the U.S. legally, and a relative like a sister/brother or parent files an I-130 family petition, they can legally remain in the U.S. waiting for their case to be approved. This is simply not true. Immigration regulations presently prohibit a foreign national who has a family petition filed for them by a sibling (sister/brother), Permanent Resident spouse, Permanent Resident parent or U.S. Citizen parent (if the foreign national is over age 21) from obtaining a Green Card in the United States once they overstay their authorized period of stay. There used to be a law called 245(i), which allowed Immigrants who had overstayed in the U.S. to pay a penalty and still be able to obtain Green Cards, but that law ended on 4/30/2001.
As part of Trump’s escalating enforcement measures targeting immigrants for deportation, reports continue that ICE (U.S. Immigration and Customs Enforcement) agents are routinely arresting immigrants who have past deportation orders or criminal convictions at their scheduled residency interviews, even when “waiver” requests have been filed. However immigrants who have merely overstayed and are simply no longer in legal immigration status are not “targets” and are not subject to arrest and deportation.
USCIS offices are coordinating with ICE to schedule interviews for “targeted” immigrants so that arrests can be made during the interview. As has been reported, immigrants in marriage and family sponsored cases appearing for what they think is a routine residency interview, are interviewed by the USCIS officer, then ICE agents take the immigrant into custody.
The American Civil Liberties Union has sued the USCIS and ICE for conspiring to “trap” unsuspecting immigrants by inviting them to these interviews only for the purpose of having ICE to arrest them there. As a result, immigrants with prior deportation order of any kind and those with pending criminal actions or convictions should seek legal assistance from an immigration attorney before filing any residency and especially before appearing at a scheduled residency interview.
The USCIS recently held a Teleconference on November 15, 2018 to provide updated information on its newly implemented “Notice to Appear” (NTA) policy to issue deportation notices to individuals who are not in legal status in the U.S. at the time an immigration application is denied.
The first phase began on October 1, 2018 and applied to immigrants denied for family-based residency (form I-485) applications and non-immigrants with denied applications to change or extend status (form I-539).
The second phase began on November 19, 2018, expanding the program to include issuing deportation notices to individuals who receive denials for T visas Form I-914/I-914A, U visas Form I-918/I-918A, Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant (Violence Against Women Act self-petitions and Special Immigrant Juvenile Status petitions), Form I-730, Refugee/Asylee Relative Petitions in the US and I-929 and Family Member of a U-1 Nonimmigrant.
Here are some major highlights of the update:
THE GOOD NEWS
Appeals/Motions: In most cases, the USCIS will generally not issue an NTA (deportation notice) immediately after a denial, but will instead allow time (33 days of the date of their denial notice) for an individual to file an appeal or a request for reopening or reconsideration of the decision and will wait until a final decision is made on that request BEFORE issuing the NTA. USCIS Denial Notices will now include a warning that an NTA will be issued if the individual is no longer in status at the time of denial and they do not either:
1) file a motion or appeal
2) depart the United States within 33 days of the date of their denial notice or
3) have another application pending at the time of their denial.
However, it should be noted that simply filing an appeal or motion does not in any way guarantee approval. Only cases which meet the eligibility requirements are approvable. That is why now, it’s more important than ever to make absolutely certain that you meet the requirements BEFORE filing any immigration application. Don’t take advice from your mother, your sister, your friend, their cousin, no, no, no, be responsible, do your research, be informed, be safe rather than sorry!
THE BAD NEWS
Criminal Convictions/Naturalization: The USCIS will issue an NTA (deportation notice) in certain Naturalization cases where applicants are deportable, ineligible to naturalize, and most importantly, where the application has been denied for failure to show Good Moral Character. This is especially troublesome since many Residents file for Naturalization without an awareness that any criminal conviction within the five years preceding the filing for Naturalization counts against a finding of Good Moral Character. This is true even if the Resident receives a suspended sentence or diversion. Further, past convictions, no matter how old can also be a problem. Depending upon the severity of the case, not only can a Resident’s Naturalization be denied, but an NTA can be issued as well. As a result, Residents with any criminal history of any kind should seek advice from a qualified criminal immigration attorney BEFORE filing for Naturalization.
Pending Immigration Cases Still Subject to NTA: Further bad news is that pending immigration cases which were filed before the rule took effect, are still subject to the NTA policy once a denial is issued. The USCIS says it also reserves the right to issue NTA’s to cases denied prior to Oct. 1, 2018, or Nov. 19, 2018, as a matter of discretion and even those denied prior to June 28, 2018, if those cases are being reviewed for cause or substantive reasons.
Withdrawing Immigration Case Does Not Forestall NTA: In the past, withdrawing an immigration application effectively eliminated the negative consequences of a denial. For instance, an immigrant filed for residency through marriage, split up with U.S. spouse while case was pending and then withdrew case. In such cases, the withdrawal was like the case was never filed and therefore for the most part, eliminated any negative effects caused by a certain denial. Under the NTA policy, however, even withdrawing a pending immigration case prior to a final USCIS decision can cause an NTA to be issued.
Illegal Immigration Hits Lowest Number In More Than A Decade!
According to statistics recently released by the Pew Research Center, the number of immigrants living in the U. S. without legal status fell to 10.7 million in 2016, the lowest number in more than a decade.
The peak number of undocumented immigrants in the U.S. was reported in 2007, with some 12.2 million residing in America. One would imagine that the decrease would be largely due to Trump’s anti-immigrant policies and vitriolic rhetoric against immigrants. However, the report concludes that the decline in the illegal immigrant populations cannot be attributed to the Trump Administration, since the statistics only cover the period up to 2016 before he took office.
Supposition about the decline in this population includes the weak U.S. economy beginning in 2008, declining birth rates in Mexico and the grant of U.S. Residency to many Mexicans sponsored by their U.S. born children.
Trump’s recent hype about the “Caravan” and “those people” overrunning our borders by the thousands is simply ridiculous. Immigrants from South and Central American always arrive at the border and file for Asylum, nothing has changed from the past. The only difference now is that the Trump Administration is refusing to allow many of these refugees to apply for asylum by allowing only a certain number to apply per day. This has caused a bottleneck at certain border entry points, which Fox News and Trump point to as proof that we are being overrun by “bad hombres”.
Understanding USCIS Requirements For Attestation of Translations
Under Immigration regulations, all foreign language documents submitted with an immigration application must include a complete translation into English and a certification from the translator indicating that the translation is complete and accurate, attesting to his or her competence as a translator, called an “Attestation of Translation”.
In the past, the USCIS did not strictly require such attestations and instead just accepted the English translation alone, however now, policy guidelines have tightened and many USCIS officers are requiring that all translations be accompanied by the attestation. As a result, applicants should be cautious to include the correctly worded attestation for all English translations, including those which are translated by the applicant or a family member. It’s also important to remember that the English translation must be an exact, full and complete translation of the foreign language document, not just an excerpt.
Here's a sample Attestation of Translation:
I Jose Gomez, hereby certify that I am fluent in the English and Spanish languages, and that the attached document is a complete and accurate translation of the document.
Typed Name: Jose Gomez
Address: 1234 Jones Street, Miami, Fl 33180
Question: I got my green card in 2012 and I sponsored my son who is 26 and single in 2013. I just got my American citizenship last month and have a few questions. Can my son’s case go faster now that I am a citizen? Also, I want to know whether he has to stay single throughout the whole immigration process? What happens if he marries his girlfriend? I am asking because he and his girlfriend just had a baby and they want to get married but my friend told me that his immigration case will be cancelled. Thanks.
Answer: That is a very critical question and the answer is one that many immigrants simply do not know. The law requires that the adult children of U.S. Residents sponsored in the F2B category remain single. If a child marries after the I-130 petition is filed but before a U.S. Resident parent becomes a U.S. Citizen, the I-130 is automatically cancelled, even if the adult child later divorces. The reason is that immigration regulations do not have a Family category for married children of U.S. Residents, only single ones. However, in your case, now that you have naturalized, if your son marries, his immigration case will remain valid, but he will go from the F1 immigration category for single adult children of U.S. Citizens, which has a 7 year waiting line, to the F3 immigration category which has a 12+ years waiting line. Since you filed for him in 2013, an immigrant visa should be available for him in a little over a year. So, the best advice is for him to remain single (F1 category), then once he obtains his green card, he can sponsor his wife and child to immigrate in the F2A category for spouses and minor children of U.S. Residents, with a waiting time of about 1 1/2 to 2 years.