Immigration Questions: (954) 382-5378
POSTING DATE: August 5, 2019
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Immigration News & Updates eNewsletter
USCIS Announces New Medical Examination Form
Must Be Used Beginning September 2019
Immigration How To:
How Do I Know If I Can Travel Outside the U.S. While I'm Waiting For My Green Card?
Immigration regulations allow qualifying family members inside the U.S. who have been sponsored by U.S. Citizens and U.S. Residents to file an application to “Adjust Status to Permanent Residency” inside the U.S. and to live and work here legally while waiting to receive a Green Card. Similarly, certain foreign nationals who are sponsored by a U.S. company, or through Investment or another qualifying Immigrant Visa program to adjust status to Residency inside the U.S..
In such cases, the qualifying immigrant files the form I-485 application along with evidentiary proof of eligibility with the USCIS along with a request for Employment Authorization (often called a Work Permit) and if eligible, a request for Advance Parole (often referred to as a Travel Permit). Both the Work and Travel permits are generally issued within about 90 days.
Question: I filed for my husbands papers earlier this year and the immigration just sent us a letter saying they want a copy of the original or certified divorce paper for my first marriage. I sent them that document with the case originally. We called the immigration 800# and they said to follow the instructions on the letter. Now we are confused that maybe they are asking for something else. Can you please help us on this so we don’t do something wrong. Thanks.
As most are aware, immigration application denials are much more common these days than in the past, and are often issued without even allowing an applicant the chance to provide additional evidence to prove eligibility.
Even worse, most applicants receiving denials who have fallen out of legal immigration status, are now also at risk for deportation under Trump’s NTA rule. The NTA rule stands for “Notice To Appear” meaning that those who receive a denial notice on most immigration applications will also later receive a notice to appear for deportation proceedings.
Trump Administration Applies Expedited Removal Policy Nationwide
The term “expedited removal” refers to immigration cases where an individual is deported from the U.S. without a hearing. The law dates back to 1996, as part of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), which generally provides that “aliens” who entered the U.S. without a visa or made a misrepresentation (lied) to an officer can be removed expeditiously from the U.S. (deported) without the requirement that they be given a hearing before a judge. Such an order cannot be appealed and generally carries a five year bar to re-entry into the U.S., although in cases of fraud, an individual can receive a lifetime bar. There are certain exemptions to expedited removal, however, including those for residents (green card holders), refugees, asylees and parolees.
Answer: After an immigration application is filed with the USCIS and the case is being processed by an officer, the forms and documents are reviewed to see if any required information is missing. If so, the officer issues a notice called “Request For Evidence” (RFE) for such documents to be provided. The request lists the requested documents and includes a deadline date by which the response must be received. It is very common that such RFE requests are vague and fail to detail exactly what the officer is really asking for, however in my experience, when they make a request for a document which has already been provided, there is usually something wrong with the original document. Without reviewing your specific RFE and copy of documents you submitted in your case I cannot tell you exactly, but I would guess that the Divorce Decree that you provided was not a certified copy of the version which was signed by the judge, only stamped with the judge’s name. Commonly, at the divorce hearing, the judge’s assistant provides the parties with a “conformed copy”, which is a stamped version of the divorce with the judge’s name, not the signature. In order to obtain a certified copy of the actual signed divorce, the parties have to go to the Clerk of Courts office and request it. This is often done immediately after the hearing. But it is never too late to get one, all you need to do is go to the clerk’s office and request a certified copy. If the divorce is from another state and you do not have anyone who can go there for you, we can provide you with contact information for a company which can obtain that for you. I will review the RFE and your documents once we meet in my office next week. Try to bring a complete copy of your forms and documents so I can give everything a thorough review, see you soon.
My Case Was Denied! Should I Appeal!
USCIS Provides Residency Extensions To Green Card Renewal Applicants
Current USCIS processing times for Green Card renewal applications (Form I-90), can exceed 6 or more months, often causing problems for Residents who require proof of legal immigration status for Driver’s License and other renewals. As a result of these long delays, local Field Offices are authorized to provide Residents with a Green Card extension sticker affixed to their expired card or I-551 Residency stamp in their passport, to provide proof of their continuing legal Residency status in the U.S.. So for those who filed for renewal or replacement of a green card, once the I-90 USCIS receipt is received, you can call the USCIS 800# and request an Infopass appointment at the USCIS Field Office to request the extension. You should bring your expired card if you have it, your I-90 receipt and passport. The extension stamp or stickers are usually valid for 9-12 months. You will be required to do your Biometrics if you have not already done so, prior to extension issuance.
The USCIS released a revised version of the medical examination form (form I-693) used by doctors authorized by the government to perform the required medical exam for immigrants as part of their residency process. The new version, dated 07/15/19, will be required starting 09/23/19 and until then, the agency will continue to accept the current 10/19/17 edition.
In most cases, USCIS designated doctors have the current version of the medical form, so there is no need for the immigrant to provide it. However, in times when a new version of the form is released, early on, some doctors may not be aware that the new form is required. As a result, it can be helpful to download and take the new form with you, if you have a scheduled medical exam in September or October 2019.
In the past, undocumented immigrants encountered within 100 miles of the U.S. border with Mexico or Canada were subject to expedited removal unless they could demonstrate that they had been continuously present in the US for at least 14 days. However, on July 22, 2019, the Department of Homeland Security (DHS) announced it was changing the policy and would now immediately expand expedited removal to apply to any individual encountered in the U.S. who has entered the country illegally and is unable to prove that they have been residing here for at least two years or more.
Experts say the DHS has likely exceeded its authority and the new policy will be found to be unconstitutional, however until a federal court orders the Trump administration to stop the policy, thousands of immigrants will likely be removed from the U.S. in the coming months without the ability to have their day in court. Stay tuned…
As a result, it’s important to understand the options available once a case is denied and whether filing for review is appropriate. Under the new NTA rule, the USCIS will hold off on issuing a deportation notice for at least 33 days, giving the applicant a chance to file a motion or appeal (for review). If the applicant files for review, the USCIS will not take any further action until the review process is complete. This provides applicants with the opportunity to file a motion or appeal and wait for a decision, which can take 3 to 12 months depending upon the case type, buying some precious time before the issuance of an NTA.
Many types of immigration case denials can be appealed to the Administrative Appeals Office (AAO) or Board of Immigration Appeals (BIA) within 33 days, and those which cannot, can still be requested for review or reconsideration. And with so much on the line, it’s important to know the difference between the options for review and what they require. 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. For practical purposes, filing an appeal or request for review or reconsideration does not mean that it will be approved and the USCIS filing fee is $675. But, given the current risks involved in USCIS denials and deportation, the risk may be well worth it, particularly in cases where an applicant is clearly eligible, but did not provide adequate documentation with the immigration application, or provided requested information after the USCIS deadline (with a reasonable explanation) which can now be provided. Ironically, when an appeal or motion is filed, 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. Ultimately, the filing of an appeal or motion is important and should be well prepare and properly submitted. 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.
You can get free information about filing Appeals and Motions by calling our office at: 954-382-5378.
Question: I have a question about getting my residency. I came to florida about 10 years ago on a student visa but after I graduated I never left. I know that I could do a fake marriage and get my papers, but I want to look for legal ways to get my status straight. My mother just got her green card through my sister who is a citizen. If my mom files for me, will that get me back in legal status again?
Answer: First, I am happy to hear that you have not gotten married just to get your residency, and it is important to know that these days, had you done so and been denied, you would likely find yourself in deportation. Marriage immigration is a one-way street and there is no way to get off that road in order to pursue any other immigration option once you begin. And contrary to what friends and family may tell immigrants, many fake marriage cases are often denied and end in immigration tragedy. With that said, it is also important to know that under current immigration regulations, most immigrants who are inside the U.S. without legal status, or with expired status are not eligible to obtain legal status inside the U.S.. This includes adult children of U.S. Citizens and Residents, and Siblings of U.S. Citizens. There are, however, exceptions for parents, spouses and minor children of U.S. Citizens, who can obtain residency status in the U.S., as long as they entered the U.S. legally, even though they may have later fallen out of legal immigration status. This is why so many desperate immigrants resort to entering into fake marriages in an attempt to obtain legal status, because the law is stacked against them!
If you are single, your U.S. Resident mother can file a family petition for you, and the waiting time for an adult, single child of a resident is about six years (F2B Immigration category). However, unless the law changes, once you get to the front of the immigrant visa line in six years or so, you will not be eligible to get your green card in the U.S.. In the good old days, before April 30, 2001, a law called 245(i) (which has since expired) allowed any immigrant in the U.S. who was not in legal status to simply pay a $1,000 penalty, but still get his or her residency, it was as simple as that! But those days are long gone. So your mom can file for you to get you a place in the immigrant visa waiting line and just be patient and hopeful that the Democrats win back the Presidency and the U.S. Senate, so we can get a comprehensive immigration reform law which would allow you and millions of others to finally obtain legal status.
Question: I am a resident and I have my 10 year green card through my parents. I was dating my girlfriend in Jamaica for four years before I immigrated to the us, but we didn’t get married because my parents said that would mess up my immigration. Now that I am here and got a job, me and my girlfriend want to get married and I want to file her papers. What is the fastest way to bring her here? I know I have to wait 5 years before I can get my American citizenship. She has a visitor visa, does that help our situation? Can she come and stay and we get married here? If we get married here and apply for her papers I know it`ll take longer since I`m not a citizen, but in the meantime will she have the right to work?
Answer: I have been getting many similar questions recently, since the immigration category (called F2A) for spouses and minor children of U.S. Residents has become “current” as of July 1st, meaning that there are immigrant visas immediately available in the F2A category. This means that any spouse or minor child of a U.S. Resident who is inside the U.S. currently in legal immigration status, whether through a tourist visa, student visa, etc, is eligible to file for residency and remain in the U.S. legally during the entire immigration process to obtain a green card. As part of the residency process, the request for a work permit is filed and employment authorization is received within about six months. So in your case, if your girlfriend is in the U.S., you can get married here and file for your residency and she will be able to live and work here legally while waiting for her green card. Let me know if you want us to handle her residency case so that it is filed and processed properly so the process goes smoothly.
But Interestingly, once the I-485 adjustment of status application has been filed and accepted by the USCIS, the foreign national is now in the “adjustment of status” process and is not authorized to re-enter the U.S. after travel abroad at any time before receiving U.S. Residency (a Green Card) without the explicit permission of the USCIS through its issuance of an Advance Parole document. This document is not an authorization to leave the U.S. as many immigrant believe, but instead an authorization to be allowed to re-enter the U.S. after foreign travel abroad.
In fact, if an immigrant who is in the “adjustment of status” process leaves the U.S. without first applying for an “Advance Parole” document, his or her pending application for U.S. Residency will be automatically cancelled. In many cases, applicants can find themselves stranded abroad and unable to re-enter the U.S..
There are a few exceptions to this rule, which include those immigrants who have valid work visas stamped in their passports for an L-1 or H-1B work visa and those for dependents. In such cases, adjustment of status applicants with these passport visa stamps are permitted to re-enter the U.S. using these entry visas and are not required to use an Advance Parole document.
Once the travel permit is received, even immigrants who were out of immigration status prior to filing for residency are eligible to travel abroad and reenter the U.S. legally. Good to know…