Reflections after the election

I want to give you some thoughts about the future, after the results of the presidential election.

I do not know whether we will get any significant changes in immigration laws during the next 4 years.  It is possible, but it is also possible that there might not be changes.  It will depend on the priorities of the Trump Administration and on the actions of Congress.

For persons who are U.S. citizens or permanent residents, the election of Donald Trump should not result in any particularly new or different problems for you with respect to U.S. immigration laws.

For everyone else, if there are significant changes in immigration laws, the laws might actually help, or they might make things worse.  At this time, we just don’t know.  If there are changes in the laws, we also don’t know how quickly or slowly such changes might occur.  Things in Washington often move more slowly than we might think at first.

It is possible that the way cases are handled by the various immigration agencies will become stricter, but that also will not happen overnight.  There are thousands of immigration officials employed at USCIS, ICE, and CBP (Customs and Border Protection), and so if there are changes in procedures, they might happen slowly, if at all.  At this time, we just don’t know what changes in procedures might occur.

Probably most of the thousands of current employees in the federal government will remain working at their jobs.  Most will probably continue to handle cases the same way that they have been handling them up to now.  It is possible that the Trump Administration could call for changes in the way that cases are handled, but again, many of those changes (if any) take time to be implemented.

Some programs, such as the I-601A Provisional Waiver Program, remain in place.  A program such as I-601A could only be changed through an official process, which could take 6 months or longer.

Other programs, such as DACA, could be eliminated more quickly.  The future of DACA as of January 20, 2016 is uncertain.

I think that it is possible that CBP (the officials at the airports and the borders) might become tougher and stricter in their encounters with persons traveling into the United States.  I always advise that you communicate with me before you travel.  Now, with the election results, I want you to know that you might possibly face a more difficult encounter with CBP when you return to the United States.  We don’t know how CBP might change the way they do their job.  At this time, the best we can say is that they might become more strict.

For persons who have cases in Immigration Court, and whose cases have been administratively closed, the future is uncertain.  There exists the possibility that the new administration could order ICE to continue with your case in Immigration Court.  At this time, we do not know what the new administration might, or might not, do with cases that have been administratively closed.  If your case returns to the Immigration Court, or to the Board of Immigration Appeals (BIA), then we will have the right to continue to argue on your behalf to try to obtain any immigration benefits in Immigration Court or the BIA to which you may be entitled.

Adjudicators will not instantly start deciding cases differently from how they are doing it now. A case that would be approved today will be approved in the first few months of Trump’s presidency. There could be rapid change in specific types of cases due to a policy change – DACA is the most likely target of such a policy change – but the majority of cases will be decided the same as before.

New administrations can change how things are done, but there are laws preventing that from happening too quickly.

For cases that we are currently preparing, I expect we will be able to finish before substantial, sweeping change takes place. I cannot promise that a sudden policy change won’t affect your case, but I believe it is unlikely. The best thing to do is carry on and try to finish as quickly as possible. You can help me in that regard by providing me with requested information and documentation as quickly as possible when I request it. The sooner we finish your case, the better.

You will have questions that I will be unable to answer because I do not know the future. My promise to you is that I will do the best possible job on your case. Do not despair. Keep moving forward.

If after reading this you still have questions, please send them and I will respond as soon as I can.

Humanitarian Parole

Some families are not able to reunite completely in the United States because of the restrictions of U.S. immigration laws.  For example, a permanent resident of the United States might have a widowed mother who is all alone in her home country, and perhaps with significant difficulties in her country.  This woman’s permanent resident son or daughter is not able to file a petition for permanent residence for her, until the permanent resident is able to become a U.S. citizen, often involving a wait of 3-5 years.

Other families may have a U.S. citizen in the United States who could file a petition for mom and dad to become permanent residents, but might have a sister with medical disabilities or special needs who live with mom and dad and who is either too young or have other disabilities that would prevent her from caring for herself, especially if she lives in a country with strife or political turmoil.

For families facing this type of situation, Humanitarian Parole might be a good option to try.  Humanitarian parole is offered by USCIS to persons who have compelling reasons to be reunited with family members in the United States, but who are unable to obtain a visa.

Many persons who obtain Humanitarian Parole will become eligible to obtain a more stable immigration status in the future.  For example, some persons might be able to obtain permanent resident status after being in the United States for a number of years.  Each case is different and depends upon the particular facts of the individual persons involved.

For many persons who are granted Humanitarian Parole, the initial parole period is one year.  These persons then apply to be re-paroled while they are in the United States.  USCIS approves many of the re-parole requests, which allow persons to remain in the United States while they wait for a more stable solution to their immigration status, such as permanent resident status.

USCIS indicates that they grant about 25 percent of the applications they receive for Humanitarian Parole, and they deny the rest.  For this reason, it is important to prepare the application with care.  If you believe that you or a family member might qualify for Humanitarian Parole, then you should work with an experienced immigration attorney to have the best chance of success.

I have successfully obtained Humanitarian Parole for my clients, and I would be happy to work with you to explore the possibilities for your family.

USCIS expands provisional unlawful presence waivers to LPRs

USCIS has announced that, beginning August 29, 2016, more persons will be eligible to seek an I-601A provisional waiver of unlawful presence.  Eligibility for the I-601A waiver will be extended to spouses and children of lawful permanent residents.  Eligibility will also extend to the spouses and children who accompany or follow to join the principal immigrants.

The full details of this expansion are available here.

Before this expansion, only spouses and children of U.S. citizens were eligible to apply for the I-601A provisional waiver of unlawful presence.  Beginning August 29, 2016, spouses and children of lawful permanent residents, or “green-card” holders, will also be eligible to apply for the I-601A waiver.

The I-601A provisional waiver provides a significant advantage over the regular I-601 waiver.  The main advantage is that the applicant may apply for the I-601A provisional waiver before leaving the United States to attend the interview for an immigrant visa at a U.S. Consulate or Embassy.  As a result, the amount of time that the applicant spends outside the United States is greatly reduced, from a matter of months or years in some cases, to a matter of weeks in the majority of cases.

Please remember that this expansion of the I-601A provisional waiver of unlawful presence will not take place until August 29, 2016.

Applications for waivers are complex.  I strongly suggest that you work closely with an experienced immigration attorney to handle your waiver application.  I have years of experience handling many waiver applications with success.  Please give me a call at the office at (734) 369-3131 or email me at for more information.

A few thoughts about affirmative asylum, Part 2

This is the second posting about the “affirmative asylum” process.

Please click here to read Part 1.

As with all applications for asylum, the task for the applicant is to show that he or she has a well-founded fear of being persecuted in his or her country of origin by the government or by individuals or groups that the government cannot or will not control.  In addition, the applicant must show that the persecution (or fear of persecution) is because of at least one of the following five reasons:  the applicant’s (1) race, (2) religion, (3) nationality, (4) political opinion, or (5) membership in a particular social group.

Another important requirement is that the applicant submit the asylum application within one year of the applicant’s most recent entry to the United States.  If the applicant submits the application more than one year after the most recent entry, then the applicant will need to show that there were either exceptional circumstances or changed circumstances that led to the delay in filing.

Back to the five reasons for persecution, let’s discuss “membership in a particular social group” (referred to as “PSG”).  This doesn’t mean that an applicant needed to be a member of an official club, or society, or organization.  It means that the applicant may state that he or she is persecuted because of some particular characteristics that he or she has.  For example, a woman who is fleeing domestic violence in her home, and who is from a country in which women have no real protections from the government against domestic violence, might be in a PSG of “women from Country X who are viewed as property due to their role in a domestic relationship.”

After the very long wait for an interview at at USCIS Asylum Office, and then at some point after the interview, USCIS will issue a decision on the application.  If USCIS approves the application, then the applicant is an “asylee,” and one year after the USCIS decision, the asylee may apply for permanent resident (green card) status.

If, at the time of the USCIS decision, the applicant is in lawful immigration status, then if USCIS does not approve the application, they will simply issue a denial.  The applicant will continue in their lawful immigration status.  On the other hand, if the applicant is not in lawful immigration status, then the applicant will need to appear later in Immigration Court, where an Immigration Judge will take a fresh look at the asylum application.

Asylum law is extremely complex.  If you are considering applying for asylum, you should work with an experienced immigration attorney.

A few thoughts about affirmative asylum, Part 1

I would like to share a few thoughts about the affirmative asylum process.  When I say “affirmative asylum,” I am referring to a person who decides to file for asylum while he or she is not in removal proceedings in Immigration Court.  So, the person “affirmatively” applies for asylum, rather than filing “defensively” in Immigration Court.

When a person files an affirmative asylum application, the application goes to USCIS, which stands for U.S. Citizenship and Immigration Services.  USCIS will receive the application, and, if the application meets certain requirements, such as being filled out correctly, containing the applicant’s signature, etc., then USCIS will send a receipt notice to the applicant, and to the attorney, if the applicant is filing with the help of an attorney.  The receipt will arrive in a small thin envelope, and it will be difficult to read the text on the receipt.

Next, the applicant will receive a biometrics notice.  This notice will be on regular letter-sized paper, and it will be easier to read.  The applicant will be directed to go to a USCIS office to get his or her fingerprints and photograph taken by USCIS.

After that, there is the very long wait for an asylum interview.  USCIS has 8 offices in the United States that are dedicated only for asylum interviews and decisions.  The 8 offices are, roughly from east to west:  New York, New York; Newark, New Jersey; Arlington, Virginia; Miami, Florida; Chicago, Illinois; Houston, Texas; San Francisco, California; and Los Angeles, California.

The applicant will be interviewed at the Asylum Office that has jurisdiction over the location where the applicant is living.  The waiting time for an interview varies by the office, but at this time, the waiting time for an interview varies from about 1 1/2 years (New York office) to more than 5 years (Los Angeles office).  At the Chicago office, the current wait for an interview is nearly 3 years.

Five months after the applicant submits the original asylum application to USCIS, the applicant may submit an application for an Employment Authorization Document (EAD).  By federal regulation, USCIS is supposed to issue the EAD within about 30 days of the application, but in reality, USCIS often takes about 90 days to issue the EAD.

Once the applicant receives an EAD, the applicant may file for a Social Security Number at the nearest Social Security Office.  The applicant may also apply for a driver license or state-issued ID, depending on the regulations in the applicant’s state.  The EAD will be valid for 1 year.  The applicant may renew the EAD each year, while the asylum application remains pending.

After the applicant has the asylum interview, then begins the wait to receive the decision from the Asylum Office.  The wait time for the decision after the interview varies quite a lot, but some wait times of 2 years or more are common.  Again, while the case is pending, the applicant may continue to renew the EAD.

In a later post, I will discuss more about the details of the asylum application process.


Victory at the Appeals Office

I just received good news from the USCIS Administrative Appeals Office (AAO).  The AAO agreed with me, and reversed a denial issued by the USCIS Detroit Field Office.

My client has been in the United States for many years.  He entered the United States legally, under a public interest parole.  That parole authorized my client to reside in the United States for an indefinite period of time.  So, he has never been in the United States without authorization.

As we had noted to the Detroit Field Office, and as the AAO stated, my client has a low level of literacy, suffers from post-traumatic stress disorder (PTSD), suffers from depression, and has suffered a traumatic brain injury.

My client has been convicted of two theft crimes.  Because of those convictions, my client was deemed to be inadmissible to the United States.  My client’s mother, a permanent resident of the United States, had begun the process many years ago to help my client to become a permanent resident.

We submitted an application for permanent residence, along with an application for a waiver of inadmissibility, to state the reasons why USCIS should waive his inadmissibility, because a denial of the waiver would result in an extreme hardship to my client’s mother.

The USCIS Detroit Field Office agreed that we had shown that the denial of the waiver would, indeed, result in extreme hardship to my client’s mother, who is the sole caretaker of a household of 8 persons.  Nevertheless, the Detroit Field Office denied the waiver application, stating that my client didn’t deserve to become a permanent resident.

We submitted an appeal to the AAO, stating that the Detroit Field Office made a mistake by denying the waiver on discretionary grounds.  The AAO agreed with us, stating that, “[w]hen considering the totality of the circumstances, we find that the positive factors in this case, including the Applicant’s family ties, length of residence in the United States, and hardship to himself and his family members if he is removed, outweigh the negative factors, and he merits a favorable exercise of discretion.”

We are very thankful to the AAO for their reasoned decision.  I am hopeful that my client will soon become a permanent resident.

Humanitarian Parole Granted

I have a client for whom I was recently able to obtain humanitarian parole.  My client was living outside the United States.  Her parents obtained immigrant visas, which enabled them to enter the United States as permanent residents.  But she would need to wait many years before she would be eligible to obtain an immigrant visa.  She is a person with special needs, including a cognitive impairment, and she is not able to live by herself.  If we were not able to obtain a solution for her to enter the United States, then her parents would have remained with her, and they would not have been able to immigrate and become permanent residents.

We presented the application to USCIS, which granted Humanitarian Parole to my client.  She was able to enter the United States along with her parents.  Eventually, after a number of years, she will be able to apply for permanent resident (green card) status.

USCIS indicates that they grant about 25 percent of the applications they receive for Humanitarian Parole, and they deny the rest.  For this reason, if you believe that you or a family member might qualify for Humanitarian Parole, then it is advised that you work with an immigration attorney to have the best chance of success.

I would be happy to work with you to explore the possibilities for Humanitarian Parole.

USCIS to review visa petitions by same-sex spouses

DHS Secretary Janet Napolitano has directed USCIS to “review immigration visa petitions filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex spouse.”

In light of the U.S. Supreme Court’s decision to strike down the Defense of Marriage Act (DOMA) as unconstitutional, Napolitano ordered USCIS to implement the ruling “swiftly and smoothly.”

If you are a U.S. Citizen or Lawful Permanent Resident, and you were lawfully married to a person of the same sex in a jurisdiction that legally recognizes same-sex marriage, then you may file and I-130 Petition to begin the green-card process for your same-sex spouse.  USCIS will review your petition and will make a decision using the same procedures and rules that are used to review petitions filed for opposite-sex spouses.

If you and your same-sex spouse were lawfully married in a place that legally recognizes same-sex marriage, but you now live in a  state that does not recognize same-sex marriage, USCIS will still review your petition.  With very few exceptions, USCIS will look the law of the place where you married, and not to the law of the place where you are currently living, to determine whether your marriage is valid for purposes of immigration law.

Please note that, as with all marriage-based petitions, USCIS will review each petition to determine not only whether the marriage is legally valid, but also to determine the good-faith nature of the marriage.  USCIS looks to the circumstances of the marriage relationship, including, but not limited to, issues such as whether the couple live together, share financial burdens and benefits, and have a history of being in communication with one another over time.

If you are considering filing a marriage-based petition, it is a good idea to consult with an immigration attorney in order to have the best chance of success and to avoid problems with the petition.

The New Provisional Waiver

DHS has published the new provisional waiver rules. USCIS will begin to accept applications for provisional waivers on March 3, 2013.

The new waiver process allows certain people to apply for waivers in inadmissibility while remaining in the United States. If the waiver is approved, then the applicant goes abroad for an immigrant visa interview.

Congress investigates USCIS delays in new processing program

Congress is looking into a delayed program to computerize the immigration application process.

U.S. Citizenship and Immigration Services (USCIS) is heading the “Transformation” program, which began in 2007 with a budget of $536 million and a plan to automate the paper-based application process by 2013.

So far, $630 million has been spent, current cost estimates have ballooned to $2.2 billion, and the project is scheduled to be completed in 2022.

In a February 16 letter to the Director of USCIS, Senator Chuck Grassley, Republican of Iowa, wrote, “I’m concerned that very few improvements have been made since the Government Accountability Office reported to Congress in 2007 about the Transformation initiative. . . . The GAO and the inspector general have noted that ‘efforts to modernize . . . have been unfocused, conducted in an ad hoc and decentralized manner, and in certain instances, duplicative.’ “

You can read the complete article here.