Recent Blog Posts

Prosecutorial Discretion; Latest EOIR and ICE statements

Wed, 23 Nov 2011 05:03:00 GMT

For the EOIR statement on prosecutorial discretion, click the following link

http://www.justice.gov/eoir/press/2011/EOIRProsecutorialDiscretion11172011.htm

For the November 17 2011 ICE statement on the steps towards implementation of the August 18 2011 announcement on enforcement priorities, in line with the memorandum on prosecutorial discretion, click this link

http://www.ice.gov/doclib/about/offices/ero/pdf/pros-discretion-next-step

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K-1 Fiance(e) Visa and Customary/Tribal Engagement

Sat, 05 Nov 2011 14:41:00 GMT

The K-1 visa is meant to be used by a United States Citizen (USC) to bring his/her fiance(e) into the U.S. conditioned on the fact that they will marry within 90 days of entry.

There are some basic requirements to be eligible to use this visa;

1. The petitioner must be a USC. A lawful permanent resident or green card holder cannot petition for a fiance(e).

2. The parties must have previously met in person within 2 years of the filing of the petition, and intend in good faith to marry within 90 days of entry.

3. The intended marriage that would take place must be legal in the sense that both parties are of the age to marry and if any had been previously married, there has been a valid divorce.

There are also other considerations that are not the focus of this writing such as the fact that the applicant must be generally admissible, that the USC's criminal history may be an issue, and matters related to repeated filings.

The K-1 visa process is attractive to many USCs because it is thought by some to be a quicker way of bringing in one's would be spouse into the U.S. as against getting married in the foreign country and going the route of an I-130 filing, and consular processing of an immigrant visa. (These days it is the writer's view that speed should not be a consideration in whether or not to go this route because of the fact that processing times for an I-130 is comparable to that for an I-129F, plus factoring in the fee for adjustment of status in the U.S.).

The K-1 visa would also be the visa of choice where the parties prefer to have their marriage and wedding done here in the U.S. especially if they have more friends and family here.

Pitfalls of Customary/Tribal Engagement

As stated earlier, for a successful K-1, the petitioner and applicant need to show among other things that they have met in person within 2 years and intend to marry within 90 days of entry.

A customary or tribal engagement may be very fluid in the sense that one may not be certain when the parties cross the line of engagement into a customary marriage. Sometimes no two experts or courts would agree as to exactly when a customary marriage has or has not occurred. Where for example, bride price is the corner stone of a customary marriage, sometimes some local courts or experts have found that there is a valid customary marriage though the bride price has not been paid. Some experts or local courts are prepared to recognize a valid customary marriage where the bride went home with the groom after the initial formal customary engagement. Therefore an elaborate customary engagement may actually be interpreted or misinterpreted as a valid customary marriage thereby making the parties ineligible for a K-1 visa.

It is my opinion that parties who may face this type of situation should avoid an elaborate customary engagement as a consular officer may find that a marriage has already taken place.

The law only requires that the parties have met physically within 2 years, and that they have a good faith intention to marry within 90 days of entry. Emails for example may be a way to prove an intention to marry without the risk of a consular officer thinking that a marriage has actually occurred. In this age of social media, such an intention can also be shown using such media.

Where the parties decide to have an elaborate customary/tribal engagement notwithstanding, it may be a good idea to be proactive and obtain affidavits from the tribal leader(s) or custodian affirming that what had transpired was an engagement only, and stating the reasons for such conclusion under the particular custom.

In no way am I advocating that anyone should abandon their culture out of fear of what a consular officer may decide. The fact of the matter remains that the lines are sometimes not very clear as to what has happened. Ultimately the parties will decide what and how they wish to proceed.

U.S. Department of Labor Protocol for U Visa Certifications

Fri, 29 Apr 2011 16:16:00 GMT

Please click on the link for full details;http://www.dol.gov/opa/media/press/whd/WHD20110619.htm

http://www.dol.gov/opa/media/press/whd/whd20110619-qa.pdf

Voluntary Departure; What you need to know.

Thu, 28 Apr 2011 17:21:00 GMT

Voluntary Departure literally means and implies what it says. It involves permitting a person who is otherwise removable the privilege of leaving or departing on his/her own. A subtle point worth mentioning is that voluntary departure permits a person to depart on his/her own to any country that s/he can legally depart to.

Many people do not realize it but the relief of voluntary departure is not available to every alien. For example the relief is generally not available to someone who has been convicted of an aggravated felony. (Remember that aggravated felony has a much narrower definition in immigration law than in criminal law). Other restrictions and conditions exist regarding voluntary departure depending on the stage at which the relief is being considered.

Advantages of Voluntary Departure;
1. For the government, voluntary departure saves time, resources and money. Time and resources that may be spent on a removal proceeding may be saved depending on the stage when the voluntary departure is granted. Also the person bears the financial cost of the departure.

2. For the alien;

Volunatry departure means that s/he avoids any negative stigma that may be attached to a removal
S/he does have some time to wind up his/her affairs and put his/her house in order before departure
The grant of voluntary departure also means that s/he would not be subject to the admissibility bar which a person ordered removed would otherwise be subject to (generally 10 years) (statutory waiver available but grant is discretionary)
Voluntary departure is also beneficial to a person who has accrued some period of unlawful presence past 180 days but less than 1 year because such a person if granted voluntary departure after the commencement of proceedings gets to avoid the 3 year bar to admissibility.

Voluntary Departure; Any Downsides?

When a person is granted voluntary departure, it is usually for a fixed period. Failure to depart within the time granted can have severe consequences. The most severe of those consequences is that such a person becomes ineligible for 10 years to receive any further relief such as cancellation of removal, adjustment of status, change of status, registry, or voluntary departure.
Additionally a person who overstays the voluntary departure period is also subject to a monetary penalty of at least $1000 and not more than $5000.
The situations when the above severe consequences may not apply are not many. In some situations they may not apply to a VAWA self petitioner/applicant. Also they may not apply if the voluntary departure period is terminated by the filing of a motion to reopen or motion to reconsider, or by the filing of a petition for review during the voluntary departure period. Also where the failure to depart was not voluntary as provided by the statute, then the consequences may not apply.
Where a person would be subject to the 10 year unlawful presence bar, voluntary departure may also be of little practical benefit.

If you are considering the relief of voluntary departure, it is a good idea to fully discuss it with your immigration attorney in light of your own particular circumstances.

In Absentia Removal Order

victor okeke — Wed, 27 Oct 2010 15:22:00 GMT

When a person receives proper notice of a removal hearing or proceedings against her, and fails, refuses or neglects to attend, such a person would in all likelihood be ordered removed in absentia.

Where an in absentia order of removal is entered against someone, it carries some adverse immigration consequences over and beyond a regular order of removal.

Usually, whereas one can appeal against an order of removal, there is no right of appeal against an in absentia order of removal. One may only file a motion to reopen to rescind such an order under certain circumstances.

Also where such failure to appear was subsequent to one receiving the oral notices called for under the law, such person is in addition to having the in absentia order entered against them, also barred for 10 years from eligibility for many discretionary reliefs such as cancellation, and adjustment of status.

MOTION TO REOPEN TO RESCIND AN IN ABSENTIA ORDER[1]

The law provides limited circumstances under which one may apply to have an in absentia order of removal rescinded. There are two main circumstances:

Where the failure to appear was because of exceptional circumstances and the motion to reopen is filed within 180 days after issuance of the in absentia order of removal. Exceptional circumstances in this situation refer to battery or extreme cruelty to the person, their child or their parent. It also includes the person's serious illness, or the death of a spouse, child or parent. There may be other situations that Courts have held amount to exceptional circumstances and one must consult an Immigration Attorney to look at her particular set of circumstances.

Whatever one does under this reason must be done within 180 days, unless in particular situations where the Courts may apply equitable tolling. Even then, diligence must be shown. In the 11^th Circuit, there may be no tolling.

One can apply to have such order rescinded at any time, if she can be show that she did not receive notice in accordance with law, or because she was in federal or state custody and the failure to appear was not her fault.

The filing of such motion triggers an automatic stay of removal pending conclusion of the motion by the Immigration Court.

Lastly, in the context of asylum,witholding and/or CAT, an in absentia order of removal may be rescinded/reopened based on changed circumstances arising consequent to changed country conditions in the country to which removal has been ordered, where evidence of such is material, and was unavailable, and could not be discovered or presented at the previous proceeding.

[1] Discusses only Removal Proceedings and Not Deportation or Exclusion Proceedings.

EOIR announces more secure way to obtain case information

Mon, 16 Aug 2010 20:53:00 GMT

EOIR announces that effective 08/23/2010, there would be a more secure way to access your Immigration Court case information over the phone. See http://www.justice.gov/eoir/press/2010/800NumberReplacement.pdf

U visa reaches its numerical limit for fiscal 2010

victor okeke — Mon, 19 Jul 2010 03:35:00 GMT

The U visa: primarily for crime victims who have been helpful to law enforcement reaches its numerical limit of 10,000 for 2010. Read onhttp://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=5d5d58a734cd9210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD.

Extension of TPS for El Salvador

victor okeke — Mon, 12 Jul 2010 13:28:00 GMT

Temporary Protected Status has been extended for nationals of El Salvador or those without nationality who last habitually resided in El Salvador from the current expiration date of September 9 2010 to March 9 2012. There is also an automatic extension of Employment Authorization Documentation for El Salvadorian TPS beneficiaries. Read the details in the Federal Register http://www.justice.gov/eoir/vll/fedreg/2010_2011/fr09jul10.pdf

BIA overrules Matter of Saysana

victor okeke — Mon, 28 Jun 2010 14:43:00 GMT

In Matter of Luis Felipe Garcia Arreola, 25 I&N Dec.267 (BIA 2010), the BIA departed from Matter of Saysana, 24 I&N Dec.602 (BIA 2008) on the issue of mandatory detention as provided under INA § 236(c). The BIA held that ''section 236 (c) of the Act requires mandatory detention of a criminal alien only if he or she is released from non-DHS custody after the expiration of the TPCR and (italics mine) only where there has been a post-TPCR release that is directly tied to the basis for detention under sections 236(c)(1)(A)-(D) of the Act".
This decision should hopefully bring some certainty to an area where some circuits and the BIA have gone in different directions. Read the full decision here www.justice.gov/eoir/vll/intdec/vol25/3685.pdf

H-1B visa FY 2011 Update

victor okeke — Wed, 28 Apr 2010 13:12:00 GMT

H-1B petitions for FY 2011 still being accepted by USCIS as the cap amount of 65,000 has not been reached as at 4/22/201http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=4b7cdd1d5fd37210VgnVCM100000082ca60aRCRD&vgnextchannel=73566811264a3210VgnVCM100000b92ca60aRCRD

ASYLUM: 10 Things to Know

victor okeke — Mon, 26 Apr 2010 15:46:00 GMT

1. An application for asylum must be filed within 1 year of an applicant's arrival to the United States to be considered properly filed and be adjudicated (very limited exceptions to this rule).

2. The spouse and unmarried children under 21 years of age can benefit from an approved asylum application, thus they can join the principal asylee here in the United States.

3. An asylum applicant can apply for emplyment authorization after 150 days of a pending, properly filed application. However, such employment authorization would not be granted until at least 180 days i.e 30 days after the 150 days.

4. The spouse and unmarried children under 21 years of age are also employment eligible pursuant to an approved asylum application.

5. Asylum status is for an indefinite but temporary period. This basically means that an asylee may have his/her status revoked if for instance there are changed circumstances in his/her country making the basis of the original grant non existent.

6. Although an asylee is not required by law to adjust status to that of a lawful permanent resident, (LPR), because of 5 above, it may be beneficial so to do. Eligibility to adjust status accrues to the asylee after one year of the grant of asylum.

7. During the pendency of the application, an asylum applicant can only travel with proper authorization or he/she would be deemed to have abandoned the application.

8. Where the asylum applicant travels to the country of feared persecution during the pendency of the application, he/she is also presumed to have abandoned the application unless if there were compelling reasons for such travel.

9. Upon grant of asylum, an asylee should be wary of travelling to the country of feared persecution as such travel may become a basis for revocation especially where the asylee has reavailed himself/herself of the protection of the said country of persecution.

10. Conviction for an aggravated felony or any other very serious crime (amongst others) would render one ineligible for asylum.

6 Reasons an immigrant must avoid an aggravated felony conviction

victor okeke — Sun, 25 Apr 2010 01:50:00 GMT

As an immigrant, it is best to avoid an aggravated felony conviction, or indeed a conviction of any type. If a conviction seems inescapable, then your criminal defense attorney, in consultation with an immigration attorney should strive to make sure that such a conviction is not one for aggravated felony for immigration purposes. Here's why;

1. Aggravated felony conviction vs Naturalization
To be eligible for naturalization, an immigrant (amongst other reqiurement), has to show that he/she is a person of good moral character within the relevant period. An aggravated felony conviction takes away this possibility because it makes such an immigrant statutorily incapable of establishing good moral character, thereby never being able to attain naturalization/citizenship.

2. Aggravated felony conviction vs Deportation/removal
A conviction for an aggravated felony, without more, is sufficient ground for initiation of deportation/removal proceedings.

3.Aggravated felony conviction vs Humanitarian reliefs
A conviction for an aggravated felony renders one ineligible for asylum. It also renders an alien ineligible for Withholding in those situations where the aggravated felony qualifies as a particularly serious crime. The same is true for the relief of Withholding under the Convention Against Torture. Temporary Protected Status (TPS) is also unavailable.

4.Aggravated felony conviction vs Discretionary reliefs
Voluntary departure ( a really good relief in many situations) is not available to an aggravated felon. Waivers are either unavailable or much tougher to obtain. Adjustment of status may also be denied based on an unfavourable exercise of discretion.

5. Aggravated felony conviction vs Statutory reliefs
Cancellation of removal is a relief from deportation or removal available under the law to a lawful permanent resident (LPR) in some situations. However, a conviction for an aggravated felony makes an otherwise eligible LPR ineligible. An almost similar relief available to non LPRs, and which gives an eligible alien a way towards adjustment of status, is not available where there has been a conviction for certain crimes, including an aggravated felony conviction.

6. Aggravated felony conviction vs Bond eligibility
In most cases, a conviction for an aggravated felony would render an alien ineligible for bond during deportation/removal proceedings. Possibility for bond are only in very narrow and limited situations.
Avoid the aggravated felony conviction like you would a plague

Padilla v Kentucky: U.S. Supreme Court Decision on 3/31/2010

victor okeke — Thu, 01 Apr 2010 12:47:00 GMT

Padilla was facing deportation after pleading guilty to drug distribution charges in Kentucky. He had been a Lawful Permanent Resident for over 40 years. Padilla argued that his counsel failed to advise him of the consequence of deportation before he entered his guilty plea. Counsel told him not to worry about deportation since he had lived in the U.S. for so long. Padilla argued he would have gone to trial had he known otherwise.
The Supreme Court held that changes to U.S. immigration law have made accurate and competent legal advice for non citizens accused of crime very paramount. The sixth amendment's guarantee of effective assistance of counsel was therefore violated as Padilla was wrongly advised as to the consequences of his guilty plea. Read the full text; http://www.supremecourt.gov/Opinions/09pdf/08-651.pdf

H-1B Visa; FY 2011 Cap Petitions ( general H-1B information)

victor okeke — Wed, 31 Mar 2010 16:07:00 GMT

USCIS will begin accepting petitions for H-1B visas tomorrow, 1st April 2010 for the FY 2011 cap. The cap is 65000 with an additional 20000 for the advanced degree exemption. The earliest requested start date on FY 2011 petitions would be 1st October 2010 ( which is the beginning of the FY 2011), if the petition is filed on 4/1/2010. This is due to the fact that an H-1B petition should not be filed earlier than 6 months prior to the requested start date.

The H-1B visa is a dual intent non immigrant visa that covers mainly "specialty occupations". Services relating to some Department of Defence research and development projects as well as fashion models of distinguished merit and ability are also included in the H-1B classification. for the most part, at least possession of a bachelors degree is a minimal reqiurement. Specialty occupation includes such fields as architecture, accounting, mathematics, law, physical and social sciences, education, arts and theology. This list is not exhaustive. As a matter of fact "specialty occupation" has been statutorily defined: INA § 214(i)(1)(A)(B) and 8 C.F.R. § 214.2(h)(4)(ii).

The first step in the application process is to file Form ETA 9035, Labor Condition Application with the U.S. Department of Labor. The Employment and Training Administration (ETA) is the division of the DOL charged with the responsibility of receiving and certifying an LCA. Usually an electronic submission of the LCA through the iCERT portal would receive a response within 7 days unless if there are errors.
Upon certification of the LCA, the petitioner, usually the U.S. employer would file the petition, Form I-129 (petition for non immigrant worker) with the USCIS with amongst other things and attestations, a certification from the Secretary of Labor that the petitioner has filed an LCA with the Secretary.

H-1B visas are generally portable. The beneficiary can accept new employment if the prospective new employer files a new petition on his behalf. However if the new petition is denied, then such employment must cease. This new petition must also include a new LCA.
Licensure is necessary for some specialty occupation in which case the beneficiary must have obtained such licence. In some situations, a temporary licence may be sufficient for 1 year with an extension if the beneficiary obtains permanent licensure within the year. There may also be situations where a beneficiary can lawfully work without a licence if the State allows such person to practice under the supervision of one who is licensed.
Subject to the AC21, the H-1B visa granted in a specialty occupation may be extended, but the total period of stay may not exceed 6 years.

Finally, due to the fact that the H-1B visa is a dual intent visa, a beneficiary may benefit from a permanent labor certification approval, or the filing of a preference petition without jeopardizing an extension, admission, or change of status application.

Farmers Branch Texas Ordinance Struck Down: Villas v. The City of Farmers Branch, Texas

victor okeke — Sat, 27 Mar 2010 02:12:00 GMT

City of Farmers Branch, Texas had enacted an Ordinance that required property owners/landlords to determine if a tenant or a prospective tenant was in eligible immigration status. The United States District Court of the Northern District of Texas, Dallas Division held that the Ordinance is preempted by the constitution and federal law. The court found the Ordinance to be an impermissible regulation of immigration "which is a regulatory power reserved for the federal government".
The court reached this conclusion despite the city's efforts to prevent such a conclusion by stating in the Ordinance that the intention of the city "is not an attempt or effort to promulgate new and additional immigration laws or to conflict in any manner with the federal government's promulgation and enforcement of immigration laws". Not even the city's invocation of § 287(g) INA was enough to stop the court from striking down the Ordinace. Read full text: http://www.aclutx.org/files/080528%20FBMSJOPinion.pdf