Abandonment of Status 

As a permanent resident you are required to make the United States your primary residence. Failure to do so may be deemed an “abandonment” and loss of permanent resident status. Whether someone has “abandoned” status is a very fact specific inquiry. While time spent outside the United States is a large factor, it is not the only factor. You must show evidence of ties to the US such as your employment, residence, where your family resides, whether you are paying US taxes and if you have any other financial or social ties in the US.

Tactics: If you need to travel outside the US a lot, make sure to keep ties to the US as listed above such as a residence or PO Box, assets, and tax payments. If you are going to be gone for more than one year, you should speak to a Colorado immigration attorney about taking additional measures to protect your status.

Deportability/Removability – C’est Possible?

Yes – it is true. You may still be deported as a legal permanent resident if you commit a deportable or “removable” offense. You would face charges in immigration court and if found deportable by a judge, would lose your permanent resident status and be deported. Deportable offenses predominantly involve criminal offenses and fraud offenses as well.

Tactic: If you have any criminal or misrepresentation issues in your background – even prior to obtaining permanent residence, you should always seek counsel from an immigration attorney and especially if you plan to travel internationally as this is when such issues would arise.

My Green Card Has Expired – What Do I do Now?

Your card has expired which makes things more difficult if trying to secure employment or traveling internationally, but your STATUS has not expired. So the good news is you are not deportable for being out of status; but the bad news is that in today’s world and particularly in the United States, it is not recommended that you travel or work with expired documents.

Tactics: If your card is expiring in the next six months, the time to renew is NOW. It can take up to five months to obtain a new green card. You may also obtain a stamp in your passport if you have filed for your renewal but the card has not yet been produced. This is evidence of your current status. Another option is to think about filing for citizenship which in some jurisdictions, like Denver Colorado, can take 5 months as well.

I Have a Conviction But I am Not Deportable – Problem?

Technically no. But practically, you may have issues with international travel. US Customs and Border Patrol will review your criminal history in the federal database systems. If you have a record there, it will be asked and you may be asked to step into secondary inspection, which can take hours.

Tactic: To avoid delays at the airport on criminal charges or convictions – even foreign ones – bring a certified copy of your court disposition (the judge’s determination) showing the charges were “dismissed” or “pled guilty” etc. Do not assume the criminal databases being reviewed have all the details of your case. Bringing this paperwork along can make things go quickly for the border officials. In some situations, traveling with a letter from your immigration attorney explaining how these charges/convictions do not trigger any admissible or deportable offense is also recommended.

Remember that legal permanent residence is a status that is still under the jurisdiction of US immigration laws and as such, you must comply with those laws. Always seek green card attorney advice if you are ever in doubt about your ability to maintain or your status or a valid green card document.

In order to utilize Global Entry kiosks, travelers must apply for designation as a “trusted traveler.” Please note – only US citizens, legal permanent residents, citizens of the Netherlands who are enrolled Privium, Canadian NEXUS members, and citizens of Mexico are currently eligible for the program. Other countries will be added to this list soon. Most travelers will benefit from contacting experienced immigration lawyers to act as guides through the application process. The Global Entry program has been designed especially for frequent travelers, though there is no minimum number of trips to and from the U.S. required prior to application. Individuals who are in contact with a green card attorney may also wish to discuss this program with their lawyer.

The majority of Denver immigration lawyers are lauding the success of the Global Entry program. Slow immigration checkpoints can discourage business travelers who bring valuable skills and products into the U.S. By establishing the Global Entry program, the US. Customs and Border Protection agency has demonstrated an interest in supporting international business. The program also indicates an increased willingness to streamline procedures for immigration lawyers and their clients.

In addition to offering added convenience, the Global Entry program also gives international travelers added peace of mind. Many travelers, especially those who have not utilized the services of an immigration lawyer or green card attorney, have worried about gaining entry to the country. The pre-screening procedures established under the Global Entry program allow a traveler to gain clearance for entry prior to landing in an American airport. Assurance of entry into the country can make for more pleasant travel.

Business leaders and other individuals who travel frequently to and from the U.S. may wish to contract with Denver immigration lawyers to complete the Global Entry application process. Applicants must undergo a rigorous pre-screening process online and pay a filing fee. Upon successful pre-screening, entrants are required to participate in an interview with a U.S. Customs and Border Protection agency official. You can begin your online enrollment to get pre-screened at this website https://goes-app.cbp.dhs.gov/main/goes

International travelers may wish to prepare for this interview in advance with a qualified lawyer. Upon successfully completing the interview, a traveler is cleared for the Global Entry program and can take advantage of a self-service kiosk when next entering the U.S.

For detailed questions about the program, I refer you to the FAQ listed here http://www.globalentry.gov/faq.html#4

Centralization of all I-601s Underway

USCIS is in the process of centralizing ALL I-601 extreme hardship waivers that are filed by applicants who are standing abroad. The current procedure is if a foreign national was required to apply for an immigrant visa abroad at a US Embassy and they were eligible to file the I601 extreme hardship waiver, the filing was sent from the US Embassy to a foreign USCIS office with jurisdiction. This office would then adjudicate the I601 and if approved, then re-route the case back to the Embassy. The time that it takes to do this can easily take 8 months and many times can be up to a year. Moreover, the decision-making results between the different foreign USCIS offices has varied dramatically. USCIS has thus determined that all I601s will now be filed at a US Lockbox facility in the United States and then be adjudicated by adjudicators at a USCIS Service Center, most likely Nebraska Service Center.

This change in procedure according to Peralta Mihalko, is expected hopefully “by August” and will only be applicable for cases not yet filed. Cases already sitting at a foreign USCIS office will not benefit from this change. However, Peralta Mihalko states that as of Friday, 350 test cases from USCIS offices abroad were actually forwarded from various USCIS offices abroad through the Lockbox to test the system. Otherwise, no other cases will be proceeding in this manner. She also noted that Juarez will go through a 6 month transition process where applicants will have a choice if they want to file at the Lockbox or with USCIS in Juarez.

Advantages for this process: 1) consistency in adjudication standards 2) faster processing times 3) applicants will be able to track their case using the Case Status system currently in place – all are WELCOME benefits to the current I-601 process for foreign nationals abroad.

If you have questions to ask, please contact Colorado immigration lawyer, Catherine Brown for more details or a consultation.

Updates on the New Proposed Regulation on Provisional Waivers filed Stateside for Applicants of Immediate Relatives

USCIS has already proposed the regulation recently on a new procedural option for filing an I601 extreme hardship waiver PRIOR to leaving the United States for an Embassy interview, see my prior blog for the specific eligibility details http://www.cbrownlaw.com/2012/04/01/family-immigration/uscis-comes-out-with-provisional-family-waiver-details/

Ms. Pilar Peralta Mihalko clarified that the option requires the applicant to be moving forward with the immigrant visa process. USCIS expects the National Visa Center immigrant visa fees to have been paid but whether all documents need to be submitted and interview scheduled is unclear. Ms. Peralta Mihalko was previously at the Nebraska Service Center training new adjudicators on handling these I601s, which is where the anticipated provisional waivers will be routed. Again, a handful of cases from USCIS Juarez will be forwarded to Nebraska to get the team more prepared for this type of application. The fact that the Anaheim office is conducting the training is certainly a positive as Ms. Peralta Mihalko pointed out because this office handles many similar types of adjudications such as humanitarian parole and recently, current I601 overflows from USCIS Juarez.

What is the anticipated time of the final rule which is when the rule becomes effective? Looking at November/December 2011 at the earliest.  Stay tuned for more updates and contact Catherine Brown, Denver immigration lawyer, if you would like more detailed information about the process or eligibility.

An individual may seek a provisional unlawful presence waiver if he or she:

• is a parent child or spouse of a US citizen
• Is physically present in the United States;
• Is at least 17 years of age;
• Is the beneficiary of an approved immigrant visa petition (I-130) classifying him or her as an immediate relative of a U.S. citizen;
• Is actively pursuing the immigrant visa process and has already paid the Department of State immigrant visa processing fee;
• Is not subject to any other grounds of inadmissibility other than unlawful presence; and
• Can demonstrate that the refusal of admission would result in extreme hardship to a U.S. citizen spouse or parent.

An immediate relative would not be eligible for the proposed process if he or she:

• Has an application already pending with USCIS for adjustment of status to lawful permanent resident;
• Is subject to a final order of removal or reinstatement of a prior removal order;
• May be found inadmissible at the time of the consular interview for reasons other than unlawful presence; or
• Has already been scheduled for an immigrant visa interview at a U.S. Embassy or Consulate abroad

The rule is not final yet and will not be effective until final. Therefore, one cannot file a provisional waiver yet and must wait for further action from USCIS. If you are not sure about the process or would like to get your the strength of your waiver case evaluated, then you should talk to a Denver immigration lawyer.

ESTA – the Electronic System for Travel Authorization – is a security enhancement system for those coming from Visa Waiver countries to determine eligibility to enter the United States prior to showing up at the US border. Launched in 2009, it is a more efficient and thorough way to collect information about Visa Waiver Pilot Program applicants who wish to enter the United States.

The Visa Waiver Pilot Program (VWPP) or “Visa Waiver” program was launched in 1986 to allow countries with low refusal rates, low security issues, and high compliance the ability to enter the US without obtaining a visa. Approximately 36 countries are involved in the program. ESTA is essentially an online form and screening process that must take place prior to entering the US on the Visa Waiver program. Prior to ESTA, applicants filled out a white or green I-94W card. The ESTA form is only online and must be complied with prior to boarding a plane or vessel to the United States if you intend to travel via the Visa Waiver Program. There is no exception. However, if you have a visa to travel to the US and intend to enter with the visa, you do not need to worry about ESTA (even if you are FROM a Visa Waiver country).

The ESTA form is found at https://esta.cbp.dhs.gov/esta/. The Applicant fills out the form via the internet only. It normally takes about 72 hours to get an approval and more likely quicker than that.  You must read the questions carefully. The answers are reviewed by a human person. Please pay particular attention to the questions “Have you ever applied for a visa?” or “have you ever been denied a visa?” Failure to reply correctly could result in a charge of misrepresentation, which is a permanent bar to entry to the US. Talk to an immigration attorney if you have concerns about how to answer an ESTA question.

What Happens If I Had a Prior Visa Denial?

If you had a prior denial you should certainly disclose on your ESTA form. If your denial was what we refer to as a “221g” denial – because you did not provide full or accurate paperwork – it can generally be cured at the US Embassy. You should contact it to obtain further information as to what documents are missing. Once you send in your documents and your passport by post, the problem is usually solved. You may not have even thought you had a denial before so but if an Embassy refused you a visa, you should clearly follow up to find out if was indeed a denial. In some situations, you may need to schedule an interview with the US Embassy so be sure to give yourself PLENTY of time prior to your trip to the US to get this all resolved.

If you actually get the response “not authorized,” then your ESTA application has not been approved and you cannot travel on the Visa Waiver Program. You must then go to the US Embassy and apply for a visa.

Obtaining an ESTA approval is no guarantee of entry to the United States. It is merely a sufficient pre-screening process and an individual must still undergo scrutiny by US Border and Custom Patrol (CBP) for actual entry to the US. If you have an questions about ESTA or entry to the US, contact an immigration lawyer for assistance to ensure a stress free and smooth entry.

First, an I601 Waiver is a procedure to waive certain grounds of inadmissibility that prevent persons from entering the United States. It is based on a qualifying relationship and requires a showing of “extreme hardship” to the qualifying relative.

The procedure is currently the following: If the foreign national is standing in the US, the waiver will be adjudicated in the US by the local office or court where the foreign national is living. If the foreign national is abroad, the waiver is adjudicated by a USCIS office for the designated region. For instance, in a waiver for a foreign national in Venezuela goes to Panama. A waiver for a foreign national in Morocco is adjudicated in Rome.

There are multiple problems with these abroad USCIS offices: the regulations never provided a clear definition of “extreme hardship” and so the standards have varied wildly from location to location; and second, the time it takes from transferring a case from the Embassy to the USCIS office abroad and back and the adjudication backlog itself – it can take in most instances 6 to over 12 months to get the individual approved and back into the US.

The rule proposes to eliminate adjudication of these waivers at these abroad offices for immediate relatives, who are processing abroad and instead have these waivers adjudicated IN the United States. It has also been clarified by USCIS that the proposed rule, due in Spring 2012, will only be applicable for violations involving three and ten-year unlawful presence bars and not apply to those with criminal bars or other admission problems. It will also only be available to spouses and children of US citizens.

This proposed change in the location of the waiver adjudication will particularly have a positive impact on those processing their immigrant visas in Ciudad Mexico due to the huge backlogs and random violence occurring in that country. But, it is positive step for all those who will qualify and reflects the Obama administration’s effort to keep families reunited who are attempting to obtain legal residence.

 Prosecutorial review took place in Denver Immigration Court in January 2012 with several immigrants receiving letters of having their case “administratively closed.”  This essentially means the person is no longer on the court calendar or “docket” but still under the jurisdiction of the court. It is possible that eventually the court would agree to have the case terminated in court, leaving the applicant in the same condition as before being subjected to deportation. This process will be ongoing until otherwise provided notification.

 The review process takes into account the immigrants’ criminal histories, including DUIs, ties to the community, relationships to US citizen or legal permanent resident relatives, and if they graduated from high school as well as their overall histories dating back to the days they entered the United States.

 Making the deportation process more equitable and manageable is the focus. The hardship of an illegal immigrant brought to the U.S. as an infant, who now daily fears deportation to a basically foreign country, is difficult to imagine. Many a Denver immigration lawyer knows the stories of such immigrants, their inability to return to their country of birth, the absence of a support system, and frequently even language barriers that arise from societal assimilation into American culture.

 Is now the time to visit a Colorado immigration lawyer and ask for a case review? While it stands to reason that the prosecutorial discretion trial program could offer some undocumented immigrants more time in the United States which could possibly lead to future legal residency options, Denver immigration attorneys and immigration advocates are not totally sold on this program as a panacea for what ails the immigrant community.  A large bone of contention is the continued legal limbo of the affected immigrants whose backgrounds do not warrant removal from the United States. Having been found not to be threats to society, Denver immigration lawyers point out that these immigrants are nevertheless not given a legal status and thus, no ability to work or obtain drivers’ licenses. It is still apparent that comprehensive legal reform is necessary to solve the issue of illegal immigrants on a long term basis. Nevertheless, it is a positive step toward for dealing with the issue of the illegal immigration by giving the court much more discretion than previously experienced in order to balance the issue of fairness and security.

 The H1B gives individuals with at least a bachelor’s degree in certain professions, or its equivalent, the right to work in the United States. Eligible professions require specialized training or technical expertise; examples include computer programmers, accountants, engineers, scientists, doctors and others. The H1B also requires employer sponsorship, meaning that a job offer must be in place to be eligible. Employers wishing to learn more about the H1B visa can review this website and/or consult a Denver immigration attorney for assistance.

 The cap on H1B petitions remains at 65,000 for general applicants and an additional 20,000 for those with a master’s degree or higher from a U.S. school. There are certain exemptions to the cap, such as those who are in H1B status already, but Colorado employers are encouraged to act early for the best chances of success. Working with a Denver immigration lawyer knowledgeable about H-1B laws can help expedite the process.

It is evident the demand for H-1Bs is consistently higher than the availability — even in a down economy over the past few years. We continue to hit the cap many months before the next round of visas are available on the government’s fiscal year (October 1st/September 30th). The cap problem needs to be remedied by Congressional action to increase the visa allotment from 65,000 currently to something much higher. Anecdotal evidence indicates that allowing foreign nationals on H-1Bs will not hurt US jobs as particular industries (e.g., medical, IT) struggle to fill positions. In addition, allowing foreign nationals to be employed in the US with H-1Bs will help the US economy to grow, including the creation of more US jobs. We are losing talented and highly educated individuals due to the H-1B cap restraint coupled with the long line for employment-based green cards. Even the conservative Heritage Foundation agrees with increasing the cap to assist the US economy. Mayor Bloomberg was right. It is economic suicide to continue to cling to the myth that all foreign labor is bad and to continue to restrict or eliminate it in a down economy. We live in an interdependent economic system in the 21st century, but our rules to move labor across the borders are still based on premises and protections set up 20 years ago or even earlier. Will we learn from this recent frenzy to scramble for H-1Bs? I sure hope so as I’m tired of telling my clients to “hurry up and file”.

The numbers for the regular cap moved from 49,200 2 weeks earlier – so moving at about 3,500 per week. USCIS will soon notify us when the 20,000 cap will be exhausted and then those applying in the advanced degree category will default to the regular cap. I predict the H-1Bs to hit the main cap in the next few weeks given the current rate, the fact the rate always increases at the end, and the advanced degree cap being hit probably this week.

The Obama Administration supports an increase to the cap but tempers it with the caveat that “it needs reform” first, given that 1 out of 5 H-1B petitions were fraudulent according to USCIS. Much has been done over the past year to prevent fraud, such as USCIS worksite investigations and the agency’s use of VIBE to check on the veracity of US and Colorado employers who file an H-1B petition.

Nevertheless, the H-1B cap has not been increased since 2004, when the 20,000 advanced degree allotment was created, and there is no political advantage for promoting foreign worker opportunities over US workers, despite the argument launched by NYC Mayor Bloomberg that losing degreed foreign workers is “national suicide” as they fill critical holes (e.g. IT, health jobs) in our workforce and can help US companies to grow and create employment.

If you have not filed an H-1B Petition you had better get it in as quickly as you can; otherwise your potential worker cannot file until the FY2012-13 visas become available on October 1, 2011. The earliest you can file for an October 1^st start date is then April 1, 2011.