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2021 Immigration Reform - DACA and DAPA

Now that Joe Biden won the presidential election, immigration reform in 2021 seems doable. Joe Biden will be following the same plan as Obama's. He is signaling that an extension of the Deferred Action for Childhood Arrivals (DACA) will be implemented in early 2021. I also think that a resurrection of the Deferred Action for Parents of United States Citizens and Lawful Permanent Residents (DAPA) is also likely. Lastly, his pre-election plan included a plan for comprehensive immigration reform in 2021.

Deferred Action for Childhood Arrivals (DACA):

President Obama established the Deferred Action for Childhood Arrivals (DACA) program through an executive order in 2012. The program allowed children whose parents brought them to the United States at a young age to apply for deferred action. Deferred Action is a tool in the Immigration and Naturalization Act that allows the President to defer removal. This deferral can be based on humanitarian and other grounds. To be eligible under the program an applicant must meet the following requirements:

  • Be under 31 years old as of June 15, 2007.
  • Must have arrived in the United States before their 16th birthday.
  • The applicant must have resided in the United States since June 15, 2007.
  • Should have been physically present in the United States on June 15, 2007.
  • Had no legal status on June 15, 2012.
  • Have graduated high school, currently enrolled in high school, or have received a GED.
  • Have not been convicted of a felony or a serious misdemeanor.

President Obama tried to expand the program but was sued by several states. The case reached the Supreme Court and the court upheld the nationwide injunction.

President Trump discontinued the program after he was elected. The Supreme Court ruled that the termination of the program did not follow proper procedures. The current administration is standing by its decision to terminate the program. However, it is accepting renewal applications for applicants who previously had approved petition.

President-elect Biden has vowed to reinstate the program after his election. He has also promised an expansion of the benefits under the program. The plan also makes recipients eligible for student loans and Pell grants. He will be able to make these changes through executive orders since President Obama and President  Trump established and dissolved the program through executive orders.

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Deferred Action for Parents of United States Citizens and Lawful Permanent Residents (DAPA):

This program was an attempted expansion of President Obama's 2012 order. The 2014 expansion added to the 2012 program with regards to DACA eligibility. The DAPA program was targeted towards undocumented immigrants with children who are United States citizens or lawful permanent residents.  The order stated the following requirements to qualify:

  • Be the parent of a US citizen or a lawful permanent resident.
  • Must have lived in the US as of January 1, 2010.
  • Have been present in the United States as of the date of the order.
  • The applicant should not have any legal status as of the date of the order.
  • Have not been convicted of a criminal offense including felonies and misdemeanors.

President-elect Biden can revive this program using executive orders. As I stated above, states might sue to stop the program. However, the Supreme Court's recent decisions regarding executive power when it comes to immigration give us hope. An executive order to resurrect DAPA and DACA might withstand a constitutional challenge.

Comprehensive Immigration Reform in 2021:

I have discussed President-elect Biden's plan in an extensive way in this post.  The two programs I discussed above can be established very rapidly through executive orders. However, comprehensive immigration reform is 2021 seems less likely now that President-elect Biden will not have a clear majority in the United States Senate. So if the Democrats win the two run-off elections in Georgia, the chances of comprehensive reform in 2021.

Biden's Plan has several points, which I will now summarize. It revolves around three points, modernizing the immigration system, reasserting commitment to asylum seekers, and tackling the causes of migration, and implementing effective border screenings.

Biden wants to reform the immigration system by creating a path to citizenship for undocumented immigrants. He also wants to reform the temporary visa programs in the United States to retain highly educated immigrants. Lastly, he wants to expand protections under the Violence Against Women Act and victims of crimes.

Biden's plan also wants to reassert America's commitment to asylum seekers. This plan would surge the numbers of asylum officers. It will also restore asylum eligibility for victims of domestic violence and those fleeing political persecution. Lastly, the plan will increase the number of immigration judges, end for-profit detention centers, and increase the number of refugees to the United States.

Lastly, Biden's immigration plan includes tackling the root causes of migration and implementing effective border screening. This part of the plan will include working with leaders of the triangle where most undocumented immigrants come from.

As I mentioned, President-elect Biden could implement the first two programs through executive orders. However, this mechanism is subject to attack in courts.  Biden will be better served by working with Congress to implement  Comprehensive Immigration Reform in 2021.

How Can the American Dream® Law Office Help While Waiting for Comprehensive Immigration Reform in 2021?

We are more than to discuss your options under the programs discussed above. We understand what the American Dream® means to you, after all, it is in our name.

Throughout our years of practice, we have counseled numerous undocumented immigrants who qualified for Deferred Action. We have waited for comprehensive immigration reform for a long time. We would be more than happy to help you and your family members with the next steps.

Call us at (888) 991-3336 24/7 to schedule a strategy session with Attorney Ahmad Yakzan to discuss your options. We have multilingual staff.




Asylum Law in the United States

Asylees are refugees who are in the United States, at a land border or point of entry. INA §208(a). Asylees must qualify as refugees, meaning that they have to prove a well-founded fear of persecution based on a protected ground. Persons interdicted in the high seas may not qualify for asylum.

Before asylum could be granted, the person’s nationality has to be determined. Urgen v. Holder, 768 F.3d 269, 272-74 (2nd Cir. 2014). Statelessness alone, however, is not enough to qualify for asylum, but if statelessness is the basis for persecution then it qualifies. Stserba v. Holder, 646 F.3d 964 (6th Cir. 2011).

Persecution is defined as a threat to the life or freedom of or an infliction of harm on those who differ in a way regarded as offensive. Matter of Acosta, 19 I&N Dec. 211, 222 (BIA 1985). Harm need not to be physical to rise to the level of persecution. Borca v. INS, 77 F.3d 210, 215-17 (7th Cir. 1996). Permanent or serious physical injury is not required to establish persecution. Matter of O-Z & I-Z, 22 I&N Dec. 23, 25-26 (BIA 1998). Custodial interrogation, rape or sexual assault, and forced medical examinations may arise to the level of persecution.

The government in the country of nationality must also be unable or unwilling to protect the applicant. Kamar v. Sessions, 875 F.3d 811, 819-20 (6th Cir. 2017).

Protected Grounds

The persecution must be based on a protected ground. The protected grounds are:

  • Race
  • Religion
  • National origin
  • Political opinion
  • Membership in a particular social group

The applicant must prove that the persecution was based on one or more of the abovementioned grounds. INS v. Elias-Zacarias, 502 US 478 (1992). These characteristics may be imputed to an applicant. There must be a nexus between the persecution and the protected ground. The applicant does not have to show that the persecutor acted with bad intent. Matter of Kasinga, 21 I&N Dec. 357, 365 (BIA 1996).

Political Opinion

Political opinion requires an active and specific opinion or belief. Political opinion also does not require an active participation in rallies or organized functions. It requires the immigration judge to consider the evidence relating to the country of citizenship. Mandebvu v. Holder, 755 F.3d 417, 428-32 (6th Cir. 2014). Neutrality, however, may not be enough to show persecution. Matter of Acosta, 19 I&N Dec. 211, 222 (BIA 1985). Political opinion, however, may be imputed, meaning that the persecutor assumes the political opinion because of a close relationship. INS v. Elias-Zacarias, 502 US 478 (1992). An applicant, however, does not have to show that she holds the actual opinion.

Membership in a Particular Social Group

A particular social group includes members of a group that hold a common immutable characteristic that could not be changed. Matter of Acosta, 19 I&N Dec. 211, 222 (BIA 1985). The group must be defined with particularity. Matter of M-E-V-G, 26 I&N Dec. 227 (BIA 2014). The group members have a characteristic that sets it apart. Matter of W-G-R-, 26 I&N Dec. 208 (BIA 2014). Family could also qualify as a particular social group. Matter of L-E-A-, 27 I&N Dec. 40 (BIA 2017). To prove eligibility based on a family unit, there must be a nexus between the family unit and the harm. Id.  The Board has denied social group protections based on past criminal activities because they are not immutable. Matter of E-A-G-, 24 I&N Dec. 591, 595-96 (BIA 2008). The Attorney General has referred to himself a case to determine whether harm by private entities to social groups qualifies an applicant for asylum. Matter of A-B-, 27 I&N Dec. 227 (AG 2018).

The social group must be cognizable and articulated to the immigration judge and the Board would not remand a casa e for determination of a new social group. Matter of W-Y-C & H-O-B, 27 I&N Dec. 189 (BIA 2018). Federal courts have recognized the following groups:

  • Members of a clan
  • Domestic violence victims
  • HIV/AIDS victims
  • Mental illness or disability
  • Gang membership
  • Witnesses and family members
  • Land owners

In mixed motive cases, the applicant must show that a protected ground was one central reason for the claimed persecution. INA §208(b)(1)(b)(i).

Past Persecution

If an applicant establishes past persecution, there will be a presumption of future persecution. The government many rebut such finding if 1) there was a fundamental change in circumstances or 2) the applicant may relocate within the country to avoid persecution. 8 CFR §§ 208.13(b)(1)(i)(A) and (B). Once a showing of past persecution is shown, the immigration judge must make such finding. Antipova v. US Att’y Gen., 392 F.3d 1259 (11th Cir. 2004). An applicant does not have to show subjective fear. Nor does he have to show that there was a pattern of persecution.  8 CFR § 208.13(b)(ii)(3). Once past persecution is shown, then there will be a presumption pf future persecution. 8 CFR § 208.13(b)(1)(ii). Such a finding would also show that a person’s life would be threatened for purposes of withholding of removal. INA §241()(3).

Humanitarian Asylum

When the government rebuts future persecution, an applicant may still qualify for asylum based on past persecution under humanitarian asylum. 8 CFR §208.13(b)(1)(iii)(A). Matter of Chen, 20 I&N Dec. 16, 21 (BIA 1989). Humanitarian asylum is not an independent claim for preservation purposes. An applicant may also qualify for asylum if he or she would face other serious harm upon removal. 8 CFR § 208.13(b)(1)(iii)(B); Matter of L-S-, 25 I&N Dec. 705 (BIA 2012). Past persecution does not require persecution if the applicant’s testimony is credible.

Well Founded Fear of Future Persecution

An applicant who does not show past persecution may qualify for asylum if she can show that there is a possibility of future persecution. INA §101(a)(42). The applicant must show that a reasonable person similarly situated would fear persecution. Matter of Barrera, 19 I&N Dec. 837, 845 (BIA 1989).  The quantum of proof may be less that 10% possibility. 8 CFR §208.13(b)(2)((i)(B). The fear has both a subjective and  objective components. The persecutor does not need to presently be aware of the offending characteristic but that he will become aware. Eduard v. Ashcroft, 379 F.3d 182, 192-93 (5th Cir. 2004). Additionally, the applicant does not have show that he fled the country because of persecution, but that he has a claim now. Wiransane v. Ashcroft, 366 F.3d 889, 899 (10th Cir. 2004). Disclosure of asylum status to the applicant’s country may raise an independent claim of asylum. 8 CFR§ 1208.6(a).

A person does not have to show that he will be singled out if there is a pattern of persecution against similarly situated individuals. To establish a pattern, a person must show that the persecutor targets the group specifically for one of the five grounds. Even if there was no showing of a pattern, a person may still qualify if he or she is a member of a disfavored group. Sael v. Ashcroft, 386 F.3d 922, 925-30 (9th Cir. 2004). A person would not qualify if relocation is reasonable. Shah v. Holder, 758 F.3d 32 (1st Cir. 2014). Criteria to determine whether relocation is reasoto nable include 1) whether the person would be harmed in the place of relocation 2) ongoing civil strife in the country 3) administrative , economic, or judicial infrastructure 4) geographical limitations and 5) social and cultural restraints. 8 CFR §208.13(b)(3).

Mandatory Denial of Asylum

Congress has established bars to asylum, where USCIS may not grant asylum but an immigration judge must hold an evidentiary hearing regarding the bar. INA §§208(a)(2) and (b)(2). The bars include:

  • Persecution of others under INA §208(b)(2)(A)(i)
  • Particularly serious crime INA §208(b)(2)(A)(ii)
  • Serious nonpolitical crimes INA §208(b)(2)(A)(iii)
  • Danger to the security of the United States INA §208(b)(2)(A)(iv)
  • Terrorism related inadmissibility grounds INA §208(b)(2)(A)(v)
  • Firm resettlement INA §208(b)(2)(A)(vi)
  • Safe third country under the US-Canada Agreement
  • Previous asylum applicants under INA §§208(a)(2)(C)-(D) unless there are changed circumstances
  • One-year time limit INA §§208(a)(2)(B), (D) unless there are changed or extraordinary circumstance

We understand that applying for asylum and withholding of removal is a serious matter. Your life could literally depend on the result. Call us today for help applying for such relief.

Citizenship and Naturalization

The United States allows citizenship by several means. These means include:

  • Citizenship by birth in the United States under INA §§301(a)-(b) and (f)
  • The citizenship of one or both parents INA §§301(c)-(d) and (g)-(h)
  • A combination of parental citizenship and location INA §§301(e) and 303
  • After birth by a combination of parental citizenship and residence INA §§320 and 322
  • Naturalization under INA §316
  • Citizenship by Birth or Certain Unincorporated Territories

The 14th Amendment grants citizenship by birth in the United States. The United States adhered to the doctrine of jus soli. U.S. v. Wong Kim Ark, 169 U.S. 649 (1898). This also includes persons born in certain US territories under U.S. control. INA §§302 and 304-307. This also includes a person born in the Panama Canal under certain conditions. 8 USC §1403. Persons born in the Commonwealth of the Northern Mariana Islands after January 9, 1978, are United States citizens by virtue of covenant between the US and the Commonwealth. However, a person born in a location such as the Philippines and American Samoa are not citizens but nationals of the United States and do not acquire citizenship at birth. However, they may acquire citizenship by naturalization. Entines v. U.S., 160 F.Supp.3d 208 (D.D.C. 2016).

A lack of an official birth record is not as decisive as to whether someone is born in the US. Persons of unknown parentage found in the US are considered born in the United States unless proven otherwise before turning 21. INA §301(f).

Citizenship by Acquisition at Birth

A child born outside the US where one or both parents are United States citizens may acquire citizenship ay birth. INA 301(c)-(e), (g)-(h). A child born out of wedlock may acquire citizenship and requires the mother to be physically present in the United States to transmit citizenship. INA §309(c). A child does not need a certificate of citizenship. Children born by Assisted Reproductive Technology (ART) may acquire citizenship under INA §301/309 if 1) USC father must be the genetic parent 2) the USC mother is the genetic mother or 3) USC mother is the gestational and legal mother of the child at the time and place of the child’s birth.

Residence of Physical Presence of the USC Parent

A child’s USC parent must reside or be physically present in the US to “transmit” citizenship to the child. Residence has been defined as principal dwelling place of a person without attention to intent. Savorgnan v. US, 338 US 491 (1950). In Sessions v. Morales-Santana, the United States Supreme Court ruled that the different physical presence for unwed mothers and father violated equal protection. 137 S.Ct 1678 (2017). Physical presence need not be counted by the minute. If the parent is a naturalized US citizen, the time before and after naturalization may be counted. Matter of M-, 7 I&N Dec. 643 (RC 1958). A parent may not that constructive presence prevented him from residing in the United States due to war or illness but may when he was prevented by the government due to erroneous interpretation of the law. Matter of Navarrete, 12 I&N Dec. 138 (BIA 1967).

Adopted Children

In Marquez-Marquez v. Gonzales, 455 F.3d 548 (5th Cir. 2006) an adopted child may not benefit from INA §301(g) but may be eligible under INA §322.

Citizenship by Derivation through Naturalization or U.S. Birth of One Parent under INA §320 and former law under INA §321

Prior to the Child Citizenship Act, a child could derive citizenship when one parent became a United States citizen when the child was under 18 and the child was residing in the US after a grant of permanent residence. The child could have also derived if he or she was residing in the United States and was in the legal custody of that parent. INA §321. The Board of Immigration Appeals has interpreted the law to require lawful permanent residence before the age of 18. Matter of Nwozuzu, 24 I&N Dec. 609 (BIA 2008). The law required 1) the naturalization of both parents 2) the naturalization of one of the parents if the other is deceased 3) the naturalization of the parent with legal custody of the child, or the naturalization of the mother of the child was born out of wedlock and legitimization has not occurred.

Child Citizenship Act

The Child Citizenship Act has changed former law and streamlined the process. Under the new law, a child derived citizenship if 1) one child is a citizen by birth or naturalization, 2) if the parent naturalized, the child was under 18, 3) the child is residing in the United States as a lawful permanent resident; and 4) the child is residing in the US in the legal custody of the United States citizen parent. INA §320(a). Under INA §320(b), adopted children derive citizenship after admittance as lawful permanent residents. Lawful permanent residence must be obtained legally without misrepresentation. Walker v. Holder, 589 F.3d 12 (1st Cir. 2009). The child should have been admitted for permanent residence on or after February 27 2001. Legal custody means that 1) the child currently resides with both parents, 2) the child resides with one natural parent of the other is deceased, or 3) the child was born out of wedlock  was legitimated and currently resides with the natural parent. Matter of Rivers, 17 I&N Dec. 419, 421 (BIA 1980).

The child must be under 18 at the time he or she receives permanent residence. Gutierrez v. Lynch, 830 F.3d 179 (5th Cir. 2016).

Children born out of wedlock may claim citizenship from their mother when the mother naturalizes. Children claiming derivative citizenship through their father may use the legitimization laws at the place of residence at the time of birth.  Matter of Cross, 26 I&N Dec. 485 (BIA 2015). Step-children are not covered under the law since they are included in the definition under INA §101(c). Matter of Guzman-Gomez, 24 I&N Dec. 824 (BIA 2009).

Certificate of Citizenship under INA §322

A child who has not derived citizenship through the naturalization of one parent may apply for a certificate of citizenship if 1) one parent is a USC; 2) the child is temporarily physically present in the United States under a lawful admission and is in status, 3) the child is under 18, and 4) the child is outside the United States in the legal custody of a father who has been in the United States for 5 years 2 of which after the age of 14. A child may obtain a certificate within 5 years of a parent’s death if there is grandparent or United States citizen guardian. An adopted child must have been adopted before 16. 8 CFR §322.

A child whose parent did not meet the physical presence requirements may still obtain a certificate if the United States grandparent resides in the United States for 5 years 2 of which were after the grandparent’s 14th birthday. INA §322. If the grandparent died, then the child still qualifies if the grandparent met the physical presence before passing. Children born to members of the armed forces are exempted from all these requirements under INA §322(d). The application is filed on form N-600K before the child enters the United States. Persons otherwise eligible may file form N-600 if they are in the United States.

Naturalization by Application

An immigrant may become a citizen by naturalization. The person must meet the following requirements:

The immigrant must be a lawful permanent resident. If the immigrant erroneously obtained permanent residence or by fraud, the denial of his naturalization would be upheld. Reganit v. Secy., DHS 814 F.3d 1253 (11th Cir. 2016). Conditional permanent residents may apply for naturalization if they have met the physical presence requirements. Matter of Paek, 26 I&N Dec. 403, 406-07 (BIA 2014). Effective date of residence is rolled back for applicant who adjusted under the Cuban Adjustment Act or asylees.

Must be at least 18 years old under INA §334(b) unless the age requirement is waived for military service.

The immigrant must meet the continuous-residence and physical presence requirements. The lawful permanent resident for five years unless married to a United States citizen. If married to a United States citizen the couple must be 1) the United States citizen spouse has been a citizen for three years, and 2) the parties have been living in a marital union for 3 years. 8 CFR §319.1(a)(3). There is no requirement that the marriage was the predicate for permanent residence. Living in a marital union means that the couple is living together. S. v. Maduno, 40 F.3d 1212 (11th Cir. 1994). Involuntary separation, however, may not sever eligibility. A battered spouse or child may also apply under the 3 years rule. INA §319(a). The person must also reside for at least three months in the state where he applies. INA §316(a). A student attending an institution outside of his state may apply in the state of the institution or his state of residence. The person must have also resided in the United States for one-half of the five or three years. The immigrant must also reside in the United States from the time of the application to the date of admission into citizenship. Id. Disruptions in residence between 6 months and 1 year create a rebuttable presumption of abandonment of residence. Factors that may be used to show that an immigrant did not abandon residence include 1) not terminating employment in the United States; 2) the presence of immediate family in the US; 3) retention of full access to US home and 4) not obtaining employment abroad. An absence of more than one year shall disrupt residence. A person with disruption of residence may reapply 4 years and one month after coming to the United States. A person who qualifies under the 3 years rule can apply after two years and one month. There are certain exemptions including service in the military, spouses, and children of service members, employees working abroad for the US government or international organizations.

The immigrant must be a person of good moral character for the statutory period required and until citizenship. A member of the military must be for one year. Providing false testimony can be a bar to establishing good moral character. INA 101(f)(6). Materiality is not a consideration in this analysis. Certain crimes also bar the finding of good moral character. A person who has committed murder is permanently barred from establishing good moral character. The permanent bar also applies to persons convicted of an aggravated felony. A person who received a pardon before or during the statutory period may still establish good moral character. 8 §§CFR 316.10 (c)(2)(i) and (ii). Voting illegally or making false claims to citizenship may also preclude a finding of good moral character, unless 1) each parent was a United States citizen, 2) the applicant resided permanently in the US prior to 16 and 3) he or she reasonably believed that he or she was a United States citizen. The officer may still approve the application if the person is not in removal proceedings using the following factors 1) family ties, 2) absence of criminal history, 3) education and school records, 4) employment history, 5) other law-abiding behavior including paying taxes, 6) community involvement, 7) credibility and 8) length of time in the US. Polygamy and commission of criminal acts may also be used to deny an application.

The immigrant must also be attached to the principles of the Constitution under INA §316(a)(3).

The immigrant must also be willing to bear arms, perform noncombatant services, or work of national importance.

The immigrant must also demonstrate knowledge of English and US History and Government

The immigrant must also take the oath of allegiance.

Please call us if you are eligible for citizenship through derivative status, or eligible to apply for naturalization.

Family Based Immigration Petitions

If you are a US citizen or lawful permanent resident and want to help your family immigrate to the United States, turn to American Dream® Law Office for help. Our family immigration lawyer can help you understand the immigration process in Miami, St. Petersburg, Orlando, and Tampa, FL, as well as Washington D.C.

How Can We Help You?

Our goal is to reunite families. When you meet with us, we’ll go over all the details of the immigration process, including what paperwork to fill out, what the priority dates for various family members are, and what the requirements for immigration are.

Under US law, immediate family members are the ones who can almost immediately immigrate without waiting. Immediate family members are any children, spouses, or siblings of a US citizen or lawful permanent resident. However, all family members are subject to preference categories, so we’ll guide you through the process so you can facilitate family immigration without delay or hassle.

We’ll also explain your responsibilities as the sponsor. For example, sponsors must always be a US citizen or lawful permanent citizen, make 125% of the poverty level, petition for family members themselves, and be married to spouses before the petition filing.

Finally, we’ll also explain how life events like marriage, divorce, naturalization, and death can change or impact priority changes. Immigration law can be a tricky thing, but we’re here to help you understand all the rights you have and the steps you need to take.

Why Believe in Us?

When you need a family immigration visa lawyer who cares, turn to Ahmad Yakzan, an immigrant himself. At American Dream® Law Office, we prioritize reasonable rates, effective communication, and client convenience. This dedication to helping you succeed in your immigration efforts shows through our many 5-star reviews.

To schedule a consultation, please call today at (888) 991-3336.

K Visas

One of the goals of United States immigration policy is to unite families. The K visa option is a great option for fiancés to come to the United States, in anticipation of marriage. The K visa is also a great option for spouses to come to the United States. This option is usually faster than consular processing. This visa allows children to come to the United States, and go through the Adjustment of Status in the United States.

Who May Apply for a K Visa?

The K visa can be used by fiancés and their children. The visa can also be used by spouses of United States citizens, and their children, to come to the United States to apply for Adjustment of Status.

What is a K-1 Visa?

A K-1 visa allows fiancés of United States citizens to come to the United States The visa also allows children of K-1 visa holders to come to the United States under the K-2 classification. The requirements of this visa are as follows:

  • Be a fiancé(e) of a United States citizen
  • Come to the United States solely to finalize the marriage
  • Marry the United States citizen within 90 days of entry
  • Should have met in person within 2 years of the application, or apply for a waiver of such requirement.

A K-1 visa holder may not change status in the United States to another non-immigrant classification. He may not be able to adjust his status. However, a showing of a bona fide marriage with the K visa petitioner may allow a K visa holder to adjust his status, even though the Applicant and the Beneficiary divorce. Matter of Sesay, 25 I&N Dec. 431, 441-44 (BIA 2011).

What is a K-3 Visa?

A K-3 visa allows a spouse of a United States citizen to come to the United States to complete processing of Adjustment of Status. The unmarried minor children of a K-3 will be afforded K-4 status and will be allowed to come to the United States to go through the same process. The main differences between a K-1 and the K-3 are the fact that the latter is married to the United States citizen and has a pending I-130 petition already filed on her behalf.

If the Service approves the I-130 petition, the consular post will not issue a K visa and will complete the consular process. A K-3 holder may not change status in the United States and may only adjust her status through the original Petitioner.

What is the Procedure for Obtaining a K Visa?

The first step is to apply in the United States by filing an I-129F petition with the United States Citizenship and Immigration Services. Once that is approved, the Applicant must file with the Department of States using the DS-160 application.

Is the Adam Walsh Act Applicable in K Visa Cases?

The Adam Walsh Act will apply in a certain case if the Petitioner had been convicted of any crimes relating to the sexual abuse of minors. However, an Applicant may apply for a waiver, allowing him to petition for his fiancé or spouse.

Contact us today if you are considering applying for a K visa for your spouse or fiancé(e).

Self Petitions Violence Against Women's Act (VAWA)

The Violence Against Women Act (VAWA) allows spouses, children, and parents of abusive United States citizens, or lawful permanent residents in some instances, to petition for permanent residence in the United States. To qualify for a self-petition, the self-petitioner should have been abused by the United States citizen, or by the Lawful Permanent Resident in the case or spouse or child. There are several kinds of abuse that qualify, which will be discussed below.

I was abused by My Spouse, Can I Apply Under VAWA?

If you have been abused by your spouse, you may self-petition for permanent residence by filing an I-360 petition with the United States Citizenship & Immigration Services. This ability to self-petition was established by Congress in 1996 in the original Violence Against Women Act. The self-petitioning process is straightforward and is adjudicated by a special section of the Service’s Vermont Service Center. Once approved, the self-petitioner may apply for Adjustment of Status, if the visa number is available.

I Entered the United States without Inspection, Can I Still Apply?

Yes. The law allows you to apply for Adjustment of Status, even though you entered without inspection.


Self Petitions Violence Against Women's Act (VAWA) - Continued

What Type of Abuse Should I Document?

We have used many forms of abuse to successfully apply for clients under the Violence Against Women Act (VAWA) self-petition procedure. Some of the forms of abuse include:

  • Immigration abuse where the abusive spouse refuses to apply for an immigration benefit or has threatened to call the authorities to report the immigrant.
  • Financial abuse where the abusive spouse steals from, or forces the immigrant, to give away money or assets.
  • Psychological or emotional abuse, where the abusive spouse calls the immigrant names or prevents the immigrant from enjoying life
  • Other forms of abuse may also apply in certain situations.

What Type of Evidence Should I Include in my Petition?

There is a plethora of evidence that you can include in your petition. Some of the evidence that we usually include includes:

  • Marriage and divorce certificates
  • Evidence of the bona fide nature of the marriage
  • Evidence of the self-petitioner’s good moral character
  • Evidence of abuse, including psychological reports
  • Evidence of domestic violence injunctions
  • Can I Include My Children In My Petition?

Yes. If you have any children who are under 25, they can be included in the self-petition.

I am In Removal Proceedings, Can I Still Apply?

Yes. You may self-petition through the process mentioned above, or obtain special rule Cancellation of Removal under the Violence Against Women Act (VAWA).

Will My Information Remain Confidential?

Yes. The law has severe penalties for release of any confidential information relating to battered spouses or children.

When Can I File for Adjustment of Status?

You may file form I-485 Adjustment of Status application with your initial I-360 application if you have been battered by a United States citizen.

I Have Divorced My Spouse, What Can I Do?

You may still apply for adjustment using VAWA even if you divorce your spouse, within two years.

Call us today to discuss your options.

Temporary Protected Status

Under INA §244, the Attorney General may establish temporary programs to protected citizens of certain countries. The Temporary Protected Status (TPS) program is one of these programs. The AG in consultation with government agents may establish such programs for one of the following countries:

There is an ongoing civil strife in the country or a part of the county. INA §244(b)(1)(A);

There has been an earthquake, flood, drought, epidemic, or other natural disasters and the country could not absorb the return of its nationals under INA §244(b)(1)(B); or

There exist extraordinary and temporary conditions in the foreign state that prevent its nationals from returning unless the admission is contrary to national interests under INA §244(b)(1)(C).

A person who is granted TPS:

  • Is granted TPS for 6 to 18 months which can be extended
  • Shall not be deported during TPS period under INA §244(a)(1)(A). the Attorney General must inform the immigrant that TPS is available.
  • Shall be granted an employment authorization INA §§244(a)(1)(B) and (C)
  • Shall not be detained on the basis of her status under INA §244(d)4)
  • May travel abroad with permission under INA §244(f)(3), but must apply using for I-131 before traveling. If the person returns in a  timely manner may no longer be subject to the 3/10 years bars. Matter of Arrabally & Yerrabelly, 25 I&N Dec. 771 (BIA 2012).
  • May apply for asylum because TPS was not meant to eviscerate asylum.
  • May apply for cancellation of removal once TPS expires but time spent may not count towards physical presence for LPR cancellation but may for non-LPR cancellation.
  • Eligibility for Temporary Protected Status

An applicant must establish the following to establish eligibility under INA §244(c):

  • Nationality of the protection country by passport, certificate of birth, or affidavit if other documents do not exist
  • Presence in the United States at the time of designation must also be shown. INA §244(c)(1)(A).
  • Must be otherwise admissible
  • Must not firmly resettled in a third country
  • Must not be ineligible because of a conviction for a felony or two misdemeanors
  • Must apply within the period of registration unless he was in other legal status after which he can apply within 60 days.
  • Spouses and children of TPS holders may register after the period of registration as long as the relationship existed at the time of designation. They must also be nationals of the country of designation and meet all other requirements. Matter of Echeverria, 25 I&N Dec. 512(BIA 2011). If TPS is denied for a ground of deportability a charging document shall be issued. 8 CFR§§ 244.3-4.

Termination of TPS

Temporary protected status may be withdrawn in the following circumstances under INA §244(c)(3):

  • The person was not eligible
  • The person fails to maintain physical presence under INA §244(c)(4)
  • The person fails to re-register §244(c)(3)(C)
  • The Attorney General terminates the program §244(c)(3)(B)
  • The Trump Administration has issued decisions to revoke the designation of several countries for TPS. Please call us to discuss your options.

Withholding of Removal

While the Refugee Act adopts the well-founded fear standard, the standard for withholding of removal adopts the probability of harm standard. INA §241(b)(3). This section of the law is based on Article 33 of the Protocol and allows relief if the applicant’s life would be threatened if returned to his or her country. Withholding provides a mandatory prohibition against removal if the person’s life would be threatened for a protected ground. Popova v. INS, 273 F.3d 1251 (9th Cir. 2001).

A finding of past persecution establishes a well-founded fear of future persecution for withholding of removal purposes. If the person does not show past persecution, then he must demonstrate that it is more than likely that he will be persecuted on a protected ground. 8 CFR §208.16(b)(2). If the person fails to show that relocation is unreasonable, then he would not meet the criteria for withholding. 8 CFR §1208.16(b)(2). If relocation is found to be reasonable, then the applicant must show that it Is not. 8 CFR §1208.16(b)(3)(i). If the showing of relocation is rebutted, then the immigration judge must consider the same criteria for relocation under asylum. 8 CFR §1208.16(b)(3).

USCIS may not consider withholding since it is only a defense to removal. 8 CFR §208.16(a). Withholding of removal does not allow for derivative status, and the judge must find removability to grant withholding. Matter of I-S- & C-S-, 24 I&N Dec. 432 (BIA 2008).

Bars to Withholding

Under INA §241 (b)3)(B), there are bars to Withholding of Removal. These bars include:

Nazism or Genocide

Persecution of others under INA §241 (b)3)(B)(i) a person who has ordered the persecution of others on a protracted ground may not qualify for withholding of removal. Matter of A-H-, 23 I&N Dec. 774, 783-85 (AG 2005).

Particularly serious crime and danger to the community:

Aggravated felonies where more than 5 years sentence was imposed

All other crimes where the person is a danger to the community. The Board has relied on the criteria in Matter of Frentescu, 18 I&N Dec. 224, 247 (BIA 1982). In more recent decisions however, the Board has moved away from these factors. In the Ninth Circuit, a person must be convicted of an aggravated felony for the crime to be particularly serious.

We understand that applying for asylum and withholding of removal is a serious matter. Your life could literally depend on the result. Call us today for help applying for such relief.

What could be done to stop my removal proceedings?

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  • Waivers of Misrepresentation

The Immigration and Naturalization Act forgives certain mistakes such as misrepresentation or fraud. This is in accordance with Congress’ intent to unite family and preserve family units. The Act has several waivers of inadmissibility in removal proceedings INA §237(a)(1)(H), before USCIS under INA §212(i), and waivers for non-immigrant visas. This article will discuss these waivers in detail. Call us today if you have been charged with deportability and inadmissibility under the law.

Contact Us About Waivers

Waivers of Misrepresentation under INA §237(a)(1)(H):

Immigrants could be charged for deportability under INA §237(a)(1)(A) for committing fraud or misrepresentation when obtaining an immigrant visa or adjustment of status. Fraud requires three things: 1) a misrepresentation, 2) of a material fact, and 3) with intent to deceive. Matter of G-G-, 7 I%N Dec. 161, 164 (BIA 1956). This misrepresentation may manifest itself in several ways. The immigrant must however make such misrepresentation to get a benefit under the Act. There are three requirements for the waiver:

  • A qualifying relative
  • Must have an immigrant visa or an equivalent document, and
  • Must have been otherwise admissible at the time of such admission

This waiver does not require a showing of hardship to anyone, including the immigrant himself. Self-petitioners under the Violence Against Women Act do not need to show hardship. The requirement for an immigrant visa means that the waiver is not available to nonimmigrants or those who entered without inspection. The otherwise admissible language requires that the immigrant be free of any other grounds of inadmissibility. Matter of Fu, 23 I&N Dec. 985, 988 (BIA 1999). At the time of admission includes adjustment of status for waivers under INA §237(a)(1)(H). Matter of Agour, 26 I&N Dec. 566 (BIA 2015).

Waivers for Misrepresentation under INA §212(i):

The Act, under INA §212(a)(6)(c)(i), makes an immigrant inadmissible for fraud or misrepresentation. To be inadmissible under such ground, the immigrant must have:

  • Willfully misrepresented
  • A material fact, and
  • For a benefit under the Act.

There are several issues here. The law allows for a waiver of such misrepresentation if he or she could show that the denial of admission would lead to extreme hardship to a United States citizen or lawful permanent resident qualifying relative.

Practitioners challenge the finding of misrepresentation by arguing that the alleged fraud or misrepresentation was not willful, was not material, and was not for a benefit under the Act.

Non-immigrant Visa Waivers for Misrepresentation:

This waiver is available under INA §212(d)(3(A).  The consular officer must weight three factors in adjudicating these waivers:

  • The recency and seriousness of the activity leading to inadmissibility
  • The reason for the proposed travel to the United States, and
  • The positive or negative of the planned travel to national interests

9 FAM 305.4-3(C).

Inadmissibility or deportability under the abovementioned grounds are very serious findings. An immigrant must consult with a competent immigration attorney to apply for these waivers. Call us today to schedule a consultation to discuss your options.

Unlawful Presence Waivers

Unlawful presence in the United States is detrimental when it comes to obtaining an immigrant visa or adjustment of status. Under INA §212(a)(9(B), 8 USC §1182 (a)(9) , a person who seeks admission after being unlawfully present in the United States is inadmissible. If the period of unlawful presence is more than 180 days but less that 360 days, the immigrant would be inadmissible for three years. The immigrant would be ineligible for 10 years if the period is more than 180 days. However, there are periods of presence that do not count towards unlawful presence including:

  • Individuals granted voluntary departure
  • Individuals not given an I-94
  • Persons granted Temporary Protected Status (TPS)
  • Those with pending adjustment of status application
  • Those granted withholding of removal
  • Individuals granted a stay of removal, and
  • Those granted cancellation of removal.
  • There are other exceptions in the statute including battered spouses, minors, asylees, those subject to family unity protections, and victims of severe forms of trafficking. Some individuals who are unlawfully status in the United States may not necessarily trigger unlawful presence. These immigrants include students who have been granted duration of status would not accrue unlawful presence until an immigration judge or USCIS decides that the person has been unlawfully present.

 An immigrant musk seek admission again for the unlawful presence bar to be triggered.

I-601 or I-601A form?

Usually, am immigrant must depart the United States for the bar to be triggered. The waivers, after departure, are usually filed using the I-601 form. However, person who are present in the United States may file for the waiver before departing using the I-601A form. This change was made possible by the Obama Administration in 2013.

The Waiver Criteria:

The law allows a waiver if the denial of admission would result in extreme hardship to the immigrant’s qualifying relatives. The immigrant must be the son, daughter, or spouse of a United States citizen or lawful permanent resident. The immigrant holds the burden of proof in this case to show extreme hardship. Evidence of extreme hardship includes:

  • Family ties to the United States
  • Social and cultural impact
  • Economic impact on the qualifying relative
  • Health conditions
  • Country conditions in the country of citizenship

Appeals of denials:

There are no appeals for denials of the I-601A application. A denial of the I-601 application can be appealed to the Administrative Appeals Office using form I-290B.

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Permanent Residence

For many, gaining permanent residence in the United States is a lifelong dream. Adjustment of status is the first step towards achieving many individuals’ lifelong dream of becoming a United States citizen.  Attorney Ahmad Yakzan has helped numerous individuals apply for permanent residence through family, employment, or special visa petitions. We would be honored to help put you on solid footings to reach your and your family’s goals.

What is Permanent Residence?

Adjustment of status in the process in which individuals signal to the United States government that they want the United States to be their permanent home. Adjustment of status  could be achieved in many ways, including marriage, employment, and special permanent residence programs like self-petitions under the Violence Against Women Act (VAWA).

How Can I Apply for Permanent Residence Using Marriage?

Permanent Residence through marriage to a United States citizen or Lawful Permanent Resident is one of the quickest and cheaper ways to receive permanent residence. This is because the United States government gives priority to foreigners married to this class of individuals for family reunification reasons. Although individuals married to United States citizens are considered “immediate relatives”, who do not need to wait for an immigrant visa petition to be available, individuals married to permanent residents have to wait for such visa to be available. These visas are granted on a country quota basis, meaning that these visas may be available to individuals from certain countries but not others. Individuals married to permanent residents should also be “in status” if applying for adjustment of status in the United States.

The first step in the process is to apply for a form I-130, petition for alien relative, along with an application for permanent residence if the person is in the United States or a stand-alone I-130 petition if the individual is outside the United States.

Can I Apply Using My Job?

Permanent residence through employment is possible but depends on the background and the job the person intends to occupy upon adjustment of status. Individuals applying for permanent residence through employment fall into preference categories, meaning that the United States gives priority to certain individuals over others. There are five preference categories, commonly known as EB1, EB2, EB3, EB4, and EB-5. The EB1 preference category includes international managers and executives, to outstanding professors and researchers and persons with extraordinary ability in the arts and sciences. This preference category does not require a labor certification by the Department of Labor. Some of the individuals who fall into this category may self-petition, meaning that they may not require an employer, but must intend to continue working in their field.

The EB2 category includes individuals who require a labor certification unless they fall under an exception, who intend to occupy jobs that require a Master’s degree or higher.  A person holding a Bachelor’s degree with five years of progressive employment may also apply under this category. Most of these individuals require a labor certification unless the job is pre-certified or falls within the national interest of the United States.

The EB3 category also requires a labor certification and is reserved for jobs that require a Bachelor’s degree or its equivalent. The EB3 category includes individuals who are skilled workers, professionals who hold a Bachelor’s degree, or other workers who have two years of experience.

The EB4 category includes special immigrants including religious workers and nationals of Afghanistan and Iraq who worked as translators with the United States armed forces.

The EB5 program, also known as the employment creation category, includes individuals who, through a minimum investment of $500,000 in their own enterprise or a regional center, and create 10 jobs in the United States gain permanent residence. For more information on this program visit this link.

Can my Child Receive Permanent Residence with Me?

In many situations, and depending on individual cases, children of applicants for permanent residence can receive permanent residence with their parents.

What are the Requirements?

There are many requirements to receive permanent residence whether you are applying in the United States or outside the United States before a consulate of the United States using consular processing. Lawful admission to the United States is critical unless a person who has entered in an undocumented way falls under an exception. The person must also be admissible into the United States. Admissibility means that the individual has not committed crimes, or has other grounds of inadmissibility in their background. The person should also be not deportable from the United States, meaning that the person has not committed acts that would lead to his deportation from the United States.

Can I Receive Permanent Residence if I am Outside the United States?

Permanent residence for individuals outside the United States is possible through consular processing.

What if I have committed a crime, May I still Apply for Permanent Residence?

You may gain permanent residence, even though you committed a crime, depending on the nature of the crime and the classification of such crime.

Can I Apply for Permanent Residence in Immigration Court?

Yes. We have helped numerous individuals apply for permanent residence in immigration court. These cases involve many factors that may affect the result. Call us today to discuss your case.

Removal of Conditions on Residence (1-751)

The Marriage Fraud Amendments passed by Congress in 1986 established the Conditional Residence classification. The main goal of these amendments is to prevent fraud in marriage based Adjustment of Status applications. The amendments mandate that the Beneficiary in an Adjustment of Status case to apply for removal of conditions on the permanent residence by filing an I-751 application 90 days before the second anniversary of the approval of the initial Adjustment of Status application.

How and When Do You have to File Your Petition?

A Beneficiary of any marriage based I-130 petition, filed by a United States citizen or a lawful permanent residence, must file the I-751 application if he or she were granted Conditional Permanent Residence initially. A Beneficiary would be granted this status if his or her marriage to the United States citizen or permanent resident is less than 2 years old. Beneficiaries who have been married to the Petitioner for more than 2 years receive permanent residence without any conditions.

The Beneficiary must file the petition 90 days before the expiration of Conditional Residence.

Do I have to File Jointly with My  Spouse?

If you are still married to the Petitioner spouse at the time of filing, you should apply jointly. A joint petition would not be possible if you and your spouse are separated or divorced, it is advisable to apply for one of the waivers discussed below.

My Spouse and I are Divorced, What Should I do Now?

If you are no longer living with your spouse, or you are now divorced, you may apply for one of the available waivers under INA §216(c)(4). These waivers include:

Extreme Hardship Waiver: this waiver is available for Applicants whose removal would lead to extreme hardship to a qualifying relative.

Good Faith Marriage: this waiver is available for an Applicant who entered the marriage in good faith, and the marriage was terminated other than the death of the Petitioner spouse.

Battered Spouse Waiver: this waiver is available if the Conditional Resident was abused or battered by the Petitioner during the period of conditional residence.

A Beneficiary does not have to wait to apply for one of these waivers until 90 days before the conditions expiration and may file at any time.

What Evidence Should I File?

There are several decisions from the Board of Immigration Appeals dealing with the sufficiency of the evidence in these cases. Some of the evidence that you should consider including in your petition include:

  • Birth certificates for any children
  • Health and car insurance
  • Joint mortgages and other joint loans
  • Utility and phone bills

This is not an exhaustive list and you should consult an immigration attorney before filing your petition.

My Petition was Denied, Now What?

Under the Immigration and Naturalization Act, a denial of the I-751 petition by the Service leads to the initiation of removal proceedings against the Applicant. The Applicant may renew the application before the Immigration Judge. The Applicant may also renew his or her waiver applications.

It is important to highlight the fact that the Applicant remains a Lawful Permanent Residence until the immigration judge enters a final decision.

Please hire an attorney before filing an I-751 application, since they are very complicated and have great consequences if the Service denies them. Call us or contact us for a consultation.

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