Screening Far and Wide

Transcription

1 Screening Far and Wide November 30, 2017 Panelists Dan Berger, Partner, Curran & Berger LLP Carmen Maquilon, Director, Catholic Charities Immigrant Services, Diocese of Rockville Centre Erin Quinn, Senior Staff Attorney, Immigrant Legal Resource Center Work / Education-Based Immigration Status Survey & observations: 1. Available short or long term remedy 2. Lack of previous legal advice 3. Advice tended toward the source of that advice. 1

2 Common Remedies Employment-Based Green Card with 245i or consular processing Adjustment of Status through Marriage to a U.S. Citizen U-Visas for Victims of Crime Who Assist Law Enforcement Asylum Follow-up on something the parent s started Temporary Working Visas (H1B, L1, R1, O1,TN, etc.) with consular processing Unlawful Presence If obtained DACA or TPS before age 18 ½ then no ULP, and can consular process an employment based temporary visa or green card BUT, need to keep moving because ULP can accumulate after DACA or TPS ends day window Those who entered as an F-1 student, or F-2 dependent, with D/S (duration of status) may also not have ULP Temporary Work Visas Pure dual intent - first choice: H-1B - Professional working visa based on a job that requires a degree in a particular field. Lottery for private sector employers. Salary must be competitive. L-1 - Work abroad for a year, and then company transfers the employee back to the US. Job must be specialized knowledge or managerial. 2

3 Temporary Work Visas, continued Quasi dual intent - E visa - Entrepreneur, or work for a company owned by people from the dreamer s country. Need investment in the US or trade between the countries. Based on treaties, so not all countries qualify. (Mexico does through NAFTA) O-1 - For someone extraordinary in her field TN - Professional worker from Mexico under NAFTA R-1 - Religious Worker Employment-Based Permanent Residence Labor Certification Test the labor market for ANY full-time job offered. Streamlined version for nurses, PTs and college-level teachers. More education and experience helps. National Interest Waiver Self-petition, and room to market oneself. For example, entrepreneurs, researchers working on public health, alternative energy, etc. What About a Student Visa for a Student? Student visas are challenging: The F-1 student visa requires temporary intent under INA 214b. This was relaxed in 2005, and has been strengthened again under the Trump Administration. For DACA recipients, consular processing is the only option and risky. For TPS holders, could file a change of status to F1, less scrutiny of 214b by USCIS than DOS. 3

4 What About Unlawful Presence? For temporary employment based visas, can consider a d3 waiver. Slow and uncertain. The longer spent abroad, the stronger the case (for example doing a degree abroad then applying for a job here) If on TPS can change status to any temporary visa For green cards, 245i, or I-601A waiver based on extreme hardship to USC or LPR parent or spouse Younger Siblings & Relatives Screening DACA and TPS holders is an opportunity to share information with other family members who may not have had good legal advice. SIJS and adoption are possible. For adoption, see adoption.state.gov. If this is an option for the child, must be done before age 16 (18 if adopted with a genetic sibling under age 16). Registry Under Section 249 of the Immigration and Nationality Act RECORD OF ADMISSION FOR PERMANENT RESIDENCE IN THE CASE OF CERTAIN ALIENS WHO ENTERED THE UNITED STATES PRIOR TO JANUARY 1, Who qualifies: Persons that entered the United States prior to January 1, 1972; Is a person of good moral character; Has resided continuously in the United States prior to January 1st, 1972; Is not ineligible to citizenship and not deportable under section 237(a)(4)(B) (Terrorist Activities) Is not inadmissible under section 212(a) Has not become a Legal Permanent Resident after entry 4

5 Registry, continued PROCESS: Prepare and file I-485, Application to Register Permanent Residence or Adjust Status with supporting Evidence. Application is filed with USCIS if not in deportation proceedings or with the Immigration judge if process done during removal proceedings. The Nicaraguan Adjustment and Central American Relief Act (NACARA) 203 This law allows Salvadoran and Guatemalan nationals as well as other nationals of the former Soviet Union and some Eastern European nations to apply for suspension of deportation or cancellation of removal as long as they have not been convicted of an aggravated felony. NACARA 203 for Salvadorans and Guatemalans Salvadorans: Entered the United States on or before September 19, 1990 and registered for American Baptist Church (ABC) benefits agreement on or before October 31st, Guatemalans: Entered the United States on or before October 1st, 1990 and registered for ABC benefits agreement on or before December 31st,

6 Derivatives of NACARA Principals, p.1 Available to spouses and children (INA 101(b)(1)) (under 21 and unmarried) under 8 CFR (a)(4), where the relationship existed at the time the Principal NACARA applicant was approved for the benefits. Derivatives can apply for the benefit independent of the principal applicant Termination of marriage (divorce, separation, death) subsequent to Principal obtaining the benefit does not prevent the spouse from obtaining the benefit Child turning 21 after principal obtaining benefit does not prevent the acquisition of the benefit Derivatives of NACARA Principals, con't. Subsequent marriage of child after principal obtains benefit does not prevent eligibility Naturalization of the principal does not prevent eligibility for the family members Spouse and Children can be from any country Applicants need at least seven years of physical presence in the United States Applicants need to show good moral character. Derivatives of NACARA Principals, con't. Son/Daughters of principal applicant who were over the age of 21 at the time the benefit was granted can qualify provided they entered the U.S. prior to October 1st, There are certain protections under the Violence against Women Act for the spouses and children of NACARA principals, where the principal was the aggressor. 6

7 Questions for NACARA Derivatives Date of entry to US Date of birth Status of Spouse or prior spouses Manner in which spouse or prior spouse obtain legal permanent residence Length of residence in the United States County of birth of spouse or previous spouse Place of birth of parents Status of parents How did parents obtain status QUIZ You have a DACA client whose work authorization will expire on July, She is 27 years of age and recently married. Client tells you that she is from Honduras and her father is a LPR from El Salvador who adjusted under NACARA. Client does not have a good relationship with her dad. A. Tell client to be nice to her Dad and ask him to become a U.S. Citizen B. Tell client that she may be able to file under NACARA, regardless of her issues with dad C. Look for another remedy since she is married and dad is only a Legal Permanent Resident Religious Workers - Non Immigrant Three categories of employment based classifications in the United States: Ministers Religious Vocations Religious Workers 7

8 Ministers i.e. Pastors, Ordained Deacons Individuals authorized by a recognized denomination to conduct religious worship and perform other duties traditionally reserved for the clergy. Must be fully trained according to the denomination s standards. Religious Vocations i.e. Religious Sisters, Brothers Formal lifetime commitment demonstrated by vows or other ceremonies; and evidence of a traditional established class different from secular members. Religious Workers Nonimmigrant: Plans to be in the United States employed on a temporary basis not to exceed five years Member of denomination for 2 years Works at least 20 hours per week Intends to depart the United States at the end of the Religious status There is a five year limit of stay Initial stay of up to 30 months 8

9 Religious Workers, con't. Employer: Must be tax exempt under section 501(c)(3) of the tax code Proof of religious denomination Complete employer attestation Show proof that worker will receive a salary or will be a non-salaried employee IRS documentation of certified tax returns. Religious Immigrant Worker Two years membership in religious denomination Employer must be nonprofit, tax exempt 501(c)(3) Must work full-time an average of 35 hours per week Must plan to work as a Minister or Religious Vocation or Religious Occupation Must have two years of continuous experience immediately prior to application Religious Immigrant Worker Adjustment of status: I-485 Allowed only if person never violated status or worked without permission in the United States. 245(k) of the INA EB4 Religious workers - if the applicant has not subsequent to admission, violated status for an aggregate period of 180 days. 9

10 QUIZ Mr. Pierre is from Haiti and has TPS, he applied while still on a valid B- 2 status (visitor) in Mr. Pierre is the musical director at his local church where he is also a parishioner and dedicates 30 hours per week preparing the songs for mass and in practice with the choir who he also recruits as they need be able to speak French. 1. Mr. Pierre can speak with his pastor for a possible change of status to a Religious non-immigrant Visa 2. Mr. Pierre can ask his pastor to sponsor him for a green card as a religious worker 3. Mr. Pierre can ask his congregation to advocate for Haitian TPS and send letters to their congressional representative. 4. All of the above Trafficking Victims and Derivatives T VISAS - Humanitarian relief for victims of severe form of human trafficking (sex or labor) T-visa holder (T-1 or the "principal") over 21 years of age may petition for: the spouse, if married before the principal applied for T-1 status; and, children under the age of 21 and unmarried when the principal applied for T-1 status Trafficking Victims and Derivatives, con't. T-1 applicant (principal) who is under 21 may petition for: Spouse Parents Children And siblings who are under 18 years of age and not married. Derivatives do not have to wait 33 months to apply for a green card, they qualify at the time when principal applies. 10

11 Best Defense is Citizenship Acquisition/Derivation Threshold Questions: At the time you were born outside the U.S., did you have a parent or grandparent who was a USC? Or Before you turned 18, did you get a green card and did you have one parent who was a USC? Consult ILRC s charts In Brief Acquisition Child born outside U.S. became a USC at birth Must have at least one USC parent when the child was born USC parent(s) must have fulfilled certain residence requirements prior to child s birth All rights of USCs Automatic, by operation of law Use Use the the Charts charts to A determine and B to the determine law effect the law in effect at the at time the of time child's of child's birth. birth In Brief Derivation Child born outside U.S. became a USC later, when conditions are met Child born outside of U.S. Child became a lawful permanent resident maybe not? One or both parents are USCs All rights of USC born in U.S., but can t become president Automatic by operation of law Use the Charts to determine the law in effect at the time the events occurred. Use Chart C to determine the laws in effect at the time the events occurred. 11

12 Basic Eligibility: New law applies only to people born on or after 2/28/83. One parent must be a USC Child must be a lawful permanent resident Child must be under 18 Child must be unmarried Child must be living in the legal and physical custody of the USC parent Adopted children may qualify If the child is illegitimate at birth, father must legitimate child before age 16 In Brief Section 322 citizenship Only go to 322 if didn t acquire or derive Child born outside of U.S. One or both parents are USCs Child lives outside U.S. with citizen parent(s) Child still under 18 Not automatic, must complete before 18 th birthday Can t become president Gaining Adjustment Eligibility Adjustment of Status under 245(a) Alien must have been inspected and admitted or paroled upon entry to U.S. An immigrant visa is immediately available to him/her at the time the application is filed (Priority Date is current) Must not otherwise be barred under 245(c) Alien is admissible to the United States 12

13 Meeting Threshold Eligibility 245(i) Parole Entry Left and re-entered with Advance Parole Entry with Parole granted at consulate or border Parole in Place Wave Through TPS Status? Left and re-entered with Advance Parole 9th and 5th circuits: TPS status sufficient for admission Parole-in-Place: Who is covered? Spouses, parents, children of those who are: serving as active duty members of the U.S. Armed Forces current members of the Selected Reserve or the Ready Reserve previously served in the Statute U.S. Armed does not Forces limit or parole-in-place Selected Reserve to family or the members, Ready Reserve but current policy is to grant it only to military family members INA 245(c) Alien is ineligible to adjust under 245(a) if: worked without authorization e.g. working on tourist visa failed to maintain status before AOS e.g. entering on tourist visa but overstaying Admitted as a non-immigrant visitor without a visa under INA 217 (Visa Waiver program) (immediate relatives are not subject to these bars) 13

14 Grandfathering under 245(i) 8 CFR Must be a beneficiary of a qualifying immigrant visa petition or labor cert (I-140, I-130, 1-360, ) Petition must be properly filed and approvable when filed Principal Beneficiary must meet physical presence requirement if it applies INA 245(i) "approvable when filed" Even when later revoked (due to circumstances after filing), denied or withdrawn marriage ending in divorce child reaching 21 employer going out of business Grandfathering under 245(i) Example: LPR Jose petitions his wife, Maria, in Their daughter, Esperanza, is 15 years old at the time. Esperanza entered the U.S. without inspection in In 2003, Maria and Jose divorce. In 2004, Esperanza marries George, a U.S. citizen. What are Esperanza s options now? 14

15 Suspension: Re-opened deportation proceedings? Lived in the United States continuously for the past seven years. Good moral character for the seven years prior to the hearing. Deportation would result in extreme hardship to herself or to her spouse, parent, or children who are U.S. citizens or LPRs. See former INA 244(a)(1). In deportation proceedings 10-year Suspension If ineligible for the former seven-year suspension because of being deportable or inadmissible for crimes, could still qualify for ten-year suspension See the former INA 244(b); 8 CFR : ten years of physical presence good moral character for ten years immediately following the conviction. must show exceptional or extremely unusual hardship to herself and/or her U.S. citizen or LPR spouse, parent, or child. Ten-year suspension would waive any conviction except an aggravated felony conviction received on or after November 29, (permanent bar to establishing good moral character. 10-year Suspension Can still use 10-year suspension today in REMOVAL proceedings: people who pled guilty to offenses before April 1, 1997, and who otherwise qualify for ten-year suspension, are able to apply for this in removal proceedings today. Lopez-Castellanos v. Gonzales, 437 F.3d 848 (9th Cir. 2006). The court used the same rules about retroactivity that the U.S. Supreme Court set out in the INA 212(c) case, INS v. St. Cyr, 533 U.S. 289 (2001). 9th Circuit only 15

16 10-year Suspension Example: Bernardo is convicted of one or more drug offenses in The convictions are not aggravated felonies, but they make him inadmissible and deportable. Bernardo is undocumented. POLL: Can Bernardo qualify for: A. cancellation of removal for non permanent residents B. adjustment of status C. 10-year suspension in the 9th circuit Questions Questions? (Use the chat box on the right of your screen to ask questions.) Upcoming econference Session Friday, December 1: Written and Oral Advocacy in Immigration Court and Beyond This training will help you improve oral and written advocacy with clients, immigration judges, opposing counsel, and immigration officers. The panel will identify common advocacy challenges; and techniques to improve oral and communications, oral arguments, trial presentation, and legal briefing. A plain language expert will discuss communicating and writing for clients. For more information and to register, go to: ce/ 16

17 Join Us! Join a community of over 7,000 advocates dedicated to protecting and promoting the rights of immigrants in the United States. To learn more, visit twitter.com/immadvocates facebook.com/immigrationadvocates 17