The Importance of Maintaining Status while changing to Student Status

Posted on by Ruby Powers in Immigration Law Leave a comment

by Immigration Attorney Michele Strickland

 

So you entered as a visitor and decided to go to college. You applied and were accepted to a school and the DSO issued an I-20, now what? It is very important to know that you may not enroll and attend classes while on a tourist visa (B-1/B- 2). You must first either leave the country and obtain an F-1 visa at a U.S. Consulate or remain in the U.S and apply to change your status.

For many it is a hardship to have to return to one’s home country to apply for a visa. You may apply to change your status to F-1 or M-1 if: you have not enrolled in classes; if your current status has not expired; and if you have not worked in the U.S. without employment authorization. To change your status you must file a Form I-539 Application to Extend/Change Status.

One key factor to keep in mind is that you must remain in status while your application is pending. Many applicants must file a second Form I-539 – with a separate filing fee – to extend their B-1/B- 2 status. This applies to you if your current status will expire more than 30 days before the F-1 or M-1 program start date. USCIS may only approve the change of status if you maintain your status up to 30 days before your start date.

You must also file a second Form I-539 if your F-1 or M-1 start date is deferred to the following academic term or semester because USCIS did not make a decision on your application to change status in time to start classes. You must file the second Form I-539 in order to bridge the gap in time between when your current status expires and the 30 day period before your new program start date.

Make sure you check the USCIS processing times before filing your application to determine if you must plan to file two applications with two filing fees. Remember that you cannot enroll in classes until USCIS approves you change of status. This would be a violation of your status and you will not be eligible for a change of status.

It is always best to seek the advice of an immigration lawyer to explore your options and to ensure that you are following the law.


Current Affirmative Asylum Interview Scheduling Times

Posted on by Ruby Powers in Immigration Law Leave a comment

December 2017

By Asylum Immigration Attorney Ruby L. Powers

I am a Board Certified Immigration attorney and have practiced solely immigration law for over nine years with a constant case load of asylum cases.  Having worked on affirmative and defensive asylum since being a law student in the immigration law clinic and many years later, I have held a high approval rate for clients from over 18 countries.  My firm has clients all over the United States and my associates and I travel to asylum offices nationwide.

Affirmative Asylum processing times have always varied from office to office and depending on the volume and demand.  Several years ago, interviews only took three or four months and clients had a decision before they were even eligible for work authorization.

In the United States, depending on where the Asylum seeker is living, it will determine which Asylum office will have jurisdiction or authority to decide an asylum case.  A great resource is the Asylum Office Locator on the USCIS website.

Another important factor is if the application is affirmative or defensive.  Affirmative Asylum is held with an asylum officer at an asylum office or sub-office or on a circuit ride.  The interview is often held in an office space with one officer, the asylum applicant as well as their attorney and interpreter, if needed.  Defensive Asylum is when a person is under immigration court jurisdiction and applying as a form of relief. This form of asylum can be more challenging to obtain since you are not only having to prove your case before the immigration judge in immigration court but also would have to overcome any opposition by the trial attorney regarding the merits of the case.

It is important to note in affirmative asylum processing, waiting for the interview is one part of the process but waiting for the decision afterwards can depend on many factors including the office, the country, the facts of the case, and security clearances. Many applicants focus only on the interview wait and must realize the decision can take a while as well.

To give many asylum seekers an idea of how long the process it taking for an interview, I wanted to provide the following information from my experience.   My firm has experienced a higher volume of asylum case work this year and I have a lot of information to share:

There are three processing times for affirmative asylum cases in the United States: regular processing, call in request and expedited request.

  • Regular Asylum Processing: Depending on the asylum office, the regular asylum processing times are posted on the USCIS website called Affirmative Asylum Scheduling Bulletin. This bulletin is not 100% accurate but does give a better guide to the processing times at the different offices. It has only been in use the last couple of years. For example, it shows that in the Houston office (which covers the states of Texas, New Mexico and Oklahoma), is taking a little over 3 years for an interview. In the New Orleans office, they are taking less than two and a half years.

 

  • Call In Lists: From my experience working with or contacting at least 5 asylum offices, each office has a call up list process. This list is basically on the idea if an asylum applicant were to cancel or reschedule their long-awaited asylum interview; the office would like to fill the spot. Many asylum applicants are eagerly awaiting their interview day so they notify the office that they are willing to be called up if an open interview appointment comes up. This can take many different forms including being given only a couple days’ notice to three weeks’ notice.

 

As my office is only 25 minutes to the Houston Asylum office, I am comfortable for my Houston-based clients to be on the Call In list. I recently had less than 15 minutes to decide if my client and I could travel to a third state and be ready for the interview in less than 6 day from the call. We decided to take the appointment, we prepared intensely with little time, and we both traveled long distances for the interview and were able to get an approval not very long afterwards!

In Houston, they ask that the person wait one year after filing before asking to be placed on the Call in List. In my experience, I don’t see that as the requirement for the other offices but it good to check with the office you will be working with.

  • Expedited Requests: If an asylum seekers has an extreme life or death emergency or matter for themselves or their immediate family (spouse and children who qualify as derivatives on their case), whether it be in the US or in another country, they can request an expedited interview. Each office may have a different process but it looks the same, you make the request in writing with evidence to support the expedite claim. After submission, the asylum seeker or their attorney can follow up as well. In my experience for my clients, we have received interviews within three weeks for all the expedite requests I have made. Again, these requests should not be made lightly as it is a serious matter.

 

In closing, it is important to be prepared. I have written other articles on asylum I list below.  If you are an asylum seeker without an attorney, I highly suggest you consult with an experienced asylum attorney before your interview. You might have little time to prepare once you receive your interview notice after waiting a long time.  Research shows that an asylum applicant with an attorney has a better chance of approval than without an attorney.  But please choose your attorney wisely as not all immigration attorney s have experience with asylum.  Your asylum results can be greatly impacted by doing your best in preparing, choosing the right attorney, and being ready for your interview day.

Other Articles:


Trump Administration Ends Temporary Protection for Haitians

Posted on by Ruby Powers in Immigration Law Leave a comment

The Trump Administration has decided to end Temporary Protected Status (“TPS”) for Haitians who were in the U.S. and could not return to the Haiti as a result of the devastations left by a 2010 earthquake and subsequently by a 2015 hurricane. Haitians that were in the U.S. under this Temporary Protection Program will be expected to leave by July 2019 or face deportation proceedings.

Currently, there are approximately 320,000 people benefiting from this program. Salvadorans and Haitian comprised the two largest groups of individuals under TPS with 200,000 and 60,000 respectively. TPS was signed into law in 1990 by then President George H. W. Bush. It is designed to allow individuals from countries that are undergoing civil strife or recovering from a natural disaster that prevents them from returning, to remain in the United States while the situation back home returns to normal. These individuals are also eligible to receive work authorization while in the United States. The U.S. government does routinely review each group’s status in order to decide whether or not to continue the protection.

The U.S. government has also recently announced that it would be making another assessment in order to decide whether or not to extend TPS to citizens of El Salvador. This decision is expected to be announced sometime in January 2018.


Federal Judge Blocks Trump Administration Sanctuary Cities Order

Posted on by Ruby Powers in Immigration Law Leave a comment

On Monday, November 20 th , a federal judge permanently blocked President Trump’s executive order cutting funding from jurisdictions that do not cooperate with U.S. immigration authorities.

U.S. District Court Judge William Orrick, in lawsuits brought by the California counties of San Francisco and Santa Clara, ruled that the Administration did not have the constitutional authority to impose new conditions on spending already approved by Congress. He disagreed with the administration’s position that the executive order only applied to a few grants affecting less than $1 million slated to Santa Clara County and possibly no money for San Francisco County. In his ruling, Judge Orrick disagreed, stating that the rule was written so broadly it is likely to affect hundreds of millions of dollars to these counties.

The Trump administration has appealed the decision to the 9 th U.S. Circuit Court of Appeals.


The Updated and Improved Provisional Waiver and recent processing times

Posted on by Ruby Powers in I-601 Waivers, I-601A Waivers, I-601A waivers Leave a comment

By Provisional Waiver Immigration Attorney Ruby L. Powers
November 15, 2017

What is an I-601A waiver (Provisional Waiver)?

The I-601A, Provisional Unlawful Presence Waiver, is a waiver that was introduced in 2013 under the Obama Administration. This waiver allows certain individuals, who entered the United States unlawfully, to be able to pursue residency while maintaining family unity, granted they meet the criteria of extreme hardship and have a qualifying relative. While this program still requires that individual to leave temporarily abroad for their consular interview and immigrant visa, as opposed to the waivers that preceded, the time a family spends apart is significantly reduced and, in many cases, is the only available option for legal permanent residency. This program has proven to be successful, and while the concept of leaving the United States may be frightening, it not to be feared if you have an experienced attorney by your side.

At the Powers Law Group P.C., we pride ourselves in successfully guiding our clients through the consular processing and I-601A waivers process. In recent months, we have seen a reduction in the adjudication period for I-601A waivers – from 7 months to 4 months. On August 29, 2016, an expansion of eligibility for such waivers began to be implemented to applicants including allowing Legal Permanent Residents to be eligible as Qualifying Relatives and allowing other visa categories, not just immediate relatives, to participate, among some other provisions.  Furthermore, in December 2016, a clarification of the extreme hardship standard was made which makes the process easier and clearer for adjudicators, clients and attorneys to meet and/or understand.

What does an I-601A waiver require?

In short, the expanded I-601A waiver requires that you have a Legal Permanent Resident (LPR) or United States Citizen (USC) parent or spouse – whom is considered your qualifying relative- that can show extreme hardship whether it be financially, emotionally, medically, and/or mentally, as a direct result from your absence (separation) OR extreme hardship in the event of the qualifying relative’s relocation to your country. Children (whether it be adult or minor) do not qualify to be qualifying relatives; with that said, to meet the extreme hardship standard, affidavits from you and your qualifying relative are suggested along with supporting documentation of the facts and events stated on your affidavits. This type of waiver is not appealable; however, could be re-filed in the event of a denial. It is important you schedule a consultation with an immigration attorney with experience in waivers to determine whether you or your loved one qualifies for this type of waiver.

What is the time expectancy of an I-601A waiver?

Overall, the entire I-601A provisional waiver process, in the case of an immediate relative spouse petition, for example, from the initial consult to the U.S. Consulate interview, is approximately 18 -24 months. Details for this timeline are as follows:

  • Step 1: I-130, Petition for Alien Relative Submission

 

      • (8-10 months) Adjudication period. Receipt notices are received within 2-3 weeks of submission.

 

  • Step 2: National Visa Center (NVC) Part I

 

      • (1 month) Following approval of I-130 by USCIS; USCIS sends the file to NVC for processing and issuing fee bills associated with Immigrant Visa Application and Affidavit of Support.  

 

  • Step 3: I-601A, Provisional Unlawful Waiver Submission and Adjudication

 

      • (4 months) Adjudication period. Receipt notices are received within 2-3 weeks of submission.

 

  • Step 4: NVC Part II

 

      • (2-3 months depending on if a request for evidence)
      • Submission of I-864 and DS-260 among other documents

 

  • Step 5: Visa appointment

 

    • (1-3 months) for notice of interview depending on the consular post.
    • Medical Exam

 

Please note that this timeline only takes into consideration recently-noted trends in processing times by the government, and not any additional time that preparation of documentation by the client and attorney may take.

The Powers Law Group has helped thousands of families stay united and take the leap to legal permanent residency and a more secure future.  It is important to your journey to do your research in hiring the attorney and firm to assist you through this process.  Be aware of ‘notario’ fraud and people or groups offering to “fill out forms” for you as immigration law is more complex than this and often people become victims of unauthorized practice of law. Learning about a firm’s experience with waivers and knowledge of various countries, including your own, are essential.  As they say, a journey of a thousand miles starts with the first step.


TPS

Posted on by Ruby Powers in Immigration Law Leave a comment

The Trump administration continues its anti-immigrant agenda by ending TPS for some countries and threatening to remove the designation for more. Most recently, the administration announced it will terminate Nicaraguan TPS, with the last day of TPS to be Jan. 5, 2019. This follows the termination of TPS status for Sudan (last day:Nov. 2, 2018). Honduran TPS has been extended for 6 months.

 

Updates on Temporary Protected Status

  • Sudan:TPS for Sudan received a 12-month termination in Oct. 2017. The last day of TPS for the Sudan will be Nov. 2, 2018.
  • South Sudan:TPS for South Sudan received an 18-month extension in September 2017.
  • Nicaraguareceived a 12-month termination in Nov. 2017. The last day of TPS for Nicaragua will be Jan. 5, 2019.
  • Hondurasreceived a 6-month extension in Nov. 2017.

 

Upcoming TPS decision dates

  • Nov. 23, 2017: Haiti
  • Jan. 8, 2018: El Salvador
  • Jan. 30, 2018: Syria
  • Apr. 25, 2018: Nepal
  • July 5, 2018: Yemen
  • July 19, 2018: Somalia
  • March 3, 2019: South Sudan

 

For up-to-date information about TPS expiration dates, renewal dates, articles, and practice advisories, please visit CLINIC’s great resources at https://cliniclegal.org/tps


Why It is Critical to Understand the New 90-day Rule Regarding Misrepresentation Based on Conduct

Posted on by Ruby Powers in Immigration Law Leave a comment

Immigrants now face stricter rules regarding misrepresentation. The Department of State (DOS) revised the section of the Foreign Affairs Manual (FAM) guidelines that deal with misrepresentation. Section 9 FAM 302.9-4(B)(3) applies to foreign nationals in the US “who conduct themselves in a manner inconsistent with representations they made to consular officers concerning their intentions at the time of visa application or to DHS when applying for admission or for an immigration benefit.”
The FAM now includes an updated section called “Inconsistent Conduct Within 90 Days of Entry.”

The exact language is as follows:

If an alien violates or engages in conduct inconsistent with his or her nonimmigrant status within 90 days of entry, as described in subparagraph (2)(b) below, you may presume that the applicant’s representations about engaging in only status-compliant activity were willful misrepresentations of his or her intention in seeking a visa or entry.

If a U.S. consular officer “becomes aware of derogatory information indicating that an alien in the United States who has a valid visa, may have misrepresented his or her intentions to you at the time of visa application, or to DHS at the port of entry or in a filing for an immigration benefit” they should “bring the derogatory information to the attention of the Department for potential revocation.”

Why this is of critical importance:
This means that DHS and DOS will look now closely at an individual’s activity in the first 90 days after entry to the US. If an individual indicated that their intent to travel to the US was for tourism and within the first 90 days takes action to change their status (i.e., applies to change status to a student or a non-immigrant worker or marries a US citizen, etc.) it could result in severe repercussions, including being barred from entry to the U.S. for life. (See section 212(a)(6)(C) of the Immigration and Nationality Act). Thus, it is crucial that foreign nationals and immigration attorneys fully understand the new FAM guidelines.

What to keep in mind:

Inconsistent Conduct
Conduct that violates or is otherwise inconsistent with a foreign national’s nonimmigrant status
includes:

  • Enrolling in a course of academic study if unauthorized to do so;
  • Engaging in unauthorized employment;
  • Marrying a U.S. citizen or Legal Permanent Resident (LPR) and taking up residence in the U.S. after entering on nonimmigrant B (Visitor) or F (Student) status, or any other status prohibiting immigrant intent; and
  • Any other activity for which a change of status or an adjustment of status would be required, without the benefit of such a change or adjustment.

 

Presumption of Willful Misrepresentation Based on Timing of Conduct
The FAM states that there will be a presumption of willful misrepresentation based on an alien’s activity within 90 days after entry to the U.S. The burden of proof falls on the alien, meaning that he or she must “establish that his or her true intent at the time of the presumptive willful misrepresentation was permissible in his or her nonimmigrant status.” Consular officers will give an alien “the opportunity to rebut the presumption of willful misrepresentation by presentation of evidence to overcome it.” However if an alien engages in conduct inconsistent with their nonimmigrant status more than 90 days after entry into the U.S., then there is no presumption of willful misrepresentation (though U.S. consular officers may still seek to revoke the visa upon “reasonable belief that the alien misrepresented his or her purpose of travel at the time of the visa application or application for admission.”)

Exercise caution when filing for adjustment of status.
From the updated guidelines, it seems that DOS is targeting aliens who enter through the Visa Waiver Program (which permits travel for tourism or business for stays ≤ 90 days) or on a B-1/B- 2 visitor visa and apply to adjust to LPR status. Please note that USCIS’ Adjudicator’s Field Manual has not been updated to match the new FAM guidance.

It should be noted that the Board of Immigration Appeals has established that in the case of adjustment of status of immediate relatives, the equity of the immediate relative relationship takes precedent over “preconceived intent.”  However, foreign nationals who have entered the U.S. on a B or F visa or any other nonimmigrant visa that prohibits immigrant intent should take caution regarding the risks of filing an adjustment of status, extension of status, or change of status within 90 days after entry.  Even if such filings are made 90 days after entry, the individual should demonstrate that something happened to cause them to alter their original plans and thus to want to change their immigration status.

But what happened to the 30/60 Day Rule?
The updated FAM has done away with the “30/60 day rule” regarding adjustment of status after entry on a nonimmigrant visa.  The 30/60 day rule can be summed up as follows:

  • If an alien files for adjustment within 30 days of entry, the government can presume that the person misrepresented their intention in seeking a visa or entry. A finding of misrepresentation or fraud can result in a lifetime bar to US entry.
  • If the act occurs more than 30 days but less than 60 days after entry, no presumption of misrepresentation results. However, if there is reasonable belief that of misrepresented intent, then the alien must present evidence to the contrary.
  • If the act occurs more than 60 days after admission into the US, there is generally no basis for a misrepresentation or inadmissibility finding.

 

USCIS’ policy manual has not been updated with the 30/60 day rule, but it may be in the future. The FAM makes no mention of retroactive application of the change but stated that it is effective September 1, 2017.

Foreign nationals who depended on on the 30/60 day rule and have pending adjustment of status applications should consult an immigration attorney to plan how to best handle their cases.

Is consular processing for an immigrant visa a better option for me?
Although there is no certainty that USCIS will adopt this new DOS rule, securing LPR status through consular processing abroad is becoming the preferred option over filing for adjustment of status, especially considering potential delays from USCIS expanding in-person interviews for adjustment of status applications. While cases vary, it may be advisable to withdraw your adjustment of status application and file a Form I-824 to request that the approval notice of the underlying immigrant visa petition be sent to a U.S. consular post.


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DACA may be down, but it is not yet out

Posted on by Ruby Powers in Immigration Law Leave a comment

By Attorney Jose Aponte, Powers Law Group

Ever since the story hit the newswires that the Trump Administration was rescinding the Deferred Action for Childhood Arrivals (DACA) program, much has already been said and written by pundits on both sides of this debate. For those few who still don’t know, the DACA program allowed some individuals who entered the country illegally, as minors, to receive a renewable two-year period of deferred action from deportation and to be eligible for a work permit. These individuals were brought into the United States as young children by their parents or by others. Deportation would mean, for many if not most, going to a country you do not know, where they communicate in a language you cannot speak.

The DACA program was started by the Obama administration in 2012. However, the program was commenced through an executive order and not through congressional action. To many, this was an unconstitutional overreach by President Obama. The attorney generals of several States, led by Texas, brought suit against the DACA and its companion Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). A temporary injunction was issued in February 2015, blocking DAPA from going into effect while the lawsuit proceeded. In his statement announcing the Trump administrations rescission of the program, Attorney General Jeff Sessions stated that they agreed that DACA, as it was implemented, was unconstitutional. Attorney General Sessions then announced that while it would end the program, it would do so gradually within a six month period. This was intended to give Congress the opportunity to decide whether or not it chose to enact any legislation. As of September 5 th , no new initial DACA-related applications filed would be acted on. DACA renewal requests for beneficiaries whose benefits are set to expire between September 5, 2017 and March 5, 2018 would be adjudicated, as long as applicants submitted their applications by October 5, 2017.

According to a recent poll, 54 percent of Americans say they are in favor of Congress passing legislation that would allow DACA recipients to remain in the United States. The greater debate is whether these individuals should eventually be allowed to become eligible for legal permanent residence or citizenship. This apparent support for DACA recipients seems to be getting the attention of Congress.

Recently, Congressional leaders have expressed support in passing some form of legislation. The question is whether a DACA fix would be proposed as standalone legislation or should it be part of a larger immigration reform bill. U.S. House of Representatives Speaker, Paul Ryan, has said that he believes that fixing the DACA program should be part of larger immigration changes. Congressional Democrats seem to be willing to have DACA legislation stand on its own.

President Trump has expressed support for the “Dreamers” although has been short on specifics. With his administration’s September 5 action ending DACA, most concluded that he had bowed to the wishes of his far right base. However, on September 13 it was announced that, the President had invited Democratic Senator Chuck Schumer, and Congresswoman Nancy Pelosi to the White House for dinner. One of the topics apparently in the agenda – DACA. Later that night, Democrats issued a statement announcing that they had reached an agreement with the President that would save DACA. However, the Administration later responded by saying that while the two sides were close to a deal, none had yet been reached. Whether or not a deal has yet been reached it is encouraging that lawmakers in Washington D.C. seem to be giving the subject matter its due consideration. The question remaining is what, if anything, must each side be willing to give in order to reach a compromise.

While “dreamers” still have reason to be nervous, recent actions do suggest that while DACA, as we have come to know it, is on its way out, Congress may have a more permanent solution just below the horizon. Their American Dream may still be within reach.


New Interview Requirements

Posted on by Ruby Powers in Immigration Law Leave a comment

by Attorney Michele L. Strickland, Powers Law Group

Beginning October 1, 2017 Immigration (USCIS) will require in person interviews for green card applicants who are sponsored by employers and who are refugee/asylee relatives. In the past an interview was not required for these applicants. This change will likely slow the process and create larger backlogs.

In fiscal year 2015 (the latest data available from USCIS) approximately 168,000 applicants received their green cards in these categories. Most of these applicants (122,000) were sponsored by their employers.

The change is made as part of Executive Order “Protecting the Nation From Foreign Terrorist Entry Into the United States.” Under this, and other Executive orders, USCIS is attempting to improve its detection and prevention of fraud. Conducting interviews will allow USCIS Officers to verify information provided on applications, discover new information and assess the credibility of applicants.

USCIS plans to require interviews for more green card application categories in the future.


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