Voluntary Departure vs. Removal

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My husband just received a Notice to Appear (NTA) and is being deported. I heard that he can get voluntary departure and come right back in. Is that true?

It is possible. However, if your husband is removed, he will be barred from entering the US for ten years unless he can obtain a waiver. If he is qualified to obtain voluntary departure there will be no bar for being removed. However, he may still be subject to other grounds of inadmissibility. For example, he may be subject to the 3/10 year bar if he accrued more than 180/365 days of unlawful presence. He may also be inadmissible due to previous criminal violations or for fraud/misrepresentation if he fraudulently entered the country.

Voluntary departure will not cure any grounds of inadmissibility other than the 10 year removal bar. It is very important that he be well represented in immigration court if you want him to be able to return or remain in the US.

H1B Visa and H4 Visa Extension

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Is my H4 extended automatically when my husband extended his H1B? I’m worried because he got a new I-94 card when he extended his H1B but I haven’t gotten anything.

An H4 visa status application may be filed concurrently with an H1B status application but they remain separate applications. If you did not file your own application then you will not receive a new I-94 card and are out of status and are accruing unlawful presence from the time your I-94 card expired. In some cases, USCIS will accept an untimely filed H4 visa status extension application but it can be difficult. We have been able to obtain approvals in these types of cases and some cases where the applicant was out of status for two years. However, it is important to have a good immigration history which means no previous immigration violations as well as no criminal history and generally have a record of good moral character.

Denied Entry to USA

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Denied Entry to USA

Reasons for Denied Entry to USA

Most foreign nationals who are denied entry to the US are those attempting to enter as tourists with B1/B2 visas or through the VWP Visa Waiver Program.  In order for tourists to gain entry to the US, they must establish to CBP, the Immigration Officer, that their trip is for tourist purposes and that he or she intends to return home before their authorized period of stay which is typically 6 months for B1/B2 visa holders or 90 days for VWP entrants.

212(a)(7)(A) Documentation Requirement for Immigrants

If CBP believes that the foreign national, who requests a temporary entry, but believes that the foreign national truly intends to stay permanently, he may deny their entry pursuant to 212a7A and require them to obtain an immigrant visa before attempting reentry.

212(a)(6)(C)(i) Misrepresentation

If CBP believes that the foreign national made a material misrepresentation in order to attempt entry, such as stating that the applicant intends to visit Disney when they actually intend to work for a specific company, he may deny their entry pursuant to 212a6Ci.

212(a)(9)(B) Unlawful Presence

If CBP believes that the foreign national was previously in the United States illegally for a period of more than 180 days, he may deny their entry pursuant to 212a9B.

A complete list of reasons why a foreign national can be denied entry can be found here. INA 212 Inadmissibility.

What Happens When Denied Entry to USA

If you are denied entry to the US, CBP will normally give you an opportunity to withdraw your application for admission.  If you withdraw your application for admission or if CBP orders your removal, you will be placed order oath and CBP will complete a record of incident.  If this occurs, be sure to obtain a copy of this record.  CBP will then place you on the next available flight with the airline to your home country (or car or boat depending on your method of entry).

Options to Address Denied Entry

After you have been denied entry, you will have three options to attempt a reentry.  First, if you believe that CBP had no valid basis to refuse your entry (e.g. They accused you of misrepresentation but you made none) then you can challenge the denial of entry with CBP or provide evidence that the denial was made incorrectly.  Second, if CBP denied your entry because they want you to enter as an immigrant rather than a nonimmigrant, you can obtain an immigrant visa.  Third, if your entry was denied and the ground of inadmissibility does apply (e.g. you previously overstayed more than 180 days) then you can apply for a waiver of inadmissibility and then reenter.

The DREAM is on! Obama to grant deferred action and work authorization!

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On June 15, 2012 the Department of Homeland Security formally announced that it will offer deferred action to “DREAMers.” This means that for millions of undocumented youths who entered the United States without inspection (no visas) as children can now obtain “deferred action” and work authorization from USCIS. Both individuals who are in removal proceedings (deportation) and those who are not in removal proceedings can apply for this benefit. Deferred action and work authorization will be valid for a two year period and can be renewed.

Eligible individuals must:

  • Be 15-30 years old, and have entered before age 16
  • Have been present in the US for 5 years as of June 15, 2012
  • Have maintained continuous residence
  • Have not been convicted of a felony, a significant misdemeanor or multiple minor misdemeanors
  • Be currently in school, graduated or have a GED, or is an honorably discharged veteran
  • The deferred action offer will be available to those in proceedings, as well as to those who apply affirmatively.

Find more information and how to apply here!

L-1B Visa

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My company wants to transfer me to the US. My job title is software engineer. I read on your website that I can get L1 visa to transfer but I am not a manager. Is it possible?

You may qualify for an L1B visa provided that you worked for this company for one year of out the last three years and your job requires “specialized knowledge.” Specialized knowledge refers to:

  • knowledge of products, services, research, equipment, techniques, management, or other interests and its application in international markets, or
  • an advanced level of knowledge or expertise in the employer’s processes and procedures, such as the ability to train others or perform specialized knowledge services in areas such as software, service and repair of products, and improving manufacturing methods

J1 Waiver

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I am currently on a J1 visa and am working at University of Chicago. I need a J1 waiver so I can switch to H1B visa because I am on my final J1 extension. Can I do no objection waiver? I am from Argentina.

A no objection based waiver is likely a good choice for you provided that you did not receive any government funding for your J1 program. However, if you have received government funding such as Fulbright, the chances of a no objection based waiver are very small without significant political support.

Marriage Green Card

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My wife entered the US on a tourist visa two months ago. We weren’t planning on getting married but we ended up in Las Vegas and got married in a spur of the moment thing. What do we do now? Can she stay here or does she need a K3 visa?

Immigration law discourages persons entering the US for one stated purpose but then pursues another. This includes entering the US as a visitor in B2 status or through the visa waiver program. Failure to follow the rules can lead to charges of visa fraud and removal from the US. Fortunately, the law does recognize that people do change their minds. In this situation you will need to weigh the risks associated with your desire to both remain in the United States. If your marriage occurred two months after she entered the US as a visitor and you did not plan to marry prior to her entry, it may be safe for her to remain in the US and apply for permanent residence and no K3 visa would be necessary.

New I-601 Hardship Waiver Filing Procedure

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Newly Proposed Filing Procedures Will Allow Spouses and Children of US Citizens to File Their I-601 Waiver in the United States

What is an I-601 Hardship Waiver?

Certain classes of foreign nationals are not eligible to immigrate to the United States because of previous immigration violations, the commission of serious aggravated felonies, drug or alcohol abuse, fraud or misrepresentation or for other reasons.  These persons are not eligible to adjust their status to permanent resident (green card) in the United States or obtain an immigrant visa at a Consulate abroad.  The current rule is that they must leave the United States, apply for a hardship waiver and then, if approved, they may re-enter the country.

I-601 Hardship Waiver Standard

Current law requires the foreign national to prove that they have a “qualifying relative,” either a citizen or lawful resident spouse, parent, son, daughter or US citizen fiancé(e), depending on the reason why the waiver is required and that this qualifying relative would suffer extreme hardship if the foreign national is not able to return to the United States.

New I-601 Filing Procedure

The current filing procedure requires the foreign national to leave the United States to apply for the hardship waiver.  Most foreign nationals do not want to leave the United States to apply for this waiver because if their waiver application is denied, they will not be able to return to the US for three years or longer.  President Obama’s new proposed filing procedure would allow spouses and children of US citizens who are in the United States but need a waiver of unlawful presence in order to get a green card to apply for that waiver within the United States.  After securing the waiver, the foreign national will have to leave the US to obtain their immigrant visa at the US Consulate abroad but the risk of being denied the immigrant visa is small so long as your case is handled appropriately by your attorney.

Political Asylum Series: Syria

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Political Asylum – Part III

Spotlight: Syria

In the third part of our asylum series, we will discuss previous asylum claims made by Syrian nationals.  This discussion should help you determine if asylum is a possibility for you

This asylum post will cover asylum applications where the applicant is of Syrian origin.

Political Asylum Requirements

Foreign nationals in the US who are unable or unwilling to return to their home country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, or membership in a particular social or political group may obtain asylum.

Examples of Successful US Asylum Cases Made by Syrian Nationals

  • A Syrian national in the US who attended protest rallies in the United States;
  • A Syrian national who is a member of democratic organizations;
  • A Syrian male who is a Christian; and
  • A Syrian female whose husband was killed by the Syrian government during a protest.

We can help you win your asylum claim and obtain permanent residency (green card) in the US

Many Syrian nationals have credible fear of persecution in Syria that can lead to an asylum approval.  However, most asylum cases are denied due to applicants failure to articulate their fear and document events that have led to that fear.  We have successfully helped many Syrian clients and we are familiar with many circumstances that can lead to a successful asylum claim.  In our experience, most asylum applications are adjudicated in 1-2 months.  It is best, but not mandatory, to file your asylum application within the first 12 months of your entry to the US and while you have a valid immigration status such as a visitor or work visa.   We understand the fear and the pain you’re going through and we’ll make sure that your asylum process is as painless as possible.

The USCIS Civil Surgeon

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Any foreign national who wishes to apply for permanent resident status (green card) must undergo an medical evaluation by a USCIS approved civil surgeon.  According to US law, specifically INA Section 212(a)(1)(A)(i) and 212(a)(1)(A)(ii), an immigrant must show that he or she 1.  does not have a communicable disease of public health significance and 2. has received vaccination against vaccine-preventable diseases.  The Centers for Disease Control and Prevention (CDC) controls which diseases are communicable diseases of public health significance and which are vaccine-preventable.  The CDC currently lists Tuberculosis, Syphilis, Chancroid, Gonorrhea, Granuloma Inguinale, Lymphogranuloma Venereum and Hansen’s Disease (Leprosy) as diseases of public health significance and Mumps, Measles, Rubella, Polio, Tetanus, Diphtheria, Pertussis, Haemophilus influenzae Type B, Rotavirus, Hepatitis A, Hepatitis B, Meningocococcal disease, Varicella, Pneumococcal pneumonia and Influenza as vaccine-preventable diseases.

When applying for a green card, a foreign national must have a USCIS civil surgeon complete Form I-693 and indicate that he or she does not have a communicable disease and that their vaccination record is up to date.  If the foreign national does have a communicable disease or does not wish to be vaccinated, he or she may apply for a waiver.

In order for a foreign national to document that he or she does have a communicable disease and that his or her vaccinations are in order, a USCIS civil surgeon must attest to these facts by completing Form I-693 and providing a sealed copy of the form to the foreign national to be submitted with the application for residency.  It is very important that the I-693 be fully completed and signed by the civil surgeon.  Filing an incomplete I-693 with USCIS can result in a denial of the green card application.

Many of our clients ask us how to locate a civil surgeon and if we recommend any in particular.  While we have hundreds or thousands of clients who have obtained medical exams performed by civil surgeons, we do not get involved directly with them.  We point our client to the USCIS Civil Surgeon locator tool. Our clients meet with the civil surgeon to perform the examinations and the civil surgeon will provide us with a sealed envelope containing Form I-693 which we then submit to USCIS.  The civil surgeon will communicate with our clients and inform them if the results are negative or positive.  Therefore, we cannot make any recommendations on which civil surgeon to select but if you would like to share your experiences with a USCIS civil surgeon here, we will be happy to post them so others can use the information to select their own.