Blog Topic

Appealing a Denial of an I-130 Petition for Relative
Posted by: ScottMond Law Firm
May 03, 2013

When adjusting status to that of a Legal Permanent Resident in the United States, a variety of problems from the past may arise. For instance, this blog article discusses when an I-130 petition for a spouse is denied due to a prior marriage which "went bad" in the midst of a prior filing with U.S. Citizenship and Immigration Services ("USCIS").

Both an I-130 and I-485 (application to become a U.S. Permanent Resident) may be filed at the same time when based on marriage to a U.S. Citizen. However, the I-130 must be approvable before the I-485 Green Card application is adjudicated. An I-130 may be denied if the prior U.S. Citizen spouse stated derogatory information to USCIS, or USCIS is not clear that prior marriage(s) and petitions by the previous spouse are terminated. (especially in the case of Consular filings abroad). Many clients come to us after such a denial and are confused.

The first step, is to understand the I-130 denial may indeed be appealed to the BIA, but the time and expense may be exhausting. The best option may be to refile the I-130 with legal counsel and satisfy the deficiencies in the first application through a new filing. Alternatively, an appeal to the BIA, also needs to include a request to "Remand" which is a critical step experienced immigration legal counsel can explain.

If you or someone you know is in need of a consultation on this immigration topic, or any other immigration matter, our attorneys may be contacted at info@scottcclaw.com or you may call us at one of our office telephone numbers conveniently listed at www.scottcclaw.com.

MEMBERS OF THE AMERICAN IMMIGRATION LAWYERS' ASSOCIATION (AILA)

ScottMond Law Firm

www.scottcclaw.com

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Intercounty Adoption
Posted by: ScottMond Law Firm
October 05, 2012

Unraveling the Complexity of International Adoptions for U.S. Prospective Parents

Unfortunately, International Adoptions can become a complicated maze that discourages many U.S. prospective parents, and reduces the number of international children being provided a loving secure home. Consequently, our law firm has formed alliances with International Adoption attorneys who are certified and experienced in countries across the globe to facilitate the 3 methods of international adoptions discussed briefly below.

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Deferred Action For Child Hood Arrivals Combined With Other Forms Of Relief
Posted by: ScottMond Law Firm
September 13, 2012

Since the arrival of Deferred Action for Childhood Arrivals (“DACA”), there has been much uncertainty about whether this relief should be filed instead of pursing more permanent relief such as a U.S. Permanent Resident Green Card. The purpose of this short blog article is to answer this question.

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Petitioning for your Spouse While He or She is in Removal Proceedings
Posted by: ScottMond Law Firm
September 04, 2012

Often our U.S. Citizen clients marry or are engaged to a non- U.S. citizen who is suddenly thrust into Immigration Removal Proceedings for a variety of reasons. A Notice to Appear (NTA) is what U.S. Immigration Court issues to initiate removal proceedings against an individual for a variety of reasons. Removal proceedings may be initiated by the Government due to a prior criminal history, or overstaying a visa.

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What Do I Do Now!...I am a Conditional Permanent Resident and My U.S. Citizen Spouse Will Not Attend the Interview With Me
Posted by: ScottMond Law Firm
August 13, 2012

We explain in this short blog the steps that need to be taken when a Joint I-751 (Application to Remove Conditions from Green Card) is filed, and the U.S. Citizen spouse subsequently refuses to attend the interview. Ultimately, the marriage begins to fail or fails before the requested USCIS Interview. In our previous blog posts, we have explained the I-751 Application process and I-751 waivers more extensively. Below we focus on specific steps to follow if by the time of interview the couple is no longer on speaking terms and a separation or divorce has occurred.

1. It is important to contact a U.S. Immigration attorney to find out strategically when it is best in your State to file for divorce or to remain separated.
2. If the interview is approaching, and there is no reconciliation between the husband and wife, the spouse whos status is set to expire should still attend the interview with legal representation and simply ask the interviewing officer if he or she can please convert the I-751 joint application to a waiver application.
3. The Conditional Resident should go to the interview with strong evidence of the bona fide marriage, and evidence of hardship that will occur if the application is denied, or his or her case is referred to Immigration Court. (DO NOT present this evidence unless you are specifically asked by the USCIS Officer). It may be better to wait until a "Request for Additional Evidence" (RFE) is issued by the USCIS. And ONLY provide what the RFE specifically requests, and no more. If the Interviewing Officer does not suggest issuing an RFE, request that your legal counsel ask for one to be issued.
4. The Conditional Resident spouse needs to keep important information in their possession, especially a copy of the Jointly filed I-751, and evidence that the marriage is bona fide.

Often if the above steps are followed a Conditional Resident faced with divorce or separation their U.S. Permanent Resident status will still be approved once the marriage was bona fide. In sum, a Joint Application to Remove Conditions can be converted to an I-751 waiver with the help of legal counsel and should not be abandoned.

You may contact our U.S. Immigration attorneys at info@scottcclaw.com or call our offices at our telephone numbers conveniently listed at www.scottcclaw.com.

ScottMond Law Firm

Members of the American Immigration Lawyers' Association

Offices located in Washington D.C, Virginia and Maryland

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U.S. Citizen Parents Sponsoring Step-Children for U.S. Permanent Resident Status
Posted by: ScottMond Law Firm
July 27, 2012

As our world society becomes more connected, internationally blended families are becoming the norm. U.S. Citizens who marry a Foreign National spouse who has children may sponsor their step-children as an immediate relative, but the law varies based on the U.S. status of his or her spouse. There are 3 general categories of foreign national spouses which effects the way a step child can be sponsored.

• Foreign National spouse that was already in good U.S. status when he or she married U.S. Citizen.
• Foreign National spouse that came in the U.S. on a valid Visa and later fell out of status before marrying a U.S. Citizen.
• Foreign National spouse that crossed the border illegally, called Entry Without Inspection. ("EWI").

In the case of a U.S. Citizen spouse who marries a U.S. Citizen ("USC") already in good status in the U.S. an application for the children may be filed at the same time for the U.S. spouse and step children. However, if the children are not in the United States, they will need to consular process. Experienced legal counsel is needed to ensure each step of the process is completed properly. Ultimately, step children can receive status at the same time or shortly after their USC's spouse.

Alternatively, If the USC spouse marries a Foreign National that is out of status prior to marriage, a petition may also be filed at the same time for the step children. However, depending on the circumstance, it may be better to file after the spouse becomes a U.S. Legal Permanent Resident ("LPR").

Finally, a Foreign National spouse that crossed the border illegally is the more complex situation. Marriage to USC spouse still does not permit someone in EWI status to adjust status to an LPR. Rather, filing a petition for the step children will trigger a red flag with USCIS as to why the spouse has not been petitioned, or if the spouse is petitioned a request to appear in court may be issued called a Notice to Appear ("NTA").

However, with careful planning under the guidance of an immigration attorney, there is nothing in immigration law that prohibits the filing for step children regardless of the Foreign National parent's EWI status. A plan for addressing the EWI status of the parent is essential however, and an application should never be filed for the U.S. step children unless an experienced immigration lawyer is involved with the process.

Based on the above variable situations, the basic law for sponsoring step children is as follows: if an unmarried child is under 21, and the marriage took place before their 18^th birthday, a USC step parent may sponsor their step child.

We invite you to contact our law offices for a consultation at info@scottcclaw.com Our main office numbers are listed conveniently at http://www.scottcclaw.com/.

ScottMond Law Firm

Members of the American Immigration Lawyers Association - AILA

http://www.scottcclaw.com/

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ALMOST THERE DREAMERS- Some Relief Announced by the Department of Homeland Security.
Posted by: Rice
June 19, 2012

On June 15^th, excitement quickly ripped across the nation. The Dream Act has been passed! But, upon a closer look this is not exactly the case. However, the good news is that there was a major step made forward to provide some relief to Dream Act Eligible individuals (Dreamers). The focus of this blog post is to explain what the announcement by the Department of Homeland Security("DHS") provides for Dreamers. We do not get into a discussion here about what the Dream Act legislation is or its legislative history.

For the many undocumented youth who were brought to the United States by their parents or guardians, it is well understood that they could not have formed the intent to illegally immigrate by virtue of their age. This principle has fueled the Dream Act. In order for youth to come out of the underground, DHS is allowing the following eligible individuals to be granted Deferred Action. Deferred action basically means that DHS will defer taking any action against an undocumented person, and even grant benefits such as a worker's permit.

Based on the recent announcement by DHS the following individuals are eligible for deferred action:

• Must be between the ages of 15-30 years old, and have entered before age 16
• Have been present in the U.S. for 5 years as of June 15, 2012
• Have maintained continuous residence in the United States without leaving (rare exceptions)
• No significant criminal record such has having been convicted of a felony, a significant misdemeanor or multiple minor misdemeanors
• Be current in school, graduated or have a GED, or is an honarbly discharged veteran
• The deferred action offer will be available to individuals in removal proceedings, or those applying affirmatively before USCISf or a visa or immigration status benefits

For further information you may email us at info@scottcclaw.com or call us at our telephone number(s) conveniently listed at http://www.scottcclaw.com/. We are standing by.

ScottMond Law Firm

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Marriage Breakdown, Divorce and Green Card ? Help is Available
Posted by: ScottMond Law Firm
February 16, 2012

It is unfortunate that in society overall, divorce statistics are high with 50-60% of marriages failing. However, for the foreign national who finds themselves in a difficult unbearable marriage to a U.S. Citizen due to abuse or other issues, there is way to achieve status without staying in a dangerous or unhealthy environment.

If you or someone you know has a conditional Permanent Resident Card set to expire in 2 years or less with U.S. Citizenship and Immigration Services ("USCIS"), this short post will discuss possible options.

First, if your case has not yet been sent to a U.S. Immigration judge, filing an I-751 waiver with immigration attorney representation may allow you to still receive your final Permanent Resident status without your spouse. An I-751 waiver must meet certain criteria to result in the releasing of any conditions on your Green Card even if you have divorced your spouse.

If the case has been handed over to an immigration judge to initiate removal proceedings due to break down of the marriage, this may be a good thing. A judge has a "de novo" review of the I-751 so one can get a second bite at the apple. The judge will decide independent of USCIS whether to issue the individual a Green Card. The judge can readjust with a new I-130/I-485, and the outcome would be receipt of Permanent Resident Status.

If you have questions you may email our attorneys at info@scottcclaw.com, or call us at one of our office numbers conveniently listed at http://www.scottcclaw.com/

ScottMond Law Firm

http://www.scottcclaw.com/

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The Best News Yet for Undocumented Foreign Nationals Immediately Related or Married to U.S. Citizens
Posted by: ScottMond Law Firm
January 06, 2012

This week the Obama Administration announced that they will be providing relief to undocumented foreign nationals who must exit the country to gain status in the United States and are subject to three and ten year bars from reentry. We are very excited to provide the proposed law below which would allow families to reduce their fear and separation anxiety in correcting their loved ones U.S. immigration status.

DEPARTMENT OF HOMELAND SECURITY

8 CFR Part 212

RIN 1615-ZB10

Provisional Waivers of Inadmissibility For Certain Immediate Relatives of U.S. Citizens

AGENCY: U.S. Citizenship and Immigration Services, Department of Homeland Security.

ACTION: Notice of intent.

SUMMARY: U.S. Citizenship and Immigration Services (USCIS) intends to change its current process for filing and adjudication of certain applications for waivers of inadmissibility filed in connection with an immediate relative immigrant visa application. Specifically, USCIS is considering regulatory changes that will allow certain immediate relatives of U.S. citizens to request provisional waivers under section 212(a)(9)(B)(v) of the Immigration and Nationality Act of 1952, as amended (INA or Act), 8 U.S.C. 1182(a)(9)(B)(v), prior to departing the United States for consular processing of their immigrant visa applications. An alien would be able to obtain such a waiver only if a Petition for Alien Relative, Form I-130, is filed by a U.S. citizen on his or her behalf and that petition has been approved, thereby classifying the alien as an "immediate relative" for purposes of the immigration laws, and he or she demonstrates that the denial of the waiver would result in extreme hardship to the alien's U.S. citizen spouse or parent "qualifying relative." The qualifying relative for purposes of the waiver is not necessarily the immediate relative who filed the immigrant visa petition on the alien relative's behalf.

FOR FURTHER INFORMATION CONTACT: Roselyn Brown-Frei, Office of Policy and Strategy, U.S. Citizenship and Immigration Services, Department of Homeland Security, 20 Massachusetts Avenue, NW., Washington, DC 20529-2099, telephone (202) 272-1470 (this is 2 not a toll free number).

SUPPLEMENTARY INFORMATION:

I. Background

A. Overview

The proposed process is intended to reduce the time that U.S. citizens are separated from immediate relatives who are required to remain outside the United States for immigrant visa application processing and during the adjudication of waivers of inadmissibility. Through this change, USCIS does not intend to modify the standard for assessing eligibility for these waivers, including whether the denial of the waiver would result in extreme hardship to a U.S. citizen spouse or parent ("qualifying relative"). For purposes of the waiver under section 212(a)(9)(B)(v) of the Act, a "qualifying relative" is a U.S. citizen spouse or parent or a lawful permanent resident spouse or parent who would suffer extreme hardship if their relative were not allowed to immigrate. For purposes of this provisional waiver program, DHS intends to limit who may participate in this program to immediate relatives who can demonstrate extreme hardship to a U.S. citizen spouse or parent. Even if they obtain a provisional waiver, eligible aliens who are required to obtain a visa through consular processing would still be required to depart from the United States to apply for an immigrant visa. The purpose of the new process is to reduce the time that U.S. families remain separated while their relative proceeds through the immigrant visa process.  Certain grounds of inadmissibility can bar aliens from being admitted to the United States or obtaining an immigrant visa, preventing U.S. citizens from reuniting with their immediate relatives. However, the Secretary of Homeland Security, through USCIS, may waive some of those grounds. An alien who is subject to one or more grounds of inadmissibility must obtain a 3 waiver, if available, from USCIS before he or she may be issued an immigrant visa by a Department of State consular officer at a U.S. embassy or consulate overseas.  The bars to admission under section 212(a)(9)(B)(i)(I) and (II) of the INA, 8 U.S.C. 1182(a)(9)(B)(i)(I) and (II), based on accrual of unlawful presence in the United States, comprise one such ground. Typically, under current processes, aliens who are immediate relatives of U.S. citizens applying for immigrant visas at Department of State consular posts must apply for waivers of unlawful presence while outside the United States after a finding of inadmissibility is made by a Department of State consular officer in conjunction with their immigrant visa applications. As a result, U.S citizen petitioners are often separated for long periods of time from their immediate relatives who are applying for immigrant visas and have accrued a certain period of unlawful presence in the United States. This revised process, which eliminates the time-consuming interchange between the Department of State and USCIS, would significantly reduce the amount of time that American families will be separated from their immediate relatives. USCIS also believes that efficiencies can be gained through this revised process for both the U.S. Government and most applicants. USCIS intends to limit consideration for the provisional waiver to aliens who qualify for classification as immediate relatives of U.S. citizens, who have a U.S. citizen spouse or parent who would suffer extreme hardship if the waiver were denied, and for whom the sole basis for inadmissibility is unlawful presence in the United States of more than 180 days. USCIS would grant a provisional waiver if the alien meets the eligibility requirements described in this Notice, including demonstrating that the applicant's qualifying U.S. citizen spouse or parent would suffer extreme hardship and that the applicant warrants a favorable exercise of discretion. The provisional waiver would be granted before the alien leaves the United States to attend his or her 4 immigrant visa interview with a consular officer. The provisional waiver, however, would not become effective unless and until the alien departs from the United States. If the alien is otherwise eligible for the immigrant visa, the consular officer may then approve the issuance of the visa so that the alien may proceed to immigrate to the United States for permanent residence. This notice of intent generally describes the proposal that USCIS is considering. USCIS will further develop, and ultimately finalize, this proposal through the rulemaking process. This effort is consistent with Executive Order 13563's call for agencies to "consider how best to promote retrospective analysis of rules that may be outmoded, ineffective, insufficient, or excessively burdensome, and to modify, streamline, expand, or repeal them in accordance with what has been learned." Do not send an application requesting a provisional waiver under the procedures under consideration in this notice. Any application requesting this new process will be rejected, and the application package returned to the applicant, including any fees, until a final rule is issued and the change becomes effective.

B. Authority

The Homeland Security Act of 2002, Public Law 107-296, section 102, 116 Stat. 2135, 6 U.S.C. 112, and section 103 of the INA, 8 U.S.C. 1103, charge the Secretary of Homeland Security with administration and enforcement of the immigration and naturalization laws. The Secretary would effectuate these proposed changes under the broad authority to administer the Department of Homeland Security and the authorities provided under the Homeland Security Act of 2002, the immigration and nationality laws, and other delegated authority.

C. Grounds of Inadmissibility

U.S. immigration laws provide mechanisms for U.S. citizens to petition for certain family members for admission to the United States for purposes of family reunification. At the same 5 time, however, the immigration laws prescribe acts, conditions, and conduct that bar aliens, including immediate relatives of U.S. citizens, from being admitted to the United States or obtaining an immigrant visa. Such acts, conditions, and conduct include certain criminal offenses, public health concerns, fraud, misrepresentation, failure to possess proper documents, accrual of more than 180 days of unlawful presence in the United States, and terrorism. The grounds of inadmissibility are set forth in section 212(a) of the INA, 8 U.S.C. 1182(a). The Secretary of Homeland Security has the discretion to waive certain inadmissibility grounds, upon the filing of a request by an alien who meets the relevant statutory requirements. If the Secretary, through USCIS, grants such a waiver, the waived ground will no longer bar the alien's admission, readmission, or immigrant visa eligibility based on that specific ground of inadmissibility.  One of the inadmissibility grounds is described in section 212(a)(9)(B)(i) of the Act, 8 U.S.C. 1182(a)(9)(B)(i). Under part (I) of this provision, an alien who was unlawfully present in the United States for more than 180 days but less than one year, and who then departs voluntarily from the United States before the commencement of removal proceedings, will be inadmissible for three years from the date of departure. Under part (II) of the same provision, an alien who was unlawfully present for one year or more and then departs before, during, or after removal proceedings, will be inadmissible for ten years from the date of the departure. The three- and ten-year unlawful presence bars do not take effect unless and until an alien departs from the United States. By statute, aliens are not considered to be accruing unlawful presence for purposes of section 212(a)(9)(B)(i) if they fall into certain categories. For example, aliens do not accrue unlawful presence while they are under 18 years of age. See INA section 212(a)(9)(B)(iii)(I), 8 U.S.C. 1182(a)(9)(B)(i)(iii)(I). Similarly, individuals with pending asylum 6 claims generally are not considered to be accruing unlawful presence while their applications are pending. See INA section 212(a)(9)(B)(iii)(II), 8 U.S.C. 1182(a)(9)(B)(i)(iii)(II). Battered women and children and victims of a severe form of trafficking in persons are not subject to the section 212(a)(9)(B)(i) ground of inadmissibility at all if they demonstrate that there was a substantial connection between their victimization and their unlawful presence. See INA 212(a)(9)(B)(iii)(IV)-(V), 8 U.S.C. 1182(a)(9)(B)(i)(iii)(IV)-(V). Aliens who are subject to the unlawful presence bars must apply for and be granted a waiver in order to receive an immigrant visa and be admitted to the United States. The Secretary of Homeland Security has the discretion to waive the three- and ten-year unlawful presence bars if the alien is seeking admission as an immigrant and if the alien demonstrates that the denial of his or her admission to the United States would cause "extreme hardship" to the alien's qualifying relative. See INA section 212(a)(9)(B)(v), 8 U.S.C. 1182(a)(9)(B)(v). The qualifying relative for purposes of the waiver is not necessarily the relative who filed the immigrant visa petition on the alien relative's behalf. For example, an alien applicant's U.S. citizen spouse may have filed the immigrant visa petition on the applicant's behalf, but the applicant's unlawful presence waiver application may be based on extreme hardship to the applicant's U.S. citizen parent. Because the granting of a waiver is discretionary, the alien also must establish that he or she merits a favorable exercise of discretion.

D. Current Process and Problems

An alien who must apply for permanent residence through consular immigrant visa processing outside the United States must appear for an interview with a Department of State consular officer abroad. Currently, if the consular officer determines that the alien is subject to 7 the three- or ten-year bar, the consular officer advises the alien that he or she is eligible to apply for a section 212(a)(9)(B)(v) waiver by filing a Form I-601, Application for Waiver of Grounds of Inadmissibility, with USCIS. Under current rules, an individual is not permitted to apply for the section 212(a)(9)(B)(v) waiver before the consular officer has made the inadmissibility determination. Once the Form I-601 is filed, in most cases, the file is transferred from the Department of State to USCIS. USCIS adjudicates that waiver request while the alien remains outside the United States and awaits a decision. If USCIS approves the waiver, USCIS notifies the Department of State, and the Department of State may then issue the immigrant visa if the applicant is otherwise eligible. If the waiver is denied, the alien may appeal the decision to the USCIS Administrative Appeals Office and, if the denial is upheld, the alien must remain outside the United States for three or ten years before being able to reapply for an immigrant visa. However, a denial does not preclude the alien from filing another Form I-601 in the future. The three- and ten-year unlawful presence bars under section 212(a)(9)(B)(i)(I) and (II) of the Act do not apply unless and until the applicant departs from the United States. At the same time, many aliens who would trigger these bars if they depart from the United States are, for other reasons, statutorily ineligible to apply for adjustment of status to lawful permanent residence while remaining in the United States. Consequently, they must depart to regularize their immigration status by applying for their immigrant visas at a U.S. embassy or consulate abroad. The action required to regularize the status of an alien, departure from the United States, therefore is the very action that triggers the section 212(a)(9)(B)(i) inadmissibility that bars that alien from obtaining the immigrant visa.

II. Proposed Waiver Process 8

A. Proposed Process

The proposed change would create a more streamlined and efficient process for waiver applicants whose sole inadmissibility ground is unlawful presence, while simultaneously minimizing family separation. If the waiver determination, with respect to unlawful presence, were made in advance of the immigrant visa interview and the applicant otherwise were eligible for the immigrant visa, the consular officer could simply issue the immigrant visa at the time of the visa interview. The new process thus will reduce the movement of the case back and forth between the Department of State and USCIS, which significantly prolongs the overall process and increases the time that U.S. citizens are separated from their immediate family members. Additionally, the new process would reduce U.S. Government costs associated with the movement of cases, and provide a more efficient visa process overall.

B. Affected Visa Categories

USCIS intends to limit this process change to aliens who are immediate relatives of U.S. citizens, as defined in section 201(b)(2)(A)(i) of the Act, 8 U.S.C. 1151(b)(2)(A)(i), who must depart from the United States to obtain immigrant visas, and whose U.S. citizen spouse or parent would suffer extreme hardship if the applicant were denied admission to the United States. The term "immediate relative" means the spouse, parent or child (unmarried and under 21 years old) of a U.S. citizen, except that, in the case of a parent, the U.S. citizen son or daughter petitioning for an immigrant visa must be at least 21 years old. Certain self-petitioners (i.e., widows/widowers of U.S. citizen and their minor unmarried children) may also be considered immediate relatives. See INA 201(b)(2)(A)(i), 8 U.S.C. 1151(b)(2)(A)(i). Individuals applying for a waiver must also establish that the grant of the provisional waiver is warranted as a matter of discretion. 9 Because the focus on family unification of U.S. citizens and their immediate relatives is consistent with Congress' prioritization in the immigration laws, USCIS has identified immediate relatives of U.S. citizens as the class of aliens to consider for this procedural change. In addition, Congress did not set an annual limitation for the number of immediate relatives of U.S. citizens admitted to the United States. Therefore, these relatives always have an immigrant visa immediately available, and the visa thus can be processed immediately upon approval.

C. Ground of Inadmissibility Considered for Provisional Waiver

USCIS intends to further limit this procedural change to waivers filed by immediate relatives of U.S. citizens whose only ground of inadmissibility is the three- or ten-year unlawful presence bar under section 212(a)(9)(B)(i)(I) or (II) of the Act, 8 U.S.C. 1182(a)(9)(B)(i)(I) or (II). Aliens who require waivers for one or more additional grounds of inadmissibility, such as fraud or willful misrepresentation (section 212(i) waiver) or certain criminal offenses (section 212(h) waiver), in conjunction with their immigrant visa applications must continue to file a Form I-601 while outside of the United States in accordance with the existing process. To qualify for the provisional waiver process, an applicant must establish not only that he or she is the immediate relative of a U.S. citizen, but also that denial of the waiver would result in extreme hardship to a qualifying relative. The qualifying relative must be a U.S. citizen spouse or parent but does not need to be the U.S. citizen petitioner. Only extreme hardship from the denial of a waiver to a qualifying U.S. citizen relative makes an alien eligible for the provisional waiver process; extreme hardship to the alien himself or herself as a result of denial does not make the alien eligible. An alien whose waiver application is based on extreme hardship to a lawful permanent resident spouse or parent must continue to apply for the waiver from outside the United States in accordance with existing procedures. Eligible aliens, 10 furthermore, must be the beneficiaries of petitions classifying them as immediate relatives of U.S. citizens, and thus have visas immediately available. Because the granting of a waiver is discretionary, eligible aliens also must establish that they merit a favorable exercise of discretion. The standard for assessing whether denial of the waiver would result in extreme hardship to the U.S. citizen spouse or parent of such aliens will remain unchanged.

D. Adjudication and Decisions

After filing the Form I-601 with USCIS, DHS envisions that an alien seeking a provisional waiver would be required to undergo biometrics collection. USCIS would deny the application for a provisional waiver if other possible grounds of inadmissibility are found or arise during adjudication. If the application is approved, USCIS would notify the Department of State and the alien of the provisional approval. In all instances, a Department of State consular officer would make the formal inadmissibility finding during or following the immigrant visa interview abroad, and if no other grounds of inadmissibility arise, the provisional waiver under section 212(a)(9)(B)(v) of the Act granted by USCIS would facilitate immigrant visa issuance. If, however, the consular officer finds during adjudication of the immigrant visa application that the individual is subject to another ground of inadmissibility that can be waived, the alien would need to file another waiver application with USCIS. This process would not alter the requirement that an alien depart from the United States to apply for an immigrant visa. An alien who receives a provisional waiver under section 212(a)(9)(B)(v) of the Act for the three- or ten-year bar under section 212(a)(9)(B)(i)(I) or (II) of the Act would not gain the benefit of such waiver unless he or she departs from the United States. The departure from the United States would have to take place to activate the provisional 11 waiver under section 212(a)(9)(B)(v) of the Act.

E. Excluded Visa Categories

Aliens who would not be eligible for this provisional waiver adjudication process and aliens who are denied provisional approval of their waiver requests would continue to follow current agency processes for filing and adjudication of waiver requests. Aliens who fall under any other family- or employment-based or other visa category or whose section 212(a)(9)(B)(v) waiver eligibility would be based on extreme hardship to a lawful permanent resident alien relative would not be considered for provisional waivers. Aliens who are subject to other grounds of inadmissibility or removal also would not be considered for provisional waivers. Further, aliens with waiver applications under section 212(a)(9)(B)(v) of the Act currently pending in either administrative or judicial proceedings would not qualify for this new process.

III. Conclusion

This document outlines the key elements of USCIS's proposed change to its current process for filing and adjudication of waivers of inadmissibility for unlawful presence for immediate relative of U.S. citizens. The focus on family unification of U.S. citizens and their immediate relatives is consistent with Congress's prioritization in the immigration laws; the new process will reduce the movement of the case back and forth between the Department of State and USCIS, which significantly prolongs the overall process and increases the time that U.S. citizens are separated from their immediate family members. The proposed change would affect only when and where certain aliens can apply for waivers of the unlawful presence grounds of inadmissibility; it would not change the extreme hardship standard for evaluating eligibility for the waiver nor would it change whether aliens subject to these grounds of inadmissibility must depart the U.S. to apply for their immigrant visas. USCIS plans to effectuate this proposal 12 through the regulatory process. USCIS will issue a proposed rulemaking that will explain the proposal in further detail and that will invite comment from all interested parties. Note: Do not send an application requesting a provisional waiver under the procedures under consideration in this notice. Any application requesting this new process will be rejected and the application package returned to the applicant, including any fees, until a final rule is issued and the change becomes effective.

_____________________________

Janet Napolitano,

Secretary of Homeland Security.

[FR Doc. 2012-140 Filed 01/06/2012 at 8:45 am; Publication Date: 01/09/2012]

The above law is ONLY proposed. Please contact us at info@scottcclaw.com if you have any questions or call us at one of our telephone numbers conveniently listed at http://www.scottcclaw.com/.

ScottMond Law Firm

Scottcclaw.com

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Can the Priority Date From a Previously Denied I-130 Petition, Based on Marriage, Ever be Salvaged or Beneficial in Future?
Posted by: ScottMond Law Firm
January 03, 2012

The answer is "Yes". Section 245(i) of the Immigration and Nationality Act (INA) states the following:

You may be eligible to receive a green card through Section 245(i) if you:

• Are the beneficiary of a qualified immigrant petition (Form I-130 or I-140) or application for labor certification (Form ETA-750) filed on or before April 30, 2001
• Were physically present in the United States on December 21, 2000, if you are the principal beneficiary and the petition was filed between January 15, 1998, and April 30, 2001
• Are currently the beneficiary of a qualifying immigrant petition (either the original Form I-130 or I-140 through which you are grandfathered or through a subsequently filed immigrant petition)
• Have a visa immediately available to you
• Are admissible to the United States

The above law provision is referred to as "grandfathering", and is a very powerful way for a foreign national to adjust status to a U.S. Permanent Resident as soon as possible.

For instance, if a client (foreign national) had a 2001 I-130 petition filed by her spouse, and it was later denied due to divorce; if she then remarries her husband or a new husband, the priority date of the original I-130 may be considered. This would allow a visa number to possibly be immediately available.

The law is complex in this area and requires an experienced Immigration attorney to evaluate eligibility. However, if the person was divorced and the original marriage was valid, then the fact that the original application was denied does not preclude it from being a grandfathering petition. The grandfathering petition must have been timely, meritorious in fact, and non-frivolous.

A copy of the original denial documents and proof of presence in the U.S. before 2000 filed along with a new petition, may allow a foreign national to adjust status quickly based on the more recent priority date which is controlled by the Visa Bulletin issued by the Department of State.

If you have any questions regarding grandfathering you may contact our law firm at info@scottcclaw.com. Or our office telephone numbers are conveniently listed at www.scottcclaw.com

ScottMond Law Firm

www.scottcclaw.com

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You and Family Becoming Legal in the U.S.?245i Eligibility and Grandfathering
Posted by: ScottMond Law Firm
December 23, 2010

INA 245(I) is the latest grace extended by the U.S. government to legalize anyone in the United States(back in April 2001) who overstayed their current U.S. visa or walked across the border without inspection (EWI). The benefits continue on today, and are often helpful to adjust clients to U.S. permanent residents even as we approach 2011.

In order to be considered grandfathered under 245i, an alien must satisfy the following requirements pursuant to 8 CFR 245.10:

1) The alien was the beneficiary of a qualifying immigrant petition or application for labor certification filed on or before April 30, 2001.
2) The qualifying immigrant visa petition or the qualifying application for labor certification was "properly filed" and "approvable when filed".
3) The principal alien was physically present in the United States on December 21, 2000, if the alien's qualifying immigrant visa petition or application for labor certification was filed between January 15, 1998 and April 30, 2001.

Once it is determined that an alien is grandfathered, they remain grandfathered until they are eligible to adjust through almost any means. In other words, an alien may adjust when a visa number is available, if they win the diversity visa lottery, or if they become the beneficiary of an I-140 or I-130 to name a few examples.

Whether one's spouse or children are grandfathered or may adjust depends if they fall into one of 3 categories.

1st Category: If the grandfathered foreign national was married to his or her spouse at the time they became grandfathered pursuant to 245i, then the spouse is grandfathered and able to adjust status.

2nd Category: If at the time the foreign national was grandfathered he or she was NOT married, his or her spouse is NOT grandfathered. But if the foreign national is married when they adjust status, their spouse may also adjust as a beneficiary.

3rd Category: If at the tine the foreign national was grandfathered and adjusted status he or she was not married, and then their spouse or child will not be eligible to adjust status.

Please note that the rules for spouse also apply to children who are not permanent residents. If you have any questions you may email us at info@scottcclaw.com or contact us at one of our offices in the DC, VA, MD area. You will find our telephone numbers and locations listed on our website at http://www.scottcclaw.com/.

ScottMond Law Firm

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Immigration News- Dream Act
Posted by: ScottMond Law Firm
December 09, 2010

Imagine, you are 16 years old and excited to finally get your driver's license but suddenly you find out the worst! Or you have dreamed your entire life about becoming a doctor, nurse or engineer and followed good advise "just get good grades in school" and you will succeed; you do all this only to find out the roadblocks you face to a post secondary education and career are often insurmountable.

Without the Dream Act, millions of undocumented young women and men who were brought over the border illegally by their parents while they were infants or children have not been permitted to get a driver's license or funding needed for a college education. Often parents who brought their children over illegally do not share this with their children unless it is absolutely necessary. The children enjoy a normal life in the United States believing all is well.

The Dream Act addresses this major problem and today the U.S. House of Representatives voted to pass the American Dream Act. The legislation will provide undocumented young women and men who were brought to the U.S. illegally a path to citizenship if they attend college or serve in the military.

The legislation has many different aspects and requirements, none of which are discussed here. If you have any further questions you may contact our office at info@scottcclaw.com or call us at one of our offices in Virgina, D.C, or Maryland.

ScottMond Immigration Law Firm

(703)955.7998/301.251.4003/202.296.0122

http://www.scottcclaw.com/

info@scottcclaw.com

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Domestic Violence? No Matter What Your U.S. Immigration Status, or Sex?You Have a Powerful Voice and Potential Immigration Benefits in the United States?.Don?t Waste It.. Use Your Power!
Posted by: ScottMond Law Firm
November 12, 2010

Domestic Violence is one of the most difficult forms of abuse to face "head on" as it touches every aspect of one's life, whether male or female. It can leave an individual emotionally, financially, spiritually, physically and logistically paralyzed. The issues of shame, codependency, and fear for themselves or fear for their "victimizer" (whom they love or loved) makes taking necessary quick protective action seem distant. However, a supportive network of friends, family, psychological counselors, legal counselors and spiritual support is the essential key to prevailing in receiving U.S. immigration benefits such as a Legal Permanent Resident Status (Green Card).

The legal tool used to assist non- U.S. Permanent Resident victims of domestic violence is the Violence Against Women's Act ("VAWA"). The purpose of this article is to briefly highlight some of the powerful benefits and issues surrounding filing a VAWA I-I-360 self petition. It is essential to have a one-on-one consultation with an experienced immigration attorney to see how you or someone you know can benefit from the points mentioned below.

Whether One's Illegal Status In The U.S. Matters When Filing A VAWA Application .

Even if a victim has crossed the border illegally without inspection, has a prior removal order in place against them, is unlawfully present in the United States, or has a record of multiple illegal reentries; if the abuse and/or extreme cruelty was one of the central reasons for being out of status the victim may indeed be eligible for VAWA benefits.

Is it Too Late to Self Petition through VAWA if a Victim is Already Placed in Removal Proceedings?

No. One's removal may be stopped. In fact, special rules apply for Cancellation of Removal for victims of domestic violence which can stop the removal altogether while the I-360 VAWA application is being adjudicated.

Who Really Can Benefit from a Self Petition through VAWA?

The following individuals are eligible to self petition under VAWA:

• Spouse
• Intended Spouse
• Divorced Spouse
• Widowed Spouse
• Child under 21
• Parent of a Child Abused by USC or LPR
• Adult son or daughter
• Parent of an Abuser over 21
• "Child" until age 25 with showing that failure to file by age 21 due to abuse

What does One Need to Establish to be Successful in a VAWA Petition?

In order for an individual to have a successful VAWA application, the following factors at least have to be met:

• Extreme Cruelty and Abuse
• Credible Evidence has to be provided
• The Marriage had to have been entered into in good faith
• A demonstration of Good Moral Character for the Statutory Period
• Proof that the Victim Resided with the Abuser at some point.
• Proof of the Abuser's Status in the U.S.
• The self-petitioning victim has been residing in the U.S.

Is There Any Way to Get Work Authorization If I, the Victim, am Self-Petitioning or in Removal Proceedings

Yes. Certain Rules apply that allow U.S. Citizenship and Immigration Services to grant work authorization to individuals who are self petitioning through VAWA.

The above discussion only "scratches the surface" of what it takes to move forward with a VAWA petition and be successful. Again, if you believe that you or someone you know is eligible for VAWA, your next step is to contact experienced immigration counsel. If you have any questions please feel free to contact us at info@scottcclaw.com or call 703.261.6881 in VA, or 301.251.4003 in MD.

Visit our website at http://www.scottcclaw.com/.

ScottMond Law Firm

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When ?I Do? Becomes ?I Don?t? and Immigration Consequences for U.S. Conditional Permanent Residents
Posted by: ScottMond Law Firm
October 27, 2010

Marriage between U.S. Citizens and Lawful Permanent Residents to Nationals of other countries has become the norm rather than the exception. U.S. Immigration laws have strict guidelines and requirements for couples to demonstrate that their marriage under 2 years is "bona fide". In order to meet this mandate, U.S. Citizenship and Immigration Services ("USCIS") will only issue a 2 year green card to individuals married under 2 years at the time the I-130 petition and concurrent I-485 application is filed by U.S. citizen or Legal Permanent Resident("LPR") status on behalf of his or her foreign national spouse.

It has been said jokingly that a true and bona fide marriage can only be determined if in fact there is serious conflict. In other words, marriages that are real where two people who love each other unite from different backgrounds will inevitably experience conflict within their first two years. USCIS's view on marital conflict that may even result in separation is often misunderstood.

The purpose of this short article is to provide a proper perspective on marriage problems and how USCIS views a separation within the first 2 years of marriage; and the immigration consequences to the foreign national spouse who is a Conditional Permanent Resident ("CPR"). This article also provides an overview of options for when a waiver of the I-751 (application to remove conditions from Green Card) may be waived in the event a divorce occurs. It is very important to understand that a break down of a marriage, or marriage difficulty does not mean that the marriage is not bona fide. USCIS fully acknowledges this fact.

USCIS stated in a recent memo that unless a CPR is able to establish eligibility for a waiver, he or she must file the I-751 jointly with his or her U.S. citizen or Lawful Permanent Resident spouse. INA §216(c)(3)(A) and (B) and 8 CFR §206.4(c) provide that USCIS may approve the I-751 and remove the CPR's condition if

• The CPR and petitioning spouse (unless deceased) appear for an interview; and
• USCIS determines the following facts are true:
  • The marriage was legal where it took place;
  • The marriage has not been terminated;
  • The marriage was not entered into for the purpose of procuring permanent resident status; and
  • No fee (other than to an attorney) was paid for the filing of underlying I-130 or I-129F

The statute and regulations require approval of the I-751 petition if the above conditions are met. USCIS may not deny a petition solely because the spouses are separated and/or have initiated divorce or annulment proceedings. However, legal separation or initiation of divorce or annulment proceedings may suggest that the CPR entered into the marriage for the sole purpose of procuring permanent resident status.

If a local USCIS officer encounters an I-751 petition jointly filed by co-petitioner who are still married but are legally separated and/or are in pending divorce or annulment proceedings, the ISO issues the CPR a Request for Evidence with an 87-day response period. In the RFE, the ISO specifically asks the CPR to provide a copy of the final divorce decree or annulment along with a request stating he or she would like to have the joint filing petition treated as a waiver petition. This affords the CPR an opportunity to provide evidence that the proceedings have been finalized and it affords the CPR an opportunity to request a waiver to the joint filing without refiling.

If the CPR provides evidence that the proceedings have been finalized, the Immigration Officer amends the I-751 petition to indicate that the CPR is eligible for a waiver of the joint filing requirement based on termination of marriage and adjudicates the petition on the merits in accordance with established procedure. In so doing, the ISO determines whether there is sufficient evidence the CPR entered the marriage in good faith, or requires an in person interview.

If the CPR fails to respond to the RFE, or the CPR's response does not satisfactorily establish that the marriage has been terminated, the Immigration officer assess evidence of the bona fides of the marriage to determine whether the petition should be approved, denied, or relocated for an in-person interview. Again, the interview is based on the four factors being met as enumerated above.

In many cases the divorce will take place during the response period to the RFE, which affords the CPR the opportunity to establish eligibility for the waiver by submitting a copy of his or her final divorce decree or annulment. If the CPR does not respond to the RFE, or if the CPR's response does not establish eligibility for the waiver, the ISO denies the notice and refers the case to the Immigration Court to initiate removal proceedings.

If a case is referred to the Executive Office of Immigration Review (EOIR) for an Immigration Judge to initiate removal proceeding all is not lost. A CPR may successfully establish eligibility for the waiver before the judge with the assistance of legal counsel.

For further information you may contact our office at info@scottcclaw.com or 703.261.6881. Calls and Emails are returned from 8am to 8pm EST.

ScottMond Law Firm

http://www.scottcclaw.com/

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Collecting Child Support from Your Illegal or Undocumented Children's Parent
Posted by: ScottMond Law Firm
September 16, 2010

Many of our clients often avoid the issue of collecting child support from parents who have status issues or are undocumented in the United States. It is important to note that child support is for the child, not the parent, so a child is entitled to the support. Currently many people are undocumented who have to pay child support according to Court orders. It is hard to enforce. Family Court has nothing to do with Immigration. However, if the illegal parent refuses to pay and it becomes a criminal matter he or she could then be subject to removal proceedings if ICE is informed.

ScottMond Law Firm

(703)955.7998

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Global Love and Relationships- Immigration and Bringing your Life Partner to the United States
Posted by: ScottMond Law Firm
August 25, 2010

The internet has changed the way we do life. Amongst one of the greatest changes, is the way we socialize and form new relationships. To day nearly 50% of couples who marry initially made a connection on line. Many U.S. Citizens are expanding their horizons to build relationships with individuals from other countries.

If a U.S. citizen desires to bring his or her fianc to the United States, this requires patience and planning from an immigration standpoint. There are several considerations and steps involved.

First, a foreign national from a visa waiver country, such as England, Australia, or Japan must consider opting for a K-1 visa. A foreign national who is not from a visa waiver country needs to insure their immigration intent is very clear before entering the U.S. If the intent is to marry before entering the United States, they will also need to have a K-1 visa approved for travel. However, other options are available if both the U.S. citizen and the foreign national fianc now want to marry and both are already in the United States. It is important to consult with an immigration attorney before marrying, in the later case, to ensure there are no adverse immigration consequences.

Travel back and forth for foreign nationals from visa waiver countries to visit their fianc or boyfriend/girlfriend can present unique problems with Customs Border and Patrol (CBP). Frequent visits by the foreign national fianc will eventually be stopped as CBP tends to believe that the visa waiver program is being misused.

Generally, the steps for acquiring a K-1 visa for individuals from visa waiver countries or standard visa countries are the same. First, an I-129F petition must be approved here in the United States by the U.S. Citizen filing. Once the case is approved, the National Visa Center sends the case for processing at the respective consulate or embassy. To ensure faster processing at the consulate it is important to be aware of the information needed in advance such as police clearance reports.

To have a K-1 visa approved requires demonstrating a clear plan to marry, evidence of bona fide relationship, and complying with the U.S. federal regulations. For further questions you may contact us at (703)955.7998 or (202)296.0122.

ScottMond Law Firm

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