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May 10, 2013 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.1 Maryland Judicial Conference Federal Immigration in State Courts: The Judiciarys Guide to Family.

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Presentation on theme: "May 10, 2013 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.1 Maryland Judicial Conference Federal Immigration in State Courts: The Judiciarys Guide to Family."— Presentation transcript:

1 May 10, 2013 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.1 Maryland Judicial Conference Federal Immigration in State Courts: The Judiciarys Guide to Family and Individual Immigration Status Michael L. Kabik, Esq. © 2013 Shulman, Rogers, Gandal, Pordy & Ecker, P.A Park Potomac Avenue, 6 th Floor, Potomac, MD T: (301) F: (301) ShulmanRogers.com

2 May 10, 2013 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.2 Presentation Objective To give Marylands Judiciary the tools to understand: Federal Immigration Framework, Infrastructure, and Processes Key Immigration Terminology The Immigration Lifecycle Impact of Immigration Legal Status on Individuals and Families

3 May 10, 2013 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.3 Federal Government Immigration & Naturalization Service (INS) within Dept. of Justice Abolished in 2003 Immigration functions transferred to new Dept. of Homeland Security Split into 3 agencies Enforcement function (2) Benefits function (1)

4 May 10, 2013 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.4 Federal Government Dept. of Homeland Securitys immigration functions: U.S. Customs & Border Protection (CBP) U.S. Immigration & Customs Enforcement (ICE) U.S. Citizenship & Immigration Services (CIS)

5 May 10, 2013 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.5 Federal Government U.S. Customs & Border Protection (CBP) Border enforcement Land border Sea border Airports –Functional border –Pre-Flight Inspection at airports in other countries

6 May 10, 2013 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.6 Federal Government U.S. Immigration & Customs Enforcement (ICE) Interior enforcement Detention Removal Worksite Enforcement Employer Sanctions

7 May 10, 2013 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.7 Federal Government U.S. Citizenship & Immigration Services (CIS) Benefits Nonimmigrant Status Permanent Residence (Greencard) Naturalization Employment Authorization Temporary Protected Status (TPS) Deferred Action for Childhood Arrivals (DACA)

8 May 10, 2013 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.8 Immigration Lifecycle Undocumented Entry Without Inspection (EWI) Out of Status Unlawful Presence Temporary Protected Status (TPS) Deferred Action for Childhood Arrivals (DACA)

9 May 10, 2013 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.9 Immigration Lifecycle Nonimmigrant Visas (NIVs) Immigrant Visas (IVs) Removal Naturalization

10 May 10, 2013 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.10 Temporary Protected Status Humanitarian relief that establishes a temporary safe haven in the U.S. for nationals of a foreign state Ongoing armed conflict posing a serious threat to personal safety Earthquake, flood, drought, epidemic or other environmental disaster resulting in substantial temporary disruption of living conditions Foreign state is temporarily unable to handle the return of its nationals

11 May 10, 2013 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.11 Temporary Protected Status For qualified applicants, TPS granted for 6 to 18 months, extensions possible Shall not be removed during TPS period Shall be granted employment authorization, extensions with TPS extensions Shall not be detained based on based on TPS Exclusions for certain criminal convictions, persecutors, or security considerations

12 May 10, 2013 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.12 Deferred Action for Childhood Arrivals Temporary relief for persons Not in legal immigration status Brought to the U.S. as young children Granted for 2 years, extensions possible Eligible to apply for employment authorization

13 May 10, 2013 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.13 Deferred Action for Childhood Arrivals Criteria include: Under age 31 as of June 15, 2012 Came to U.S. before age 16 Continuously resided in U.S. since June 15, 2007 Presence in the U.S. on June 15, 2012 Currently in school, graduated from high school, obtained GED, or honorably discharged veteran Not be convicted of certain criminal offenses Not pose a threat to national security/public safety

14 May 10, 2013 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.14 Nonimmigrant Visas Temporary visas Allow limited time entry into U.S. For a specific purpose, including Employment Tourism Study Many classifications Derivative visa classifications for dependents

15 May 10, 2013 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.15 Immigrant Visas Permanent Residence in U.S. Greencard Employment-Based sponsorship Family-Based sponsorship Derivative status for dependents

16 May 10, 2013 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.16 Immigrant Visas Special Immigrant Juvenile Status Provides help to foreign children in the U.S. who have been abused, abandoned, or neglected Children unable to be reunited with a parent may obtain Permanent Residence

17 May 10, 2013 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.17 Immigrant Visas Special Immigrant Juvenile Status Requires a State Court order finding Child is a dependent of the court or legally placed with a state agency, private agency, or a private person, and Not in the childs best interest to return to home country (or country of last residence)

18 May 10, 2013 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.18 Immigrant Visas Special Immigrant Juvenile Status Requires a State Court order finding Child cannot be reunited with a parent due to any of the following –Abuse –Abandonment –Neglect –Similar reason under state law

19 May 10, 2013 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.19 Immigrant Visas Special Immigrant Juvenile Status Must be under 21 years old on the date of filing Special Immigrant Petition with CIS State Court order must be in effect on date of filing and when CIS makes decision Unless age out of State Courts jurisdiction due to no fault of own Cannot be married

20 May 10, 2013 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.20 Naturalization Acquisition of U.S. Citizenship (optional) Requirements Length of Residence Continuous Residence Physical Presence Good Moral Character English language test (waiver) U.S. history and government test

21 May 10, 2013 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.21 Removal Applies to: Permanent Resident Aliens NIV Status Aliens Undocumented Aliens Violation of: Criminal Laws Immigration Laws

22 May 10, 2013 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.22 Immigration Crossover into Family Law Federal Family-Based Permanent Residence Domestic Violence Removal Naturalization

23 May 10, 2013 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.23 Immigration Crossover into Family Law State Domestic Violence Divorce Custody Adoption

24 May 10, 2013 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.24 Family-Based Permanent Residence Immediate Relatives (IRs) Spouse of U.S. Citizens Children (<21) of U.S. Citizens Definition of Child includes Step-Children Parents of Adult U.S. Citizens Immediately eligible to apply to immigrate

25 May 10, 2013 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.25 Family-Based Permanent Residence Preference Categories F1: Unmarried Sons/Daughters (21+) of U.S. Citizens F2A: Spouses/Children (<21) of Permanent Residents F2B: Unmarried Sons/Daughters (21+) of Permanent Residents

26 May 10, 2013 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.26 Family-Based Permanent Residence Preference Categories F3: Married Sons/Daughters (21+) of U.S. Citizens F4: Brothers/Sisters of Adult U.S. Citizens Requires a current Priority Date in order to immigrate Variable Backlog of PDs (~2–23 years)

27 May 10, 2013 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.27 Family-Based Permanent Residence The Process Immigrant Petition (I-130) Filed by U.S. Citizen/Perm. Resident Sponsor Adjustment of Status (I-485) Filed by Alien Must be IR or have current Priority Date Affidavit of Support (I-864) by Sponsor

28 May 10, 2013 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.28 Family-Based Permanent Residence The Affidavit of Support (I-864) Required in all FB Permanent Residence Sponsorships since 1997 Minimum income requirements based on household size –125% Federal Poverty Guidelines –100% Federal Poverty Guidelines for active duty military sponsoring spouse/child Joint Sponsors permitted in order to meet income requirements

29 May 10, 2013 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.29 Family-Based Permanent Residence The Affidavit of Support (I-864) Requirement to provide the sponsored immigrant any support necessary to maintain him/her at an income at least 125% Federal Poverty Guidelines 100% Federal Poverty Guidelines for active duty military sponsoring spouse/child

30 May 10, 2013 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.30 Family-Based Permanent Residence The Affidavit of Support (I-864) Requirement to reimburse a Federal, State or local agency, or a private agency That provides any covered means-tested public benefit to the sponsored immigrant

31 May 10, 2013 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.31 Family-Based Permanent Residence The Affidavit of Support Enforceable Contract Against Sponsor (and Joint Sponsors) By sponsored immigrant By Federal or State government or any agency providing a means-tested public benefit

32 May 10, 2013 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.32 Family-Based Permanent Residence The Affidavit of Support Means-Tested Public Benefit (MTPB): Food Stamps Medicaid Supplemental Security Income (SSI) Temporary Assistance Needy Families (TANF) State Child Health Insurance Program (SCHIP) State MTPBs

33 May 10, 2013 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.33 Family-Based Permanent Residence The Affidavit of Support Binding contract in force until the sponsored immigrant: Becomes U.S. Citizen Has earned or been credited with 40 qualifying quarters under Title II SSA excluding periods of MTPBs No longer has PR status and departs the U.S. Dies

34 May 10, 2013 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.34 Family-Based Permanent Residence The Affidavit of Support Survives divorce Enforceable against Sponsor Enforceable against Joint Sponsor Divorce does not terminate a Sponsors obligations under the Affidavit of Support

35 May 10, 2013 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.35 Family-Based Permanent Residence The Affidavit of Support Federal courts have upheld the Affidavit of Support requirement to provide support to maintain the sponsored immigrant at the 125%/100% Federal Poverty Guideline levels No duty of sponsored immigrant to mitigate damages (i.e., seek employment)

36 May 10, 2013 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.36 Family-Based Permanent Residence Marriage Cases – Process Processing by CIS based on state of residence Interview required at CIS Field Office of Sponsor and Alien Timeline – Filing to Decision: ~3–6 months

37 May 10, 2013 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.37 Family-Based Permanent Residence Marriage Cases – Process Type of Residence – based on length of marriage at time of approval Conditional Residence –if married <2 years Permanent Residence –if married 2+ years

38 May 10, 2013 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.38 Family-Based Permanent Residence Marriage Cases – Process Permanent Residence Does not expire Greencard valid for 10 years –Update Photograph

39 May 10, 2013 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.39 Family-Based Permanent Residence Marriage Cases – Process Conditional Residence Valid only for 2 years Must file Petition to Remove Conditions on Residence (I-751) within 90-day window before expiration

40 May 10, 2013 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.40 Family-Based Permanent Residence Marriage Cases – Process Petition to Remove Conditions on Residence (I-751) File jointly with Spouse Seek waiver of joint filing requirement due to: –Death of Spouse –Termination of Marriage through divorce/annulment –Battered or subjected to extreme cruelty –Deportation would result in extreme hardship

41 May 10, 2013 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.41 Family-Based Permanent Residence Marriage Cases – Process Loss of Residence Permanent and Conditional Residence can be lost if Alien outside U.S. for certain periods of time Alien commits certain immigration/criminal offenses

42 May 10, 2013 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.42 Family-Based Permanent Residence Marriage Cases – Legal Standard Must be bona fide marriage when entered into by the parties Not solely for immigration benefit Must continue to be married for approval Approval possible even if parties living apart and marriage no longer viable

43 May 10, 2013 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.43 Family-Based Permanent Residence Marriage Cases – Legal Standard If marriage occurs after commencement of Removal Proceedings Alien must remain outside U.S. 2 years before residence is granted Unless Alien meets higher burden of proof –Clear and convincing evidence

44 May 10, 2013 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.44 Family-Based Permanent Residence Adoption – Different Processes In the U.S. Intercountry Adoption Hague Convention country Non-Hague Convention country

45 May 10, 2013 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.45 Family-Based Permanent Residence Adoption – Different Processes Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption Multilateral treaty concluded on May 29, 1993 Entered into force for the U.S. on April 1, 2008 Where child habitually resides in another country party to the Convention, must follow the Hague process

46 May 10, 2013 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.46 Family-Based Permanent Residence U.S. Adoption – Immigration Legal Process Adopted child may be sponsored for permanent residence Immigrant Petition (I-130) Adjustment of Status (I-485)

47 May 10, 2013 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.47 Family-Based Permanent Residence U.S. Adoption – Immigration Legal Requirements Age Requirement: Must be <16 unless: Natural sibling of another adopted child, then <18 Court order entered nunc pro tunc prior to 16 th birthday –Recognized for immigration purposes in certain limited circumstances

48 May 10, 2013 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.48 Family-Based Permanent Residence U.S. Adoption – Immigration Legal Requirements Legal Custody Requirement: 2 years Residence w/Parents Requirement: 2 years May occur before or after legal custody or adoption

49 May 10, 2013 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.49 Domestic Violence Alien Victims of Domestic Violence Violence Against Women Act (VAWA) May obtain Permanent Residence Spouse/ex-spouse: Abused by U.S. Citizen/Permanent Resident spouse/ex-spouse Child: Abused by U.S. Citizen/Permanent Resident parent Parent of Child: Abused by U.S. Citizen/Permanent Resident spouse Parent: Abused by U.S. Citizen son or daughter

50 May 10, 2013 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.50 Domestic Violence Alien Victims of Domestic Violence Alien battered/subjected to extreme cruelty By U.S. Citizen/Permanent Resident spouse/ ex-spouse or parent By U.S. Citizen son or daughter Includes physical and mental cruelty Also applies where marriage not legally valid due to bigamy File Special Immigrant Petition with CIS

51 May 10, 2013 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.51 Domestic Violence Alien Perpetrators of Domestic Violence or Violators of Criminal/Civil Protection Orders Subject to Removal Proceedings

52 May 10, 2013 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.52 Removal Family-Based immigration sponsorship Dependent on a family relationship Where sponsorship is withdrawn or where family relationship is terminated Alien becomes deportable for failure to maintain lawful immigration status Unless Alien obtains alternate status

53 May 10, 2013 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.53 Naturalization Potential Adverse Good Moral Character Finding (subject to extenuating circumstances balancing test) Willfully failing or refusing to support dependents Extramarital affair tending to destroy an existing marriage

54 May 10, 2013 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.54 Naturalization Divorced Alien sponsored for Permanent Residence based on marriage CIS will request divorce complaint indicating date of separation Date of separation is key issue for Naturalization application

55 May 10, 2013 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.55 Naturalization If complaint indicates earlier separation date that contradicts previous immigration applications Naturalization may be denied based on immigration fraud Alien may be placed into Removal or Recision Proceedings and be removed

56 May 10, 2013 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.56 Key Considerations Know the Parties U.S. Citizen? Permanent Resident? Conditional Resident? Pending Residence Application? Pending Petition to Remove Conditions on Residence?

57 May 10, 2013 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.57 Key Considerations Know the Parties Nonimmigrant visa status? In Removal Proceedings? Overstay of NIV status? Entry Without Inspection?

58 May 10, 2013 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.58 Impact of State Court on Immigration Status Legalization of Immigration Status Loss of Immigration Status Undocumented spouse (parent)? Removal of spouse (parent)? Financial support to other parent/children if removed? Emotional ties to children if removed?

59 May 10, 2013 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.59 Impact of State Court on Immigration Status Unique role of attorneys in representing Immigration clients in State Courts What is in the best interests of their clients (and their children)? Same 4 factors as above Result: Attorneys are advocating for Immigration impact beyond State Court decisions


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