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January 21, 2005 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.1 MICPEL CLE Seminar The Nuts and Bolts of Immigration Practice Critical Immigration Issues.

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Presentation on theme: "January 21, 2005 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.1 MICPEL CLE Seminar The Nuts and Bolts of Immigration Practice Critical Immigration Issues."— Presentation transcript:

1 January 21, 2005 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.1 MICPEL CLE Seminar The Nuts and Bolts of Immigration Practice Critical Immigration Issues for the Family Law Practitioner By: Michael L. Kabik, Esq. © 2005 Immigration, Nationality & Consular Practice Group Shulman, Rogers, Gandal, Pordy & Ecker, P.A Rockville Pike, Rockville, Maryland U.S.A. Telephone: (301) Facsimile: (301) Web Site:

2 January 21, 2005 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.2 Federal Government Immigration & Naturalization Service Abolished New Dept. of Homeland Security assumed Immigration Functions Customs and Border Protection Immigration and Custom Enforcement Citizenship and Immigration Services

3 January 21, 2005 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.3 Immigration Framework Nonimmigrant Visas Immigrant Visas Naturalization Deportation

4 January 21, 2005 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.4 Nonimmigrant Visas Temporary visas Allow limited time entry into USA For a specific purpose, including Employment Tourism Study Many classifications Derivative visa classifications for dependents

5 January 21, 2005 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.5 Immigrant Visas Permanent Residence in USA Greencard Employment-Based sponsorship Family-Based sponsorship Derivative status for dependents

6 January 21, 2005 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.6 Naturalization Acquisition of US Citizenship Residence requirement Physical Presence requirement Good Moral Character requirement

7 January 21, 2005 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.7 Deportation Applies to: Permanent Resident Aliens NIV Status Aliens Undocumented Aliens Violation of: Criminal Laws Immigration Laws

8 January 21, 2005 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.8 Immigration Crossover into Family Law Family-Based Permanent Residence Domestic Violence Deportation Naturalization

9 January 21, 2005 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.9 Family-Based Permanent Residence Immediate Relatives (IR’s) Spouse of US Citizens Children (<21) of US Citizens Definition of Child includes Step-Children Parents of Adult US Citizens Immediately eligible to apply to immigrate

10 January 21, 2005 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.10 Family-Based Permanent Residence Preference Categories FB-1: Unmarried Sons/Daughters (21+) of US Citizens FB-2A: Spouses/Children (<21) of Permanent Residents FB-2B: Unmarried Sons/Daughters (21+) of Permanent Residents

11 January 21, 2005 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.11 Family-Based Permanent Residence Preference Categories FB-3: Married Sons/Daughters (21+) of US Citizens FB-4: Brothers/Sisters of Adult US Citizens Requires a current “Priority Date” in order to immigrate Variable Backlog of PD’s (~4–22 years)

12 January 21, 2005 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.12 Family-Based Permanent Residence The Process Immigrant Petition (I-130) Filed by US 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

13 January 21, 2005 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.13 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 Joint Sponsors permitted in order to meet income requirements

14 January 21, 2005 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.14 Family-Based Permanent Residence The Affidavit of Support Enforceable Contract Against Sponsor (and Joint Sponsors) By Sponsored Alien By Federal or State government or any agency providing a means-tested public benefit

15 January 21, 2005 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.15 Family-Based Permanent Residence The Affidavit of Support Means-Tested Public Benefit (MTPB): Supplemental Security Income (SSI) Medicaid Temporary Assistance Needy Families (TANF) State MTPBs

16 January 21, 2005 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.16 Family-Based Permanent Residence The Affidavit of Support Binding contract in force until: Alien becomes US Citizen Alien has earned or been credited with 40 qualifying quarters under Title II SSA excluding periods of MTPBs Alien dies Alien relinquishes PR status

17 January 21, 2005 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.17 Family-Based Permanent Residence The Affidavit of Support Survives divorce Enforceable against Sponsor Enforceable against Joint Sponsor

18 January 21, 2005 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.18 Family-Based Permanent Residence Marriage Cases – Process Processing by CIS based on state of residence Interview required at CIS District Office of Sponsor and Alien Timeline – Filing to Decision: ~12–18 months

19 January 21, 2005 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.19 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

20 January 21, 2005 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.20 Family-Based Permanent Residence Marriage Cases – Process Permanent Residence Does not expire Greencard valid for 10 years –Update Photograph

21 January 21, 2005 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.21 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

22 January 21, 2005 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.22 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

23 January 21, 2005 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.23 Family-Based Permanent Residence Marriage Cases – Process Loss of Residence Permanent and Conditional Residence can be lost if Alien outside US for certain periods of time Alien commits certain immigration/criminal offenses

24 January 21, 2005 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.24 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

25 January 21, 2005 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.25 Family-Based Permanent Residence Marriage Cases – Legal Standard If marriage occurs after commencement of Removal Proceedings Alien must remain outside USA 2 years before residence is granted Unless Alien meets higher burden of proof –Clear and convincing evidence

26 January 21, 2005 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.26 Family-Based Permanent Residence Adoption – Legal Process Adopted child may be sponsored for permanent residence Immigrant Petition (I-130) Adjustment of Status (I-485)

27 January 21, 2005 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.27 Family-Based Permanent Residence Adoption – 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

28 January 21, 2005 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.28 Family-Based Permanent Residence Adoption – Legal Requirements Legal Custody Requirement: 2 years Residence w/Parents Requirement: 2 years May occur before or after adoption

29 January 21, 2005 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.29 Family-Based Permanent Residence Orphans – Legal Process Application for Advance Processing of Orphan Petition (I-600A) Before an orphan is located Avoids later processing delays with Orphan Petition Petition to Classify Orphan as Immediate Relative (I-600)

30 January 21, 2005 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.30 Family-Based Permanent Residence Orphans – Legal Requirements Distinguished from adopted children Do not have two-year legal custody/residence requirement Pre-existing family relationship not contemplated

31 January 21, 2005 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.31 Family-Based Permanent Residence Orphans – Legal Requirements Must be adopted abroad or coming to the USA for adoption If adopted in USA, must comply with pre- adoption requirements of state of proposed residence If in USA, then not orphan but adoption

32 January 21, 2005 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.32 Family-Based Permanent Residence Orphans – Legal Requirements Age Requirement: Must be <16 Adoptive Parent(s) Requirement: US Citizen + Spouse (need not be citizen) Unmarried US Citizen at least 25 Home Study Requirement Fingerprint Requirement Parent(s)/all adults in household

33 January 21, 2005 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.33 Family-Based Permanent Residence Orphans – Legal Requirements If adopted abroad, parent(s) must see and observe child prior to or during adoption proceedings If proxy adoption abroad, parents must readopt child in USA

34 January 21, 2005 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.34 Family-Based Permanent Residence Orphans – Legal Requirements Orphan Requirement: death or disappearance of, abandonment or desertion by, or separation or loss from both parents if only one parent, not capable of taking care of child, in writing irrevocably release child for emigration and adoption Abandonment Requirements: parents forsake all parental rights

35 January 21, 2005 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.35 Domestic Violence Alien Victims of Domestic Violence May obtain Permanent Residence Alien battered/subjected to extreme cruelty By US Citizen/Permanent Resident spouse/ex- spouse Includes physical and mental cruelty Also applies where marriage not legally valid due to bigamy

36 January 21, 2005 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.36 Domestic Violence Alien Perpetrators of Domestic Violence or Violators of Criminal/Civil Protection Orders Subject to Removal Proceedings and deportation

37 January 21, 2005 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.37 Deportation 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

38 January 21, 2005 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.38 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

39 January 21, 2005 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.39 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

40 January 21, 2005 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.40 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 deported

41 January 21, 2005 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.41 Key Considerations Know your client US Citizen? Permanent Resident? Conditional Resident? Pending Residence Application? Pending Petition to Remove Conditions on Residence?

42 January 21, 2005 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.42 Key Considerations Know your client Nonimmigrant visa status? In Removal Proceedings? Overstay of NIV status? Enter without inspection? Know the adverse party Same status questions

43 January 21, 2005 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.43 Key Considerations What is in the best interests of your client (and children)? Undocumented spouse (parent)? Deportation of spouse (parent)? Financial support to client/children? Emotional ties to children?

44 January 21, 2005 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.44 Legal Disclaimer Facts of individual cases differ The information provided herein is general in nature and is not intended as legal advice Consult with an experienced immigration attorney with regard to specific cases


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