Presentation on theme: "Case Scenario #1 Teresa entered the United States without inspection in July 1999. She is a national of El Salvador. She applied for Temporary Protected."— Presentation transcript:
Case Scenario #1 Teresa entered the United States without inspection in July 1999. She is a national of El Salvador. She applied for Temporary Protected Status in 2001 and has been a beneficiary of TPS ever since. Her son Mario followed her to the United States in 2006 when he was 12 years old. Mario also entered the United States without inspection. In 2009, Teresa married Pablo a US citizen.
Case Scenario #1 Teresa and Pablo come to your office for a consultation wanting to know if Pablo can file a petition for Teresa and her son. Another attorney told them that Teresa and Mario could not legalize in the United States and had to depart for El Salvador risking having to stay there for 10 years. They are coming to you for a second opinion.
Temporary Protected Status (TPS) The Secretary of Homeland Security designates countries for TPS as a result of circumstances that temporarily prevent the country’s nationals to return safely or where the country cannot adequately handle the return of its nationals.
Countries with TPS Designation: El Salvador Haiti Honduras Nicaragua Somalia Sudan South Sudan Syria
Deferred Action for Childhood Arrivals (DACA) Immigrants who were brought to the United States as children that meet certain requirements can apply for protection from removal and apply for employment authorization for two years.
DACA Qualifications As of June 15, 2012, was under the age of 31. Came to the United States before reaching 16th birthday. Continuous residence in the United States since June 15, 2007. Physically present in the United States on June 15, 2012. Was in unlawful status on June 15, 2012.
DACA Qualifications Is currently in school, graduated from high school, obtained GED certificate, or was honorably discharged from the Coast Guard or Armed Forces of the United States. Has not been convicted of a felony, a significant misdemeanor, or three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.
The 3 and 10 Year Unlawful Presence Bars Section 212(a)(9)(B)(i)(I) of the Act (the 3-year bar). This provision renders inadmissible for three (3) years a noncitizen, that was unlawfully present for more than 180 days but less than one (1) year, and who departed from the United States voluntarily prior to the initiation of removal proceedings.
The 3 and 10 Year Unlawful Presence Bars Section 212(a)(9)(B)(i)(II) of the Act (the 10-year bar). This provision renders inadmissible a non- citizen, that was unlawfully present for one (1) year or more, and who seeks again admission within ten (10) years of the date of his or her departure or removal from the United States.
Matter of Arrabally and Yerrabelly 25 I&N Dec. 771 (BIA 2012) “An alien who leaves the United States temporarily pursuant to a grant of advance parole does not thereby make a “departure... from the United States” within the meaning of section 212(a)(9)(B)(i)(II) of the Immigration and Nationality Act.”
Parole In Place Under INA §212(d)(5)(A) DHS has the authority to grant parole to people physically in the United States that entered without inspection. This process has allowed immediate relatives (parent, spouses and children) of military personnel to adjust status by first being granted PIP.
Case Scenario #2 Samir entered the United States without inspection in 2006. He married Hana, a US citizen, in 2010. Samir and Hana live in Virginia with their two children. Hana is constantly worried about Samir’s immigration status and fears that one day he could be detained and send back to his country. Hana is a stay home mom and Samir is the breadwinner of the family. They come to you for a consultation to see if Samir has any possibilities of obtaining a green card.
Provisional Unlawful Presence Waiver I-601A This process allows individuals who are only subject to inadmissibility for unlawful presence (3 and10 year bar), to apply for a waiver in the U.S. prior to their departure for the immigrant visa interview abroad.
Qualifications for the I-601A Waiver 17 years of age or older. An immediate relative of a U.S. citizen. Have an approved I-130 or I-360. Have a pending immigrant visa case with DOS and have paid the DOS immigrant visa processing fee.
Qualifications for the I-601A Waiver Be able to demonstrate that refusal of your admission to the United States will cause extreme hardship to your U.S. citizen spouse or parent. Be physically present in the United States to file your application for a provisional unlawful presence waiver and provide biometrics. Not have been scheduled for an immigrant visa interview by DOS before January 3, 2013.
I-601A Checklist DOS Immigrant Visa Processing Fee Receipt showing PAID and with NVC number visible. Copy of I-130 approval notice. Application fee ($585 + $85 for biometrics) $670. Proof of Relationship to the qualifying relative. Proof of status of the qualifying relative. Proof of extreme hardship.
Factors Considered for Extreme Hardship Matter of Cervantes, 22 I&N Dec. 560, 566 (BIA 1999). The presence of a Lawful Permanent Resident or U.S. Citizen family ties to the U.S. The country conditions in the country of relocation and the qualifying relative’s ties to that country.
Factors Considered for Extreme Hardship The financial impact of departure from the U.S.; and Significant conditions of health, particularly when tied to the unavailability of suitable medical care in the country to which the qualifying relative would relocate.
CASE SCENARIO #3 Miguel is a national of Guatemala. He entered the united states without inspection in 1989. In 1991 Miguel went with some fellow Guatemalans to a church in Washington, DC to sign up for immigration benefits. Miguel obtained a work permit a few months later. In 1994 Miguel filed for asylum, however, in 1995 Miguel had to return to Guatemala because his father was ill. His asylum case was closed by the asylum office when he did not appear at the interview.
CASE SCENARIO #3 Miguel remained in Guatemala and married Rosa. Miguel and Rosa had 2 children. In 2004 Miguel returned to the united states with his wife and children. They all entered the united states without inspection. Miguel is struggling to support his family because he is working without authorization and cannot get a good job. Miguel has decided to seek legal advice. He does not have any paperwork from the previous immigration process. He wants to know if he can obtain any immigration benefits and if those can be extended to his family.
NICARAGUAN ADJUSTMENT AND CENTRAL AMERICAN RELIEF ACT (NACARA) Section 203 of NACARA allows eligible individuals to apply for suspension of deportation or for cancellation of removal. Eligibility under§ 8 CFR 1240.61
Salvadorians Filed for asylum on or before 4/1/1990; or First entered the U.S. on or before 9/19/1990; filed for TPS or registered for ABC benefits on or before 10/31/1991; and was not apprehended at time of entry after 12/19/1990. To file before the asylum office an asylum application had to be filed before February 16, 1996.
Guatemalans Filed for asylum on or before 4/1/1990; or First entered the U.S. on or before 10/1/1990; registered for ABC benefits on or before 12/31/1991; and was not apprehended at time on entry after 12/19/1990. To file before the asylum office an asylum application had to be filed before January 3, 1995.
As of August 5, 2008, Guatemalans and Salvadorians who affirmatively filed an I-589 application between December 19, 1990 and December 31, 1991, are also eligible for NACARA benefits. See Memo of Joseph Langlois, Chief of Asylum Division; Making ABC Registration Determinations, Chaly Garcia v. U.S., 508 F.3d 1201 (9 th Cir. 2007) August 5, 2008.
Relatives The spouse or parent was granted suspension of deportation or cancellation of removal under NACARA. The relationship between the spouse or parent existed at the time of the granted benefit. Unmarried son or daughters who were 21 years of age or older at the time the parent was granted the benefit, must have entered the U.S. on or before 10/1/1990.
STATUTORY REQUIREMENTS: Continuous Physical presence for 7 years. Good moral character during the 7years. Extreme hardship to applicant, spouse or child who is a Lawful Permanent Resident or United States Citizen. Has not been convicted of an aggravated felony. Conviction of certain crimes would require a heightened standard that includes 10 years continuous physical presence in the United a higher degree of hardship if he or she is removed.
Filing with USCIS: Original I-881 with all supporting documents; One complete copy of I-881 and supporting documents; Fee $370 to DHS submitted with the application; and Four photographs.
Filing with EOIR: Original I-881 with all supporting documents; Evidence of payment of the filing fee of $250 to U.S. Department of Justice (if referral case then no fee); Form G-325A Biographic Information; One photograph; Certificate of Service; and File one complete copy with all supporting documents with DHS Chief Counsel.