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Posts Tagged ‘immigration attorney’

Immigration Reform Bill Largely Unaltered After Five Days of Judiciary Committee Debates

May 21st, 2013 No comments
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A bipartisan group of senators begins a fifth full day of debating changes to the immigration reform bill Tuesday. So far, the so-called mark-up process has left the sweeping overhaul of the nation’s immigration laws—which would legalize most of the country’s 11 million undocumented immigrants—largely untouched.

On Tuesday, the senators will address some of the final controversial changes to the bill, including increasing the number of visas for the high tech industry and whether to allow people in same-sex marriages to apply for green cards for their spouses. A final vote is expected by the end of the week.

Republicans are outnumbered on the 18-member Senate Judiciary Committee, and two of them—Sens. Jeff Flake and Lindsey Graham—helped draft the original bipartisan bill in the first place. Nonetheless, Republican senators have been able to push through a few amendments that they say will strengthen the enforcement portion of the bill.

On Monday, Sen. Orrin Hatch, R-Utah, introduced an amendment that would require officials at 30 major airports to take the fingerprints of departing foreign visitors as a way to better keep track of which people on temporary visas had left the country when they were supposed to. Graham, meanwhile, passed an amendment that would prevent people applying for asylum from returning to their home countries to visit unless they showed there was good cause to do so. Sen. Chuck Grassley, R-Iowa, also passed an amendment that would bar unauthorized immigrants with three drunken driving convictions from legalizing.

Case Brief: Ruiz-Vidal v. Gonzales (9th Circuit)

May 12th, 2013 No comments
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RUIZ-VIDAL v. Gonzales

Issue Presented

Whether the Department of Homeland Security has met its burden of proving that the petitioner is removable from the United States as an alien convicted of a law relating to a controlled substance?

Facts

Jose Ruiz-Vidal is a 49 year-old Mexican national who legally immigrated to the United States in August 1976. On October 26, 1998, Ruiz-Vidal pleaded nolo contendere in California Superior Court to one count of criminal possession of methamphetamine, in violation of Cal. Health & Safety Code § 11377(a) (the “1998 conviction”). Thereafter, the government sought to have Ruiz-Vidal removed from the United States on the basis of this conviction.

On February 10, 2003, Ruiz-Vidal was charged in California Superior Court with one count of violating Cal. Health & Safety Code § 11378 (possession of a controlled substance for purpose of sale) and one count of violating Cal. Health & Safety Code § 11379(a) (transportation of a controlled substance).

The Department of Homeland Security (“DHS”) commenced removal proceedings against Ruiz-Vidal on December 16, 2003 with the issuance of a Notice to Appear, alleging that he was subject to removal under 8 U.S.C. § 1227(a)(2)(A)(iii). That section renders removable an alien convicted of an aggravated felony as defined in 8 U.S.C.§ 1101(a)(43)(B), an offense relating to the illicit trafficking in a controlled substance, as described in Section 102 of the Controlled Substances Act (“CSA”), 21 U.S.C. § 802.

On March 11, 2004. The IJ determined that the convictions involved methamphetamine. Accordingly, the IJ ordered that Ruiz-Vidal be removed to Mexico.

Ruiz-Vidal appealed the decision of the IJ to the Board of Immigration Appeals (“BIA” or “Board”). On July 22, 2004, the BIA affirmed without opinion the IJ’s order that Ruiz-Vidal be removed from the United States to Mexico. Thereafter, Ruiz-Vidal filed a “Motion to Reconsider” with the BIA. Ruiz-Vidal filed a timely petition for review to this court.

Rule

The government must prove by “clear, unequivocal, and convincing evidence that the facts alleged as grounds of [removability] are true. [The underlying controlled substance (conviction) under Cal. Health & Safety Code § 11377(a)]

Analysis

The government must prove by “clear, unequivocal, and convincing evidence that the facts alleged as grounds of [removability] are true.” Gameros-Hernandez v. INS, 883
F.2d 839, 841 (9th Cir. 1989). In this case, Ruiz-Vidal was charged with removability on the basis of his conviction of a controlled substance offense. 8 U.S.C. § 1227(a)(2)(B)(i).

The plain language of the statute requires the government to prove that the substance underlying an alien’s state law conviction for possession is one that is covered by Section
102 of the CSA.

Thus, in order to prove removability, the court considered whether Ruiz-Vidal’s 2003 conviction may serve as the predicate offense for his removal as an alien convicted of a law relating to a controlled substance? The court quickly answered no because Ruiz-Vidal previously was found removable on the basis of the conviction, but was granted cancellation of removal. 8 U.S.C. § 1229b. Thus, the government may not use the conviction again as a predicate removal offense.

Next, the court looked at the charging documents in conjunction with the plea agreement, the transcript of a plea proceeding, or the judgment to determine whether the defendant pled guilty to the elements of the generic crime?

In undertaking an analysis of the record of conviction, the court “may consider the charging documents in conjunction with the plea agreement, the transcript of a plea proceeding, or the judgment to determine whether the defendant pled guilty to the elements of the generic crime.” United States v. Corona-Sanchez, 291 F.3d 1201, 1211 (9th Cir. 2002). In reviewing the administrative record in this case, the court looked to the only two documents relating to Ruiz-Vidal’s 2003 conviction. The first, charged Ruiz-Vidal with two crimes: (1) a violation of Cal. Health & Safety Code § 11378 (possession for purpose of sale); and (2) a violation of Cal. Health & Safety Code § 11379(a) (unlawful transportation). In both counts, the charging document lists the controlled substance underlying the conviction as methamphetamine. The other document in the record is an abstract of judgment which states that Ruiz-Vidal pleaded nolo contendere to a single charge of violating Cal. Health & Safety Code § 11377(a). The crime is described as “Possess Controlled Substance.”

The court concluded that there is simply no way for the court to connect the references to methamphetamine in the charging document with the conviction under Cal. Health & Safety Code § 11377(a) by relying on an analogous case; Martinez-Perez v. Gonzales, 417 F.3d 1022 (9th Cir. 2005). In Martinez-Perez, only three documents were before the court: (1) an information charging the defendant with second-degree robbery in violation of § 211 of the California Penal Code; (2) a minute order memorializing a probation violation hearing; and (3) an abstract of judgment documenting the defendant’s plea to a violation of § 487(c) of the California Penal Code. Id. at 1028-29. The court held that based upon those documents, it was not possible to determine whether the defendant had pleaded guilty to all elements of a theft offense, as generically defined. The court reasoned that because the defendant had pleaded guilty to an offense different from the one charged in the information, “the information . . . is not the sort of ‘generically limited charging document’ indicating that the plea necessarily rested on the fact identifying the burglary as a generic theft offense.”

Here, similar to Martinez-Perez, Ruiz-Vidal did not plead guilty to an offense that was charged in the information. Here also, the administrative record contains no plea agreement, plea colloquy, or any other document that would reveal the factual basis for Ruiz-Vidal’s 2003 conviction. Applying Martinez-Perez, the court concluded “there is simply no way for the court to connect the references to methamphetamine in the charging document with the conviction under Cal. Health & Safety Code§ 11377(a).”

Thus, the court was only left only to speculate as to the nature of the substance. Stating that “speculation is not enough, the court, therefore, conclude that DHS has failed to establish unequivocally that the particular substance which Ruiz-Vidal was convicted of possessing in 2003 is a controlled substance as defined in section 102 of the Controlled Substances Act.

Holding

Department of Homeland Security failed to establish unequivocally that the particular substance, which Ruiz-Vidal was convicted of possessing in 2003, is a controlled substance as defined in section 102 of the Controlled Substances Act.

Conclusion

Thus, because the judicially noticeable documents in this case fail to support the BIA’s determination that Ruiz-Vidal is removable as an alien convicted of a law related to a controlled substances offense, the court reversed the order of removal.

Provisional Unlawful Presence Waiver Process Begins Today, March 4, 2013

March 4th, 2013 No comments
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A new immigration rule takes effect today, March 4, 2013. It will allow immigrants to reduce the amount of time they are separated from their families when applying for their lawful permanent resident card (“green card”).

This is only for applicants with United States Citizen spouses and/or United States Citizen parents. The new I-601A waiver is going to mean a lot to families, especially families with young children or aging parents who are not in the best of health and who need the help of their alien spouse or alien child. I-601A applicants will be able to wait in the United States for their waiver applications to be decided, rather than waiting months outside the U.S. If the waiver is approved, families will only need to spend a few days or a week apart while the alien applicant attends a medical exam and interview at the U.S. consulate abroad.

The new rule is called “Provisional Unlawful Presence Waiver.” The law requires anyone who entered without inspection and is an immediate relative of a US citizen spouse or parent to leave the U.S. to attend the consular interview; however, with the provisional waiver already approved, the wait time outside the U.S. should be minimal.

Beginning March 4, 2013, the foreign national can wait in the US for a waiver decision, instead of waiting up to one year in their home country.

Once the waiver is approved, the person returns to the home country to apply for their immigrant visa. The wait will be approximately one to two weeks instead of one year as required under the old rule.

The unlawful presence waiver remains a difficult process, and potential applicants should strongly consider hiring a competent immigration attorney. The goal with preparing a successful waiver packet is to show the examining officer how the US citizen spouse or parent would suffer extreme hardship if the alien relative is not allowed to live in the United States. We need to keep in mind that the examining officer will never meet with us before making the decision to approve or deny. The officer probably handles several waiver cases each day, so we need to paint the picture clearly and persuasively. Unlike the I-601 process, I-601A applicants can only apply once. If the I-601A is denied, the applicant does not have another chance to apply for relief. We need to pull at the examining officer’s heart strings based solely on the paper evidence we provide.

Form I-601A, Application for a Provisional Unlawful Presence Waiver , will be available for official use beginning March 4, 2013. If you are considering the I-601A process, contact The Nunez Firm to schedule a free consultation. Managing attorney Jay Nunez will help you better understand the process and the strength of your potential case.

Violence Against Women Reauthorization Act (“VAWA”) Passes House of Representatives

February 28th, 2013 No comments
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Earlier today the House of Representatives passed, with broad bipartisan support, Senate bill 47, the Violence Against Women Reauthorization Act. First, the House had to vote down the bad House substitute bill, which they did on a vote of 257 ayes to 166 nays before moving onto the original Senate bill.

The bipartisan nature of support for the Senate version of the bill, which includes important protections for immigrants that the House bill lacked, may be a good sign for any potential upcoming votes on immigration reform. Buzzfeed reports that “in a House led by a Republican conference at odds with itself, which includes a sizable ideologically motivated bloc inclined to oppose almost any major legislation, this dynamic might be the new normal.” That still remains to be seen, but today we saw an important step forward in protecting all victims of violence.

Case Brief – Matter of Stockwell, 20 I&N Dec. 309 (BIA 1991)

January 15th, 2013 No comments
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Facts:
In Matter of Stockwell, a 46-year-old male, native and citizen of the United Kingdom, entered the U.S. in 1987 as a visitor. He married a U.S. citizen in 1987 and was granted permanent resident status on a conditional basis. They divorced in 1988, and he married a second U.S. citizen on July 6, 1989. His new wife filed a visa petition on his behalf that was approved on September 19, 1989. He was placed in deportation hearing on July 14, 1989 because his conditional permanent residency terminated. IJ found that Stockwell was deportable since his conditional permanent resident status had been terminated. He granted his application for adjustment of status.

Procedural Posture:
IJ found that Stockwell was deportable since his conditional permanent resident status had been terminated. He granted his application for adjustment of status.
The USCIS appealed on the ground that the Congressional intent of 245(d) was to exclude aliens who have had their conditional status terminated as well as those continuing to hold conditional status.

Issue:
Whether section 245(d) of the INA (“Act”) prohibits an alien whose conditional permanent resident status has been terminated from adjusting status under section 245(a) of the Act.

Holding:
No. Affirmed IJ’s holding that Stockwell be granted to adjust status based on his second marriage to a U.S.C. wife.

Rule:
An alien holding conditional permanent resident status is prohibited by section 245(d) of the Immigration and Nationality Act, 8 U.S.C. Section 1255(d)(1988), from adjusting his status under section 245(a), but Section 245(d) of INA does not prohibit an alien whose conditional permanent resident status has been terminated from adjusting his status under section 245(a).

Reasoning:
The Board focused on the congressional intent of 245(d), which was to prevent aliens from circumventing the immigration legal system through fraudulent marriages. By barring adjustment of status during the 2-year conditional period, Congress sought to prevent aliens from acquiring conditional permanent residency through marriage only to adjust status on another basis. This way, they might have tried to bypass the requirements for removing the conditions of residence. Therefore, the Board reasoned that section 245(d) of the Act was not intended to prohibit an alien whose conditional permanent resident status had been terminated from adjusting status under 245(a).

If your I-751 has been denied by USCIS and your case has been transferred to the immigration court, contact The Nunez Firm to schedule a consultation. Managing attorney Jay Nunez will personally meet with you to help you better understand the options available to you.

I-601A Provisional Waiver Process To Go Into Effect on March 4, 2013

January 2nd, 2013 No comments
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Secretary of Homeland Security Janet Napolitano today announced the posting of a final rule in the Federal Register that reduces the time U.S. citizens are separated from their immediate relatives (spouse, children and parents), who are in the process of obtaining visas to become lawful permanent residents of the United States under certain circumstances.

The final rule establishes a process that allows certain individuals to apply for a provisional unlawful presence waiver before they depart the United States to attend immigrant visa interviews in their countries of origin. The process will be effective on March 4, 2013 and more information about the filing process will be made available in the coming weeks at www.uscis.gov.

“This final rule facilitates the legal immigration process and reduces the amount of time that U.S. citizens are separated from their immediate relatives who are in the process of obtaining an immigrant visa,” said Secretary Napolitano.

U.S. Citizenship and Immigration Services (USCIS) received more than 4,000 comments in response to the April 2, 2012 proposed rule and considered all of them in preparing the final rule.

The law is designed to avoid extreme hardship to U.S. citizens, which is precisely what this rule achieves,” USCIS Director Mayorkas said. “The change will have a significant impact on American families by greatly reducing the time family members are separated from those they rely upon.”

Under current law, immediate relatives of U.S. citizens who are not eligible to adjust status in the United States to become lawful permanent residents must leave the U.S. and obtain an immigrant visa abroad. Individuals who have accrued more than six months of unlawful presence while in the United States must obtain a waiver to overcome the unlawful presence inadmissibility bar before they can return to the United States after departing to obtain an immigrant visa. Under the existing waiver process, which remains available to those who do not qualify for the new process, immediate relatives cannot file a waiver application until after they have appeared for an immigrant visa interview abroad and the Department of State has determined that they are inadmissible.

In order to obtain a provisional unlawful presence waiver, the applicant must be an immediate relative of a U.S. citizen, inadmissible only on account of unlawful presence, and demonstrate the denial of the waiver would result in extreme hardship to his or her U.S. citizen spouse or parent. USCIS will publish a new form, Form I-601A, Application for a Provisional Unlawful Presence Waiver, for individuals to use when applying for a provisional unlawful presence waiver under the new process.

Under the new provisional waiver process, immediate relatives must still depart the United States for the consular immigrant visa process; however, they can apply for a provisional waiver before they depart for their immigrant visa interview abroad. Individuals who file the Form I-601A must notify the Department of State’s National Visa Center that they are or will be seeking a provisional waiver from USCIS. The new process will reduce the amount of time U.S. citizen are separated from their qualifying immediate relatives. Details on the process changes are available at www.regulations.gov.

The importance of this rule change cannot be overstated. Families will be able to obtain a decision on an extreme hardship waiver without having to leave the country beforehand. The consular processing will be cut down to a matter of days rather than months, which was sometimes the case in busy consular offices such as Ciudad Juarez in Mexico. If you are considering the I-601A process, it is best to start preparing the case now. Although the process does not go into effect until March 4, 2013, it takes several months to prepare a persuasive extreme hardship waiver case. Contact The Nunez Firm to schedule a consultation. Managing attorney Jay Nunez will personally meet with you to help you better understand the I-601A process and the strength of your case. The Nunez Firm has helped many families obtain extreme hardship waivers and we only accept cases that we believe have a strong chance of winning.

Form I-751 Approved for Married Couple in Irvine

January 2nd, 2013 No comments
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We received great news that an I-751 joint petition to remove conditions on permanent residency was approved by USCIS. We originally handled the couple’s adjustment of status and waiver applications in 2010. Everything was approved, and the wife, who was originally from Mexico, was approved for a conditional green card. Because at the time of the adjustment of status, the couple had been married less than two years, the wife was approved for conditional status for a two year period. The conditional permanent resident status is a way for USCIS to prevent against marriage fraud. The thinking is that a newly married couple can still obtain a green card for the alien spouse for a two year period. After two years, the couple must provide more evidence to show that they couple has lived in a good faith marriage for the last two years. This allows USCIS to review the case again and make certain they are convinced of the bona fides of the relationship.

In early 2012, the couple contacted The Nunez Firm to ask us for help in applying for the removal of conditions. We met with the couple and reviewed the evidence they brought. We asked them to look for other evidence they had not considered. A few months later, we prepared a comprehensive packet of evidence to show that the couple was still living together and carrying on their lives as a married couple would be expected to do. Per 8 CFR 216.4(a)(1), we filed the joint I-751 petition within 90 days before the second anniversary of the grant of permanent resident status. We provided insurance policies showing both husband and wife as covered individuals. We provided joint bank accounts and photos of the couple.

With an I-751, USCIS wants to see that the qualifying marriage was entered into in good faith. They generally want to see evidence such as joint ownership of property, a lease showing joint tenancy, commingling of finances, birth certificates of children, affidavits of third parties attesting to the relationship and photos of the couple/family among other documents.

The I-751 for this Irvine couple was approved without an interview. The couple was happy that they would not need to attend another interview, because the interview process can be stressful. If you are a conditional resident and your two year expiration date is approaching, contact The Nunez Firm to schedule a consultation. Although you cannot file the joint I-751 before the 90 day window, it is best to start preparing the case a few months in advance. This gives us ample time to prepare as convincing of a case as possible in the hopes that we can obtain an approval without the need for an interview.

Temporary Protected Status for Syrian Client Approved; Work Authorization Issued

December 27th, 2012 No comments
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We recently received an approval for TPS for one of our Syrian clients in Long Beach. This will allow her to work legally in the United States during the Temporary Protected Status period. TPS is a temporary immigration status granted to nationals of specific countries. When violence, natural disasters or civil unrest occur in a country, the United States can label the country’s citizens as Temporarily Protected from deportation. TPS allows the country’s nationals to temporarily stay in the United States due to concerns for the alien’s safety.

As a signatory to the United Nations Protocol Relating to the Status of Refugees, the United States has agreed to abide by the concept of nonrefoulement, which states that a signatory country shall not return an alien to his/her home country if the alien’s life or freedom would be threatened or endangered. TPS, along with asylum and withholding of removal, were born out of the concept of nonrefoulement. A country’s TPS status can be terminated if the conditions for that country improve. Burundi and Sierra Leone are examples of former TPS countries which were removed from the list in previous years.

During a country’s TPS designation, nationals of the TPS country may remain in the United States and may obtain work authorization. After the TPS designation is removed, the alien returns to the immigration status s/he maintained before the TPS approval. If an alien was not in a valid immigration status, s/he will return to that status.

If you are considering TPS, contact The Nunez Firm to schedule a consultation. Managing attorney Jay Nunez will help you better understand your options and whether TPS is the right process for you.

Sheriff Lee Baca Changes His Position on Secure Communities

December 20th, 2012 No comments
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Los Angeles County Sheriff Lee Baca has reversed his support for a controversial deportation program, announcing Wednesday that he will not comply with federal requests to detain suspected illegal immigrants arrested in low-level crimes.

The sheriff’s dramatic turnaround came a day afterCalifornia Atty. Gen. Kamala Harris issued a legal directive advising that compliance with the requests is discretionary, not mandatory.

Until then, Baca had insisted that he would honor the requests from U.S. Immigration and Customs Enforcement to hold some defendants for up to 48 hours. He was an outspoken opponent of the Trust Act, which would have required California law enforcement officials to disregard the requests in many cases, declaring that he would defy the measure if it passed.

Baca has also been sued by the American Civil Liberties Union for allegedly denying bail to immigration detainees.

Now, he appears ready to do more or less what was proposed in the Trust Act, which was vetoed by Gov. Jerry Brown in September.

The change of heart from Baca, a Republican in a heavily Democratic county, comes as GOP leaders are warming to immigration reform in an effort to counteract dismal support from Latino voters. Last month, Baca closed the 1,100-bed Mira Loma immigration detention center, which earned his agency up to $154 a day for each detainee, after contract negotiations with ICE broke down.

None of those considerations were at play, a Baca spokesman said. The sheriff’s reversal was prompted solely by Harris’ opinion, which contradicted advice from Los Angeles County attorneys that the requests were mandatory, said the spokesman, Steve Whitmore.

Baca joins Los Angeles Police Chief Charlie Beck,who announced a similar policy in October. San Francisco and Santa Clara counties also decline to honor some types of ICE holds.

The change may not take effect until early next year. Baca’s staff must first flesh out the details of the new policy, which would apply only to those arrested in misdemeanors who do not have significant criminal records. The department would still honor federal detention requests for those accused of serious or violent crimes.

Under the federal Secure Communities program, all arrestees’ fingerprints are sent to immigration officials, who flag suspected illegal immigrants and request that they be held for up to 48 hours until transfer to federal custody.

Secure Communities has come under fire for ensnaring minor offenders when its stated purpose is to deport dangerous criminals and repeat immigration violators. According to federal statistics, fewer than half of those deported in Los Angeles County since the program’s inception in 2008 have committed felonies or multiple misdemeanors. Critics say immigrants have become fearful of cooperating with police.

“The last thing we want is victims to be frightened to come forward,” Whitmore said.

ICE officials said Baca’s new policy is in line with federal priorities and will affect only a “very small number” of cases.

“The identification and removal of criminal offenders and other public safety threats is U.S. Immigration and Customs Enforcement’s highest enforcement priority,” the agency said in a statement.

Immigrant rights advocates called Baca’s announcement a long overdue breakthrough.

“This will send a very strong message nationwide that in … the most multicultural city in the nation, the sheriff is there to protect and to serve, not to deport,” said Jorge-Mario Cabrera, communications director for the Coalition for Humane Immigrant Rights of Los Angeles.

Supporters of the Trust Act, which was reintroduced in modified form by Assemblyman Tom Ammiano (D-San Francisco) earlier this week, said it is still necessary because detention policies should not vary by jurisdiction.

“It’s imperative that California have a uniform statewide policy. It’s essential that people not receive different treatment under the law as they’re driving up and down the 5,” said Chris Newman, legal director of the National Day Laborer Organizing Network.

Baca has not taken a position on the new Trust Act, which is likely to evolve during the legislative process, Whitmore said.

Wife of US Citizen in Ladera Ranch Approved for Permanent Residence

December 19th, 2012 No comments
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We received an approval for permanent residence for the wife of a US Citizen living in Ladera Ranch. The husband is a natural-born US citizen and the wife is originally from Venezuela. The couple married in 2002 and they have two children – both US citizens. After several years of marriage, they decided to proceed with the I-485 application for permanent residency.

The wife entered legally using a B-1/B-2 visitor visa several years ago. Although she overstayed her authorized period of visitation, she was eligible to adjust status to permanent resident as the spouse of a US citizen. In general, an immigrant may adjust status to permanent resident only if she is in an authorized immigrant status at the time of application for adjustment of status. An exception to this rule allows the spouses and parents of US citizens to adjust status even if they are not in legal immigrant status.

We provided USCIS with evidence to help prove the couple’s relationship and the validity of the marriage. We provided the birth certificates of the children and joint tax returns among other documentation.

At the interview, everything went smoothly and as expected. The I-130, I-765 and I-485 were approved. The wife was approved for permanent residency, and because the marriage is over two years old, she will not be a conditional permanent resident. She will not need to file an I-751 application to remove conditions on permanent residence.

The couple was pleased when they found out that the case was approved. They look forward to living together in the US without worrying about being out of status or deportation. If you are considering adjustment of status for an immediate relative, contact The Nunez Firm to schedule a consultation. We handle many adjustment of status cases every year, and Managing Attorney Jay Nunez will personally meet with you to help you better understand the process and options available to you.

 

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