OC Immigration Attorney

First off, I believe it is wise for all potential DACA (Deferred Action for Childhood Arrivals) beneficiaries to, at least, consult with an attorney prior to filing for DACA with USCIS. Remember that most beneficiaries are voluntarily putting themselves on USCIS’s radar by filing for DACA. This could result in consequences to the applicant and family members. There are some groups that absolutely need to consult with an attorney before filing a DACA case though:

1. If you have ever had contact with law enforcement. If a DACA beneficiary (aka DREAMer) has ever been arrested or been in court, even if the final disposition of the case was not a conviction, that person should consult an immigration attorney. Sometimes the judge will say you won’t have a record because you are a minor or you completed community service, etc. While you might not have a record in the eyes of the State of California or for employment purposes, the same is not necessarily true for federal immigration purposes. Misstating contact with law enforcement, even if accidental, can have serious consequences. As I have said many times, USCIS rarely views a misstatement as an accident. They normally regard it as a lie.
2. If you (or an immediate relative) have ever had anything filed on your behalf. Information given of prior applications or petitions needs to be reviewed by an attorney. Many people hire notarios to file applications and incorrect information is presented on the forms. Failure to register an address change can result in in absentia deportation orders that people do not learn about until years later. It is best to get these resolved prior to filing for DACA in order to avoid unexpected visits by Immigration and Customs Enforcement (ICE).
3. If you have ever left the United States. Some departures from the United States result in an interruption of the continuous residence requirement. Others do not. If you have left the United States, it is important to frame these departures as minor, incidental and non-interrupting.
4. If you have been in immigration court. If you have ever sat in a chair in front of an immigration judge, do not file a DACA case without first seeing an attorney. I meet with many potential clients and their recollection of what transpired during their immigration court proceedings is rarely accurate when compared to the record of proceeding.
5. If you have ever used a false identity, social security number or claimed to be a US citizen. These can be serious issues and you need to consult with an attorney before filing your DACA case.
6. Difficulty proving eligibility regarding entry date and continuous residence. DACA applicants bear the burden of proof, which is important to remember. To be eligible for DACA (Deferred Action for Childhood Arrivals), an applicant must prove arrival in the United States when they were under age sixteen. They must prove physical presence in the United States and being under 31 years of age on June 15, 2012. The individual must prove continuous residence for at least five years. Proving continuous residence and entry date can be difficult in some cases (not all). Although DACA is a brand new process, there are many other areas of immigration law (INA 245i, cancellation of removal) that require applicants to prove similar facts. An experienced immigration attorney will be well versed in what USCIS expects to see in order to satisfy the burden of proof.

At The Nunez Firm, we will begin filing DACA cases later this month. We understand the difficult economic times that all of us are experiencing, and we will set reasonable attorney fees that will ensure that we can give our clients the attention they deserve. If you are interested in scheduling a free consultation, contact us via email. Managing attorney Jay Nunez will personally meet with you and help you better understand the DACA process and whether you are a likely beneficiary.

The country’s largest privately prisons are generating huge profits as the U.S. detains more undocumented immigrants than ever, and an Associated Press review shows the businesses are spending tens of millions on lobbying and political campaigns. The Arizona law that was recently struck down by the US Supreme Court was drafted by lobbyists for the private prison industry.

The cost to American taxpayers is on track to top $2 billion for this year, and the companies are expecting their biggest cut of that yet in the next few years thanks to government plans for new facilities to house the 400,000 immigrants detained annually.

After a decade of expansion, the sprawling, private system runs detention centers everywhere from a Denver suburb to an industrial area flanking Newark’s airport, and is largely controlled by just three companies.

The growth is far from over, despite the sheer drop in illegal immigration in recent years.

In 2011, nearly half the beds in the nation’s civil detention system were in private facilities with little federal oversight, up from just 10 percent a decade ago.

The companies also have raked in cash from subsidiaries that provide health care and transportation. And they are holding more immigrants convicted of federal crimes in their privately-run prisons.

The financial boom, which has helped save some of these companies from the brink of bankruptcy, has occurred even though federal officials acknowledge privatization isn’t necessarily cheaper.

Read more: http://latino.foxnews.com/latino/news/2012/08/02/immigrants-are-big-business-for-private-prisons/#ixzz22Pd6C7ki

Many real immigration attorneys tell stories of clients who came to them after having wasted thousands of dollars paying a “notario” for a green card that never materialized, or for a student visa that falsely promised a legal way to stay in the U.S.

In Mexico, “notarios” are attorneys who give up private practice, but still help clients navigate the legal system. However, more and more “notarios” in the U.S., who have no legal authority here, have become successful immigration scammers.

For the past year, the federal government has made a big push to crack down on these types of businesses by prosecuting scammers and forcing them to pay damages of up to $7,000 a victim. Rigoberto Reyes, a chief investigator with the L.A. County Department of Consumer Affairs, says “notarios” here typically advertise in ethnic media outlets.

“These guys are spending a lot more money than even your immigration attorneys,” says Reyes. “They don’t have to cover the expenses that a regular attorney has to in order to stay in business. But you see this in the Armenian community, the Korean community, the Filipino community, the Cambodian community.”

If you are interested in scheduling a free consultation, contact The Nunez Firm to learn more about your immigration options from experienced immigration attorney Jay Nunez.

Introduction

The following Q and As explain the proposed provisional unlawful presence waiver process.

Background

On March 30, 2012, U.S. Citizenship and Immigration Services (USCIS) posted a notice of proposed rulemaking (NPRM) in the Federal Register requesting public comment on its plan to create an improved process for certain immediate relatives of U.S. citizens to apply for and receive a provisional waiver of the unlawful presence ground of inadmissibility while still in the United States, if they can demonstrate that being separated from their U.S. citizen spouse or parent would cause that U.S. citizen relative extreme hardship.  The goal of the proposed process is to reduce the time that U.S. citizens are separated from their immediate relatives while those family members go through the consular process overseas to obtain an immigrant visa.

Visit our Proposed Provisional Unlawful Presence Waivers webpage for more details.

Questions and Answers

Q1.  How do I apply for the provisional unlawful presence waiver?

A1.  The provisional waiver process is NOT in effect.  USCIS will reject any application requesting a provisional waiver at this time and return the application and any fees filed.  The provisional waiver process will only take effect after a final rule is published in the Federal Register with an effective date.

Q2. How do I comment on this proposed provisional unlawful presence waiver process?

A2. USCIS encourages the public to submit formal input on the proposed rule through www.regulations.gov during a comment period that runs from April 2, 2012 until June 1, 2012.

Q3. Why is this proposed waiver process limited to the immediate relatives of U.S. citizens who can demonstrate extreme hardship to a U.S. citizen spouse or parent?

A3.  The goal of the provisional unlawful presence waiver process is to alleviate the extreme hardship certain U.S. citizens experience when they are separated for extended periods of time from their spouses, children, and parents (“immediate relatives”).  To further this goal, USCIS will make the proposed unlawful presence waiver process available to immediate relatives (IRs) because there are no restrictions on visa availability for IRs and immigrant visas are always available to this group of individuals.  USCIS also is limiting the provisional unlawful presence waiver process to U.S. citizens who can establish extreme hardship to a U.S. citizen spouse or parent.  Those IRs who cannot establish extreme hardship to a U.S. citizen spouse or parent but can establish extreme hardship to a lawful permanent resident spouse or parent can still obtain a waiver through the current I-601 process, after their immigrant visa interview with a Department of State consular officer abroad.  USCIS expects that this new process will streamline the waiver process and reduce the length of time immediate relatives must remain abroad to obtain an immigrant visa. For additional information, see DHS Notice of Proposed Rulemaking (NPRM), section IV, Part B, Rationale for Proposed Change.

Q4. Will USCIS consider expanding this new process to relatives of lawful permanent residents who have visas that are currently available?

A4. The agency decided as a matter of policy and operations to make this process available only to immediate relatives of U.S. citizens. For additional information, see DHS Notice of Proposed Rulemaking (NPRM), section IV, Part B, Rationale for Proposed Change.  As part of the rulemaking process, you may submit your views and suggestions as formal comments to the NPRM at www.regulations.gov.

Q5. Why does USCIS refer to the waiver as “provisional?”

A5. USCIS refers to the waiver as “provisional” because it will not take effect until after the applicant departs the United States, appears for his or her immigrant visa interview, and is determined by the DOS consular officer to be otherwise admissible to the United States.  In the proposed process, USCIS would determine eligibility for the provisional waiver and, if the application is approvable, approve the provisional waiver before the applicant leaves the United States for the immigrant visa interview abroad.

Q6. Will I have to be fingerprinted or appear for an interview as part of the provisional waiver process?

A6. All provisional unlawful presence waiver applicants will be required to appear at a USCIS Application Support Center for biometrics collection.  Generally, USCIS will not require provisional waiver applicants to appear for an interview but may schedule an interview if the facts in a particular case warrant further inquiry and review.

Q7. Will I use the current Form I-601, Application for Waiver of Grounds of Admissibility to apply for a provisional waiver?

A7. No.  USCIS is developing a new form for the proposed provisional unlawful presence waiver process – Form I-601A, Application for Provisional Unlawful Presence Waiver.  The application filing fee is $585.00, the same fee required for the Form I-601.  There is an additional biometric fee of $85.00 for applicants who are under 79 years of age.  USCIS will post the proposed form in the Federal Register for formal comment in the near future.

Q8. Will USCIS waive the filing fees for provisional unlawful presence waiver applications?

A8.  No.  Fee waivers generally are available only if the fees for the underlying application are waivable.  Currently, fee waivers are not allowed for the Form I-130, Petition for Alien Relative, which is the basis for the provisional unlawful presence waiver.  USCIS, therefore, will not accept fee waiver requests for the Form I-601A, Application for Provisional Unlawful Presence Waiver.  The provisional waiver application fee is $585.00 and the biometrics fee of $85.00.

Q9. What documents will I be required to file with my application for a provisional unlawful presence waiver?

A9. USCIS will include instructions with the new Form I-601A that will describe the types of documents you will need to submit with your provisional waiver application.  At a minimum, USCIS will require proof that you have an approved Form I-130, Petition for Alien Relative, or an approved Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, if you are a self-petitioning widow/widower, and an immigrant visa application fee receipt from the Department of State (DOS).  Failure to follow the instructions on the form or submit required documentation may result in your application being rejected or denied.  For more information on proposed rejection criteria, see DHS NPRM section IV, Part E – Filing, Adjudication, and Decisions.

Q10. Will I be able to file the provisional waiver application concurrently with my Form I-130?

A10.  No.  To be eligible for the provisional waiver process, applicants must already have an approved I-130 or I-360.  The approved petition is what starts the immigrant visa process with DOS. For more information on eligibility and filing criteria, see DHS NPRM section IV, Parts C through E.

Q11. Will I be able to file the provisional waiver application concurrently with my Form I-212, Application for Permission to Reapply for Admission Into the United States After Removal?

A11.  No.  Aliens who must request permission to reenter the United States after removal are not eligible for the provisional unlawful presence waiver.  In addition, USCIS will not accept concurrent filings of the Form I-601A and Form I-212 or Form I-130.

Q12.  Will the proposed provisional waiver process affect existing standards for unlawful presence and extreme hardship?

A12.  No.  The proposed provisional waiver process will not alter the criteria USCIS will use to determine if an individual qualifies for a waiver of a ground of inadmissibility or if an individual has established the requisite extreme hardship to a U.S. citizen spouse or parent.

Q13. If I get a provisional waiver, can I adjust my status without leaving the United States?

A13.  No.  Individuals who receive a provisional unlawful presence waiver must leave the United States to attend their immigrant visa interview with a DOS consular officer in order for the provisional waiver to take effect and for the individual to be granted an immigrant visa.  However, because of the way the proposed process for adjudicating provisional waivers is designed, individuals who receive a provisional waiver will likely be separated from their U.S. citizen relatives for significantly shorter periods than is the case under the current process.

Q14.  I already have an immigrant visa interview scheduled for next month in my home country.  Should I cancel it so that I can apply for the provisional unlawful presence waiver when the final rule takes effect?

A14. No.  If you already have an immigrant visa interview scheduled with DOS, we urge you to keep your appointment.  This proposed waiver process is not in effect and USCIS will not be publishing a final rule until later this year.  If you trigger the unlawful presence bars upon departure from the United States, you may still file a Form I-601, Application for Waiver of Grounds of Inadmissibility, after you have appeared for your immigrant visa appointment and DOS has determined that you are inadmissible and need to file a waiver.  If you fail to appear for your consular interview, DOS may terminate your immigrant visa registration.

Q15.  I am currently in removal proceedings.  Will I be able to apply for a provisional waiver?

A15.  As part of the rulemaking process, DHS is considering how it will address provisional waiver requests from individuals who currently are in removal proceedings. We encourage you to submit your views and suggestions on this topic as formal comments to the NPRM at www.regulations.gov.  For more information about eligibility criteria, see DHS NPRM section IV, Parts C and D.

Q16.  If I have already filed a Form I-601, Application for Waiver of Grounds of Inadmissibility from outside the United States, will I be able to apply for a provisional waiver?

A16.  No.  The proposed provisional waiver process only applies to individuals who are physically present in the United States and have not yet been scheduled for their immigrant visa interview.  For more information on eligibility criteria, see DHS NPRM, section IV, Parts C and D.

Q17.  What happens if I am not eligible for a provisional unlawful presence waiver?

A17.  When the new process goes into effect, individuals who are not eligible for the provisional waiver process can continue to follow current agency processes for filing a Form I-601, Application for Waiver of Grounds of Inadmissibility, after the consular interview.

Q18.  If I receive an approved provisional unlawful presence waiver, will I be able to work?

A18.  No.  Under the proposed rule, the filing or approval of a provisional unlawful presence waiver will not affect an individual’s current immigration status in the United States. A pending or approved provisional waiver also will NOT:

Provide interim benefits such as employment authorization or advance parole;
Provide lawful status;
Stop the accrual of unlawful presence;
Provide protection from removal;
Remove the requirement to depart the United States to seek an immigrant visa; or
Guarantee visa issuance or admission to the United States.

Q19. If I apply for a provisional unlawful presence waiver but USCIS denies my request, can I appeal the decision or file a motion with USCIS asking for the decision to be reopened or reconsidered?

A19.  No.  Aliens seeking a provisional unlawful presence waiver would not be able to file a motion to reopen or motion to reconsider or to appeal a denial of a request for a provisional waiver.  Such individuals, however, may still apply for a waiver through the current I-601 waiver process.  USCIS also reserves the right to reopen and reconsider on its own motion an approval or a denial at any time.

Q20. If USCIS denies my request for a provisional unlawful presence waiver will I be placed in removal proceedings?

A20.  For cases where the provisional unlawful presence waiver is denied, USCIS will follow its current Notice to Appear (NTA) policy which prioritizes the types of cases USCIS will focus on for initiation of removal proceedings.  For more information on USCIS NTA priorities, see USCIS Policy Memorandum, Revised Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Removable Aliens (November 7, 2011).

Q21.  What will happen at the consular interview if I present an approved provisional unlawful presence waiver?

A21. If the DOS consular officer determines that a provisional waiver applicant, in light of the approved waiver of the unlawful presence bar, is otherwise admissible to the United States and eligible for the immigrant visa, DOS would issue the immigrant visa, allowing the individual to travel to the United States.  The provisional unlawful presence waiver would become permanent and cover the periods of unlawful presence on which the waiver was based for any future benefit requests. For more information on the validity a provisional waiver, see DHS NPRM section IV, Part H.

Q22.  What will happen at the consular interview if I present an approved provisional unlawful presence waiver but the consular officer determines I have other grounds of inadmissibility?

A22.  If the consular officer determines that you are subject to other grounds of inadmissibility beyond unlawful presence, the approved provisional waiver is automatically revoked.  If a waiver is available for the other ground(s) of inadmissibility identified by the DOS consular officer, you will need to file a Form I-601, Application for Waiver of Grounds of Inadmissibility, with USCIS after the consular interview to request a waiver for all applicable grounds of inadmissibility, including any periods of unlawful presence. For more information on revocation of a provisional waiver, see DHS NPRM section IV, Part G.

Q23. How long will an approved provisional unlawful presence waiver be valid?

A23.  Under the proposed rule, an approved provisional unlawful presence waiver would remain valid as long as the underlying approved immigrant visa petition (I-130 or I-360) is not revoked.  If DOS terminates the immigrant visa registration process or the approved immigrant visa petition is revoked, the provisional unlawful presence waiver grant also is automatically revoked. For more information on the terms and conditions for a provisional waiver and periods of validity, see DHS NPRM section IV, Parts G and H.

Q24. What happens to an approved provisional unlawful presence waiver if I reenter the United States illegally?

A24. Illegal reentry into the United States after approval of a provisional unlawful presence waiver will automatically revoke the approval. Whether an individual has a pending or an approved immigration benefit application, reentry into the United States without being admitted or paroled by an immigration officer at the U.S. border can have severe consequences; such individuals may be permanently barred from the United States.

 

Text borrowed from uscis.gov. Last updated on April 24, 2012.

We recently received an approval notice for an employee of one of our corporate clients in Irvine. The employee was approved for H-1B status, which will begin on October 1, 2012. Currently, the employee is on Optional Practical Training after graduating with a master’s of science degree from a California university in Electrical Engineering. His OPT will expire in a couple of months. However, because his OPT will expire after the filing of the H-1B petition, he will be eligible to continue working for the employer until his H-1B status begins in October. This rule is known as the OPT “Cap Gap” Extension and it allows OPT workers to continue working despite the break (or gap) between OPT expiration and H-1B start date.

Because the employee has a Master’s Degree he qualifies under the Master’s Cap rather than the standard H-1B cap. This benefits the employer because it will not count toward H-1B dependency calculations. We processed the case under premium processing, which guaranteed a decision within two weeks.

The employee and employer were pleased with the result. The next step is to have the employee obtain the Cap-Gap extension through his school.

If your company is considering the H-1B process for an employee or potential employee, contact The Nunez Firm to discuss the feasibility of doing so. Managing attorney Jay Nunez will meet with you personally to help you better understand the process, costs and timeline.

I just returned from an adjustment of status interview with my clients from Irvine and the green card was approved. The interview took place at the Santa Ana office of United States Citizenship and Immigration Services. Everything went smoothly and the officer was satisfied that the marriage was entered into in good faith and not for immigration purposes.

The couple met two years ago while working at a summer camp with children. The husband was in the US on a J-1visa. They spent a lot of time together that summer and started dating by the end of the summer. Over the next year they remained in contact and visited each other when they could. In 2011, while on a ski trip in Europe the husband proposed and the wife accepted. They planned for a July 2012 wedding. He visited in the summer of 2011 and they decided they did not want to live apart anymore if possible.That’s when they came to see me.

I explained that it would be possible to obtain permanent residency while in the United States without having to travel abroad and process the case through the consulate. The couple got married in October 2011 and we helped put the adjustment of status and visa petition packet together for filing with USCIS. Within a a couple months we were scheduled for the interview.

Because the couple is young, we didn’t have much evidence to prove joint asset ownership, but we provided a lot of correspondence, photos, statements from parents about meeting the in-laws, joint lease and joint bank statements. The officer took into account the age of the couple and approved the case for conditional permanent residency.

After the interview I explained that the couple would need to file the I-751 petition jointly in order to have the conditions removed from the green card. I advised that they should save as many joint documents as possible over the next two years so that USCIS will have a lot of evidence upon which to base an approval. They stated that they intended to hire The Nunez Firm to help with that process.

I also explained that if the husband is interested in becoming a US citizen, he would be eligible to do so three years from now as the spouse of a US citizen. Most permanent residents must be residents for 5 years, but spouses of US citizens have a shorter wait time depending on other factors. The couple was very happy and said they were going to go celebrate with brunch and possibly a mimosa.

If you are considering the adjustment of status process, contact The Nunez Firm. We handle many marriage based green card cases in Orange County and managing attorney Jay Nunez will attend the interview with you to make sure you are treated fairly and with respect.

Last week we received an approval for a conditional green card for a client from Spain. She and her husband currently live in Irvine and the adjustment of status interview took place in the USCIS office in Santa Ana. The couple met in 2008 through a mutual friend, and over the next couple years they dated and frequently visited each other in California and Spain. They also traveled to other countries together. In 2011, they decided to marry and after she arrived in the United States in Summer 2011 for a visit, they decided they wanted to start the visa petition process.

When I first met with them they intended to marry in Spain and process the case through the consulate in Madrid. I explained that they also had the option of processing the case in the United States through I-485 adjustment of status. In December 2011 they married and we filed the paperwork shortly thereafter. We included evidence of their good faith relationship including a joint 2011 tax return and photos from their extensive travels together.

When we attended the interview, we brought other evidence such as the joint lease for their apartment, health and dental insurance and other bills. The officer was satisfied with the evidence and approved the case on the spot. The couple was very happy with the result. After the interview I explained the I-751 removal of conditions process that would take place two years from now. I further explained the naturalization process, if she desired to become a US citizen in three years.

If you are considering adjustment of status, contact The Nunez Firm to schedule a free consultation. Managing attorney Jay Nunez can help you better understand the process and whether it is a viable option for you.

U.S. Rep. Joe Crowley (D-Jackson Heights) announced that he will introduce a measure in the House of Representatives that will encourage the U.S. Government to expand the Visa Waiver Program, an effort that he expects to help boost tourism in Queens.

The resolution calls on the government to expand the waiver program to include at least three new countries: Brazil, Chile and Argentina. Rojas said the U.S. economy gets about twice as many tourism dollars from South America compared to the United Kingdom, so making it easier for more travelers from more countries to come to America would mean more money for the economy.

The Visa Waiver Program allows visitors from 36 participating countries to travel to the U.S. for tourism or business for stays of 90 days or less without obtaining a visa. Countries included in the program were the largest source of inbound travel in 2010, representing 65 percent of all tourists to the U.S.

Georgia legislators are considering a proposal that would bar undocumented immigrants from receiving marriage licenses or access to water and sewage.

The bill sponsored by Sen. Barry Loudermilk, R-Cassville, has gotten a lot of attention because it would also bar undocumented immigrants from the state’s public colleges, universities and technical schools. But another provision that’s generated very little discussion removes foreign passports from a list of identification documents that government agencies can accept for certain transactions. To be acceptable, foreign passports would have to be accompanied by federal immigration documentation proving someone is in the country legally.

“It’s very interesting that the reliability of foreign passports is being questioned by the Georgia Legislature when the Transportation and Security Administration has considered the passport to be a very secure form of ID,” said Azadeh Shahshahani, an attorney with the American Civil Liberties Union. “I think my worry is that perhaps some legislators might not be aware of the implications of this because it seems so innocuous. It doesn’t say on its face that undocumented immigrants can’t get water or can’t marry.”

Read more: http://latino.foxnews.com/latino/politics/2012/03/26/georgia-immigration-law-would-bar-targets-marriage-licenses-sewage-service/#ixzz1qFFRyqwP

TIJUANA, Mexico (AP) — Agustin Portillo checks the oil in his wife’s car, stores her luggage in her trunk and then drives her from his apartment in Tijuana to the U.S. border entry port because she is too afraid to maneuver the twisting streets of this sprawling, violent city by herself.

As they wait in the hours-long checkpoint line, he kisses and holds her hand. A romantic ballad comes on the radio and he sings to her softly. She responds with a smile.

When they are nearly at the border checkpoint, Agustin signs. He kisses his wife and steps out of the car. This is as far as he can go. After 20 years of living with his wife in Los Angeles, he is stuck here, on the wrong side of the fence.

Love, it turns out, does not conquer all, especially when it comes to U.S. immigration law.

“To see your family go and you can’t go with them, it breaks your heart,” he said.

It’s a common misconception that an illegal alien married to a U.S. citizen is immediately granted “green card” status or citizenship. But Ana and Agustin, and thousands of couple like them, know the truth.

Ana, 60, is an immigrant from El Salvador who was allowed to become a U.S. citizen because of her homeland’s war-torn past. She has a son who is a legal resident in Las Vegas and another son who is an illegal immigrant in Los Angeles. Her three grandchildren were born in the United States.

Agustin, 49, is an illegal immigrant from Mexico without much money, an unattractive candidate for legal status under U.S. immigration law.

They can live together in one of the poor, violence-plagued nations that they fled decades ago, or they can live like this, divided by a man-made border, desperate for the U.S. government to bless their marriage and unite their lives once again.

Read more at Associated Press here.