I can't begin to tell you how many times I have come across this question: "I was granted asylum by the Immigration Judge after my case was referred to the Immigration Court by the Asylum officer. But I want to make a short trip back to my home country to visit family. Can I go?" The answer to that question is simply this: NO! Period. If, after a favorable grant of Asylum either by the Immigration Court or by the Asylum Office, you go back to the home country where you claimed to be persecuted or that you will be persecuted and killed upon your return, there is a good chance that your travel there will come under sharp and detailed scrutiny by the immigration authorities. You were questioned at length by the immigration officer, by your own lawyer, the government trial attorney and quite very possibly the judge, and only after that traumatizing ordeal you were granted asylum. The reason that you were granted asylum is that you convinced the Judge that upon your return to your country, something horrible would happen to you or to your family. By going to your home country you have essentially said that you no longer need the protection and your status as an asylee or refugee may be terminated.
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The Old Framework for NIWSo you think you're a Rocket Scientist (you probably are) and you want to apply for the National Interest Waiver to get a Green Card and become a LPR (Legal Permanent Resident) of the United States. Well, you're in luck. The law on NIW has changed -- and for the better. If you are an entrepreneur, you'll have an easier time with the NIW's new framework. Let's take a look to see how the new framework operates. The old NIW framework required the following to be demonstrated: 1. The waiver applicant must seek employment in an area that has substantial intrinsic merit. 2. The waiver applicant must demonstrate that the proposed benefit to be provided will be national in scope. 3. The waiver applicant must demonstrate that it would be contrary to the national interest to potentially deprive the prospective employer of the services of the waiver applicant by making available to U.S. workers the position sought by the waiver applicant. This is no longer the case. It is entirely fair to say that the new Framework is a Christmas gift to NIW applicants by President Obama. This framework was "overturned" by In Re The Matter of Dhanasar 26 I&N Dec. 884 (AAO 2016) on December 27, 2016. The new framework is more relaxed and entrepreneur friendly. Let's look at the Dhanasar framework. The New Framework for NIWThe AAO (Administrative Appeals Office) in Dhanasar stated that, "Under the new framework, and after eligibility for EB-2 classification has been established, USCIS may grant a national interest waiver if the petitioner demonstrates by a preponderance of the evidence:
If these three elements are satisfied, USCIS may approve the national interest waiver as a matter of discretion." What does preponderance of the evidence mean?: It essentially means that more than 50% of the evidence points to the applicant satisfying the new framework. So if your evidence is at, say, 51% you're good. First Requirement: Notice the word "intrinsic" was struck from the requirement and replaced with Substantial Merit and National Importance. The AAO reasoned that the word "intrinsic" adds little to the analysis. Substantial Merit and National Importance can be demonstrated through the work and achievements of the applicant. There is no hard-and-fast rule for what substantial merit and national importance means. The Second Requirement: The second prong has changed. It is no longer the case that the impact of the applicant's proposed endeavor must be national in scope. This geographic requirement was struck down. Suppose, under the old framework, an applicant's work was located in New York. The impact must have had national impact. It's impact could not have been localized to New York. Now, under the Dhanasar framework, the applicant must be well positioned to advance the proposed endeavor. USCIS would have to consider (not exhaustive) "the individual’s education, skills, knowledge and record of success in related or similar efforts; a model or plan for future activities; any progress towards achieving the proposed endeavor; and the interest of potential customers, users, investors, or other relevant entities or individuals." The Third Requirement: The third prong has also changed. Notice the difference in the wording: "on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification." Under the new framework, there is no longer a need to show "harm to the national interest or a comparison against U.S. workers in the petitioner’s field." Thank you, Obama! If you would like to find out more about the NIW and whether you qualify for the National Interest Waiver, please contact us so that we may evaluate your resume and background. The Law Office of M. Ray Arvand, PC An Immigration Law Firm 26 Broadway, Suite 2100 New York, NY 10004 #ArvandLaw 212-323-7435 I am not here illegally. Why are they deporting me?So one day, you are looking at your Green Card and it's been 15 years since you got it. My question to you is, why haven't you filed for citizenship? Funny thing is, you're asking yourself the same question. Yes, why haven't I filed for citizenship? It's at that point that you go to the USCIS website download the N-400 Petition, fill it out, and provide all supporting documents including the filing fee and you send it out to USCIS. The U.S. Elections are coming up in 2020 and you're more than pumped to vote in the next presidential election. After submitting the N-400 Application for Citizenship, you get a notice in the mail confirming that USCIS has received your petition. You're pumped and excited. You do some online research and find out that it will take a few months to get an interview for your Citizenship. A few months go by and BAM, you got a letter in the mail from USCIS stating that you are scheduled to have an interview. WOW! You're one step away from becoming a full-fledged citizen of the United States of America - the most powerful country in the world. A rush of patriotism fills you. Start your flag waving! THE DAY OF THE INTERVIEW The day of the interview comes and you answer all the questions that the officer asks of you. You pass the civics test and the written test. You think you're on your way to the oath ceremony. Then the officer gives you a piece of paper with two X's on it. At the very top of the page it is X'd stating that "You passed the test of English and U.S. history and government." Five lines down there is another X where it reads, "USCIS will send you a written decision about your application." You're bummed and the officer tells you that a decision is pending further review. A LETTER FROM USCIS IN THE MAIL: You get a letter in the mail thinking it's your approval. Instead it's an NTA, a Notice to Appear. An NTA (Notice to Appear) is a charging document given to you (or, served upon you) stating that there are allegations you are being charged with and that you must appear before an Immigration Judge on a particular date for what's called a Master Calendar Hearing (MCH). Uh oh! This can't be good. It's not. NEVER IGNORE AN NTA. CALL A LAWYER IMMEDIATELY. You are frantically reading the charges against you and one of the charges reads, states that "You procured your admission, visa ,adjustment, or other documentation or benefit by fraud or by willfully misrepresenting a material fact, to wit: you claimed to be single on your immigrant visa however Service records show that you were married to Tom Cruise on January X, 20XX." Guess you forgot to mention that you were married to Tom Cruise and you put down on your application that you are now divorced or separated. You were married to him at the time of the initial green card or visa application. WHEN YOU APPLY FOR CITIZENSHIP YOUR ENTIRE IMMIGRATION HISTORY IS UNDER SCRUTINY Don't think that just because you now possess your Green Card that the fact that you lied on a Visa or Adjustment application it won't come and bite you in the rear 20 years later. It will. Your entire immigration history comes under review again from the very first visa onwards. As a result of a misrepresentation you can be thrown into removal. It is vitally important that you are honest in ALL aspects of your immigration filings. It will come and bite you. Removal proceedings are costly and can have permanent consequences. It is VITALLY important that you seek out competent counsel before entering that courtroom. NOTHING IN THIS POSTING SHOULD BE CONSTRUED TO BE LEGAL ADVICE NOR SHOULD ANYTHING BE CONSTRUED AS HAVING FORMED AN ATTORNEY-CLIENT RELATIONSHIP. So, you thought you had a slam dunk Asylum case before USCIS. When you were preparing your asylum petition on your own without counsel, you thought, "Hey, this is a pretty good case. There is no way I am going to get denied."
You went to the interview dressed as if you were going to your job interview (which you should, by the way). You got there and they took your photograph and then your fingerprints, etc. You sat in a dingy waiting room waiting to be called. An Asylum Officer then calls your number and you walk into the interview room and you are interviewed....for hours. You thought you were prepared for the battery of questions, follow up questions, prying, inquiring, and page flipping of the interviewer. Midway through you're thinking, "Hey, maybe this wasn't such a hot idea! I should have had a lawyer!" You Got Referred to an Immigration Judge: Seems your thinking that this is not going so well were well-founded. Your application wasn't denied but you got referred to an Immigration Judge. Uh oh, what does that mean? Well it means that you are now in removal proceedings (yes, deportation). Your Affirmative Asylum Application just became a Defensive Asylum application. I Got An NTA, What Does That Mean? As a result of your referral to an Immigration Judge, you got an NTA (Notice to Appear) before a judge. It's at this point that you should STRONGLY consider not going it alone and get that lawyer. What Is An NTA? An NTA (Notice to Appear) is a charging document given to you (or, served upon you) stating that there are allegations you are being charged with and that you must appear before an Immigration Judge on a particular date for what's called a Master Calendar Hearing (MCH). This brings us to our next question, "What's a Master Calendar Hearing?" "What's a Master Calendar Hearing?" (MCH) A MCH is a preliminary hearing for pleading and scheduling of your Individual Hearing (the Asylum hearing). It is at this MCH hearing that you will answer to the charges that were delineated in NTA Charging document set forth. You can either admit or deny these charges. The Judge will then ask you whether you want to designate a country for removal. To this question you respond, "Not at this time, Your Honor." ALWAYS ADDRESS THE JUDGE WITH RESPECT. I can't stress that enough. You Should Probably Get a Lawyer: The MCH is daunting enough, don't go to the individual hearing alone (your actual asylum proceeding which will be set by the judge at the MCH). Get a counsel to represent you in these proceedings. Removal hearings are fraught with many technical and legal jargon that the lay person is not in a position to grapple with. At the end of the MCH the judge most likely set a hearing date. And due to the stresses and pressures on the Immigration Court your next hearing is probably one or two years from now. This gives you PLENTY of time to review your application (hopefully you saved a copy of your original asylum application). Get a lawyer. What Happens at the Individual Hearing? So, fast forward two years later. This time you got a lawyer. You're armed to the teeth with your lawyer and hopefully your lawyer submitted a FOIA (Freedom of Information Act) request to get the original Asylum Officer's notes. It's a very smart thing to do. Get the notes. See what happened. And hopefully your attorney has amended your petition (if needed) and has made any corrections. The immigration judge will review your case de novo. Huh? De-what? De Novo. De Novo is a legal term which means that the judge will review your case from the start without any reference to the conclusions made by the Asylum Officer. He/She will look at it, but their decisions will not be influenced by what the Asylum Officer has stated. So, this is your second shot at the apple. If you have any questions about your Asylum application that has been referred to an Immigration Judge, please do not hesitate to contact us directly. NOTHING IN THIS POSTING SHOULD BE CONSIDERED TO BE LEGAL ADVICE OF ANY KIND. BEFORE YOU TAKE ANY ACTION YOU SHOULD CONSULT AN ATTORNEY. -M. Ray Arvand, Esq. The Law Office of M. Ray Arvand, PC An Immigration Law Firm 26 Broadway, 21st Floor New York, NY 10004 www.arvandlaw.com #ArvandLaw So, you have a friend who is here in the United States either illegally or is out of status or whatever. Point is, he or she is removable (meaning deportable). And you want to be the good friend to help your friend to remain in the United States. You've heard or seen a few things on the internet that says non-citizens and non-LPRs (Green Card holders) can get married to a U.S. Citizen and remain in the United States and get a Green Card. YAY! You found a way out for your friend. You also found a way straight to a long prison sentence, fines, penalties and your friend being deported. "Wait What?! I thought, b-b-but...so I can't do this?" No, you can't do that. The marriage may be legal in every other way. Meaning, you are both consenting adults who entered into this marriage without anyone coercing you. But you got hitched solely for purposes of fraudulently procuring immigration benefits i.e. that coveted Green Card. Let's be clear about this: it is illegal to file for a marriage green card based on a fake or a sham marriage. YOU may have good intentions and did this out of sheer altruism and did not receive any compensation or quid pro quo. However, in many cases people ask the non-citizen spouse to pay them to do this - it's a business transaction where something of value is exchanged. What you have here are the strings of conspiracy; conspiracy to defraud the United States Government into giving your friend the Green Card. The immigration authorities (USCIS/DHS/CBP and the Department of State) are quite suspicious of applications based on marriage. That is why there is the so-called two year conditional green card for Marriage Based Green Cards. Two Year Conditional Green Card: "What do you mean 'conditional'?" The conditional green card is conditional because of the high frequency of sham or fraudulent marriages. That means that the Green Card is issued for two years with conditions. Ninety days prior to your conditional green card expiring, you would have to apply to remove the conditions. You do so by filing an I-751 Petition to Remove Conditions on Residence. This form can be easily found on the USCIS website. "What if Juliet divorced Romeo (or, alternatively, he dies) and Juliet wants to remove the conditions - does that mean Juliet loses her Green Card?" Okay, so let's say Romeo married Juliet. Adjusted Status. Got the Green Card. Then after two years Romeo and Juliet got divorced or tragically (pun intended) Romeo, petitioning US Citizen spouse, dies, what then? Does Juliet lose the Green Card? No. When Juliet wants to file form I-571 to remove conditions, she would need to demonstrate that the marriage which ended was in good faith. That means she has to demonstrate that the marriage was not entered into for the purposes of procuring immigration benefits (in this case a Green Card). You would have to submit documented evidence of the bona fides of the marriage. Bottom line is that you should NEVER EVER marry someone simply to "help" them remain in the country. You should marry that person because the marriage is real and you are in love and you want to be together. Marriage Fraud, Visa Fraud and, Green Card fraud will land you in a world of hurt and trouble. Don't do it. If, you need representation in filing a Family Based Petition for your spouse, please do not hesitate to contact us for a confidential consultation. The Law Office of M. Ray Arvand, PC An Immigration Law Firm 26 Broadway, 21st Floor New York, NY 10004 212-323-7435 #ArvandLaw So you want to get the L1 Visa. What in the world is an L-1 Visa? You can qualify to receive an L-1 Visa to come to the United States for employment purposes if you have had one continuous year of employment (with your present employer) out of the preceding three years and you have been transferred to the U.S. to work as a manager, an executive, or a specialized-knowledge worker. The word "continuous" is put in so that you can't use aggregate employment periods. The employees one year employment must have been managerial, executive, or specialized knowledge. Also, if someone has been employed one year on a part-time basis, that is not allowed. However, there is a wrinkle in this rule. If the employee has been working for the employer for several of its foreign affiliates for one year and the totals add up to full-time hours, that would be allowed. Yes, I know. So what are the key advantages and features of the L-1 Visa. Why get this type of Visa over any other visa. Here are some key bullet points to remember and keep in mind. Key Features of L-1
If you think you qualify for an L1 Visa or if your company wants to obtain an L1 Visa please do not hesitate to contact us to schedule a confidential consultation. The Law Office of M. Ray Arvand, PC An Immigration Law Firm 26 Broadway, Ste 2100 New York, NY 10004 212-323-7435 #ArvandLaw So, I got an RFE. Does this mean that my petition is dead? Do they think I am lying? What do I do? How do I respond?
Let's say you filed an I-129F, which is a Petition for Alien Fiancé(e) and you got this mysterious letter from USCIS. You go to the mailbox and you see that you have a letter from USCIS and you immediately think, YES, this is it. We are approved. You open it and BAM it hits you. It's a RFE or a Request for Evidence. Immediately your heart sinks and you think you're finished, kaput, done, and denied. Step 1: RELAX!!! It is not a denial letter. So take a seat and continue reading. According to the USCIS website, "a request for evidence is made when an application/petition is lacking required documentation/evidence (initial evidence) or the officer needs more documentation/evidence (additional evidence) to determine an applicant's eligibility for the benefit sought. [They] may send you a request for evidence at any stage of our review. The request will indicate what evidence or information is needed for [them] to fully evaluate your application or petition. The notice will explain where to send the evidence and will give the deadline for your response. Your application or petition will be held in suspense during that time." See USCIS website. Should you receive an RFE for any of your petitions, please do not hesitate to contact us for a consultation to review your matter. We will timely respond to any and all RFEs' that you receive. The key take away from this is that you should not panic. This is not a denial. This is merely a request for them to get more information from you so that they may continue adjudicating your case. Please feel free to contact us about your RFEs or any immigration matter. The Law Office of M. Ray Arvand, PC An Immigration Law Firm 26 Broadway, 21st Fl. New York, NY 10004 212-323-7435 What's a Visa Bulletin and Priority Date?So you want to come to America, but don’t know if you are eligible for a visa? Well, every month, the U.S. Department of State issues what’s known as the visa bulletin? The United States places a legal limit on the number of foreign nationals that are allowed to enter and stay permanently each year. To keep potential applicants abreast of the available visas, the visa bulletin is published and contains information regarding the amount of available immigrant visa numbers for potential applicants. For example, if you are interested in applying for an employment-based visa, you would at the chart provided on the website and scan the multiple categories until you find the area you are interested in applying. Once you find the area you are interested in, you will be aware of the amount of visas available for your particular area of interest. In order to control the rates of immigrants intending to permanently reside in the U.S., a system was created by the Immigration and Nationality Act. They set a limit per-country, and per category on the amount of visa offered. There are certain procedures that you must go through to determine eligibility. For example, the employment-based category we mentioned above uses the date that the case was initiated and submitted the first appropriate filing, (known as the priority date) to the USCIS or the DOL. There are also cutoff dates listed in the charts according to date, category, and country under the employment-based category. Therefore, in order to be eligible for a visa, your priority date must fall prior to the cutoff date, and is what’s known as “being current”. Generally, the demand for a visa number is higher then the amount of visa’s allocated for areas such as employment based or family based visas. If the demand should exceed the amount of visas allotted in certain areas, they will be oversubscribed. Certain high demand countries such as China, India, Mexico and the Philippines have a much longer wait time compared to the rest of the world. The cutoff dates in the visa bulletin are established by the DOS and based upon estimates of demand. This is just a brief outline explain the visa bulletin. If you are interested in learning more about the multitude of various visas that the United States offers, please visit their website here. If you have any questions or would like to schedule a one-on-one consultation with one of our attorneys, please do not hesitate to contact us. The Law Office of M. Ray Arvand, PC The Standard Oil Building 26 Broadway, 21st Floor New York, NY 10004 212-323-7435 OMG OMG OMG, I'M GETTING MARRIED!!!You’ve met “the one” and now plan to live happily ever after in the United States? Congrats on getting married!! Now, you would like to apply for a green card? Immigration law allows certain citizens, such as your spouse or an immediate relative to petition certain relatives to live here in the United States. However, certain steps must be taken in order to apply for a green card through your spouse or immediate relative. First, your U.S. citizen spouse or immediate relative must file Form I-130, which is a Relative petition. The purpose of this form is to establish that there is an immediate family relationship. Once the I-130 is either received or approved, you should receive Form I-797, stating that your I-130 form was either received or approved. Then, after receiving this notice, you must have your spouse or relative file Form I-485, which is an Adjustment of Status petition. There are two important distinctions that must be noted when filling out your application: whether you came to the United States legally or illegally. If you entered legally, it means that you received a valid non-immigrant visa such as a tourist, student, or temporary worker visa, and you were inspected by an officer of the U.S. border patrol at the entry site you entered, such as by air, sea or bus. If you entered legally and have overstayed your current visa, you must pick this option when filling out your application. If you have entered the United States illegally, you will not be eligible to file the Adjustment of Status. However, you may be able to do so if an employer or family member filed an immigrant petition on your behalf: before Jan 14, 1998 or between Jan 14, 1998 and April 21, 2001, and you can also prove that you were physically present in the U.S. on December 21, 2000. If you are not within the United States and you are an immediate relative of a U.S. citizen, you can in fact become a permanent resident through the process known as consular processing. This process involves the USCIS working with the Department of State to issue you a visa once you have an approved I-130 Form. Once everything has been approved, you may then travel to the United States and will officially become a permanent resident upon entering a U.S. entry port. Our attorneys are always here to help you. If you have any questions or concerns, please contact our office to schedule a private one-on-one private consultation. The Law Office of M. Ray Arvand, PC The Standard Oil Building 26 Broadway, 21st Fl. New York, NY 10004 212-323-7435 What Are the Requirements for Affirmative AsylumRequirements for Affirmative Asylum There are two ways of obtaining asylum in the United States. Through the affirmative process and the defensive process. We will discuss in further detail the affirmative process below. In order to obtain affirmative asylum in the U.S., you must first be physically present in the United States, regardless of how you got here or your current immigration status. Once you are located in the United States, you must then file (within a year of your last arrival in the United States) an Application for Asylum and for Withholding Removal form I-589. It is important to note that you may not be eligible to apply for asylum if you do not follow the one-year filing deadline for Form 1-589; if you previously had an asylum application denied by an immigration judge or Board of Appeals; or if you may be safely removed to a 3rd country. Next, once USCIS has received your application, you will receive both a notice providing acknowledgment that they received your application, and a notice instructing you to visit your nearest application support center to be fingerprinted. Everyone is fingerprinted for the purpose of background or security checks. You will not need to pay any fee’s to have your fingerprints taken, nor is there an application fee. If your spouse and children are also requesting asylum, they must go with you to your appointment. Once the fingerprinting has been completed, you will next receive a notice in the mail regarding the date and time of your scheduled interview. The interview will take place with an asylum officer at one of the 8 asylum offices, or at the USCIS field office. They will determine depending on where you live, where the interview shall take place. On the actual day of your interview, you must bring a form of identification such as: any passports you may have, travel or identification documents, and form I-94, Arrival Departure Record, if you received one when you arrived here in the United States. There are many additional documents you must bring to the interview that we would be happy to assist you with. Furthermore, if you should feel more comfortable with an attorney present, you are entitled to bring one to your interview. You must bring your spouse and children that are also seeking asylum, and if you do not speak English, you must bring an interpreter (over 18 years old) with you to the interview, as one will not be provided for you. If you wish, you may also bring witnesses to testify on your behalf. The interview generally last about an hour, depending of course on the case. An Asylum Officer will make a determination on eligibility. They will determine you are either eligible for asylum, or they will bar you from being granted asylum. Lastly, you must return to the asylum office to pick up the decision generally around two weeks after you’ve been interviewed. You may live in the United States while your application is pending before USCIS. If you are found to be ineligible, you can remain in the United States while your application is pending with the Immigration Judge. If you think you qualify for Affirmative Asylum, please contact us through our website or by calling us at 212-323-7435. The Law Office of M. Ray Arvand, PC The Standard Oil Building 26 Broadway, 21st Fl. New York, NY 10004 212-323-7435 www.arvandlaw.com |
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