The deadline to register for Nepal TPS (“Temporary Protected Status”) is approaching fast – the deadline is December 21, 2015. TPS is what it sounds like – a status which allows people to remain in the United States temporarily. “Temporary” can mean a long time in some situations. For example, TPS for nationals of El Salvador has existed since 2001. Continue reading
As I was driving through Walnut Creek, on the way to BART, I was passing by a lot of stores and thinking about how crowded they looked. Then I began thinking about my blog. While I do not know what to give as gifts to the people closest to me, I have a few ideas of what a new citizen to the United States might like. Given the numbers of people naturalizing, there are a lot of new citizens in our country. United States and Citizenship Services’ (“USCIS”) citizenship statistics show that in this last quarter alone, they have approved 212, 498 applications. Comparing all cities in California for the same time period, the greatest number of naturalization applicants, is from San Francisco – 6,162 applicants, total. So, it is my guess that we all know someone who has recently naturalized or who is going through the process. If you do not know what to give that person, I have a few ideas. As my blog is not a shopping blog, I cannot tell you where to get these items, but I am sure that you may be able to find them around.
1. American Flag
This is my top idea. While it may sound corny to someone born in the United States, immigrants are proud to become U.S. Citizens. They do not take citizenship for granted. They receive flags at the naturalization ceremony, but they are too small. I am thinking of one that is bigger, that can be hung outside. They may be hard to find this time of year in a store, but I am sure they can be ordered.
By the time a person becomes a naturalized citizen, he or she may have figured out how to cook in the United States, but a good cook book is always good to have. I lived abroad for a year when I was a student and a cookbook was the best gift I received. We do not use the metric system here and we still talk in pounds and ounces. People from other countries come here, perhaps with their recipes and soon find out that they have to convert kilos to pounds and they cannot get the oven temperature the same for their favorite cake. A cook book using weights and measures and temperatures that are used in America would be very useful.
3. A case to hold the U.S. Passport
Most new naturalized citizens apply for U.S. passports as soon as possible. A nice case or wallet to hold it in would be a great idea.
4. A frame or case for the naturalization certificate
A person who is naturalized here goes through a lot of work -the immigration process and then the studying for the naturalization exam. The certificate is an important document and it looks nice. It should be framed or placed in a case so that it is protected.
5. DVDs of a top television show or movie from sometime within the last 20 years
Naturalized citizens know a lot of American history after having studied for their exam. In fact they know more than most people born here. What is difficult to learn is American culture. We have a shared culture from television and movies. We tend to make references from movies and television when we speak. An immigrant will not know what we are talking about. While you cannot give someone all movies from the last 20 years, if you pick out something that you think is important and tell the recipient how it was important to you, the gift will be meaningful.
With delays of two years, at a minimum, from the date of filing to the date of the asylum interview, at least in San Francisco, it is important to be well prepared for the interview. In most cases, this will mean updating the supporting documents to show that country conditions are still the same if not worse, as they were at the time you filed. In this post, I will offer some tips on how you can best prepare for your asylum interview.
1. Know your case
Due to the long delay from the time of filing to the date of the interview, you may have forgotten what you stated in your application and in your declaration. You have been focusing your time in the United States on working or learning English. You are far removed from the events that took place in your home country. Now you must take the time to review your case and supplement the documentation if necessary, if events have occurred since the date of filing. You need to prepare for your interview as if you were studying for an exam. You need to remember names, dates, and places – all details of your application.
2. Remember how you felt when you first arrived in the United States and convey that feeling
Again, it has been awhile since you filed your application. You have been accustomed to life in America. You may be feeling more at ease than when you first arrived. Unfortunately a peaceful feeling is not what you want to convey at your interview. You want to remember how you felt the day you arrived and be able to convey that feeling to the asylum officer. In order to win asylum, you must prove that there is an objective basis and a subjective basis to your fear of persecution. You have to show that you are scared and frightened to return. Talk to people who are still in your home country and find out what is happening there. Read up on current events and submit some of that documentation to the asylum office. Think back on the events that caused you to leave and how you felt, and then walk into the asylum office with those feelings.
3. Practice interviewing
Hopefully your attorney will prepare you for the interview and will review the questions with you. After your preparation session with your attorney, you should still practice. Have a friend ask you some of the questions that your attorney asked you. Try to create the conditions that will be present at the asylum office. Thus, you should have someone pretend to be the asylum officer and someone be the interpreter.
4. Understand American culture
In addition to determining whether or not you are afraid to return to your country, the officer is also making a decision as to whether or not you are telling the truth. You are at a disadvantage because the interview is held in the United States, not in your home country. The officer conducting the interview is American. You are expected to conform to American norms even though you may not know what they are. In American culture, we can tell if someone is telling the truth when someone looks into our eyes when talking. Thus, even though it may not be the norm in your culture to look into the eyes of someone in a position of authority when speaking, it is the norm in American culture. You must look directly into the officer’s eyes when answering questions. This is true even if the officer is not looking at you the entire time. You must not fidget, or squirm. If you do not understand a question, it is perfecting fine to ask the officer to repeat or rephrase the question. Do not answer any question that you do not understand.
5. Go to the Asylum Office a couple of days before your interview so you know where it is
You will be nervous enough on the day of your interview and you do not need additional stress. Go to the asylum office a few days before so you know how you get there. You will not be able to go inside the office itself but you can at least find the building. Locate the closest bus stop or parking garage so that you do not have to worry about it on the day of your interview.
I wish you the best at your interview. If you have any additional suggestions, feel free to comment to this post.
I am currently working on a cancellation case for an individual from San Francisco. As I work on the case, I am going to write posts on different aspects of this form of relief. This post will discuss the basic statutory requirements for cancellation of removal for permanent residents. (There is another form of relief of cancellation of removal for non-permanent residents but I will not be discussing it in this post.)
Cancellation of Removal is a discretionary form of relief that is available to individuals who are placed into removal proceedings due to criminal and/or immigration violations. The idea is that if they can show that they have been present in the United States for a certain period of time and meet other requirements discussed further below, their removal will be cancelled. In effect what they receive is a second chance to remain in the United States.
The statute that provides for Cancellation of Removal for permanent residents is Immigration and Nationality Act (“INA”) Section 240A(a). This statute allows an Immigration Judge to cancel the removal of an individual if he or she:
- has been lawfully admitted for permanent residence for not less than five years,
- has resided in the United States continuously for 7 years after having been admitted in any status, and
- has not been convicted of any aggravated felony.
In addition, the applicant has to show that he or she has not
- been found by a judge to be a spy, terrorist, threat to national security, persecutor, torturer, to have committed genocide or extrajudicial killing, or severe violations of religious freedom, and
- been previously granted cancellation, or suspension of deportation.
Permanent resident status for five years
The five years starts (is counted from) when the individual has been admitted into the United States as a lawful permanent resident. Time in another status does not count toward this requirement; all five years must be as a permanent resident. If the applicant obtained his or her green card by fraud or mistake, the applicant is not considered to be a permanent resident. Moreover, an applicant generally cannot use his or her parent’s permanent resident status to count toward the five year requirement. However, this interpretation may depend upon the circuit in which the applicant is located. In the 9th Circuit, the Court of Appeals ruled in Mercado-Zazueta v. Holder, 580 F.3d 1102 (2009), that a minor child may rely on his or her parent’s lawful permanent resident status to meet the five year requirement.
Seven years of continuous residence
The time when an individual begins to accrue continuous residence begins when an individual is admitted to the United States in any status. Thus, an admission as a tourist or with a temporary business visa may count. The seven year period must be continuous. There is a great deal of case law on what continuous means but basically it means that an individual must be present in the United States without frequent interruptions.
The seven year period may end if one of the following events occurs:
1. The Department of Homeland Security serves the individual with a “Notice to Appear.” This is the document which lists the charges rendering an applicant removable and is filed in the Immigration Court.
2. The individual commits an offense that renders him or her removable or inadmissible.
If either of these events occur, the individual stops accruing the seven years of continuous residence necessary to apply for cancellation of removal.
No conviction for an aggravated felony
If an individual has been convicted of an aggravated felony, he or she is ineligible for cancellation. A list of crimes that constitute aggravated felonies is found in INA Section 101(a)(43). There is a great deal of case law about what constitutes an aggravated felony. An individual should consult with an immigration attorney and seek post-conviction relief if necessary in order to avoid having a conviction constitute the definition of an aggravated felony.
Cancellation of removal is discretionary
Even if an applicant meets the statutory requirements discussed above, the applicant still needs to show that he or she merits the relief. The Immigration Judge will weigh both the favorable and unfavorable factors in making a decision. My next blog post on cancellation of removal will discuss discretion in more detail.
It seems the news is all bad in terms of immigration – stories about closing our borders, or denying the admission of Syrian refugees, or talk of eliminating birthright citizenship. With this kind of news, it seems that the situation is hopeless for immigrants. It does seam bleak. Nevertheless, I decided to focus on the positive this Thanksgiving and have come up with a list of programs/visas/strategies for which we can give thanks.
- The refugee program continues to exist
I do not know what will happen with the Syrian refugees and I hope it will be resolved so that everyone feels secure but nevertheless we should be glad that we have a refugee program at all. We have admitted people into the United States from all corners of the world. Right now the topic of the day is Syrian refugees, but in our recent past, we have allowed people to enter as refugees from Viet Nam, the former Soviet Union, and Cuba. We have a tradition, and indeed a responsibility, to admit people into the United States who have been persecuted abroad. Although there is controversy with the current situation, we should be thankful that we remain in a position to admit refugees.
- Immigrants have strong advocates who are involved litigation throughout the country on their behalf
Advocates have tirelessly worked on litigation relating to the Flores v. Reno settlement which regulates the treatment and conditions of unaccompanied minors in federal immigration custody. Litigation is also pending concerning the visa bulletin and the State Department’s counting of available visas. People are calling this litigation “Visagate.” Finally, there is ongoing litigation about DAPA ( Deferred Action for Parents of Americans and Lawful Permanent Residents) and an expansion of DACA (Deferred Action for Childhood Action). By Executive Action, President Obama was seeking to the defer the deportation of certain parents of US Citizens and permanent residents. He also sought to expand the number of children eligible for DACA. The State of Texas filed and obtained an injunction against the government in implementing these programs. Currently the government has filed a Petition for a Petition for a Writ of Certiorari asking the U.S. Supreme Court to overturn the injunction blocking DAPA and expanded DACA. Despite the setbacks, it is nice to know that we have such strong advocates working on these issues.
- The USCIS website is much improved
I know that it may seem silly to give thanks to a website but it has not always been the case that USCIS had a website that had accurate, current information on it. In preparation for this blog post, I was able to go to their website and easily find the material I needed. Over time the website has become easier to use and has been made to include timely and relevant information. This is not true for all government agencies. Of course there are still problems with USCIS and the use of electronic technology but at least the website is working well as a place from which to obtain general information.
- We have visas that are issued for humanitarian cases
Humanitarian visas have not been around that long. U visas, for victims of certain crimes and who have been helpful to law enforcement, have only been around since 2000. The same is true for the T visa, issued for victims of Human Trafficking. We are fortunate that our government has recognized these victims and that the law allows them to apply for temporary status, leading to a permanent status. These visas are used a lot now but there was a time, when we did not have them. They help people remain safely in the United States who would, in most cases, not otherwise have had a way of legally remaining here.
We have a great deal for which to be thankful. Have a nice Thanksgiving.
Every Friday I am going to include a round-up of blog posts from the past week related to Immigration law. I hope to feature blogs published by solo practitioners or small law firms from across the United States. If you would like to be included, please contact me.
- Large Age Differences and Proving a Bona Fide Relationship for a K-1 Fiance Visa, Published by Jeffrey C. Pettys, Esq. (Marriage Visa Attorney Blog), from Columbus, Ohio.
- Can Texas Block Syrian Refugees?, Published by Susan Nelson, Esq. (Texas Immigration Lawyer Blog), from Waco, Texas.
- International Touring: A report from the front lines, Published by Brian Taylor Goldstein, Esq. featured in Musical America Blogs
- What is the Definition of a Frivolous Application for Political Asylum, Published by Geri Kahn (California Immigration Lawyer Blog), from San Francisco and Benicia, California.
When I first heard about “VIBE,” I thought my colleague was joking. It turns out it is real and the word as used by Immigration is not short for vibration or groove. “VIBE” stands for Validation Instrument for Business Services Enterprises. In 2012, United States Immigration and Citizenship Services (“USCIS”) contracted with Dun and Bradstreet (D&B) to be the sole verification provider of commercially business information. Through the VIBE tool, USCIS will validate whether the information contained on petitions filed by businesses or for beneficiaries of business related petitions, is accurate. Your company information must be exist in D&B’s data base if you wish to have your petition approved.
How do I get my business information in D & B’s database?
The first step before filing any type of business related petition is to verify that the U.S. company’s information is in the D & B database. D & B has created a streamlined process for those doing business with the U.S. government to verify their information. This process first requires a U.S. business to obtain a “D-U-N-S” number from D & B’s website. This will take one day or so. Once you obtain the number, you may create, update and view basic elements of your company’s D & B report without being subject to direct marketing from D&B. This link and process is only available for U.S.-based, privately held companies. U.S.-based publicly traded companies, government entities and foreign companies wishing to create, update or view their report with D&B may use D & B’s main website ; however, they may be subject to direct marketing from D&B.
What if my business is not listed with D & B?
If your business information is not listed in D & B’s database and you file your petition, you can expect to receive a Request for additional evidence (“RFE”) from USCIS. They will not approve your petition regardless of how much information you provide them about the legitimacy of your U.S. based business unless they can verify the information in VIBE. Thus it is in your best interest to verify that the information is there before you file. USCIS will not deny a petition without giving the petitioner a chance to respond to a RFE. It is not enough that a business has obtained an employer identification number or has filed taxes with IRS. These activities may then cause the information about a business to be included in D & B’s database, but not necessarily. You must verify yourself to be sure.
When USCIS established VIBE they thought that the creation of it would result in petitioners not having to submit so much information about the business – because they could verify it on VIBE. This has not been true. USCIS still requests duplicate information to the information that they can verify in VIBE. You still must submit information about the legitimacy of the U.S. based business to support your petition. Although VIBE was a great idea initially, in reality, it has not saved U.S. petitioners any time or money by allowing U.S. petitioners to submit less.
According to an article in the New York Times today, governors in almost half of the states in the United States have told President Obama that they do not support his plan to accept 10,000 refugees into the United States from Syria and they do not want the refugees to enter their states.
There are two issues here: (1) the acceptance of refugees into the United States from Syria and (2) the ability of a state to keep people out. The governors have blended the two, to their discredit.
It is legitimate to be concerned with security. Everyone we admit into the United States should undergo security/background checks. But once immigrants have done that, people should be free to live where they want to live. We do not live in the former Soviet Union. We do not have internal passports and we do not restrict internal migration. Yes, everyone is scared, but we cannot allow a governor to say who should be allowed to live in a state and who should not.
I do not know if the governors were serious. Maybe they were trying to score some political points. Assuming they were serious, how do they think they can control who is going to live in their state?
Let’s assume that such an idea actually is placed into law and that the governors are successful in preventing refugees from entering their particular state. Such a law, if it could even be passed, would set a dangerous precedent. We cannot allow the government to say that people of a certain religion cannot live somewhere. Right now it is the Muslims. Next it could be ——– [fill in the blank with an unpopular religion or minority.] We do not have to go far back in our nation’s history to remember the internment camps for Japanese, or in our world’s history to remember Nazi Germany’s “laws” against Jews.
If safety is our concern, we should focus on safety from the beginning, not on hatred once people are properly admitted into the United States.
I am writing the second of a multi-part series of posts on how to bring family relatives to the United States permanently. The first post I wrote provided general information on bringing family relatives to the United States. (See my post, “Can I petition for my relative to immigrate to the United States?“) This post will focus on how to petition for your brother or sister to come to the United States permanently.
In order to petition for your brother or sister you must file form I-130, Petition for Alien Relative with United States and Citizenship Services (“USCIS”) along with proof that you are a United States Citizen and that you are related to your brother or sister. I will discuss the steps you must take in more detail below.
Obtain Form I-130
Download I-130. At the same time that you obtain the form, you should go to the USCIS website and print out the instructions to the form. They are more detailed than the instructions I will provide in this post and provide the mailing address to where you will need to send the form.
Proof of U.S. Citizenship
You may prove that you are a U.S. citizen by sending one of the following documents to USCIS with your petition:
- A copy of your birth certificate (if you were born in the United States) issued by a civil registrar, vital statistics office, or other civil authority.
- A copy of your naturalization certificate or certificate of citizenship issued by USCIS or the former INS.
- A copy of your Form FS-240, Report of Birth Abroad of a Citizen of the United States, issued by a U.S. embassy or consulate.
- A copy of your unexpired U.S. passport. OR
- An original letter from a U.S. consular officer verifying that you are a U.S. citizen with a valid passport.
Proof of your relationship to your brother or sister
In order to prove that you and your brother or sister is related, you must submit a copy of your birth certificate and a copy of your sibling’s birth certificate showing that you have at least one common parent.
If you and your sibling share the same father but different mothers, you also need to submit the marriage certificates of your father to each mother as well as proof of termination of prior marriages of either your father or each mother.
If you or your sibling was adopted, you must submit the adoption decree showing that the adoption took place before the child turned 16.
Finally, if you or your sibling is related through a step-parent relationship, you must submit your parents’ marriage certificate showing that the marriage by which you claim your relationship to your sibling took place before the child turned 18. Also you need to submit documentation proving that your parents’ prior marriages were terminated and you also need to submit the step-child’s birth certificate.
As a general rule, do not submit any original document to USCIS. Submit only copies. Any document not in English must be translated into English. The document need not be notarized but does need to be certified by a translator indicating that the translation is true and correct.
The filing fee for the petition is currently $420.00. As the fees do change, you should check the USCIS website and verity that the fee is correct.
You must mail the complete packet to one of the addresses listed in the instructions to the form. The location to where you send it depends upon where you live.
I recommend that you make a copy of your entire packet and send the packet certified mail, return receipt requested. By sending it this way, you will have verification that it has been received.
You should be aware that there is a very long wait to bring a brother or sister to the United States. The long wait is due to our quota system for immigration. Because of the number of visas allotted for brothers or sisters is so low, it currently takes a minimum of eleven years before your brother or sister will be able to come to the United States. It is even worse if your sibling is from Mexico or the Philippines. It is worth filing the petition because you want to reserve your spot in line but if your sibling has another way of immigrating, you may wish to pursue that method while you waiting in line for this visa petition to become current.
Every Friday I am going to include a round-up of blog posts from the past week related to immigration law. I hope to feature blogs published by solo practitioners or small law firms from across the United States. If you would like to be included, please contact me.
- Marrying a Member of the U.S. Armed Forces and Immigration Published by Gloria Cardenas, Esq., (Utah Immigration Blog) from Salt Lake City, Utah.
- Some (Unsolicited) Advice for the Asylum Office Published by Jason Dzubow, Esq. (The Asylumist) from Washington, DC
- December 2015 Visa Bulletin Commentary Published by Tahmina Watson, Esq. (Watson Immigration Blog) from Seattle, Washington
- If The Republicans Win the Election, will 428,000 DACA recipients lose the right to work, Published by Geri Kahn, Esq. (California Immigration Lawyer Blog) from Benicia and San Francisco, CA