About 350,000 Americans pre-ordered the U.S. Passport Cards and so far about 7,600 cards have been mailed out to advance customers. All pre-orders are expected to be filled by September 30, 2008 and then, after that, the processing time will take about the same as for U.S. passports—about 4 weeks.
The Passport Card will make it a whole lot easier for Americans who live in border communities to regularly travel back and forth over the border.
]]>The Appellant in this AAO case made the argument that because he filed his I-131 before the expiration date of his then current re-entry permit period—even though he was out of the U.S. when he filed, his I-131 should still be approved. He left the U.S. on February 28, 2006 when his re-entry permit was still valid to April 28, 2006 and he filed for a re-entry permit, from outside the U.S., on April 24, 2008.
Basically, he was arguing that he was extending a previously granted re-entry permit.
But the AAO said the regs were clear. There is no reg that allows for an “extension” of a re-entry permit. Once a re-entry permit is no longer valid, then that re-entry permit must be surrendered to the U.S. and only then, when the applicant is still physically in the U.S., will a new re-entry permit be granted.
Bottom line: there is no exception to the physical presence requirement for filing an I-131 re-entry permit.
Of course, the AAO also pointed out that all is not lost for the applicant—if he or she did not get a re-entry permit in advance of being outside the U.S. for a period of more than one year, then they can contact a United States consulate abroad to learn how get an appropriate document in order to be allowed back into the U.S. More on that in my next entry.
]]>Moin was a native of Pakistan who obtained her permanent residency in August, 1991 but who, two months later, returned to Pakistan. She did so at the urging of her parents to consider marriage proposals and to then get married. She intended to be out of the U.S. for only a few months but she was gone for almost one year. While in Pakistan, Moin married with the traditional wedding ceremony and related cultural events lasting for three months and she then had a child there. She returned to the U.S. in October, 1992, alone because her husband and child did not have a visa to come with her.
She promptly returned to Pakistant to be with her husband and very ill child who tragically died. She did not return to the U.S until November, 1994. She returned did return on her re-entry permit. She left again in February, 1995, at the urging of her husband, had another child and did not return to the U.S. until February, 1996.
When Moin lived in the U.S. she lived with her parents, had only a few personal items at their home, did not own any real estate in the United States and had no verified employment here. On the contrary, in Pakistan, Moin was joint owner with her husband of two shops and an apartment in Pakistan; owned a car there and her husband purchased a home there.
Finally, in May, 1996, Moin returned to the U.S. with her son, presented her green card in order to be admitted but was ultimately placed in removal proceedings on the grounds that she had abandoned her permanent residency.
The Immigration Judge ordered her removed and the Court of Appeals agreed. The Court held that the case depended on whether Moin’s trips to Pakistan really qualified as “temporary trips abroad” which it defined as a trip for a "relatively short" period, fixed by some early event; or a trip that will end when some event happens that has a reasonable possibility of happening within a relatively short period of time.
Moin said her trips were temporary—she was never gone for more than 2 years and she had a valid re-entry permit. But the court said that a reentry permit does not guarantee return if the permanent resident is found to be inadmissible because of abandonment.
Moin also said that she always really intended to reside permanently in the United States. But the Court said even if that was her “ultimate” intent, what counts was her intent to return to the United States within a relatively short period. Her desire to maintain her status was not the issue, her actions were.
Interestingly, the Court expressed sympathy of Moin’s predicament—her husband and child were unable to obtain visas and Moin’s unfortuante choice was not live apart from them or possibly lose here green card. Nonetheless, the Court dismissed her appeal and affirmed the
Order of Removal.
The case highlights the importance of re-entry permits—and their limitations. They are absolutely essential to have and yet they are limited in value under the wrong set of circumstances. They are not guarantees of entry if an permanent resident’s actions are not consistent with a true intent to maintain their permanent residency status. Maintaining that green card status during a lenghty trip abroad requires not only the re-entry permit but also requires taking other steps beginning on the very day one becomes a permanent resident and throughout to develop and retain sufficiet ties to the U.S.
In that entry, I said I would follow up with specific real-life cases in which certain permanent residents engaged in behavior that caused them to lose their permanent residency or not. Here are some of those cases.
In Singh v. Reno, a 1997 case, the permanent resident obtained permanent residence in December, 1990 but then spent only about one third of his time in the U.S. before he was placed in removal proceedings in July, 1993. He spent the time overseas with his wife and daughter who were both waiting for immigrant visas, while he was in the U.S. he lived in temporary, employer provided housing and he re-entered the U.S. four times on a visitor visa rather than on his green card. The court held that his visits were not just temporary even though he was never out of the U.S. for more than one year and that he has abandoned his permanent residency.
In another case, Hana v. Gonzales, a 2005 case, the permanent resident was held not to have abandoned her permanent resident status. She was granted a green card in May, 1992 and several months later she returned to Iraq to continue with her job there with a bank and to be with her husband and four children for whom she had filed for immigrant visas. She was concerned that the government of Iraq would harm her family if she did not return and she also needed to care for her ailing mother-in-law. She did obtain a re-entry permit but when she tried to re-enter the U.S. on that re-entry permit in December, 1996, she was detained and charged with being inadmissible.
Although she had no family or property or job in the U.S., the court still held that she did not abandon her permanent residency because it said that she had a genuine concern about her family’s safety and she needed to be in Iraq to care for her mother-in-law.
]]> In yet another case, Chavez-Ramirez v. INS, the permanent resident was held to have abandoned her permanent residency despite having left the U.S. to care for her dying mother. The green card holder was a nun who had been a permanent resident for five years but then returned to Mexico for two years to care for her mother. But then, when her mother died, she remained in Mexico, married, had a child and worked there. When she tried to re-enter the U.S. she was charged with being inadmissible. The court held that she did, in fact, abandon her permanent residency. The real problem in this case was that when the permanent resident’s mother died, she remained in Mexico rather than promptly returning to the U.S. and the court held that she did not have a continuous, uninterrupted intention to return to the U.S.These are just three cases that show how fact specific this issue is—does the permanent resident, even though he or she may have a re-entry permit—have a continuous and uninterrupted intent to return to the U.S. Did they leave with the intent to return to the U.S. after a short stay abroad that is fixed by a certain event or by some event that is reasonably expected to occur soon.
Certainly, it is crucial that any permanent resident intending to depart the U.S. for any period of time 1) to consult with an experienced immigration attorney to first determine whether a re-entry permit is required and 2) to determine what other steps should be taken to show that he or she has no intention of abandoning their permanent residency.
I thought it would be helpful, in my next postings over the next few days, to review some other basics of re-entry permits and clear up some misconceptions about the protections a re-entry permit may or may not provide.
First and foremost, possession of a re-entry permit does not guarantee entry into the U.S. If a permanent resident departs the U.S. with the intent of remaining outside the U.S. for a period of more than one year, he or she must have a re-entry permit in order to re-enter. However, just because they do does not mean that Customs and Border Protection cannot still deny entry. On the contrary, CBP can still find that the permanent resident has abandoned their permanent residency. The re-entry permit simply means that CBP cannot use the absence of more than one year alone as a reason to deny entry.
If CPB determines that it was the intent of the permanent resident to abandon his status then entry will be denied, re-entry permit or not. The intent of the permanent resident is what controls. The only way to determine one’s intent is to look at all the circumstances surrounding the temporary trip abroad.
Was the trip for a relatively short period of time that is fixed by some event that will take place relatively soon? If the trip was not fixed in time, did the trip end when something specific happened that was expected to happen soon? If the trip was not fixed in time or did not end soon after some event happened, did the permanent resident still really always intend to return nonetheless? For example, did the permanent resident maintain family in the U.S., a home or other real estate, business ties, etc. How long had the person been a permanent resident, what ties does the person have in the foreign country, etc.
All of this sounds very theoretical, so in my next posting, I’ll give some specific examples of people who have been determined to have abandoned their permanent residency and others who were ok.
Some think that a very safe thing to do is obtain a re-entry permit even for a visit that is not expected to last more than a year. Whether this is really necessary can only be determined on a case-by-case basis and with any question about a re-entry permit, a permanent resident should consult with an immigration attorney before leaving the U.S.
On June 24, it was announced that U.S. Customs and Border Protection has signed a joint agreement with the government of the United Kingdom to develop a bilateral program that will eventually make low-risk frequent travelers from the UK to the U.S. also eligible to apply for the program as soon as later this year. And vice versa—low risk U.S. citizens and permanent residents of the U.S. traveling to the U.K. will have reciprocal benefits. The reciprocal agreement is the “International Expedited Traveler Initiative” and it will integrate CBP’s Global Entry program with the U.K. registered traveler program.
The reciprocal program will be similar to other “trusted traveler” programs such as NEXUS (which allows expedited processing into the U.S. and Canada at the land border and at Canadian pre-clearance airports) and SENTRI (which provides for dedicated processing at the U.S.-Mexico land border).
The agreement with the U.K. is also similar to an agreement that CBP signed with the government of the Netherlands on May 19 to integrate CBP’s Global Entry program with the Dutch “Privium” program.
The I-131 application for a re-entry permit must be filed by a permanent resident while he or she is physically present in the U.S. and previously, applications for re-entry permits did not require that biometrics be taken. The I-131 applicant could file the application and then immediately leave the U.S. and have the approved re-entry permit mailed to them overseas.
Now biometrics are required for re-entry permits and this presents permanent residents with the problem of having to actually remain in the U.S. for another 4 or 5 weeks after filing the I-131 while waiting for the USCIS to schedule the biometrics appointment.
The USCIS has now clarified a few points. First, the USCIS states that for normal I-131 re-entry permit processing, applicants will be scheduled for a biometric appointment in approximately three to four weeks after filing the I-131. However, expedited processing can be requested through the Nebraska Service Center on a case-by-case basis. The instructions for requesting an expedited application are on the I-131 Instructions.
Also, if someone needs the biometrics to be taken during a particular time period (for example, July 10-July 17), the USCIS will accommodate the request if legitimate circumstances warrant exceptional handling of the application.
A request can also be made to have biometrics taken in an area of the country other than where the original ASC appointment was scheduled. If a change in location is required, the request should be noted and explained in the rescheduling request.
Finally, the USCIS has clarified that if an applicant has had their biometrics taken in connection with another application (for example, an I-485 adjustment of status application) within the past 15 months, those biometrics usually can not be used for the I-131 application. According to the USCIS: “For application types that require biometric images (photograph, signature, and press print) as well, such as the I-485 and the I-131, in most cases a new set of biometric images must be captured to associate with each application”.
The USCIS notes, of course, that if an applicant successfully reschedules their biometrics appointment, the delay will also delay action on the I-131 itself.
Hopefully, this will clarify some of the confusion about how to best deal with the scheduling problems that result when an I-131 re-entry permit applicant doesn’t have the time to wait in the U.S. for the usual biometrics scheduling.
To check on the status of a FOIA request, you enter your assigned control number and receive an immediate response on the status of your request. You’ll be told whether the request is “pending” or “processed” and if its pending, you’ll be told where your requests stands in line with all other requests.
]]>The original I-485 was filed on February 27, 2007 by the minor child of a parent whose own employment based I-485 was filed on the same date.
The parent’s I-140 Immigrant Petition for Alien Worker and the parent’s I-485 application for adjustment of status were approved on October 27, 2007 but, for some unexplained reason, the minor daughter’s application was not decided at the same time. I waited for the daughter’s approval which should have routinely followed the mother’s approval---but nothing. After about 3 months of delay, I contacted the Texas Service Center by phone and mail and I was told I should expect a decision within 60 days.
60 days later, I contacted the TSC again and I was told again that I would have to wait another 60 days. When that second 60 day period ran, I advised the client to simply proceed with the Writ of Mandamus.
Actually, the waiting periods in this case were not as bad as some others. What bothered me about the delay was that there really could not have been any possible reason for the delay. There was nothing controversial about the minor’s daughter’s derivative application whatsoever—once the parent’s applications were approved, the daughter’s approval should have been routine.
I filed the Writ of Mandamus on May 28, 2008 and on June 22, 2008 I received a phone call from the U.S. Attorney who was assigned to the case that the daughter’s I-485 had just been approved!
This is not to say that Writs of Mandamus should be filed lightly or that they should be filed before there has been a truly unreasonable delay. But when there is an inexplicable, unreasonable delay and the facts justify filing the Writ, I recommend that client’s proceed with this extraordinary remedy.
State Farm will be the first mainstream company to join in this very worthwhile effort--after other such companies declined, being fearful of controversy. According to studies, over 8 million Latino permanent residents are eligible to become U.S. citizens. In 2008, at least 9.3 million Latino voters will vote in the November, 2008 elections and 1.4 million of them were registered by the Ya Es Hora campaign. The current phase of the campaign hopes, with donations like State Farm's, to register another 2 to 3 million new Latino voters, numbers that could have a significant impact on crucial states like Colorado, New Mexico, Nevada and Florida.
Latino immigrants tend to vote in higher numbers than U.S. born Hispanics and the move by State Farm makes a lot of business sense for the insurance company. But State Farm's effort, whether it results in more Democratic or Republican voters is also just the right thing to do and the company should be applauded.
]]>In this AAO case, the J-1 visa holder was required by regulation to return to her home county, the Philippines, because under the law, all J-1 exchange visitors who come to U.S. to receive graduate medical education must return home for two years before they can apply for permanent residency, unless certain waivers apply. In this case, the only waiver that was available was the “exceptional hardship” waiver. This required her to show that her departure “would impose exceptional hardship upon the alien’s [U.S. citizen or permanent resident] spouse or child”.
The AAO started its analysis by asking whether exceptional hardship would be suffered by the applicant’s spouse or child if the circumstances forced them to travel abroad with the applicant to the applicant’s home country. Just because they chose to stay in the U.S. while the applicant was required to return home, would not show “exceptional hardship”.
Even then, even if exceptional hardship abroad were shown, the AAO said that it still must be shown that the U.S. citizen or permanent resident spouse or child would suffer “exceptional hardship” here in the U.S. if the applicant simply went home alone.
In this case, the applicant offered evidence of exceptional hardship to the California Service Center of the USCIS but her application was denied. Fortunately, the AAO ruled in her favor in her appeal.
It first held that her U.S. citizen children would suffer exceptional hardship if they went to the Philippines with their mother. One child has bronchial asthma which would have worsened in the Philippine environment, the children lived in the U.S their whole lives, did not speak Tagalog and would be subject to kidnappings as U.S. citizens. The applicant wisely submitted affidavits and much documentary evidence about conditions in the Philippines.
The AAO was also satisfied . . . . .
]]> . . . that the applicant’s children would suffer exceptional hardship if they remained here in the U.S. without her. She offered evidence that her husband would not be able to care for the children and maintain his dental practice at the same time especially the care required for the child with asthma and that all the children were emotionally dependent on her, especially her 5 year old child.Interestingly, the AAO held that the applicant’s spouse, alone, would not have suffered exceptional hardship either by remaining in the U.S. without the applicant or by traveling with her to the Philippines; it was the children who made the case.
Again, the decision is helpful because it provides a nice framework for others in trying to establish “exceptional hardship”. It shows the high level of favorable facts, backed up by documented evidence, that is required in these type cases.
Even with this favorable decision by the AAO, the applicant must still obtain a favorable recommendation from the Department of State before her waiver can actually be granted. So the AAO remanded the matter to the California Service Center for the Director to request a DOS recommendation.
]]>The case involved the issue of voluntary departure and the poor choice certain individuals must make between abiding by a voluntary departure order or filing a motion to reopen their removal case if they believe new facts justify a re-opening.
A person in removal proceedings who has asked for voluntary departure as an alternative form of relief from removal and who has been given the standard 30-60 days (under some circumstances, it can be up to 120 days) to voluntarily depart absolutely must depart the U.S. before the deadline or suffer serious consequences. If one fails to abide by their order of voluntary departure, the immigration court order automatically becomes an order of removal and there are civil and criminal penalties too.
On the other hand, one who has been granted voluntary departure might have a legitimate reason to ask that their case be re-opened if new facts develop or other evidence that could not be submitted earlier is now available. If they file the motion to re-open but leave the U.S. as required under their order of voluntary departure, the motion to re-open is abandoned. So, it’s a poor choice to have to make.
The Supreme Court recognized the tension between the motion to re-open provisions and the voluntary departure provisions and ruled that a person must be permitted to withdraw their request for voluntary departure as long as they do it before the deadline by which they were ordered to depart. In this way, the person can freely pursue their motion to re-open with suffering the consequences of failing to voluntarily depart.
However, it’s not a clear win for aliens because the Supreme Court specifically did NOT hold that the voluntary departure period was stayed while a motion to re-open is pending. So the dilemma really is still there—if one wants to file a motion to re-open without suffering the consequences of failing to voluntarily depart, one must give up voluntary departure and its benefits. If the motion to re-open is denied, the individual has lost out on voluntary departure and is subject to a removal order and its 10 year bar on re-entry.
The decision may actually have limited affect because the USCIS has proposed a regulation by which the filing of a motion to re-open would automatically terminate an order of voluntary departure, something the Court said “warrants respectful consideration.”
Khat is a controlled substance in the U.S. (and many other countries) and if it is used more than a single time, then the visa applicant is going to be considered a drug addict or drug abuser and consequently he or she will be determined to be ineligible for an immigrant visa under INA Section 212(a)(1)(A)(iv).
The statement issued by Mr. West is as follows:
The determination of ineligibility under INA Section 212(a)(1)(A)(iv) is made based upon the results of the panel physician's exam. Due to the prevalence of khat use in Yemen, and after consultation with the CDC and State Department Visa Office, we have instructed our panel physicians to inquire about khat use during the immigrant visa medical exam. If the applicant admits to more than a single use of khat, they are classed as a drug addict or abuser. Under current CDC guidelines, more than a single use of khat or any other controlled substance must result in a finding of drug addiction or abuse. A single use of a controlled substance is considered experimentation and is not an ineligibility.
The procedure for showing non-use of khat is the same as for any other drug. The applicant must submit to periodic examinations by a panel physician over three years. If during the three year period there is no indication of khat use, the applicant's medical condition will be downgraded to a finding of remission, a Class B condition. Once a finding of remission is made, we can proceed with visa issuance once all other documentary qualifications have been met, such as a new medical exam or police certificate.
What makes the clarification interesting is that khat chewing in Yemen is, according to some experts, a way of life and a crucial part of Yemeni celebrations such as marriages. In fact, according to one observer, not using khat in Yemen results in social isolation. Its use is apparently common among men, women and even minors.
This isn’t a criticism of the consul’s policy which makes sense given the long term effects of khat use (especially when it’s use starts at an early age); it’s just an observation. Given its widespread us in Yemen, it must be very difficult to get an immigrant visa out of Yemen.
*Section 104(c) of AC21 permits someone in H-1B status to extend their stay in increments of up to three years if they are the beneficiary of an approved Form I-140 and if an immigrant visa is not immediately available.
**Section 106(a) of AC21 permits someone in H-1B status to extend their stay in increments of up to one year, provided the Form I-140 petition or underlying labor certification has been pending for at least 365 days.
This change will really help those who otherwise would not be able to maintain status while waiting for normal processing times for their I-140 and where because an immigrant visa is not immediately available, they would not be able to file their I-485 application to adjust to permanent residency status when their I-140 is filed.
With premium processing, the USCIS will make a decision on the I-140 within 15 calendar-days from the time of filing the I-907 request for such premium processing.
I attended a naturalization interview today with a client. We filed his N-400 in late October, 2007, biometrics were taken in February, 2008, the interview was today, June 10, 2008 and he is scheduled for his swearing in ceremony on July 2, 2008.
It’s nice when an application is actually approved without any delay.
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