Archive: February 27, 2020

Form I-944 Financial Information Required for Most Green Card Applications from within the US

February 27, 2020

As of February 24, 2020, USCIS requires that all Form I-485 Application for Adjustment of Status (“green card applications”) be accompanied by Form I-944 Declaration of Self-Sufficiency. This form requires a burdensome amount of financial documents from the US citizen or LPR petitoner and from the intending immigrant. Also, this inquiry goes well outside the prior scope of financial inquiry of whether the US citizen or LPR petitioner is eligible to obtain a green card for his/her family member. In short, the form and the requirements are unfair and likely unlawful.

 

The Form is at https://www.uscis.gov/i-944 .

I am still in the process of making a list of documents that are necessary for this form. In addition to my standard requests for three years of IRS tax transcripts, three years of W-2, recent paystubs and employer letters, I am requesting many more financial documents from my clients. For now, the new list of documents includes:

1. Proof of Petitioner and Beneficiary having health insurance in the form of Form 1095 (a federal tax form), a policy explanation from your health insurance company, or a letter from  your employer regarding your health insurance

2. Credit reports for Petitioner and Beneficiary from one of the major credit agencies, Equifax, Experian or TransUnion

3. Latest bank statements for all Petitioner and Beneficiary’s accounts and

4. Latest statements for all retirement, investment, etc. for Petitioner and Beneficiary

5. Latest mortgage statement from any real estate owned by Petitioner and Beneficiary

6. Latest statements for any car loans, student loans, credit card debt, other loans for Petitioner and Beneficiary

 

Does a criminal record mean that I can never obtain any immigration benefit?

February 24, 2020

If you’re an immigrant who has ever been arrested, summonsed to court, admitted to criminal activity, or convicted of certain criminal offenses, you must discuss your legal history with an immigration attorney before submitting any paperwork to any US government agency or attending any interview or hearing. A broad category of crimes can render an individual ‘inadmissible’ to the United States and can trigger deportment proceedings of a legal resident. 

But having a criminal history or record does not necessarily mean that USCIS or the Department of State will deny your visa application. Although certain criminal cases and circumstances can make it more difficult to succeed in your immigration case, it is not necessarily impossible. Below are some important issues to consider and to discuss with an immigration attorney if you have them in your history. (There are NOT the only criminal issues to consider.)

 

Convictions for “Crimes of Moral Turpitude”: If a court has found you guilty of, or you have admitted the essential elements of, a crime involving moral turpitude, a controlled substance violation or certain other crimes, you are automatically rendered ‘inadmissible’ to the United States. For certain crimes, you do not need a conviction or an admission to be rendered inadmissible; USCIS or the Department of State can suspect you of criminal activity and deem you ineligible to enter the US or receive a green card in the US. 

That said, not all crimes are considered equal. Under limited circumstances, you may qualify for a “petty offense exception.” This exception is a request for legal forgiveness that, if granted, would allow you to proceed with your immigration case.  

Or, you may be eligible for a waiver of inadmissibility for crimes of moral turpitude. To be eligible for the waiver, you must show that your US citizen or LPR spouse or parent will suffer “extreme hardship” if you are not granted the waiver. This waiver is NOT available based on hardship to your US citizen or LPR children. 

For applicants for green card, there is absolutely no waiver of inadmissibility for any drug crimes, with the limited exception of certain crimes of possession of marijuana. This rule has a devastating impact on many immigrants who have convictions for minor possession crimes. Also, even when a drug conviction is very old and the individual is fully rehabilitated, there is no waiver of inadmissibility for drug crimes for applicants for green cards. Strangely, the blanket INA 212(d) waiver is available to any applicant for a temporary (nonimmigrant) visa, and such waiver does not require a showing of hardship to a US citizen or LPR relative. 

Guilty pleas: Many immigrants and often their criminal defense attorneys do not realize that for immigration purposes a guilty plea is equivalent to a conviction. If you have pled guilty to an offense, the United States Citizenship and Immigration Services (USCIS) will view the crime exactly the same as if a judge or jury convicted you. Such guilty plea may make you ineligible for a green card and/or temporary visas and may make you “removable”/“deportable” if you are in the US. 

Continued Without A Finding (CWOF): In Massachusetts, a defendant may dispose of a criminal case through with a “Continued Without a Finding” (CWOF). To receive this disposition, the defendant agrees that the prosecution presented sufficient facts to prove a case at trial, which federal immigration law equates to an admission to having committed the crime. From the perspective of Massachusetts criminal law, the case is considered “dismissed” if the defendant successfully completes the period of probation that accompanies the CWOF.

But the case is not considered “dismissed” for immigration purposes. The USCIS treats a CWOF as an admission of guilt because the defendant admits that the facts presented by the prosecution are sufficient to prove guilt. Thus, even if you had a CWOF and a “clean” record under Massachusetts law, you may be ineligible for a green card and/or temporary visas and “removable”/“deportable” if you are in the US. 

Pre-Trial Probation: Massachusetts has a disposition of “pre-trial probation” where the defendant does not admit to any facts of the charges crimes, does not admit guilt and is not found guilty, but is put on probation for a period. After successful completion of the pre-trial probation period, the charges are dismissed in way that does not affect your eligibility for immigration benefits. I advise all of my non-US citizen clients to hire an excellent criminal defense attorney, with the hope that they can obtain the excellent outcome of “pre-trial probation.” 

If you or a loved one are seeking immigration benefits but have been arrested anywhere in the world and/or have a criminal record anywhere in the world, it is essential that you speak with an experienced immigration attorney before submitting any application or attending any interview or hearing with USCIS, ICE, or the Immigration Court. 

 

Will my criminal history make me ineligible for immigration benefits?

February 17, 2020

Having a criminal record can affect your ability to receive immigration benefits, whether you’re seeking a temporary visa, green card, or an adjustment of status. But under the Immigration and Nationality Act (INA) convictions for certain crimes, or admissions to committing certain crimes, will automatically make you “inadmissible” to the United States. If you’ve been convicted of or admitted to any of these crimes, the United States Citizenship and Immigration Service (USCIS) will deny your immigration case, unless you will not succeed in your immigration case, unless USCIS grants you a waiver of admissibility. 

The Immigration and Nationality Act

Section 212 (A) of the Immigration Nationality Act sets forth the crimes that are grounds for inadmissibility, or in other words, ineligibility for a temporary or permanent visa to the US. Among other things, you will become inadmissible if you’re convicted of or admitted to having committed: 

  1. A crime of moral turpitude (e.g., murder, rape, child abuse, aggravated assault, theft, perjury, fraud, and many other crimes)
  2. A violation of any controlled substance law (drugs), whether in the U.S. or abroad.
  3. Multiple criminal convictions for which the total prison sentences were five years or more. 
  4. Illicit trafficking in any controlled substance (drugs). 
  5. Benefiting, financially or otherwise, from illicit drug trafficking, by a spouse, son, or daughter of the trafficker within the previous five years. 
  6. Prostitution and commercialized vice, including procuring prostitutes or receiving proceeds from prostitution. 
  7. Human trafficking or benefitting from human trafficking, whether inside or outside the United States.
  8. Money laundering.

This list provided here is not exhaustive, and each crime may have particular nuances or exceptions. Also, every criminal jurisdiction will define and use words for crimes in different ways. One important job of an immigration attorney is to “translate” your state or foreign conviction into the language of the INA in order to determine where it falls on the INA’s list of problematic crimes. 

Waiver for Inadmissible Crimes

In some cases, you may be able to gain entry into the United States despite your criminal history if the USCIS grants you a “forgiveness” waiver. Section 212(i) 212(h) of the INA describes the waivers for criminal history for someone applying for a visa or a green card. There are also special waivers available in Immigration Court, for example, under INA 237(a)(1)(H) for fraud/misrepresentations that do not result in criminal convictions and 240A for individuals who have been in the US at least 7 years (if a green card holder) or 10 years (if not a green card holder). Also, there is a general waiver under INA 212(d) for applicants for nonimmigrant (aka temporary) visas.

What to do if you have a criminal history

If you have a criminal history and you’re applying for immigration benefits in the United States, it’s crucial to seek the help of an experienced immigration lawyer. I’ve helped clients around the world with a range of complicated immigration issues, and I’d like to help you too.

Marijuana and Green Card Applications

February 11, 2020

US immigration laws prohibit the issuance of nonimmigrant or immigrant visas to anyone who has been convicted of or admits to the essential elements of federal controlled substances crimes. Generally, an admission to a drug crime happens in court as part of a plea or, in Massachusetts, a “continued without a finding.”

However, USCIS interviews can be the site of “admissions” to federal controlled substances crimes. In a green card interview, for example, a USCIS officer can ask an applicant if s/he has ever used, possessed, distributed, sold, etc. marijuana or any other federal controlled substances.

Apparently, just that has been happening at recent green-card interviews in Seattle. USCIS officers use the attached sworn statement to

What Kinds of Criminal Issues Will Not Hurt My Immigration Case? 

February 10, 2020

Few criminal issues hold zero risk of affecting your immigration case. However, a criminal history does not necessarily render you inadmissible, or in other words, ineligible for visas and/or a green card to the US. Certain criminal offenses pose much less risk to your case than others. 

Traffic violations

A basic traffic violation might not hurt your immigration case, but it depends on the nature of the violation. Some traffic violations must be disclosed on immigration applications, others do not. It is important to get copies of all documents relating to a ticket and/or traffic court appearance so that your attorney can determine whether the traffic violation is civil or criminal, and either way, whether and how it needs to be disclosed on your immigration applications.  

DUI issues

Laws relating to driving while intoxicated or under the influence may or may not be statutorily problematic from an immigration perspective. However, all DUIs are seriously and heavily weighed in USCIS’s discretionary decision to approve or deny your case. If you have any DUI arrest, even if later dismissed or acquitted, you must discuss this issue with an immigration attorney and prepare a strategy for explaining the situation to USCIS. 

Certain juvenile offenses

Mist juvenile records will not hurt your immigration case. However, you need to discuss all juvenile court issues with your immigration attorney because USCIS can take juvenile records into its discretionary decision about your case. 

Also, if you have records from when you were under 18 that were in a criminal court, those are not juvenile records. Those are criminal records. Some criminal records from when you were under 18 may be “forgiven” by USCIS if 5 years have passed since the incident. 

Petty offenses

If you are convicted of or admit to a crime of moral turpitude, you are inadmissible to the US, which means that you are not eligible for a visa or green card to the US unless you qualify for a waiver. There is a general waiver available to nonimmigrants and an “extreme hardship” waiver available to immigrant, or green card, applicants. However, it is important to know if the petty offense exception applies to you so that you are not inadmissible despite the crime of moral turpitude. You may qualify for a petty offense exception, if:

  1. You have committed only one Crime Involving Moral Turpitude (CIMT) ever, and  
  2. the maximum penalty for the offense you committed is one year or less, and
  3. you were sentenced to no more than six months in prison, regardless of how much time you actually served. 

To determine whether a particular offense falls with the petty offense exception or if you have other questions about whether your criminal history might affect your immigration petition, you should speak with a qualified immigration lawyer as soon as possible. I’ve helped clients around the world with a range of complicated immigration issues, and I’d like to help you too.

Disclosing Criminal Histories on Immigration Applications: What You Should Know

February 3, 2020

The United States requires all applicants for immigration benefits to disclose information about their criminal history, whether applying for a visa, green card, or U.S. citizenship. If you have a criminal record, this can be worrying. 

If you have any criminal history–even if you were never arrested nor convicted of anything–you should consult with an attorney about the immigration consequences of your criminal history. Having a criminal history does not necessarily mean your application will be denied. If you are eligible to apply for any immigration benefits, you must report your criminal history honestly and accurately. Omitting information, changing information, and other ways to misrepresent your criminal history could result in the US government charging you with misrepresentation, which is a problem to overcome. 

Here’s what you need to know.

Disclose your full criminal history

You should disclose any criminal conviction, arrest, or charge on your immigration petition unless advised otherwise by a qualified immigration attorney. In most cases, you should disclose a conviction even if the record is expunged or sealed. 

If you have a juvenile record, you should consult with an attorney about whether it needs to be disclosed, even if a court sealed the record. Some juvenile issues are not considered criminal. Others are considered criminal. Even if considered criminal, the issue may not negatively affect your eligibility for immigration benefits. There is an exception to ineligibility for immigration benefits based on a crime of moral turpitude if you were under 18 when the crime took place and took place over five years ago. 

How the USCIS evaluates criminal histories

Some crimes disqualify you for all immigration benefits. Some crimes require you to apply for a waiver of inadmissibility. Some crimes have no statutory effect on your immigration status, but will be considered in the total discretionary analysis of you as an application for immigration benefits. 

What to do if you have a criminal history 

You must consult with an experienced immigration attorney before applying for any immigration benefit through USCIS, the Department of State or the Immgration Court. 

As an immigration lawyer, I can assess how your criminal history might affect your application and how you should disclose the history on your application. My work with clients around the world and in the U.S. helps make complicated immigration procedures and paperwork go as smoothly and efficiently as possible.

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