Cambridge Immigration Law
Cambridge Immigration Law

Category: News

COVID & Change/Extension of Visa Status

April 13, 2020

USCIS/DHS just published the following statement about COVID Related Change/Extension of Visa Status:

The Department of Homeland Security (DHS) recognizes that there are immigration-related challenges as a direct result of the coronavirus (COVID-19) pandemic. We continue to carefully analyze these issues and to leverage our existing resources and authorities to effectively address these challenges. DHS also continues to take action to protect the American people and our communities, and is considering a number of policies and procedures to improve the employment opportunities of U.S. workers during this pandemic.

Generally, nonimmigrants must depart the United States before their authorized period of admission expires.  However, we recognize that nonimmigrants may unexpectedly remain in the United States beyond their authorized period of stay due to COVID-19.  Should this occur, the following options are available to nonimmigrants: 

Apply for an Extension.  Most nonimmigrants can mitigate the immigration consequences of COVID-19 by timely filing an application for extension of stay (EOS) or change in status (COS).  U.S. Citizenship and Immigration Services continues to accept and process applications and petitions, and many of our forms are available for online filing.

If You File in a Timely Manner.  Nonimmigrants generally do not accrue unlawful presence while the timely-filed, non-frivolous EOS/COS application is pending.  Where applicable, employment authorization with the same employer, subject to the same terms and conditions of the prior approval, is automatically extended for up to 240 days after I-94 expiration when an extension of stay request is filed on time.

Flexibility for Late Applications. USCIS reminds petitioners and applicants that it may excuse a nonimmigrant’s failure to timely file an extension/change of status request if the delay was due to extraordinary circumstances.

Under current regulations, and as noted on our Special Situations page, if a petitioner or applicant files an extension of stay or change of status request (on Forms I-129 or I-539) after the authorized period of admission expires, USCIS may excuse the failure to timely file if it was due to extraordinary circumstances beyond their control, such as those that may be caused by COVID-19. The length of delay must be commensurate with the circumstances. The petitioner or applicant must submit credible evidence to support their request, which USCIS will evaluate in its discretion on a case-by-case basis. These special situations have been used at various times in the past, including for natural disasters and similar crises.

Please see 8 CFR 214.1(c)(4) and 8 CFR 248.1(c) for additional information on late requests to extend or change status. In addition, please see our Form I-129 and Form I-539 pages for specific filing and eligibility requirements for extensions of stay and changes of status.

Flexibility for Visa Waiver Entrants. Visa Waiver Program (VWP) entrants are not eligible to extend their stay or change status. However, under current regulations, if an emergency (such as COVID-19) prevents the departure of a VWP entrant, USCIS in its discretion may grant a period of satisfactory departure for up to 30 days. Please see 8 CFR 217.3(a). For those VWP entrants already granted satisfactory departure and unable to depart within this 30-day period because of COVID-19 related issues, USCIS has the authority to temporarily provide an additional 30-day period of satisfactory departure.  To request satisfactory departure from USCIS, a VWP entrant should call the USCIS Contact Center at 1-800-375-5283. 

For More Information

USCIS will provide further updates as the situation develops and will continue to follow the Centers for Disease Control and Prevention’s guidance. Please visit uscis.gov/coronavirus for the latest facts and other USCIS updates.

Education and precautions are the strongest tools against infection. Continue to practice good health habits, refrain from handshakes or hugs as greetings, and wash hands and clean surfaces appropriately.

Noncitizens Divorcing During COVID

April 10, 2020

Divorcing During COVID

At any given time I represent clients who are in the process of divorcing a spouse. My representation on these cases ranges from joint I-751 petitions with notice to USCIS of the pending divorce to I-751 waiver petitions based on divorce to I-360 self-petitions based on abuse to an immigrant who wants to marry a US citizen but who still is married to someone else.

Right now COVID presents many challenges to clients who want to process the divorce. Family courts in MA as closed to the public, except for emergencies. However, the courts have expanded filing options and even options for obtaining judicial orders without a hearing. At this point, it does not appear a final order of divorce can be obtained without a hearing.

I work with many family law attorneys around Massachusetts who represent my immigration clients on family matters. One of my favorite parts of my job is collaborating with attorneys who specialize in other areas of law.

If you have legal needs related to immigration and divorce, contact me. I will be happy to discuss representation on immigration matters and collaboration with your family law attorneys.

H1B to Marriage Green Card?

April 8, 2020

Right now uncertainty is a part of life. Will I stay healthy? Will the people I love stay healthy? Will I keep my job?

For people in the U.S. on nonimmigrant visas tied to their employment, this is an especially uncertain time. For example, individuals in the US on H1B visas must keep their employment in order to keep their H1B status and lawfully remain in the US. What should you do if your H1B employment may be at risk?

Every week I meet couples made up of a US citizen and an H1B holder. They are in love and they plan to get married, but they are not sure when or where they will get married. Usually by the time they are in my office, they are getting closer to getting married, and a talk with me sometimes is all is takes for people to take the final step to tie the knot. It’s a fun part of my job!

Some people worry about getting married “just for a green card.” Correct–that is not allowed and I won’t help you with your case if the marriage is “just for the green card.” However, getting married now, instead of this summer or next year, because you need to maintain immigration status is not getting married “just for the green card.” It is making a decision for your future based on what is going on right now.

I give couples the example of healthcare. What if immigration status were not an issue? What if you were in a serious relationship with someone who has healthcare through employment but then loses the employment and therefore will lose healthcare soon? What if your partner needs prescription medication? Care for chronic illnesses? Or, an emergency? With these uncertainties, you and your partner decide to get married so that your partner can get healthcare through your employment-based healthcare plan. That is not getting married “just for the health insurance.” It is doing what you need to do to protect someone you love.

That’s the way to look at getting married now so that you can protect your partner’s ability to remain lawfully in the US.

If you or your partner risk losing H1B status in this uncertain time, you should consult with an immigration attorney to find out if there are ways to help you or your loved one stay living and working in the U.S.

USCIS Offices will remain closed until 5/4/2020.

April 3, 2020

USCIS offices have been closed since mid-March and were initially scheduled to reopen in early April. USCIS just announced that USCIS in-person services will remain closed until at least 5/4/2020.

Your case may still continue to process with USCIS. In some cases, USCIS will reuse previously obtained biometrics and apply them to currently processing cases. That would allow USCIS to approve certain types of applications, such as I-765 Application for Employment Authorization and I-131 Application for Advance Parole.

However, without biometrics, USCIS is unable to approve other types of cases such as I-485 Application for Adjustment of Status, N-400 Application for Naturalization, and I-589 Application for Asylum. Further, many of those applications (plus others) require in-person interviews, and unless USCIS establishes alternatives to in-person interviews, USCIS will not be able to approve applications for citizenship, asylum, and most applications for adjustment of status.

I have a green card. Can I be a “public charge”?

March 30, 2020

The new public charge rules implemented by this Administration are causing extreme stress and confusion among immigrant communities and their advocates.

A question that frequently has arisen in my practice is whether a “green card” holder is subject to public charge rules. The answer is, generally, no. A green card holder with a ten-year green card or a two-year (conditional) green card is not subject to the public charge rules. This means that the green card holder’s income does not matter after s/he obtains her green card, and does not matter at the time the green card holder files Form I-751 to remove the conditions of the two-year card. Also, public benefits for which the green card holder is legally eligible will not affect her/his eligiblity to maintain the green card.

There are two important exceptions. First, if the green card holder did not disclose prior use of public benefits at the time of obtaining the green card and was required to disclose such benefits, those benefits could come back to bite the green card holder from the perspective of misrepresentation. That means that USCIS may allege that the green card holder lied to get the green card.

The second important exception is a green card holder who leaves the US for more than 180 days. Upon returning to the US, CBP (and USCIS) can inquire about the green card holder past use or future use of public benefits. See https://www.federalregister.gov/documents/2019/08/14/2019-17142/inadmissibility-on-public-charge-grounds, which states: “DHS notes that a person who is already a lawful permanent resident has already undergone a public charge inadmissibility determination, unless she or he was exempt from such a determination at the time of application for such status. Such a person would not undergo another public charge inadmissibility determination unless U.S. Customs and Border Protection (CBP) determines, upon the alien’s return from a trip abroad, that the returning lawful permanent resident is an applicant for admission based on one of the criteria set forth in section 101(a)(13)(C) of the Act, 8 U.S.C. 1101(a)(13)(C), such as the alien has been absent from the United States for more than 180 days. “

Why Misrepresenting Yourself is an Immigration No-No

March 23, 2020

 

A top priority for the U.S. Citizenship and Immigration Services is to identify people who are attempting to abuse the U.S. immigration process. As a result, if USCIS finds that you are misrepresenting yourself or your history to try to get into, or stay in, the United States, the penalties are severe. 

According to 8 U.S.C. §1182(a)(6)(C)(i), “Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit provided under this chapter is inadmissible.” What does this mean? Lying to an immigration officer, lying on any immigration application, or submitting fraudulent or even minorly altered documents to an immigration agency, subjects you to a lifetime ban from the United States.

Some examples of situations that may create a lifetime ban:

  • When seeking a marriage green card, if USCIS determines that the marriage wasn’t bona fide, meaning it was a marriage entered solely to obtain a green card, this can subject you to a lifetime ban.
  • If you abuse a tourist visa, USCIS may subject you to a lifetime ban. For example, you are not permitted to seek permanent residency by entering the U.S. on a tourist VISA. If you enter the United States on a temporary VISA with the intention of filing for a green card, you risk the agency finding that you were intentionally abusing your temporary visa and may subject yourself to a permanent ban from the U.S.
  • If you misrepresented yourself on a prior application, this could cause problems even if you didn’t fill out the form yourself. For example, if you hired an attorney in a foreign country to complete an application on your behalf, any misrepresentation on the prior application, whether approved by you or not, can subject you to a lifetime ban.
  • Immigration agencies often considers omissions from your application as intentional misrepresentation. For example,  USCIS may charge you with misrepresentation if you you don’t include your prior marriage, an earlier arrest, or you don’t include all of your group memberships, thinking they aren’t necessary.  

The immigration application process can be fraught with pitfalls. That’s why it’s a good idea to consult an experienced immigration attorney before filing an application with the USCIS. Even if you have a criminal or organizational history that you think may disqualify you, or if you believe you have engaged in misrepresentation, I may be able to help. I have helped people from around the world overcome small and large obstacles during the U.S. immigration process. I would love to help you too.

Boston EOIR Cases Postponed, Except for Detained Cases

March 18, 2020

As of 3/18/2020 the Boston Immigration Court will only hear detained master calendar and individual hearings. If you have a hearing (and you are not detained) it is crucial that you stay on top of your case. You should call the EOIR hotline at 1-800-898-7180 on a regular basis (every few days) until you learn of the new hearing date. You will need your A# with you when you call.

If you fail to attend the next hearing, you could be ordered removed/deported in abstenia.

Also, if you have recently moved, you must do two things. First, make sure to report your address change to EOIR and ICE. Second, try to get someone at your old address to notify you if you receive any mail at the old address.

Don’t Lie: An Immigration Golden Rule

March 16, 2020

The immigration process can be stressful and frustrating. It can be tempting to lie on an application or during an immigration interview to get it over with and keep the process “less complicated”. You may even know people who have lied and then successfully obtained their green card and even US citizenship. But lying on an immigration application, or to an immigration officer, is a bad idea. Please don’t do it!

  • One Lie Will Destroy Your Credibility

The immigration application is invasive and frustrating, and it may seem unnecessarily thorough. Let’s say you are applying for a marriage green card, and you were arrested once for something silly as a kid. Even though you know you copies of your arrest and court records, you’re having a hard time finding them or getting copies of everything you need. So, you leave that arrest at 17 off of your application. After all, it wasn’t anything serious, so why should USCIS care?

That kind of thinking is a big mistake. USCIS will investigate you, as they do all applicants. When USCIS finds that arrest record through its security check, you may be accused of fraud and your application could be denied for that reason—even if the arrest at 17 would have had absolutely not impacte on your ability to get the green card had you disclosed it and provided necessary documentation.

  • Lying is Grounds for Inadmissibility

If you lie or misrepresent something on an immigration application, you’re creating more problems. Lying is grounds for inadmissibility. Under 8 U.S.C. §1182(a)(6)(C)(i), “Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit provided under this chapter is inadmissible.”

If you’re concerned about something that you don’t want to include on your immigration application, or, if there’s something you are worried about discussing with an immigration officer during your interview, you should consult an experienced immigration attorney before you submit any application. An attorney can advise you, come up with workable solutions, and attend your immigration interview with you to help you explain the documentation or the facts of the situation. In some cases, an experienced attorney will tell you not to file for any immigration benefit for a certain period of time or, in some cases, ever. I’ve helped people around the world through complicated immigration situations for years, and I’m happy to guide you as well. So, don’t risk lying on an immigration application; I can help.

You Married a US Citizen. Now, document your life together and get a green card!

March 9, 2020

Congratulations on your marriage! Now that you’ve married a U.S. citizen, you’re probably wondering what comes next. U.S. citizens can apply for a foreign-born spouse to move to, or remain in, the U.S. to live permanently. Obtaining a marriage green card is a three-step process. 

  1. Apply for a “marriage-based” immigrant visa by establishing your marital relationship
  2. Apply for your green card
  3. Attend the green card interview

To establish your marital relationship, you will need to provide a marriage certificate. But aside from the basics, the U.S. Citizenship and Immigration Services wants to ensure that your marriage isn’t one of convenience or a “green card marriage.” To establish the validity of your marriage, you’ll need to provide documentation showing the intermingling of your lives. Collect things such as:

  • Documents such as join leases or property ownership
  • Joint bank or investment accounts
  • Photos together with you and your spouse together with other family/friends in different location on different dates
  • Joint mortgage statements
  • Joint health or auto policies
  • Life insurance policies listing one another as your primary beneficiaries
  • Original copies of letters or cards from family, co-workers, friends, and employers showing both of you at the same address
  • Letters of support from family and friends attesting to the validity of the marriage and their support for the green card for the immigrant spouse

The documents you’ll need to apply for a marriage green card include the following:

  • Birth certificates for each spouse
  • Proof of US citizen spouse’s US citizenship in form of US birth certificate, US passport, or US Certification of Naturalization
  • Marriage certificate for this marriage
  • Divorce certificates for each spouse for any prior marriage
  • Police and/or court documents if either spouse has a criminal history. The US citizen will probably not have to submit the court records, but s/he should discuss the criminal history with the attorney before filing. The immigrant spouse MUST submit any criminal records, and must discuss the criminal history with an attorney.  
  • Previous immigration violation records if applicable
  • Current or expired U.S. visas if applicable
  • Immigrant spouse’s I-94
  • US citizen’s financial documents showing ability to support immigrant spouse. In some cases, the immigrant’s assets and income can be used to show ability to support him/herself.
  • Since USCIS instituted Form I-944 Declaration of Self-Sufficiency, the documents required to prove that the immigrant will not become a “public charge” have drastically increased. The documents now include the US citizen’s taxes and proof of income, the US citizen’s assets that will be available to the immigrant, proof of the immigrant’s debts, proof of the immigrants use of public benefits. I am still working on creating a list of documents that families will need to successfully complete Form I-944. Stay tuned for that list.

The final step is the green card interview. A USCIS officer will ask questions to determine the authenticity of your marriage. You must be prepared to discuss all of the documentation you’ve already submitted, and you should bring additional documentation that you have accumulated in the months between filing and the USCIS interview.

Applying for a marriage green card can be a stressful, confusing, and lengthy process. You don’t want to make mistakes that may jeopardize your application, so it’s a good idea to consult with an experienced immigration law attorney before you file your application with the USCIS. I’ve been helping couples around the world with this process for years. Even if you have complicated issues like a criminal history or prior immigration violations, I’d love to help you.

USCIS Obtains “Admissions” to Marijuana Use during USCIS Interviews

March 7, 2020

Use, possession, sale and other activities relating to marijuana/cannabis are legal in many states in the United States and in other places worldwide. However, all marijuana activities (with very limited scientific research exceptions) are illegal under US federal law and in turn under US immigration law.

Non-US citizens using marijuana and/or involved in legal cannabis activities throughout the US put themselves at risk of being found inadmissible to the US (that is, unable to enter the US), removable from the US (that is, deportable), and/or ineligible for US citizenship. Some immigration issues arise only when a person has a criminal conviction for marijuana related crimes; other immigration arise merely when a person admits to crimes related to marijuana use. Other immigration issues arise merely when a US immigration officer has “reason to believe” that a person is involved in marijuana trafficking (and trafficking can be as simple as a state law relating to intent to distribute).

In USCIS in Seattle and Denver, USCIS officers are asking enough questions in immigration interviews to elicit “admissions” to marijuana crimes, rendering immigrant ineligible for certain immigration benefits and in some cases, deportable.

AILA issued the Practice Pointer below discussing this issue.

AILA-Practice-Pointer-on-USCIS-Sworn-Statement-Regarding-Marijuana-UseDownload

If you use or have used marijuana in the past and are NOT a US-citizen, you should speak with an experienced immigration attorney about the potential consequences on your current or future immigration status.

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