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June/July 2016 Newsletter from Hill & Piibe
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IMMIGRATION UPDATE
A newsletter from Hill & Piibe about U.S. immigration law and procedures

FAMILY IMMIGRATION ISSUE
(Part One)

June/July 2016

In This Issue:

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Remaining Inside the United States to Obtain a Green Card

("Adjustment of Status")

If your relative already is inside the U.S., it may be convenient remain here for the interview and obtain the family-based green card.  It could even be risky for your relative to leave and obtain it at a consulate abroad (see article about I-601 waivers and unlawful presence).  It's best for your relative to make the decision when you file the I-130 green card petition, because you must indicate where your relative wants to interview for the green card.  Your relative can always change his or her mind later, but sometimes the government will charge a fee (currently $405) for this change, and the case may be delayed while the government transfers the file.  Click here for more information on commencing an I-130 case.  

How to Qualify
The process to interview for the green card inside the U.S. is called "adjustment of status."  There are only two ways your relative can qualify for adjustment of status.  
  • First, if your relative entered lawfully with inspection: this means using a visa, or advance parole, or a SAW (Special Agricultural Worker) card, or most situations where your relative passed through U.S. Customs and Border Patrol and was permitted to enter the U.S.  This can even include situations where your relative wasn't asked to show any documents, such as being a passenger in a car.  
  • Second, if your relative was/is the beneficiary of a green card petition filed on or before April 30, 2001-- this is known as "245(i)."  Not only does this include petitions filed directly for your relative, but also petitions filed for your relative's spouse during their marriage, and also for your relative's parents when s/he was a child under the age of 21. To take advantage of "245(i)," you must show that it was a bona fide, approvable petition (not frivolous), and if it was filed on or after January 14, 1998 then your relative must have been physically present in the U.S. on December 21, 2000.  Finally, most everyone must pay a penalty fee of $1000 to the government if over the age of 17.  
Potential Problems
Despite qualifying under one of these situations, immigration laws forbid certain people from adjusting status.  The following events may be problematic for some relatives in the family preference categories:
  1. unauthorized employment
  2. unlawful immigration status
  3. entering with a visa waiver (ESTA)
Work and travel during the adjustment of status process 
Adjustment of status applicants are automatically eligible for a work permit, which USCIS issues in about 90 days after filing the paperwork.  However, once the paperwork is filed with the government, adjustment of status applicants must remain inside the U.S.  They can separately request permission to travel via an "advance parole" document, but even if permission is granted, it could jeopardize some cases.  This is because the advance parole document does not guarantee your relative will be allowed to return to the U.S., if there are other outstanding reasons to bar him/her, such as a technicality in the immigration record. 

The law surrounding adjustment of status can be complex, especially when your relative wants the freedom to travel in and out of the U.S. during the process.  Hill & Piibe's free case assessment appointments (in-person only) can let you know if your relative qualifies, or if the case is complex and requires more research and strategizing. More free information at the government website.

BRESEE FOUNDATION  Hill & Piibe partner Susan E. Hill has joined the Advisory Council for Bresee Foundation, an essential organization serving the needs of its surrounding community in the Olympic/Central Los Angeles area.  Bresee Foundation provides comprehensive after-school programs and family services that equip young people to pursue their education, achieve their full potential, and serve others.  With a 33-year history, much of its staff is comprised of alumni who benefited from Bresee's youth programs, and have graduated from college.  Explore their website and see their programs: http://www.bresee.org/

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DAPA, Expanded DACA, and Other Obama Immigration Actions Are On Hold at the Supreme Court:
Decision Expected by July 2016

In November 2014, President Obama announced new enforcement programs and policies that were designed to help families.  Deferred Action for Childhood Arrivals (DACA) already was in place, and the President's new announcement would have expanded its availability to people of any age at the time of application, provided that they had arrived in the U.S. before the age of 16 and met other certain criteria.  Currently, DACA prevents the removal of an applicant who is under the age of 31, and also grants work authorization.  DACA benefits people who were brought to the U.S. at an early age and grew up here, attending school.  Its new counterpart, Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), would have protected American children by preventing the deportation of their parents, and avoiding the emotional and financial hardship that occurs when families are ripped apart.  Another Obama action was the expansion of family waivers for green cards, which currently are only available to spouses and parents of U.S. citizens.  
These Obama programs were challenged in the courts in Texas, and a judge issued an injunction that forbid DACA from being expanded to people of all ages, and other programs are on hold waiting a decision.  The Supreme Court heard the case on April 20, 2016, and a decision is expected by July 2016.  For more information on DACA and DAPA, please visit the government website https://www.uscis.gov/immigrationaction.  

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I-601 AND I-601A "PROVISIONAL" HARDSHIP WAIVERS FOR RELATIVES WITH UNLAWFUL PRESENCE IN THE U.S.

Some families have heard that their relative needs one of these waivers to obtain a family green card.  The waivers are only required if your relative must pick up the green card at a U.S. consulate abroad (please see related article about Adjustment of Status and remaining inside the U.S. for a green card).  

Why is the waiver needed?
The waivers are necessary when two things occur:
     (1) your relative was unlawfully present in the U.S. for 180 days or longer; and
     (2) then your relative left the United States.
After living in the U.S. unlawfully, your relative is barred from returning again for a period of:
     Three years if unlawfully present for 180-364 days; or
     Ten years if unlawfully present for 365 days or longer.  
If granted, the I-601 waiver gives permission to return earlier than the 3- or 10-year bar period.     

I-601 at the consulate 
For those relatives outside the U.S., they must file the I-601 waiver with the U.S. consulate in their home country.  By filing the I-601 waiver, your relative requests early permission to return because his/her absence is causing extreme hardship to a spouse or parent who is a U.S. citizen or lawful permanent resident.  The waiver filing must contain extensive documentation and proof of the extreme hardship.  The hardship cannot be based on common factors that every family experiences as a result of separation.  It can take up to a year or longer for a decision on the I-601 waiver, and your relative must remain outside the United States this entire time.  If the I-601 waiver is denied, then your relative cannot return to the U.S. until the 3- or 10-year period elapses.

I-601A "Provisional" waiver inside the U.S.
But for those relatives still inside the U.S., some may qualify for the I-601A "Provisional" waiver.  This waiver can be filed inside the U.S. and your relative can wait in the U.S. for the decision.  If granted, then your relative can leave the U.S. to pick up the green card in the home country, and be eligible to return immediately before the 3- or 10-year period elapses.  

Limited Availability
However, the I-601A "Provisional" waiver is not as widely available as the I-601 waiver filed with a consulate.  First, it is only available for relatives immigrating through the following green card family categories:
  • spouses of U.S. citizens;
  • parents of U.S. citizens; and
  • children under 21 (unmarried) of U.S. citizens.  
Relatives in the remaining family categories cannot apply.  

Second, it is only for "clean" cases where there are no other issues of eligibility, such as other prior immigration violations or criminal record issues. Third, your relative can only base it on extreme hardship to a U.S. citizen spouse or parent-- lawful permanent residents' hardship will not count.

You or your relative should confer with Hill & Piibe about eligibility, especially if your relative has exited and entered the U.S. multiple times in the past.  I-601 and I-601A "Provisional" waiver cases are critical and major undertakings which should be presented in a thorough and compelling manner.  Hill & Piibe's free case assessment appointments (in-person only) can let you know if your relative qualifies.  More free information online.    
Three Office Locations to Serve You

PERSHING SQUARE/DOWNTOWN LOS ANGELES (by the Immigration Courthouse): 523 W. SIXTH STREET, SUITE 737, LOS ANGELES 90014  MAP   TEL: (213) 622-8775

Photo: PershingSquareNew.com


GLENDALE (Russian and Armenian languages): 3171 LOS FELIZ BLVD., SUITE 215, LOS ANGELES 90039   MAP  TEL: (818) 857-5737

Photo credit: By Will Beback at the English language Wikipedia, CC BY-SA 3.0, https://commons.wikimedia.org/w/index.php?curid=13306487


SAN JUAN CAPISTRANO (Orange County): 32302 CAMINO CAPISTRANO, SUITE 207, SAN JUAN CAPISTRANO 92675   MAP   
TEL: (949) 443-0488


 
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