Atty. Daniel Hanlon

CIS ‘background clearance’ policy: How long should CIS take to approve your case?

Wednesday, 31 December 2008 13:40 Atty. Daniel Hanlon

Earlier this year, USCIS Associate Director of Domestic Operations, Michael Aytes, issued a memorandum revising CIS’ policy of requiring complete background clearances before an application for adjustment of status may be approved. The Memo sets forth the new policy, in which the CIS, in cooperation with the FBI, will render final decisions on pending I-485 and I-601 (waiver applications) will be adjudicated within 180 days of receipt. This policy is in accord with Congressional mandate and will greatly reduce the waiting period for adjustment of status in most cases.

CIS ‘background clearance’ policy: How long should CIS take to approve your case?

Sunday, 21 December 2008 22:08 Atty. Daniel Hanlon

In the aftermath of 9-11, the Department of Homeland Security (DHS) implemented strict procedures to screen out inadmissible aliens during the adjudication of applications fro US immigration benefits, such as adjustment of status, work authorization and naturalization. By regulation, DHS made FBI fingerprint and name checks, as well as Intragency Border Inspection Services (IBIS) checks mandatory prior to the approval of these immigration benefits. As a result, foreign nationals were subjected to delays of several months, and in some cases years, for the adjudication of their green card applications.

Adjustment of status for “T” and “U” visa holders

Sunday, 14 December 2008 22:39 Atty. Daniel Hanlon

(1 vote, average: 4.00 out of 5)

The USCIS has finally issued a rule allowing holders of "T" and "U" visa status to apply for "adjustment of status" to green card. Based on the Victims of Trafficking and Violence Protection Act Congress passed in 2000, the new rule will work to further protect the humanitarian interests of victims of trafficking and serious crimes, as well as provide assistance to law enforcement in investigating crimes and bring the perpetrators to justice. The new rule will take effect on January 7, 2008.

The T visa provides immigration status and protection to people who have been victims of severe forms of human trafficking. The U visa is available to crime victims who have suffered physical or mental abuse and are willing to help police and government officials in the investigation of crimes, including domestic violence, sexual assault, and alien trafficking.

New rules for religious workers

Sunday, 07 December 2008 23:02 Atty. Daniel Hanlon

The USCIS has implemented new rules as of November 21, 2008 designed to stem fraud in the US religious worker program. Addressing both the "Special Immigrant" and "R-1 nonimmigrant" religious worker petitions, the new rules create additional requirements for classification in these categories and limit the types of workers that may seek admission as religious workers. The religious worker program is currently set to expire in March 2009, but there is little doubt that Congress will extend the program early next year.

Under the Immigration & Nationality Act, there are generally two types of "workers" that may seek admission to the US as either R-1 Nonimmigrants or Special Religious Worker Permanent Residents. These include ordained ministers and those workers performing services in a "religious occupation." In either case, the worker must be petitioned by a US-based non-profit religious organization or a non-profit organization affiliated with a religious organization. Generally, such organizations have proof of "tax exempt" status issued by the Internal Revenue Service and the tax boards of the States in which they are headquartered.

Waiting for your immigration case: how long is too long?

Sunday, 30 November 2008 21:09 Atty. Daniel Hanlon

The processing times for some applications pending at the US Citizenship & Immigration Services ("USCIS") are longer than ever before. The USCIS holds a monopoly over all immigrants applying for green cards, citizenship and other applications, since the USCIS is the only agency authorized to adjudicate requests for immigration benefits. The USCIS cannot, however, force applicants to suffer through "unreasonable delays" for their applications to be completed. Individuals who have had enough waiting may safely seek the intervention of the United States District Court to put an end to the delays.

In order to obtain a green card, become a United States Citizen or seek any other benefit available under US immigration Law, individuals must file applications or petitions with the USCIS. The USCIS has been criticized for the long delays in processing cases, which can cause people hardship in restricting their ability to travel and seek new employment opportunities.

Self-petitions for abused spouses

Sunday, 23 November 2008 21:06 Atty. Daniel Hanlon

The I-360 Self-Petition provides relief for spouses and children of abusive petitioners in family-based immigration cases. A spouse in an abusive relationship with a lawful permanent resident or citizen of the United States is not left helpless in an abusive relationship, dependent on the abuser to adjust status, but desiring to escape the dysfunctional relationship. Spouses and children involved in such situations are eligible to attain the status they would have been eligible for in a normal relationship with the Petitioner through a "self-petition." Others are eligible for "cancellation of removal" if in proceedings, such that they are also eligible for permanent resident status without the abuser’s petition.

A spouse or child who has been "battered or subject to extreme mental cruelty" is eligible to "self-petition" and adjust status to that of a lawful permanent resident independent of the abusive spouse or parent through whom such status would have been sought. Generally, the spouse or child must establish that he or she (1) is residing in the United States and had resided at some time with abusive spouse or parent; (2) was battered or subject to extreme mental cruelty during the residence; (3) entered into the marriage in good faith; (4) is not otherwise inadmissible, e.g. crimes; (5) is a person of good moral character; and (6) would suffer extreme hardship if deported from the United States.

Removal proceedings: Know your rights and chances for relief!

Monday, 17 November 2008 01:27 Atty. Daniel Hanlon

(1 vote, average: 5.00 out of 5)

During the waning months of the Bush administration, US Immigration and Customs Enforcement (ICE) has continues to increase the arrest and detention of immigrants in the US to unprecedented levels. Many of these arrests have come about as a result of well-publicized "worksite raids," where ICE has been targeting manufacturing, construction and food service industries for large-scale assaults designed to round up multiple "undocumented aliens" at one time and swiftly process the unfortunate detainees for removal proceedings.

First of all, people must understand that they should not panic merely because a friend, coworker, or neighbor has been arrested by ICE. Although panic is a normal human response to frightening stimuli, such as a knock on the door or telephone call from an ICE Investigator, panic causes people to make errors in judgment, such as giving an officer false information or unnecessarily admitting their own immigration violation when the officer is seeking information regarding someone else. Lesson number one: Do not panic. Overstaying one’s visa is not a crime. Removal proceedings are civil proceedings, where people can be charged with immigration violations. The worst possible penalty for these violations is being sent home, assuming the individual is not eligible for relief from removal and all appeals have been exhausted. An Immigration Judge cannot sentence a "TNT" to prison!

The attorney’s role in the PERM process

Tuesday, 11 November 2008 21:11 Atty. Daniel Hanlon

EARLIER this year, the US Department of Labor (DOL) determined that there had been "improper attorney involvement" in the recruitment process in a PERM labor certification application filed by the national immigration law firm of Fragomen, Del Rey, Bernsen & Loewy. As a result, on June 2, 2008, the DOL announced its intent to automatically audit 100% of all PERM Labor Certifications the firm had filed and will file. In response to this harsh sanction, Fragomen sued the USDOL and on October 24, 2008 the case was dismissed by joint stipulation of the parties, brought about in part by DOL’s recognition that many immigration attorneys believed that the rule prohibiting the beneficiary of the PERM application or his attorney from "interviewing or considering any applicants for the job opportunity" did not apply to attorneys who only represented the Employer only. Due to this confusion, the DOL will release cases subject to audits on the basis of this rule and will only apply the "correct interpretation" of the rule to PERM applications in which the recruitment for the job opportunity was commenced after August 29, 2008.

Ninth Circuit vacates Orozco; restores relief for fraudulent admission

Sunday, 02 November 2008 20:51 Atty. Daniel Hanlon

(2 votes, average: 3.00 out of 5)

In an abrupt turn around, the US Court of Appeals for the 9^th Circuit granted a joint motion to dismiss a case in which it had previously ruled that a person who entered the US through the use of a fraudulent document had not been "admitted" to the US, such that the person was not eligible to seek adjustment of status to green card. The Court vacated its prior decision, as the parties agreed to reopening the case before the Board of Immigration Appeals (BIA) where they will re-argue whether a waiver of misrepresentation remains available in conjunction with an application for adjustment of status, as had long been the practice in the Immigration Courts and before the BIA.

In Orozco v. Mukasey. 521 F.3d 1068 (9th. Cir 2008) the court evaluated whether a person who attained entry through the use of a green card issued in the name of another person, could apply for adjustment of status in the US. Generally, a person must establish that he was "admitted" to the US in order to seek adjustment of status. In making an application for adjustment of status, an applicant must also prove that he is not "inadmissible" to the US. Certain grounds of inadmissibility may be "waived" during the process, such as prior criminal convictions or immigration violations. For instance, a person who previously entered the US under an assumed name, as was the case in Orozco could be granted a waiver of inadmissibility due to fraud, if he could establish that his US Citizen or green card holding spouse or parent would suffer "extreme hardship" if he were not admitted to the US as a green card holder.