Services Archives - Immigration Attorney in New Jersey

I-601A Provisional Stateside Waiver

Effective March 4, 2013 the Provisional Stateside Waiver is available to inadmissible immigrants. This waiver promotes family unity, in the sense that this waiver allows the applicant to remain in the United States while the Waiver is being processed by the United States Citizenship and Immigration Services (USCIS).

This waiver allows immediate relatives of US Citizen to apply for a waiver of the three and ten year bars for unlawful presence before leaving the United States. The Provisional Stateside waiver addresses only one ground of inadmissibility as established in the laws of the US. The ground states that an applicant who has accrued unlawful presence in the US of 180 days or more, is barred from returning to the US for three years (INA §212(a)(9)(B)(i)(I)); applicants who have accrued 1 year or more of unlawful presence are barred from returning to the US for ten years (INA §212(a)(9)(B)(i)(II)).

Applicants can be found inadmissible under a variety of grounds, i.e., crimes, fraud/misrepresentation, health problems, immigration violations, etc. cannot apply for the provisional stateside waiver as they would not qualify as this waiver only addresses unlawful presence.

Who is eligible to apply for the Provisional Stateside Waiver Form, I-601A?

Applicants must meet the following criteria:

Are physically in the US;
Are at least 17 years old at the time of filing;
Are the beneficiary of an approved I-130 Petition for Alien Relative or I-360, Petition for Amerisian, Widow(er) or Special Immigrant that classifies you as a an immediate relative to a US citizen. Immediate relatives are your US citizen spouse, parent;
Your case has not been scheduled for an interview date before January 13, 2013. In other words that the Department of State did not take action in your case;

If you feel based on the preceding information that you in fact would be eligible for a provisional waiver, contact Ramirez+Ramirez, LLC to discuss how we can assist you.

Special Immigrant Juvenile Status (SIJS)

Congress enacted the Special Immigrant Juvenile Status (SIJS) provision of the Immigration and Nationality Act (INA) recognizing the vulnerability of child victims of mistreatment through the Trafficking Victims Protection Reauthorization Act (TVPRA) of 2008, PUB.L.NO.110-457, 122STAT. 5044 (2008): INA §§ 101(a)(27)(J), 245(h), 8U.S.C.§§1101(a)(27)(J), 1255(h). The SIJS provision created a form of humanitarian relief for immigrant children who have been abandoned, abused, neglected, or similarly mistreated, as defined under state law.

To be eligible under SIJS, the child must first petition a state juvenile court to make certain factual findings before she/he can apply for immigration status from the United States Citizenship and Immigration Services (USCIS). To be exact, the state court must enter an order finding that 1) the child is either dependent on the court or should be placed under custody of an individual or entity designated by the court; 2) Reunification with one or both parents is not viable due to abuse, abandonment, neglect or similar basis under state law; and 3) It is not in the child’s best interest to return to his or his parent’s previous country of nationality. It must be noted that the INA prohibits a child from conferring immigration status to his or her biological or adoptive parents by way of SIJS.

Please be advised that the description of this process is general. It is advisable to obtain a competent immigration attorney to provide legal representation. If you feel you meet the requirements, please reach out to us to go over your case specifics

Motions to Reopen

It is important to advise the reader that filing a motion to reopen is no easy task. Motions to reopen is a very complex area in the practice of immigration law.

A motion to reopen removal proceedings in immigration court may be based on one of several reasons. First, the person did not receive proper notice of the immigration court proceedings, and s/he was ordered deported in absentia. Second, the individual failed to attend an immigration court hearing due to exceptional circumstances and was ordered deported. Third, the individual was ordered deported after a trial; however, since the deportation order new evidence has become available that warrants new consideration of the alien’s case.

What is a Motion to Reopen?

Motion to Reopen is a special petition filed with the immigration court to reopen an old immigration case in order to go back to immigration court and apply for an immigration relief, if available.

Who may file Motions to Reopen?

Motions to reopen may be made by either party or by the court on its own motion. 8 C.F.R. §1003.23(b). A party however, must move to reopen within 90 days of a final administrative order, with certain exceptions. The motion to reopen must be in writing and filed with the court having administrative control over the record of proceedings. 8 C.F.R. §1003.23(b)(1)(i)-(ii).

In each of these scenarios it is absolutely crucial to have an experienced and knowledgeable attorney with excellent writing and research skills prepare the Motion to Reopen. In most instances, the individual, who has been ordered deported, is permitted only one motion to reopen; therefore, it is exceedingly important to get it right the first time.

In Absentia Motion to Reopen

When a person fails to attend an immigration court hearing, the immigration judge will order the individual removed. Oftentimes, the person fails to attend the immigration court hearing because s/he never received the notice of the hearing date. Perhaps the individual changed addresses recently. Maybe US Citizenship and Immigration Services made a mistake and sent the notice to the wrong address.

Either way, if the individual proves that s/he did not receive notice of the hearing in accordance with INA § 239(a)(1) or (2), the case should be reopened. INA 239(a)(1) requires that the Notice to Appear state the time and place at which the immigration court hearing will be held. INA 239(a)(2) states that a written notice of change in time or place of proceedings must be provided to the individual or the individual’s counsel of record via mail or personal service. Oftentimes it is important to review the immigration court file regarding the deportation order before filing the motion to reopen. This will allow the attorney to better understand why the individual did not receive the notice of hearing, and the attorney will be able to prepare a more persuasive motion to reopen.

If the deportation order was entered in absentia, the filing of the motion to reopen stays the execution of the removal order automatically. This means that filing the motion to reopen prevents immigration officers from coming to your house and deporting you. A motion to reopen an in absentia removal order does not require a fee. 8 CFR §1003.24(b)(2)(v). If the individual did not receive proper notice of the hearing, the motion to reopen may be filed at any time. However, if the motion to reopen is because the individual was unable to attend the hearing due to exceptional circumstances, the motion to reopen must be filed within 180 days of the removal order.

Motions to reopen based on failure to attend due to exceptional circumstances beyond the control of the individual are very specific motions. Generally, the individual must prove that s/he was unable to attend the hearing because s/he was seriously ill, a death in the family occurred or a severe accident occurred while traveling to the immigration court. Other reasons may be sufficient to warrant a reopening, but the reason must not be any less compelling.

Motion to Reopen Based on New Evidence or Facts

Sometimes, after an individual is ordered deported, new facts or new evidence emerges which makes the individual eligible for a form of relief from deportation. In these cases, the motion to reopen must be filed with the Immigration Judge or the Board of Immigration Appeals depending on which has administrative control over the proceedings. The individual must prove to the court that the new evidence sought to be offered is material and was not available and could not have been discovered or presented at the earlier hearing. In these cases, the motion to reopen must be accompanied by the appropriate application for relief.

All motions to reopen should be handled by an experienced and knowledgeable attorney with excellent writing and research skills. The motion must contain specific language and persuasive legal arguments.

Joint Agreement

This is when both parties agree to reopen the case and file jointly. Both parties would be the individual and an Attorney from the Office of Chief Counsel.

The information contained on this page is for educational and informative purpose only. This response does not constitute legal advice. The readers of this information should not act based solely on information contained herein.

If you would like more information please contact us at 908-442-6792.

DACA – Deferred Action for Childhood Arrival

Deferred Action means that U.S. Immigration officials will not place you in removal proceedings, so long as you do not commit crimes or pose a threat to the security of the country.

If you qualify for Deferred Action for Childhood Arrivals (DACA), then you would be eligible for a period of two (2) years, and you could apply to renew the Deferred Action. If you qualify, you will also be eligible to receive Employment Authorization while you have Deferred Action.

You might be eligible to apply for Deferred Action for Childhood Arrival (DACA) if:

you were under the age of 31 as of June 15, 2012;
came to the United States before reaching your 16th birthday;
Have continuously resided in the United States since June 15, 2007, up to the present time;
Were physically present in the United States on June 15, 2012, and at the time of making your request for consideration of deferred action with USCIS;
Entered without inspection before June 15, 2012, or your lawful immigration status expired as of June 15, 2012;
Are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and
Have not been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.

It is usually advisable to obtain a competent immigration attorney to provide legal representation.

If you would like more information please contact us at 908-442-6792.

U Visas

What is a U-Visa?

In October 2000, Congress created the Victims of Trafficking and Violence Prevention Act (Act). Finally, after seven years of interim rules, the U.S. Citizenship & Immigration Service (USCIS) has published final Regulations on U Visa’s, which became effective October 17, 2007. The U visa applies to immigrants who are the victims of certain serious crimes and who have cooperated with authorities in the prosecution of the perpetrator. The U visa is a nonimmigrant visa and only 10,000 U visas may be issued every fiscal year. The purpose of the U visa is that it gives victims of certain crimes temporary legal status and work eligibility in the United States for up to 4 years. Family members may also be included on the petition including spouses, children, unmarried sisters and brothers under 18, mothers, fathers, as well as stepparents and adoptive parents. An approved U visa petition will automatically grant the applicant work eligibility in the United States.

An Employment Authorization Document will be included with all approved petitions, which can be shown to any employer to obtain a Social Security Number to start work legally. The U-Visa provides employment authorization and the opportunity to change to a non-immigrant legal status. After three years you can apply for permanent residency. There are different requirements that must be satisfied before an application can be submitted. The applicant must have suffered substantial physical or mental abuse due to a criminal activity in at least one of the following categories: rape, torture, trafficking, incest, domestic violence, sexual assault, abusive sexual contact, prostitution, sexual exploitation, female genital mutilation, hostage situations, peonage, false imprisonment, involuntary servitude, slave trade, kidnapping, abduction, unlawful criminal restraint, blackmail, extortion, manslaughter, murder, felonious assault, witness tampering, obstruction of justice, perjury or attempt, conspiracy, or solicitation to commit any of the above mentioned crimes.

All petitions must include information on how the victim can assist government officials in learning more about the crime including investigation and/or prosecution of the individual(s) that committed the crime. The victim must also be willing to work with local law enforcement. The crime must have occurred in the United States or in a U.S. territory, or violated U.S. law.

The form that must be submitted to USCIS “Form I-918” must be certified by a Federal, State or local law enforcement agency, such as a prosecutor or a Federal or State judge in charge of the investigation in which the petitioner is the victim. Without this certification, the U visa petition cannot be submitted. However, a certification alone is not enough to establish eligibility as all facts around the petition will be considered. The certifying individual must be the head of the agency or a person designated to issue U nonimmigrant certifications. If at any point the victim stops to cooperate with law enforcement, the certification can be withdrawn.

The first step is to determine whether you are eligible for a VAWA self-petition or a U-Visa. It all depends on the circumstances. There are some cases where you should apply for a U-Visa even if you are eligible for a VAWA and vice-versa. In order to speak confidentially about your case, please contact us to schedule a consultation.

If you would like more information please contact us at 908-442-6792.