Transcript Heading - AILA DC

Case Scenario #1
Teresa entered the United States without inspection
in July 1999. She is a national of El Salvador. She
applied for Temporary Protected Status in 2001 and
has been a beneficiary of TPS ever since. Her son
Mario followed her to the United States in 2006
when he was 12 years old. Mario also entered the
United States without inspection. In 2009, Teresa
married Pablo a US citizen.
Case Scenario #1
Teresa and Pablo come to your office for a
consultation wanting to know if Pablo can file a
petition for Teresa and her son. Another attorney
told them that Teresa and Mario could not legalize in
the United States and had to depart for El Salvador
risking having to stay there for 10 years. They are
coming to you for a second opinion.
Temporary Protected Status (TPS)
• The Secretary of Homeland Security designates
countries for TPS as a result of circumstances that
temporarily prevent the country’s nationals to return
safely or where the country cannot adequately
handle the return of its nationals.
Countries with TPS Designation:
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El Salvador
Haiti
Honduras
Nicaragua
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Somalia
Sudan
South Sudan
Syria
Deferred Action for Childhood
Arrivals (DACA)
• Immigrants who were brought to the United States
as children that meet certain requirements can apply
for protection from removal and apply for
employment authorization for two years.
DACA Qualifications
• As of June 15, 2012, was under the age of 31.
• Came to the United States before reaching 16th
birthday.
• Continuous residence in the United States since June
15, 2007.
• Physically present in the United States on June 15,
2012.
• Was in unlawful status on June 15, 2012.
DACA Qualifications
• Is currently in school, graduated from high school,
obtained GED certificate, or was honorably
discharged from the Coast Guard or Armed Forces of
the United States.
• Has not been convicted of a felony, a significant
misdemeanor, or three or more other
misdemeanors, and do not otherwise pose a threat
to national security or public safety.
The 3 and 10 Year Unlawful
Presence Bars
• Section 212(a)(9)(B)(i)(I) of the Act (the 3-year bar).
This provision renders inadmissible for three (3)
years a noncitizen, that was unlawfully present
for more than 180 days but less than one (1) year,
and who departed from the United States voluntarily
prior to the initiation of removal proceedings.
The 3 and 10 Year Unlawful
Presence Bars
• Section 212(a)(9)(B)(i)(II) of the Act (the 10-year
bar). This provision renders inadmissible a noncitizen, that was unlawfully present for one (1) year
or more, and who seeks again admission within ten
(10) years of the date of his or her departure or
removal from the United States.
Matter of Arrabally and Yerrabelly
25 I&N Dec. 771 (BIA 2012)
“An alien who leaves the United States temporarily
pursuant to a grant of advance parole does not
thereby make a “departure . . . from the United
States” within the meaning of section
212(a)(9)(B)(i)(II) of the Immigration and Nationality
Act.”
Parole In Place
• Under INA §212(d)(5)(A) DHS has the authority to
grant parole to people physically in the United States
that entered without inspection. This process has
allowed immediate relatives (parent, spouses and
children) of military personnel to adjust status by
first being granted PIP.
Case Scenario #2
Samir entered the United States without inspection
in 2006. He married Hana, a US citizen, in 2010.
Samir and Hana live in Virginia with their two
children. Hana is constantly worried about Samir’s
immigration status and fears that one day he could
be detained and send back to his country. Hana is a
stay home mom and Samir is the breadwinner of the
family. They come to you for a consultation to see if
Samir has any possibilities of obtaining a green card.
Provisional Unlawful Presence
Waiver I-601A
• This process allows individuals who are only subject
to inadmissibility for unlawful presence (3 and10
year bar), to apply for a waiver in the U.S. prior to
their departure for the immigrant visa interview
abroad.
Qualifications for the I-601A
Waiver
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17 years of age or older.
An immediate relative of a U.S. citizen.
Have an approved I-130 or I-360.
Have a pending immigrant visa case with DOS and
have paid the DOS immigrant visa processing fee.
Qualifications for the I-601A
Waiver
• Be able to demonstrate that refusal of your
admission to the United States will cause extreme
hardship to your U.S. citizen spouse or parent.
• Be physically present in the United States to file your
application for a provisional unlawful presence
waiver and provide biometrics.
• Not have been scheduled for an immigrant visa
interview by DOS before January 3, 2013.
I-601A Checklist
• DOS Immigrant Visa Processing Fee Receipt showing
PAID and with NVC number visible.
• Copy of I-130 approval notice.
• Application fee ($585 + $85 for biometrics) $670.
• Proof of Relationship to the qualifying relative.
• Proof of status of the qualifying relative.
• Proof of extreme hardship.
Factors Considered for Extreme
Hardship
• Matter of Cervantes, 22 I&N Dec. 560, 566 (BIA
1999).
• The presence of a Lawful Permanent Resident or U.S.
Citizen family ties to the U.S.
• The country conditions in the country of relocation
and the qualifying relative’s ties to that country.
Factors Considered for Extreme
Hardship
• The financial impact of departure from the U.S.; and
• Significant conditions of health, particularly when
tied to the unavailability of suitable medical care in
the country to which the qualifying relative would
relocate.
CASE SCENARIO #3
Miguel is a national of Guatemala. He entered the
united states without inspection in 1989. In 1991
Miguel went with some fellow Guatemalans to a
church in Washington, DC to sign up for immigration
benefits. Miguel obtained a work permit a few
months later. In 1994 Miguel filed for asylum,
however, in 1995 Miguel had to return to Guatemala
because his father was ill. His asylum case was
closed by the asylum office when he did not appear
at the interview.
CASE SCENARIO #3
Miguel remained in Guatemala and married Rosa.
Miguel and Rosa had 2 children. In 2004 Miguel
returned to the united states with his wife and
children. They all entered the united states without
inspection. Miguel is struggling to support his family
because he is working without authorization and
cannot get a good job. Miguel has decided to seek
legal advice. He does not have any paperwork from
the previous immigration process. He wants to know
if he can obtain any immigration benefits and if those
can be extended to his family.
NICARAGUAN ADJUSTMENT AND
CENTRAL AMERICAN RELIEF ACT
(NACARA)
Section 203 of NACARA allows eligible individuals to
apply for suspension of deportation or for
cancellation of removal. Eligibility under§ 8 CFR
1240.61
Salvadorians
• Filed for asylum on or before 4/1/1990; or
• First entered the U.S. on or before 9/19/1990; filed
for TPS or registered for ABC benefits on or before
10/31/1991; and was not apprehended at time of
entry after 12/19/1990. To file before the asylum
office an asylum application had to be filed before
February 16, 1996.
Guatemalans
• Filed for asylum on or before 4/1/1990; or
• First entered the U.S. on or before 10/1/1990;
registered for ABC benefits on or before 12/31/1991;
and was not apprehended at time on entry after
12/19/1990. To file before the asylum office an
asylum application had to be filed before January 3,
1995.
• As of August 5, 2008, Guatemalans and Salvadorians
who affirmatively filed an I-589 application between
December 19, 1990 and December 31, 1991, are also
eligible for NACARA benefits. See Memo of Joseph
Langlois, Chief of Asylum Division; Making ABC
Registration Determinations, Chaly Garcia v. U.S., 508
F.3d 1201 (9th Cir. 2007) August 5, 2008.
Relatives
• The spouse or parent was granted suspension of
deportation or cancellation of removal under
NACARA.
• The relationship between the spouse or parent
existed at the time of the granted benefit.
• Unmarried son or daughters who were 21 years of
age or older at the time the parent was granted the
benefit, must have entered the U.S. on or before
10/1/1990.
STATUTORY REQUIREMENTS:
• Continuous Physical presence for 7 years.
• Good moral character during the 7years.
• Extreme hardship to applicant, spouse or child who is
a Lawful Permanent Resident or United States
Citizen.
• Has not been convicted of an aggravated felony.
Conviction of certain crimes would require a
heightened standard that includes 10 years
continuous physical presence in the United a higher
degree of hardship if he or she is removed.
Filing with USCIS:
• Original I-881 with all supporting documents;
• One complete copy of I-881 and supporting
documents;
• Fee $370 to DHS submitted with the application; and
• Four photographs.
Filing with EOIR:
• Original I-881 with all supporting documents;
• Evidence of payment of the filing fee of $250 to U.S.
Department of Justice (if referral case then no fee);
• Form G-325A Biographic Information;
• One photograph;
• Certificate of Service; and
• File one complete copy with all supporting
documents with DHS Chief Counsel.