Legal Memorandum Regarding Arriving Alien Adjustment of Status Prevents Client’s Arrest

A new client recently contacted us and faxed a letter from the Detention and Removal Office requesting that he appear in person within one week.  The Detention and Removal Office is the arm of the Immigration Service that arrests, detains, and actually deports immigrants with final deportation/removal orders, and this new client had such an order.  He had been living together with a woman that he called his wife for many years, but was unaware of the change in the law that made him eligible to file an application for a green card.  This change in the law occurred in 2005 as a result of an appeals court decision that was subsequently codified in the federal immigration regulations.  I explained to the client that he should immediately register his marriage and prepare a green card application for filing and that our lawyers would write a legal memorandum explaining that he is eligible to adjust his status (in other words, to file a green card application) under current law despite his prior order of deportation from the immigration court.  He brought our legal memorandum and his marriage license to the Detention and Removal Office where an officer who would likely have arrested him reviewed the memo and decided to instead place our client on an "Order of Supervision."  While he is in the process of applying for his green card, he will be permitted to remain in the U.S. subject to his reporting to the Immigration Service on a regular schedule.

U Visas Approved for Client and Family

The U visa was designed to provide immigration status to the victims of particularly severe crimes.  As many lawyers remain unaware of this visa, it has been utilized infrequently.  My client was smuggled to the United States in the late 1990s in a cargo container on a large shipping boat.  Many other immigrants were smuggled on the ship, also in cargo containers, and made the voyage from China with little food, water, and without sunlight.  Two of the immigrants died during the voyage as a result of the inhuman conditions. The coast guard stopped the ship as it approached the port in Seattle where it intended to dock, and my client's smuggler was arrested and turned over to the authorities.  The U.S. Attorney's office prosecuted my client's smuggler and relied, in part, on the statements provided by my client and other immigrants who were willing to testify regarding the conditions on the ship that caused the deaths.  My client came to my office a few years ago, and showed me a single business card from an agent in the "Anti-Smuggling Division" of the Immigration and Naturalization Service (The former agency which was rolled into the Department of Homeland Security after 9/11) and told me his story.  As the U visa was almost entirely unknown at the time, it took me many months of writing letters and making phone calls to various government agencies as none wanted to accept responsibility for the filing of the U visa application.  Unfortunately, the U visa requires that certain government agents actually sign the petition itself, so the victim of a crime, in this case alien smuggling, is unable to self-petition for a U visa.  I spent many months writing and calling the Department of Homeland Security, the U.S. Attorney's Office, the FBI (at the direction of the U.S. Attorney), and eventually was able to speak directly to the head of the U.S. Attorney's Office in Seattle himself.  He agreed to help me and asked me to write a letter to him explaining the process and filling out the necessary forms for his office. I recently received approval notices for my client's U visa, for his wife, and for his children.  His wife and children who currently live in China will be permitted to come to the United States and are awaiting interviews at their consulate.  The entire family will be eligible to file green card applications after being in U visa status for 3 full years.  After his family arrives in the U.S. I intend to file a motion to reopen and terminate my client's old deportation case in immigration court so that his record will no longer indicate that he has been ordered deported from the U.S.

Chinese Indonesian Client Released from Jail Despite Final Order of Deportation

A few weeks ago, I received a phone call from a jail in Texas.  The call was from a Chinese woman from Indonesia who was a friend of one of my old clients and she told me that she had been arrested by Immigration officers a few days earlier.  She told me that she was married to an American man and that they had a 3 year old child together.  I asked her about her immigration history, and she told me that another immigration lawyer had filed a motion to reopen her removal proceedings (her immigration court case) that had been denied and told her that there was nothing that he could do to help her get out of jail because she had a final order of deportation.  I explained that the Immigration Service might deport her, but that they could release her under an "Order of Supervision" if we could show that her equities in the United States warranted it. Under the law, the Immigration service is required to consider releasing an immigrant with a final order of deportation who has been detained for 90 days if they have not deported the immigrant by that time.  The Department of Homeland Security calls this the "90 day file review."  If they decide not to release the immigrant and still have not deported him or her after 180 days, they are required to do a 180 day file review and consider releasing the immigrant at that time.  The Immigration Service rarely releases anyone from detetnion prior to the 90 day file review.  Knowing this, I still decided to submit as thorough a request for release as possible, and to do so quickly. I left a number of phone messages for the officer regarding the case and told him that I would be mailing a request for release by overnight mail the next day.  I obtained numerous documents from my client's husband to prove that they were living together and that she was caring for their son prior to being arrested, and that he had sufficient financial resources to ensure that she would not become a "public charge" if she were released from detention.  I also told the deportation officer that my client's husband had filed a Form I-130 for her which was still pending and that after it was approved, we would try again to reopen her case by requesting that the lawyers for the Department of Homeland Security join our motion to reopen.   The officer called me back a few days later, and luckily, he seemed reasonable and told me that he was considering letting my client go and placing her on an Order of Supervision but that his supervisor had to agree and that he would have an answer the next day. The next day, my client and her husband were thrilled to learn that my request for her release had been approved, as well as a 6 month stay of deportation which I had filed concurrently.  If Congress passes an amnesty prior to the expiration of the 6 month stay of deportation, my client may be allowed to apply for some form of permanent status in the U.S.

Naturalization Oath Ceremony in Philadelphia Scheduled 2 Weeks After Interview

We prepared and filed a Naturalization Application for our client based upon his residing in a bona fide marital relationship with his U.S. Citizen spouse for the 3 year period immediately preceding the filing of his Naturalization Application.  We attended the citizenship interview with our client at the USCIS Philadelphia District Office and provided the Information Services Officer with documentation evidencing the marital union for the 3 year period.  The Naturalization Application was approved and the oath ceremony was scheduled 2 weeks after the interview.

I-130 Petition Approved for Sister of U.S. Citizen

Our Philadelphia Immigration Lawyers received approval of an I-130 Petition filed by a U.S. Citizen for her sister in 2003.  USCIS generally takes many years to decide I-130 Petitions filed by U.S. Citizens for siblings because of the visa backlogs in the Family Fourth Preference Category.  It is important for Petitioners to inform USCIS of any address change so that all Notices, including a potential Request for Evidence, are timely received from USCIS.  If a Request for Evidence is sent and not received and therefore not responded to because the Petitioner did not update a mailing address with USCIS the I-130 Petition would be denied and the priority date would be lost which is a drastic consequence.

Change of H-1B Employer with Pending Green Card Application

We successfully filed an H-1B change of employer for a client for an extension of H-1B status through year 13.  The client, an Indian National, had an approved I-140 Petition with his existing employer and has a pending I-485 Adjustment of Status Application.  The client wanted to change jobs to a "same or similar" occupation with a new employer and maintain the processing of his green card application uner the AC-21 portability rules.  While the client has a valid EAD, based upon the advice of our law firm, the client had the new employer file an H-1B change of status petition and is now working for the new employer in H-1B status as opposed to using the EAD.  It is always a good idea to maintain underlying H-1B nonimmigrant status while an I-485 application for adjustment of status is pending as in the event there is a problem with the I-485 application the foreign national will remain lawfully present in the U.S. and employment authorized based upon the underlying H-1B nonimmigrant status.

Change of Status Application Approved from H-1B to H-4 Following Termination of Employment

Our client held H-1B status and was suddenly and unexpectedly terminated from her employment.  Our client's husband held H-1B status in the U.S. so our Philadelphia Immigration Attorneys applied as soon as possible for a change of status from H-1B to H-4 to place our client back into lawful nonimmigrant status.  In the I-539 Application Packet we explained the circumstances surrounding her termination and requested that USCIS grant a change and extension of status.  The change of status application was approved.

I-601 Waiver Approved at Lithuanian Consulate

Our client left the U.S. a few years ago after overstaying her visa for more than one year.  Overstaying for more than one year caused her to be inadmissible to the U.S. because persons with more than one year of "unlawful presence" are not allowed to reenter the country for 10 years unless they are eligible for and are granted a "waiver," essentially meaning that their previous immigration violation is forgiven.  Many immigrants who were in the U.S. illegally and who were later ordered removed/deported, or who simply left the U.S. voluntarily after accumulating more than one year of "unlawful presence" are never permitted to return to the country.  The legal standard for such waivers is "extreme hardship" to a U.S. citizen spouse or child and while one would think that any spouse or child of an immigrant would experience "extreme hardship"as a result of being separated from their spouse or mother, various court cases have established that separation alone does not meet the standard. Our client married a U.S. citizen who she had met while she was living in the U.S.  He had suffered from a heart condition and had been treated at the University of Pennsylvania's Children's Hospital (CHOP).  I obtained a significant amount of documentation regarding his medical condition including his complete medical records, and found numerous articles from credible sources that explained the causes, treatments, and prognosis for his particular medical condition.  Combined with detailed affidavits of both our client and her husband as well as other evidence, the USCIS Office in Moscow granted our application for a waiver of our client's "unlawful presence."  We have been informed that she will likely be scheduled for a second interview to receive her immigrant visa within two weeks. Many immigrants think that it is impossible to return to the U.S. after leaving the country due to a previous immigration violation, but with careful preparation and the right set of circumstances, waivers may be approved even where the facts are less compelling than in this case.

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