*** Last updated 9/29/2018

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WARNING ABOUT UNLAWFUL PRESENCE BARS

An “immediate relative” of a US citizen is permitted to adjust status even having overstayed the last period of authorized stay in the United States.

However, an immigrant starts to accrue unlawful presence in the United States if the person is over 18 years old and remains in the United States past the period of authorized stay (after discontinuing a course of required study in the case of F and J visas beginning  Aug. 9, 2018). If the person accrues 180 days or more of unlawful presence and then departs from the United States, the person triggers the 3 year bar to admission. If the person accrues a total period of unlawful presence in the aggregate of one year or more and then departs from the United States, the person triggers the 10 year bar to admission. If the adjustment of status application is properly filed, the period of unlawful presence will be tolled/temporarily stopped during the time the application is pending. Departures with advance parole do not trigger the bars.

You should attempt to avoid 180 days/1 year (in the aggregate) or more of unlawful presence by timely filing your adjustment of status case, so that if your adjustment of status application is denied, withdrawn or abandoned, and you must leave the United States, you do not trigger the bar(s).  Or if you do not qualify for adjustment of status and must leave the country to consular process, and you can avoid triggering a bar, this may be critical to the ultimate success of your case.   Call us if you have any questions about this.

Note that if you have accrued a more than 180 days/ 1 year (in the aggregate) of unlawful presence on a previous visit to the United States, the fact that you were permitted to enter the United States by mistake with a current visa does not waive the unlawful presence penalty which must be served outside of the United States or a waiver may be required – if one is even available for your case.

Example [denial for prior unauthorized time before most recent lawful entry]

An immigrant has a valid visitor visa for multiple entries to the United States with an expiration date of 10 years.  The immigrant is granted an initial stay of 6 months, but remains in the United States three years.  The immigrant then leaves the United States (triggering a 10 year bar) and later returns to the United States with the same visa, never being questioned about the prior overstay by the customs officer at entry.  When later seeking to adjust status through a family member, USCIS learns of the prior overstay and requires a waiver for the immigrant to proceed with adjustment because the immigrant did not wait a full 10 years outside of the country before reentry (and had the 10 year bar).  The immigrant was permitted to enter the country by mistake only.  The waiver application is denied because there is insufficient proof of “extreme hardship” to the US citizen family member.  The immigrant is deported.

WARNING ABOUT AGING OUT OF CHILDREN BENEFICIARIES

When a child turns 21 years old or marries, the US citizen parent can no longer petition for that child as an “immediate relative” – therefore, it is said that the child “ages out” when the child turns 21 and a petition has not been filed. In such a case, there may be no other ways to legally immigrate available to the child. It is critical to not to let a child age out. The application must be filed, and received by USCIS for processing, before the child turns 21.

Stepchild/stepparent relationships do count for immigration purposes in most cases, however, the relationship will not be considered legally sufficient unless the marriage establishing the stepparent/stepchild relationship is entered into prior to the 18th birthday of the child. You are advised to take this information into consideration when family planning.

We do not accept cases for adoptive children, however, information about adoptive children can be found here.

WARNING ABOUT ACTIONS WITHIN 90 DAYS OF ENTRY TO THE UNITED STATES

Late in 2017 – the Foreign Affairs Manual was updated to replace the “30/60 day rule” used to interpret whether an individual had committed a misrepresentation upon entry to the United States. The new rule uses a longer presumptive duration of fraud – 90 days after entry to the United States, and lists more actions and conduct that are now presumptively fraudulent. See, e.g., 9 FAM 302.9-4. For example, marrying a United States citizen and moving in with him or her is presumptively fraudulent. Wait? Does that mean you are going to have issues with your marriage-based adjustment of status case because you got married shortly after arrival in the US with a visitors visa?

According to USCIS:

The U.S. Department of State (DOS) developed ​a​ 90-day rule ​to​ assist consular officers in evaluating misrepresentation in cases involving ​a person who ​​violated his or her nonimmigrant status or whose conduct is or was inconsistent with representations made to either the consular officer concerning his or her​ intentions at the time of the visa application or to the immigration officer at the port of entry​.​

The 90-day rule is not a “rule” in the sense of being a binding principle or decision​. ​The rule is simply an analytical tool that may assist DOS officers in determining whether an applicant’s actions support a finding of fraud or misrepresentation in a particular case. This DOS 90-day rule is not binding on USCIS. Officers should continue to evaluate cases for potential fraud indicators and, when appropriate, refer cases to Fraud Detection and National Security according to existing procedures.

If USCIS becomes more strict in the treatment of American families like Trump wants, what will happen? Fortunately, case law from the Administrative Appeals Office indicates that preconceived intent should not be enough to charge an immigrant with being inadmissible under INA 212(a)(6)(C)(i). The Board of Immigration Appeals has also found that preconceived intent should not outweigh family ties when deciding whether to approve an adjustment of status case. See Matter of Cavazos, 17 I. & N. Dec. 215 (BIA 1980) and Matter of Ibrahim, 18 I. & N. Dec. 55 (BIA 1981). Therefore, a case should not be denied for preconceived intent alone, without a misleading statement to a government official.

However, it is our concern that the 90 day rule will be increasingly misinterpreted by immigration officers in the strong anti-immigrant political environment. This would most likely be done through the misuse of the burden of proof.

If admissibility is an issue in a case, USCIS does not bear the burden of proving that the person is inadmissible. As long as there is at least some evidence that would permit a reasonable person to find an applicant inadmissible, the applicant must establish that the inadmissibility ground does not apply. For this reason, someone who appears to have made a willful misrepresentation of a material fact while under the age of 18 would have to prove his or her lack of capacity. Proving a negative is hard if there was no affirmative misstatement. Even the idea reeks of the possibility of incorrect decisions by an officer who believes circumstantial evidence is more direct than warranted.

ONE YEAR ASYLUM BAR WARNING

All asylum applications generally must be filed within one year of entry to the United States. If you do not file an asylum application within one year of entry to the United States, you may be giving up the right to apply for asylum.  This website is not about asylum applications, and we are not necessarily recommending that you apply for asylum.  However, the one-year requirement is an important consideration, if for example, your adjustment of status case is denied.  You should never apply for asylum without speaking with a qualified immigration attorney first.

Asylum denials without current lawful status are referred to the immigration court for removal proceedings.  This is true even if there is a pending family-based adjustment of status case.

TRAVEL FROM THE UNITED STATES

Even if you receive a travel document or other written permission to travel outside of the United States as part of your adjustment of status case, you are not guaranteed reentry to the United States. Furthermore, the mere filing of a case may cause you to be unable to use any visa you already have.

You should discuss any risks associated with travel immediately prior to booking your travel. You should never leave the country without first speaking with the attorney.

WARNING ABOUT ACCEPTING PUBLIC BENEFITS AND THE GENERAL APPEARANCE OF NOT BEING SELF-SUFFICIENT

The Trump administration is seeking to prevent the lawful immigration of family of US citizens and others in cases where the immigrant cannot show self sufficiency.  This is a new and rapidly changing are of the law, but it is critical to understand how this could affect you during an adjustment of status case in the US.

Please read our assessment of the the new proposed rule that will take effect in a substantially similar form soon and will be used by USCIS when deciding cases.

USCIS 2018 PUBLIC CHARGE RULE

For clients who are undergoing consular processing at US consulates around the world, you should know that the law has already changed and is in effect – seeking to prevent the lawful immigration of any immigrant family member who may not be self-reliant.  Similar to the public charge rule for USCIS that is undergoing public commenting, the Foreign Affairs Manual now requires that US officials abroad do not simply approve cases with a valid Form I-864; Affidavit of Support.  Rather, the immigrants age, health and job history will come under scrutiny.

A very helpful article discussing the current state of the Foreign Affairs Manual from the Immigrant Legal Resource Center can be downloaded by CLICKING HERE.

WARNING ABOUT CONTINUED AUTHORIZATION FOR EMPLOYMENT

We routinely apply for work authorization cards as part of current pending cases, for example, adjustment of status cases and asylum cases.  The initial work request is included as part of our services.  We charge $250 for additional work authorization requests for cases processing long-term.  It is important to keep in mind that a new work authorization card may take as long or longer to receive that the first after the renewal request is made.  Therefore, you should contact us 180 days prior to your work permit expiring so that we can timely assist you.  Currently, a receipt for a renewal application received by USCIS prior to the expiration date of the current work authorization card with the same eligibility category (e.g., asylum (c)(8) and asylum (c)(8)) will generally serve as an automatic 180 day extension of work authorization. https://www.uscis.gov/working-united-states/automatic-employment-authorization-document-ead-extension

WARNING ABOUT THE USCIS SECURE DELIVERY PROGRAM

USCIS has implemented a secure deliver program whereby in some cases – generally where the address has been changed during the pendency  of the case – the work authorization/ advance parole document (i.e., COMBO CARD) or the permanent resident card (i.g., GREEN CARD) is not delivered unless someone is home to sign for the document.

This has proven a disaster where the card is not delivered, but is returned to USCIS, and USCIS does not have a quick procedure for re-sending the card.   If this happens to you, you could wait several months to receive the card in the mail for a second time.

To avoid this fate, you should pay particular attention to the mail in the days and weeks just after you receive the Form I-797, Notice of Action, approving the issuance of the card.  Moreover, according to USCIS, “Applicants can sign up for USPS Informed Delivery to receive delivery status notifications. Applicants will also have the option to arrange for pickup at a post office at a convenient date and time by going to the USPS website and selecting ‘hold for pickup.'”

WARNING ABOUT DELAYS AT THE NATIONAL VISA CENTER

Sometimes things come up, and you may not be in a position to continue processing your case in a timely manner for financial or other reasons. However, if you neglect to process your case in a timely manner after the I-130 has been approved and the National Visa Center has control of the case, there may be some serious consequences.

First, the Immigration and Nationality Act (INA) section 203(g) provides that the National Visa Center shall terminate the approval of the Form I-130 for anyone who fails to apply for an immigrant visa within one year of notice of visa availability.  Even if the Form I-130 can be salvaged, any fees paid to the NVC will be lost, and you will need to repay them if you fail to maintain yearly contact with the National Visa Center.  As a practical matter, this means that you need to maintain contact with the National Visa Center at a very minimum once every year or your Form I-130 may be terminated and you may need to refile it.  If the beneficiary was a child, he or she may age out and forever loose the ability to immigrate. At the Law Office of Michael J. McCarroll, we do not contact the National Visa Center for our clients for the exclusive purpose of maintaining yearly contact to avoid I-130 termination and fee loss.  We recommend that clients take steps to work with us to quickly process the case at the National Visa Center and contact the National Visa Center every six months to ensure compliance with Immigration and Nationality Act (INA) section 203(g).