Extreme Hardship Waivers

WHAT IS EXTREME HARDSHIP?

Extreme Hardship is a legal standard utilized in U.S. immigration law. It applies to some situations when certain unlawful activities of the noncitizen have made him or her inadmissible into the United States. From a practical perspective, when a noncitizen is inadmissible, he or she would not be eligible to obtain a favorable immigrant visa adjudication at an American Consulate or adjustment of status from within the United States.

The phrase “extreme hardship” carries a specific meaning in U.S. immigration law. It refers to a standard utilized by adjudicators to determine whether deportation, or in the modern system, removal of the noncitizen from the United States, would cause extreme hardship to a qualifying relative. Depending on the specific ground of inadmissibility, a U.S. citizen (USC) or lawful permanent resident (LPR) spouse, parent(s), or son(s) or daughter(s) may be qualifying relatives.

Extreme hardship waivers are discretionary. This means that if an immigration adjudicator decides against granting an extreme hardship waiver, an appellate agency or court has very limited authority to review the decision. These limitations were intended by Congress to ensure finality in decisions by concentrating authority over extreme hardship waivers in immigration adjudicators.

TYPES OF EXTREME HARDSHIP WAIVERS 

There are multiple extreme hardship waivers available. Extreme hardship waivers of inadmissibility for unlawful presence are available pursuant to INA § 212(a)(9)(B)(v). INA §212(h)(1)(B) authorizes waivers of crimes of moral turpitude, multiple criminal convictions, and a single offense of simple possession of 30 grams or less of marijuana. At the discretion of an immigration adjudicator, certain offenses may even be waived even if they constitute aggravated felonies under statute. However, waivers of inadmissibility stemming from certain violent or dangerous crimes instead requires showing “exceptionally and extremely unusual hardship,” which presents a higher bar to demonstrate than regular extreme hardship.

Extreme hardship waivers of inadmissibility related to fraud and misrepresentations in order to procure immigration benefits exist under INA §212(i). Suspension of Deportation, a now outdated form of relief that existed prior to 1997, used the same standard of extreme hardship.

By contrast, Cancelation of Removal relief for both LPRs as well as nonresidents utilizes the “exceptionally and extremely unusual hardship standard,” except in the case of relief for battered spouses and children of USCs and LPRs, who may instead only have to demonstrate extreme hardship.

THE LEADING PRECEDENT: MATTER OF CERVANTES 

Understanding applicable precedents is the best way to understand the meaning of the phrase “extreme hardship.” This is because Congress often writes laws in broad strokes sufficient to formulate the policy, and leaves the power to fill in the details to the executive branch. In the case of “extreme hardship,” Congress did not define what exactly constitutes “extreme hardship,” thus leaving the details to immigration administrators and federal courts.

The leading administrative case on extreme hardship is the Matter of Cervantes, 22 I&N Dec. 560, 566 (BIA 1999). Cervantes arose in the context of the INA §212(i) waiver adjudication. The Board of Immigration Appeals (BIA) decided this case in 1999, and Cervantes has remained precedent ever since. Cervantes is about a young man from Mexico who lived in the United States for many years. In 1995, Cervantes, then twenty-four years of age and mired in immigration proceedings, married an LPR. His wife, who shortly after the marriage became a Naturalized US citizen, served as a qualifying family member for purpose of Cervantes's eventual extreme hardship waiver application. The government charged Cervantes with inadmissibility for fraud or misrepresentation of a material fact and put him in removal proceedings. As part of his defense against removal, Cervantes requested adjustment of status based on an approved visa petition filed by his USC wife. Because he had previously been caught using false documents, he was deemed inadmissible and thus ineligible for adjustment of status. To resolve the problem, Cervantes also requested a waiver of inadmissibility pursuant to INA §212(i), asking the Court to waive his inadmissibility so that he could adjust status.

An immigration judge denied Cervantes’ request for a waiver, thus setting the stage for Cervantes to appeal to the BIA. After hearing the case, a majority on the BIA dismissed the appeal. The BIA decided that Cervantes's family had not demonstrated that they had managed to develop meaningful financial ties to the United States. The majority held that the lack of such ties was an important factor in its evaluation of whether Cervantes warranted a waiver.

The BIA further explained that Cervantes's wife was well aware prior to marrying Cervantes that he was in the midst of deportation proceedings. The BIA highlighted the fact that Cervantes's wife was of Mexican origin and had relatives who were then living Mexico, thus mitigating the extreme hardship claim. The BIA also noted that during the proceedings, Cervantes’ wife never mentioned that she would suffer extreme hardship if she and her husband moved to Mexico. Given all these factors, BIA found that Cervantes's wife would not experience extreme hardship in the event that she followed her husband to Mexico.

WHY IS CERVANTES IMPORTANT? 

Matter of Cervantes is very important for several reasons. First, it reinforced the factors that should be considered when evaluating an application for an extreme hardship waiver. Despite being decided in 1999, Cervantes is still good law on evaluating extreme hardship claims. The reason for its longevity is that between the majority and the dissenting opinion, the BIA did an excellent job of explaining the concept of extreme hardship as well as providing guidance to understanding of how it works in the context of removal proceedings. The BIA noted that extreme hardship can be viewed narrowly, but not so narrowly that it should be nearly impossible to demonstrate. Since Congress clearly created the extreme hardship waiver to prevent USC and LPR qualifying relatives from suffering extreme hardship in the event of an alien’s removal, the BIA noted that the waiver should be granted provided that extreme hardship can be successfully demonstrated.

Second, due to the BIA’s status among immigration adjudicators, its precedent opinions are binding so long as they stand.

Third, and perhaps most important, the BIA explained in Cervantes that the meaning of extreme hardship and provided clear way for immigration judges to approach the issue. It provided clarity for how “extreme hardship” as a concept would be implemented in the context of inadmissibility waivers. The Board followed federal case law and held that, although extreme hardship was not a rigid concept which could be defined strictly in regulatory terms and that it must be viewed instead on a case-by-case basis, there are general factors that should always be considered when making an extreme hardship determination. The BIA also opined, at the very least in the dissenting opinion, that the cumulative effect of all these factors on the qualifying relative should be determinative in deciding whether the noncitizen seeking a waiver should be allowed to remain with his or her family in the United States.

Fourth, an opinion authored by then-BIA member Lory Diana Rosenberg, which concurred with the majority in-part but dissented with regard to its decision to deny Cervantes an extreme hardship waiver, arguably sheds even more light on what factors should be considered, and how they should be weighed, than dud the majority opinion. Ultimately, Judge Rosenberg’s opinion is at least as important to read as the majority opinion because it provides a detailed overview of the factors relevant to extreme hardship law as it stood when Cervantes was being decided. Judge Rosenberg’s opinion does a good job emphasizing that some factors not mentioned in the majority opinion were very important for any adjudicator to consider, at least in the view of the Ninth Circuit Court of Appeals and the U.S. Supreme Court. It is also worth mentioning, as the dissenting opinion noted, that the relevant inquiry should not be whether any particular factor, or a group of factors, creates extreme hardship for the qualifying relative, but instead whether the cumulative effect of all relevant factors creates extreme hardship for the qualifying relative. This is a very important distinction the majority regrettably did not address. Had it done so, it would have likely concluded, as Judge Rosenberg did, that Cervantes warranted a waiver. Fortunately, since Cervantes was decided, the factors noted by Judge Rosenberg and her approach to weighing them have steadily gained support among immigration adjudicators, and judges. Some of the specific factors Judge Rosenberg noted include the economic conditions in the country where the qualifying relative would follow his or her noncitizen family member; the extent of the family ties of the qualifying relative in the United States; overall family situation; length of residence in the United States; the ability to raise children in the foreign country in question; the education and professional skills of the qualifying relative especially in the context of his or her employability in the foreign country; other factors not noted but possibly applicable to a specific case.

Fifth, Judge Rosenberg's dissenting opinion contains a landmark explanation of why selectively not weighing certain factors, not weighing certain factors enough, or excessively weighing other factors, invariably leads to an arbitrary decision that is a disservice both to the applicant and to the system of immigration laws as a whole. She argued, quite convincingly, that if the majority had properly weighed all of the factors in the case, it would have granted Cervantes’ request for a waiver.

LASTING EFFECTS OF CERVANTES

BIA made several consequential legal conclusions in Cervantes decision. First, the Board, as the highest administrative tribunal for removal and deportation issues, decided that the meaning of the extreme hardship was not fixed. This holding makes sense since the specific facts of each extreme hardship claim are unique. A factor that may support extreme hardship in one case may not support extreme hardship in another case, and vice versa.

However, the BIA reasoned that, while each case is unique, this does not preclude there from being certain uniform factors that should always be considered. To identify these factors, the Board turned to accumulated existing precedent which governed the now-defunct suspension of deportation relief. The Board also looked at precedent from waiver adjudication under INA §212(c), which was the inadmissibility waiver of certain criminal conduct and convictions, subsequently replaced by the INA § 212(h) waiver. The majority eventually identified five general groups of factors that should always be taken into account when considering an extreme hardship claim:
qualifying relative's ties to the United States, including financial and other;
qualifying relative's ties outside the United States including financial and other;
political and economic condition in the country of return which might cause hardship to the US relative;
financial impact of departure on the qualifying family member;
health conditions of the applicant and his family, especially if the needed medical care is not available in the country of return.

APPLYING CERVANTES IN SUBSEQUENT CASES 

Matter of Cervantes still stands today because the decision was sound. It has been cited in a multitude of extreme hardship cases since it was decided. For example, Julie C. Ferguson cited in her book “AILA’s Focus on Waivers Under the Immigration & Nationality Act,” Matter of [name and A-number redacted] (AAO Jan 9, 2008), a decision by the Administrative Appeals Office (AAO) to overturn the denial of an INA § 212(i) waiver application by the consular officer-in-charge in Athens, Greece, based on extreme hardship that would be suffered by his wife in the event of his removal to Lebanon.[1]

After reviewing the facts of the case closely and applying the factors and methods from Cervantes, the AAO found that the applicant's wife would suffer extreme hardship both if she was forced to stay in the United States and take care of the couple’s child alone, and if she followed her husband to Lebanon in the event of his removal.[2]

Evidence demonstrated that the wife suffered from depression, panic attacks and anxiety disorders. She was at risk of recurrence since her mother experienced similar problems and she lost her father at a young age. She also suffered from hair loss and could not stay home alone because she was lonely and scared. Her son suffered from asthma and often required medical attention, including hospitalization. All of these factors about her son's health contributed to even more stress for the wife. The case record also showed that during previous travel to and from Lebanon, her son required medical care. The medication that he needed was not available in Lebanon, and the family would not have health insurance to cover these medical expenses. The case record contained reports about adverse conditions in Lebanon that would contribute to extreme hardship for the wife. The applicant also included a Department of State travel advisory encouraging Americans to avoid traveling to Lebanon. Based on the evidence, and in light of precedents including Matter of Cervantes, the AAO found that the applicant and his wife would experience extreme hardship if his waiver of inadmissibility was denied.[3]

Many years have elapsed since the important Cervantes decision. Over these years, the BIA and federal courts have developed a long list of factors that are applicable to demonstrating extreme hardship. While factors do not weigh the same in every case, Cervantes and other precedents paint a picture on what may be used to support an extreme hardship waiver application.

Please visit the myattorneyusa.com website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

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Source:   Ferguson, Julie C. AILA’s Focus on Waivers Under the Immigration & Nationality Act. Washington D.C. AILA Publications, 2008. 142-43, Print. ALIA’s Focus Series

[1] J. Ferguson, AILA’s Focus on Waivers Under the Immigration & Nationality Act (AILA 2008) 142, describing Matter of [name and A-number redacted] (AAO Jan 9, 2008), published on AILA InfoNet at Doc. No. 08011562 (posted Jan. 15, 2008)
[2] Id. 

[3] Ferguson 143, describing Matter of [name and A-number redacted] (AAO Jan 9, 2008), published on AILA InfoNet at Doc. No. 08011562 (posted Jan. 15, 2008) [for the section]

Marriage Fraud

INTRODUCTION

Although increasingly limited, there are still several ways for a foreigner to gain lawful permanent resident (LPR) status in the United States. Because of the complexity involved in gaining LPR status, great commitment is required on the part of the applicant to see the process through, as well as readiness to be subjected to lengthy wait periods, rigorous government examination, and numerous setbacks. The process becomes even more convoluted if it involves an immigrant who overstayed his or her visa, or came into the United States without having been inspected, admitted, or paroled. These individuals are generally referred to as undocumented immigrants or aliens. Because of their lack of valid immigrant status, many of them cannot travel internationally or obtain state-level identification (such as a driver license or state-issued non-driver license ID). Furthermore, they cannot obtain lawful employment and may even experience difficulty paying their taxes due to the lack of a Social Security number.

On the other hand, entering the United States from abroad presents insurmountable challenges for many aliens. This is because a non-USC or LPR returning to the United States from a brief and casual trip abroad and presenting him or herself at the U.S. port of entry is considered an applicant for admission. That means that the permissibility of that person to enter the United States is closely examined. Applicants for admission who have accrued certain amounts of unlawful presence in the United States (time spent without proper authorization) would be legally restricted from entering the United States by inadmissibility bars. 180 days or less of unlawful presence would, upon reentry, result in a three-year bar, whereas those 365 days or more of unlawful presence would result in a ten year-bar. These bars were created by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) — a major immigration law overhaul enacted by the Congress and signed into law by President Clinton in 1996. Congress instituted the bars as a means of deterring visitors who wished to stay past the date of their authorized stay, as well as those enter or attempt to enter the United States without inspection. Ironically, over the years since the enactment of the IIRIRA, the bars have often had the opposite effect from what Congress intended, as they have encouraged many immigrants who violated their immigration status, or who gained it in an improper way to begin with, to remain in this country since the inadmissibility bars only attach upon departing the United States.

In light of the difficulties obtaining LPR status, and the imposition of inadmissibility bars, immigration privileges extended to spouses of U.S. citizens (USC) are very attractive. This is because because an immigrant petition by a USC spouse would make the foreigner potentially eligible for adjustment of status, even in cases where a foreigner had overstayed a nonimmigrant visa. Since inadmissibility bars only apply if someone subject due to accrual of unlawful presence departs the United States, adjusting status from within the United States is a legally available option. As a result, some individuals are incentivized to engage in sham marriages to circumvent immigrant laws; sometimes without fully realizing the potentially severe consequences that they will be subject to if the fraud is discovered.

AVAILABILITY OF WAIVERS

An affirmative finding of marriage fraud made by USCIS or an immigration judge, if not challenged and allowed to stand, renders the foreigner removable and inadmissible at the same time. What is more, inadmissibility stemming from the affirmative finding of marriage fraud attaches for life with no possibility of a waiver.

In contrast, there are certain waivers are available for inadmissibility resulting from overstaying a nonimmigrant visa. To obtain a discretionary waiver of inadmissibility for overstaying, the immigrant would have to show that he or she has a spouse or parent who is a USC. Furthermore, since these bars of inadmissibility only attach upon exiting the United States, those who overstayed their visas would not need to leave the country when they are petitioned for by their genuine USC spouse or adult child. This process is called adjustment of status. Others, if they qualify, may obtain LPR status from outside of the United States after obtaining inadmissibility waivers, and then be permitted to enter the United States on a lawfully issued immigrant visa. Recent Provisional Stateside Unlawful Presence Waiver regulations substantially simplified these processes for qualified foreigners and shortened the minimum the waiting time outside of the United States.

SOME OF THE REASONS FOR IMMIGRATION FRAUD BASED ON MARRIAGE

It is important to understand these special waiver provisions of the Immigration and Nationality Act (INA) which excuse overstay for immediate relatives of USCs in adjustment of status process, because this is where the crux of the fraudulent marriage problem occurs.

Let us imagine for a moment the mindset of an undocumented immigrant who has overstayed his or her nonimmigrant visa. The promise of living in the Unites States, the land of opportunity, is remarkably attractive. There are only two apparent options for the undocumented immigrants: to leave the United States and become subject to either the three or ten-year bar of inadmissibility, or to continue living illegally in the United States. However, with some very limited exceptions, an undocumented immigrant cannot obtain employment authorization, and thus would have great difficulty earning a living. The undocumented immigrant could at any moment be taken into custody and subjected to deportation or removal proceedings. Hence, it appears that there is no real hope for the undocumented immigrant.

However, there is the enticing marriage petition. As detailed above, if the immigrant were to marry a USC, he or she would, if petitioned for by the USC spouse, avoid grounds of inadmissibility caused by the accrual of unlawful presence. The inadmissibility bars would simply not attach since the immigrant would have never left the United States in order to seek LPR status. The alien would instead qualify for the limited exception reserved for the immediate relatives, which makes the immigrant potentially eligible for LPR status if his or her spouse's immigrant visa petition is approved. In addition, there would seem to be no apparent repercussions from obtaining adjustment of status through the spouse’s petition, since the adjustment of status ineligibility rules found in section 245 of the INA do not attach if the undocumented immigrant is the immediate relative of a USC.

Critically, however, many of these undocumented immigrants do not fully realize that seeking immigration benefits on the basis of a sham marriage is a federal crime. On an administrative level, USCIS is chiefly concerned with the validity of the marriage because of the privileged position immediate relatives of USCs enjoy under United States immigration law. USCIS puts a very high priority on making sure that the marriage was not entered into as a means of fraudulently gaining immigration benefits. Since the law squarely places the burden on the applicant to demonstrate not only the legal validity, but also the bona fide (i.e. good faith) nature of the marriage, USCIS immigrant visa interviews are a major force in detecting and preventing immigration fraud.

THE PROCESS OF MARRIAGE-BASED APPLICATIONS AND IMMIGRATION FRAUD INVESTIGATION

A set of forms and supporting documents, as well as the filing fees, need to be filed with USCIS's lock box. Given the amount of information that needs to be provided, and the complexity of the application, persons filling marriage-based applications are strongly recommended to retain an experienced immigration attorney.

Shortly after USCIS receives the application packet, and provided that the applications had been correctly prepared, USCIS will send receipt confirmations for each application included in the packet along with a notice to the immigrant regarding a biometrics appointment. If the fingerprints and background check are clear, the applicant is notified of a new appointment, this time for an interview before an immigration officer at a USCIS local office. The immigrant is required to appear at this interview with his or her spouse. At this interview, the immigration officer carefully reviews the petitions and applications that were previously submitted. Any questions that the immigration officer has regarding the application and the validity of the marriage are addressed during the interview. If the marriage is bona fide and this is evident throughout the interview, the couple should expect the application to be approved. Upon approval, the non-citizen should receive his or her permanent resident card within a month or so.

Difficulties in these marriage applications arise when the validity of the marriage is unclear, and consequently challenged by USCIS. Immigration officers and officials in the USCIS's fraud unit, where suspicious cases are referred, are very experienced professionals and, thus, familiar with all of the tactics that are used by unscrupulous applicants who enter into a marriage solely to circumvent immigration laws. Nevertheless, although USCIS does not keep official statistics on the frequency of marriage fraud, the agency indicates that fraud does happen and often goes undetected given the complexity determining whether it occurred. This frequency of marriage fraud causes USCIS officers to be on alert and scrutinize carefully every case, often turning the interview into a dramatic experience for the couple.

IMMIGRATION FRAUD BASED ON MARRIAGE

Although fraud is knowingly committed by a statistically large number of applicants, the statistics are even higher for cases in which “immigration consultants” or “advisers” are involved. These individuals are dangerous because they:

• are not lawyers and thus not authorized by law to give legal advice, 
• are often confused about the substance and requirements of the law, and 
• provide deficient assistance to applicants in properly filling out forms in otherwise legitimate cases. 

These consultants assume various names. In some communities they are known as “immigration services,” while in others as “travel agencies,” “notaries,” or “paralegal services.” Due to language barriers and misplaced trust, it is often very easy for the foreigners to become victims of these individuals, who file on their behalf misleading or fraudulent applications. The results are often catastrophic for the foreigner, who is always the one to bear the brunt of the penalties. This is because, ultimately, the applicant who signed the form. The name of the preparer is often not even indicated on the form. The applicant may face adverse consequences ranging from minimal repercussions (if lucky) to landing in removal proceedings in immigration court due to being accused of material representations or even outright fraud. In other words, the applicant can, and often will, find him or herself facing deportation from the United States with very limited avenues to successfully fight it. It is important to bear in mind that if a legal finding of marriage fraud is made and subsequently upheld, it renders the applicant ineligible for most forms of immigration benefits for life, resulting in a nightmare for the applicant and his or her family.

Marriage fraud can be committed in several ways. It is not uncommon for a USC friend to “help” a non-citizen gain immigration benefits through a marriage in which no genuine marital relationship exists. In other cases, there are USCs who enter into fraudulent marriages in exchange for financial compensation. There are even criminal organizations, disguised as legitimate businesses, in which brokers set up meetings with non-citizens to facilitate entering into fraudulent marriages for a fee. Even some attorneys have been disciplined for their unethical practices by the Bar Association, Grievance Committee, Executive Office for Immigration Review, and USCIS. Others attorneys have been subject to criminal investigations and ultimately convicted of marriage fraud.

While an immigration attorney's primary duty is to zealously represent his or her client, immigration attorneys also have an ethical responsibility to recognize red flags in a marriage case in order to avoid knowingly presenting a fraudulent case to a tribunal. For example, an experienced immigration attorney will ask: Are there any inconsistencies in a couple's marital situation? Do both parties share the same address? Has the petitioner requested LPR status for any other immigrants in the past? If an immigration attorney analyzes all of the facts and reaches the inescapable conclusion that a marriage is fraudulent, he or she will likely not take the case or will withdraw from representing a client. At the same time, an immigration attorney has an ethical duty to his or her client to give the benefit of the doubt and not jump to premature conclusions. This ethical obligation becomes especially significant given the effect that the recent economic downturn has had on many families. In many bona fide marriages, one party may have to work far away from the couple’s primary home and spend significant amounts of time away. In some other cases, the parties in a marriage may have to maintain separate households while one or both pursue educational opportunities. An immigration attorney will consider all of these circumstances, while giving the benefit of the doubt, in determining whether he or she can represent the client. However, these circumstances, even in a wholly legitimate marriage, may make proving the bona fide nature of a marriage to the satisfaction of immigration adjudicators a daunting task.

DIFFICULTIES IN MARRIAGE CASES UNRELATED TO MARRIAGE FRAUD

As touched upon in the last paragraph, apart from fraud, there are other variables that can complicate proving the bona fide nature of the marriage. Although it may seem unlikely, if there are previous marriage-based petitions and applications by either the beneficiary or the petitioner, these previous marriages will also be examined. Convincing an immigration officer that all of the prior marriages were genuine is a burden placed upon on the applicant.

If the applicant has prior criminal convictions on record, this will be another difficult hurdle to clear in marriage-based immigration cases. For criminal convictions, it is essential that all certificates of dispositions and complaints are readily available. Certain convictions result in an automatic bar against immigration benefits or permanent residence in the United States. This is one area where it is extremely important to consult with an experienced immigration attorney prior to filing for adjustment of status with USCIS.

Prior or current proceedings in immigration court will also present difficulties for applicants. USCIS will examine any immigration court proceedings with utmost scrutiny, since immigration court proceedings may incentivize someone to enter into a sham marriage. USCIS will attempt to confirm that the marriage was not entered into under false pretenses by subjecting both parties in the married couple to separate interviews.

USCIS has safeguards in place designed to detect and deter marriage fraud. If the marriage has not reached its two-year anniversary, the beneficiary of permanent resident status will be afforded conditional permanent resident status (CR) for two years. To become a LPR, the CR must jointly file a petition to remove the conditions within 90 days of the expiration of CR. There are several exceptions from the joint-filing requirement that apply when a marriage was entered into in good faith, but ultimately was terminated; when the CR was subjected to battery or extreme cruelty, or when the CR would incur “extreme hardship” upon removal. The joint-filing exception is also available if the USC spouse dies within the two years.

Fortunately, the conditional residency period has had a positive effect in reducing the number of fraudulent marriage applications submitted to USCIS. There also has been a drastic decrease in the number of prosecutions for marriage fraud since the conditional residency period was instituted.

In some cases, USCIS may issue a denial in a case where the marriage is actually bona fide. In this event, there is still hope. The applicant may seek an appeal or reconsideration of the ruling. Furthermore, the applicant may present his or her case to an immigration court and ask for a review of the denial.

Ultimately, the best way to avoid an initial denial is to be as well prepared as possible for what you may be asked during the interview. An experienced immigration attorney will be aware of the type of questions that will be asked and what you may need to focus on clarifying given the facts of your situation. These are areas where the hard work, diligence, and attention to detail of an experienced immigration attorney pay off.

New Rules for Work Experience for Special Religious Workers

Introduction

In a decision issued by the U.S. Court of Appeals for the Third Circuit in Shalom Pentecostal Church v. Acting Secretary DHS, 783 F.3d 156 (3d Cir. 2015),[1] held that United States Citizenship and Immigration Services (USCIS) had exceeded its authority in enacting regulations found in 8 C.F.R. sections 204.5(m)(4) and (11). In response, USCIS released an important policy memorandum on July 5, 2015, titled Qualifying U.S. Work Experience for Special Immigrant Religious Workers.[2] The judicial holding, in conjunction with the memorandum to make USCIS regulations consistent with Shalom Pentecostal Church v. Acting Secretary DHS, make it easier for many of those hoping to gain classification as special immigrant religious workers to meet the work requirements in order to qualify.

The Old Rules

In order to successfully obtain a special immigrant visa for religious work, an applicant must first obtain classification as a religious worker by filing, and having approved, a Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant.[3] In order to file a Form I-360, applicant must have spent the 2 years previous to filing engaged in work with a qualifying religious organization. Prior to the judicial holdings and the new policy memorandum, USCIS regulations required that the 2 years of religious work experience must be authorized employment if it had occurred in the United States. If any of the employment was unauthorized, the applicant would be ineligible for classification as a religious worker, and consequently ineligible for adjustment of status. However, the Third Circuit held that the regulation in question was inconsistent with section 101(a)(27)(C) of the Immigration and Nationality Act (INA). Firstly, the statute itself contained no provision that if any of the religious work had occurred in the United States, it could not be unauthorized employment. Secondly, Third Circuit also held that the offending regulations were impermissibly in conflict with sections 245(i) [allowing adjustment of status for certain aliens who had engaged in unauthorized employment] and 245(k) [certain aliens may work without authorization for up to 180 days and remain eligible for adjustment of status] of the INA. The court also held that the offending regulations were impermissibly in conflict with sections 245(i) [allowing adjustment of status for certain aliens who had engaged in unauthorized employment] and 245(k) [certain aliens may work without authorization for up to 180 days and remain eligible for adjustment of status] of the INA. Ultimately, the court held that the Department of Homeland Security had exceeded its legal authority (ultra vires) in making regulations that were impermissibly in conflict with those established by Congress.

The New Rules

USCIS released the new memorandum on July 7, 2015, to bring its regulations in line with Shalom Pentecostal Church v. Acting Secretary DHS. Going forward, this means that merely because some or all of the requisite religious work experience was unauthorized does not affect an applicant's eligibility for classification as a religious worker when filing the Form I-360. However, while the USCIS regulations prohibiting any unauthorized religious-work experience are now null and void, unauthorized employment may still render an applicant ineligible to subsequently adjust status section 245 of the INA. Furthermore, accrual of unlawful presence may still trigger 3 or 10 year inadmissibility bars or the permanent bar of inadmissibility if the alien departs from the United States.

What does the Memorandum Mean for Religious Worker Classification?

A religious worker seeking to fulfill the requirements of an approvable Form I-360 should seek employment authorization rather undertake the risk of triggering still-applicable immigration issues stemming from unauthorized employment and unlawful presence. However, religious workers who did complete any part of their 2-year religious work requirement by engaging in unauthorized employment should consult with an experienced immigration attorney to determine whether it will be possible to subsequently adjust status after obtaining classification as a religious worker.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

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[1] Follow link to download PDF of the decision. Retrieved on August 10, 2015 at http://www2.ca3.uscourts.gov/opinarch/134434p.pdf
[2] Follow link to download PDF of the Memorandum. Retrieved on August 10, 2015 at http://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2015/2015-0705_Lawful_Status_PM_Effective.pdf
[3] Follow the link for the USCIS page on the Form I-360

Lawyer website: http://myattorneyusa.com

Citizenship from Birth for Certain Children of U.S. Citizen Parents Born Abroad

INTRODUCTION

In the majority of situations in which a child is born outside of the United States and one or both of his or her parents are U.S. Citizens, the child will be a U.S. citizen from birth. This article will look at the situations in which children born to U.S. citizen parent(s) abroad are entitled to citizenship from birth, and explain how parents in these situations may go about obtaining proof of their child's citizenship. In any scenarios when the parents are unsure if they will transmit citizenship automatically, they should consult an experienced immigration practitioner if there is any possibility that they may deliver a child abroad.

Please note that this article generally provides rules for when children born abroad to U.S. citizens are U.S. citizens from birth now. For people in some of these scenarios born before November 13, 1986, their claims to citizenship from birth would be evaluated under the statutes that were in force at the time. This article will note some of those cases where it is also applicable to the issue concerning this article, but it is not intended to be a guide for them.

SCENARIOS IN WHICH A CHILD BORN TO U.S. CITIZEN PARENT(S) ABROAD IS A CITIZEN FROM BIRTH

PARENTS ARE MARRIED AND AT LEAST ONE PARENT IS A U.S. CITIZEN

Under current law, a child who is born to married parents and one or both parents are U.S. citizens; the child is a U.S. citizen from birth in the following scenarios:

• When both parents are U.S. citizens, the child shall be a U.S. citizen from birth provided that at least one of the parents has had a residence in the United States, or one of its outlying possessions (American Samoa and Swains Island),[1] prior to the birth[2] or 
• When one parent is a U.S. citizen who has been physically present in the United States or one of its outlying possessions for a continuous period of at least one year prior to the birth, and the other parent is a U.S. national;[3] or 
• When one parent is an alien, and the other parent is a U.S. citizen who, prior to the birth, was physically present in the United States for at least five years (need not be consecutive) with at least two years having occurred before the U.S. citizen reached 14 years of age. This time includes periods of honorable service in the United States Armed Forces and periods of employment overseas with the United States Government or with certain international organizations.[4] This period also includes time that the U.S. citizen parent spent as a dependent of a person serving honorably in the United States Armed Forces or working overseas for the United States government or certain international organizations. These provisions are applicable to all persons born on or after December 24, 1952.[5] 

Pursuant to statute, "physical presence" is determined based on what the laws were for physical presence at the time of the birth.[6] Thus, for any birth occurring overseas now, the above rules on physical presence are the requirements. However, for births occurring between December 24, 1952, and November 13, 1986, the physical presence requirement is 10 years physical presence with at least 5 years occurring after the age of 14.[7] If the parent was naturalized as a U.S. citizen, time before and after naturalization may count in determining physical presence toward 5-year physical presence requirement.[8]

Normally, persons born in American Samoa or Swains Island are U.S. nationals at birth rather than U.S. citizens. However, there is a special provision for children born to a U.S. citizen parent in one of the two U.S. outlying possessions:

• When one parent is a U.S. citizen and has been physically present in the United States or one of its outlying possessions for a continuous period of one year at any time prior to the birth.[9] 

PARENTS ARE UNMARRIED AND ONLY MOTHER IS A U.S. CITIZEN

Under current law, children who are born to unmarried parents, with the mother being a U.S. citizen, are U.S. citizens from birth under the following scenario:

• The mother is a U.S. citizen who has been physically present in the United States or one of its outlying possessions for a continuous person of at least one year (the father in this scenario is not relevant to whether the child inherits his or her mother's citizenship).[10] 

PARENTS ARE UNMARRIED AND ONLY FATHER IS A U.S. CITIZEN

The scenario is a bit more complicated if a child is born to unmarried parents and only the father is a U.S. citizen. For all scenarios where a child is born overseas, "presumption of alienage" for persons born outside of the United States that the child's parents must overcome.[11] This can be especially difficult in scenarios where the child's mother is not a U.S. citizen and the child's paternity cannot be easily ascertained. In order for the child to be a U.S. citizen from birth under this scenario, the following must be true:

• The blood relationship between the child and U.S. citizen father is established by clear and convincing evidence,[12] 
• Father was a U.S. citizen at the time of birth,[13] 
• Provided that the father is living, he has agreed in writing to provide child support until the child turns 18,[14] 
• And, while less than 18 years of age, the child must be legitimized under law of where he or she lives, and the father must either acknowledge his paternity of the child or the paternity of the child is established by a competent court.[15] 

In cases where the U.S. citizen father is not inclined to cooperate in order to demonstrate that he is the father of a child (such as to establish that the child was entitled to U.S. citizenship from birth), and the non-U.S. citizen mother wants the child to have U.S. citizenship, she should consult with an experienced immigration practitioner who may help her obtain the requisite proof through adjudication that her child was entitled to U.S. citizenship from birth.

SPECIAL CASE: ASSISTED REPRODUCTIVE TECHNOLOGY

In order for a child born using assisted reproductive technology to be a U.S. citizen from birth under the preceding provisions, one of the following must be true:

• The genetic father must be a U.S. citizen; or 
• The genetic mother must be a U.S. citizen; or 
• The genetic mother must be a U.S. citizen and the gestational and legal mother of the child at the time and place of the child's birth.[16] 

In most situations, the parents will likely be required to provide details of the circumstances surrounding the child's conception in order to establish that the child was a U.S. citizen from birth.

ADOPTED CHILDREN

None of the preceding provisions apply to children adopted by U.S. citizen parents abroad.[17] [18]

OBTAINING PROOF OF CITIZENSHIP

In situations where a child is born overseas and eligible for citizenship from birth on account of the citizenship of one or both parents, his or her parents should contact the nearest U.S. embassy or consulate to apply for an FS-240, Consular Report of Birth Abroad of a Citizen of the United States of America.[19] The FS-240 serves as proof of citizenship. Since obtaining an FS-240 is the easiest way to obtain proof of citizenship expeditiously, eligible U.S. citizen parents who anticipate that they may give birth to a child overseas are well advised to ensure that they know the location of the nearest U.S. embassy or consulate.

Parents who return to the United States without acquiring an FS-240 may instead file a Form N-600, Application for Certificate of Citizenship[20] at their nearest United States Citizenship and Immigration Services (USCIS) office.

A child who is lawfully a citizen at birth does not need proof of citizenship in order to be a U.S. citizen.[21] However, failure to obtain documentation that a child born to U.S. citizen parents abroad is a U.S. citizen may lead to complications later when seeking to obtain a U.S. passport or registering for a U.S. school.[22]

Please visit the myattorneyusa.com website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

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[1] The two "outlying possessions" pursuant to 8 C.F.R. § 1101(29) are Swains Island and American Samoa
[2] INA § 301(c)
[3] INA § 301(d)
[4] Defined in section 1 of the International Organizations Immunities Act (59 Stat. 669; 22 U.S.C. 288)
[5] INA § 301(g)
[6] S. Kurzban, Kurzban's Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool (AILA 14th Ed. 2014) 1788, citing; U.S. v. Flores-Villar, 536 F.3d 990, 994-98 (9th Cir. 2008), affirmed by an equally divided court, 564 U.S. __, 131 S.Ct. 2312 (2011) (per curiam) [holding that a father could not transmit citizenship to child under current law requiring 5 years of physical presence in the United States since the law required 10 years of physical presence in the United States when the child was born]
[7] Kurzban 1858
[8] Kurzban 1789
[9] INA § 301(e)
[10] INA § 309(c)
[11] S. Kurzban 1790, citing; 8 C.F.R. ; Matter of Tijerina-Villarreal, 13 I&N Dec. 327, 330 (BIA 1969), citing Matter of A.M., 7 I&N Dec. 332, 336 (BIA 1956) and U.S. ex rel. Rongetti v. Neely, 207 F.2d 281, 284 (7th Cir. 1953); 8 C.F.R. pt. 301; 8 C.F.R. § 341.2(c) [explaining that the burden is on the petitioner to rebut alienage]
[12] INA § 309(a)(1)
[13] INA § 309(a)(2)
[14] INA § 309(a)(3)
[15] INA §§ 309(1)(4)(A)-(C)
[16] Kurzban 1788, citing;
[17] Kurzban 1789, citing; Marquez-Marquez v. Gonzalez, 455 F.3d 548 (5th Cir. 2006); Colainni v. INS , 490 F.3d 185, 197-89 (2d Cir. 2007)
[18] Kurzban 1789, for obtaining U.S. citizenship for children adopted abroad, see instead INA § 322
[19] Follow the link for info from the Department of State regarding Form FS-240s
[20] Follow the link for the USCIS page on instructions for filing Form N-600
[21] Kurzban 1788, citing; U.S. v. Smith-Baltither, 424 F.3d 913, 920-21 (9th Cir. 2005)
[22] "Birth Abroad of a U.S. Citizen," CBP, September 4, 2014 (Retrieved Jul. 28, 2015), available at https://help.cbp.gov/app/answers/detail/a_id/1043/~/birth-abroad-of-a-u.s.-citizen

Sources:

• Kurzban, Ira J. Kurzban's Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool. 14th ed. Washington D.C.: ALIA Publications, 2014. 1788-90, 1853, Print. Treatises & Primers.
• "Birth Abroad of a U.S. Citizen," CBP, September 4, 2014 (Retrieved Jul. 28, 2015), available at https://help.cbp.gov/app/answers/detail/a_id/1043/~/birth-abroad-of-a-u.s.-citizen
• "Birth of U.S. Citizens Abroad," DOS, Bureau of Consular Affairs, (Retrieved Jul. 28, 2015), available at http://travel.state.gov/content/passports/english/abroad/events-and-records/birth.html