Notes on November Q&A Between the National Benefits Center and AILA

On November 3, 2015, the USCIS National Benefits Center (NBC) conducted a question and answer session with the American Immigration Lawyers Association (AILA).[1] In this post, I will briefly look at some of the more interesting points from the Q&A.[2]

PROGRESS TOWARD A PAPERLESS ENVIRONMENT FOR I-90 APPLICATIONS

The NBC discussed its continuing effort to work “toward a paperless environment for I-90 applications.” While the I-90 application may still be submitted by paper to the appropriate USCIS Lockbox, all paper applications are entered into the USCIS ELIS online platform. Applicants who initially submit the I-90 application by paper are provided with the opportunity to create a USCIS ELIS online account.

PROVISIONAL (STATESIDE) UNLAWFUL PRESENCE WAIVERS (FORM I-601A)

• The current processing date for the Form I-601A is June 21, 2015. The date that was reflected earlier on the USCIS website was incorrect.
• USCIS is reviewing a proposed rule that would expand eligibility for Form I-601A provisional unlawful presence waivers. The 60-day public comment period for the proposed rule ended on September 21, 2015.
• The NBC updated its policy on reviewing the DOS Immigrant Visa Processing Fee after technical difficulties in the summer of 2015. The NBC will no longer deny Form I-601A cases where the applicant provides a DOS Immigrant Visa fee receipt showing that the fee was paid. However, cases where there is no evidence that the fee was paid or where the receipt merely indicates that the fee is “In process” will continue to be denied.

USCIS DRAFT POLICY MANUAL GUIDANCE ON EXTREME HARDSHIP

The notice and comment period for USCIS's Draft Policy Manual Guidance on Extreme Hardship[3] ended on November 23, 2015. At the time of the Q&A, USCIS stated that the Policy Manual Guidance on Extreme Hardship will be implemented following review of public comments on a date TBD.

ADJUSTMENT OF STATUS INTERVIEW WAIVERS

The NBC reaffirmed that the following categories of adjustment of status applicants are eligible to be considered for waivers of the adjustment of status interview requirement:

• Unmarried child of a U.S. citizen
• Parent of a U.S. citizen
• K1 and K2 visa holders
• Unmarried and under the age of 14 child of a Lawful Permanent Resident
• Natives/citizens of Cuba

However, the NBC noted that an interview may still be scheduled even if a waiver is ultimately granted. Furthermore, USCIS has discretion to require an adjustment of status interview for any adjustment of status application.

REQUESTS FOR EVIDENCE FOR THE FORM I-864, AFFIDAVIT OF SUPPORT

The NBC changed its I-864 checklist (used for the initial review of an I-864 application) so that if the income on a tax return submitted with the I-864 does not meet the federal poverty guideline for the household, the NBC will further check if there is evidence of current income submitted. If there evidence of current income was submitted, a USCIS officer will assess the sufficiency of the current income before sending a Request for Evidence (RFE).

1. “Q&A: USCIS National Benefits Center (NBC) and American Immigration Lawyers Association (AILA) Meeting,” (Nov 3, 2015)
2. Alexander J Segal "Notes on November Q&A Between the National Benefits Center and AILA" (Jan 21, 2016)
3. Memorandum, DHS Secretary Jeh Johnson, “Expansion of the Provisional Waiver Program,” (Nov. 20, 2014)

Parole In Place for Family Members of U.S. Military Service Members and Former U.S. Military Service Members

Introduction

The Attorney General has limited discretionary authority to grant parole to an alien who is in the United States without an immigration status.  This exercise of parole is called “parole in place.”  A United States Citizenship and Immigration Services (USCIS) Memorandum (“the Memo”)[1] released on November 15, 2015, formalized a process for granting parole in place to family members of certain active duty military service members and former active duty service members.  Parole in place waives the entry without inspection ground of inadmissibility and allows the alien to begin the adjustment of status process.  This article will provide a brief overview of the parole in place procedures set forth in the Memo.

Statutory Background

The Attorney General has limited discretionary authority to grant both parole to an alien abroad and parole in place to an alien in the United States.  Section 212(d)(5)(A) of the Immigration and Nationality Act (INA) allows for the Attorney General, in his or her discretion, to grant parole for either urgent humanitarian reasons or if he or she determines that there is a significant public benefit supporting the grant of parole.

Parole in Place for Family Members of Military Service Members

The Memo applies to the parent(s), spouse, and child(ren) of:

• Active duty members of the U.S. Armed Forces
• Former members of the U.S. Armed Forces
• Active duty members of the Selected Reserve of the Ready Reserve
• Former members of the Selected Reserve of the Ready Reserve.

Prior to the issuance of the Memo, parole in place was often granted as a matter of discretion for such individuals as serving a significant public benefit.  The Memo explains that favorable discretion should ordinarily be exercised for qualifying family members of persons in the above four categories. However, serious adverse factors may weigh against granting parole in place.

Benefits of Parole in Place

The Memo instructs that parole in place should be granted for an initial period of one year, and that it may be reauthorized in subsequent one-year increments.

Parole in place only waives inadmissibly under section 212(a)(6)(A)(i) relating to entry without inspection. This point is very important with regard to eligibility for adjustment of status.

In order to adjust status under section 245(a), an alien must have been admitted or paroled into the United States.  If the parolee is the immediate relative of a U.S. citizen or falls under certain special categories, he or she will be exempt from the bar to adjustment of status found in section 245(c)(2) which requires that the applicant have maintained continuously a lawful status since his or her last entry into the United States.

While parole in place may allow certain beneficiaries to adjust status, it does not in and of itself guarantee that a beneficiary will be eligible to adjust to permanent resident status.  For one, as we noted, parole in place only cures inadmissibility relating to entry without inspection.  Any other factors that may render the alien ineligible for adjustment of status must be addressed separately in order for the alien to be able to become a permanent resident.

Furthermore, the eventual eligibility of the alien for adjustment of status is not a prerequisite for granting parole in place.[2]  Thus, parole in place may be granted for discretionary reasons even if the alien is not likely to be able to adjust status.

Requesting Parole in Place

In order to request parole in place, an alien must submit the following:

• Completed Form I-131, Application for Travel Document (may be filed without fee);
• Evidence of family relationship;
• Evidence that family member is an Active Duty member of the U.S. Armed forces, individual in the Selected Reserve of the Ready Reserve, or an individual who previously served in the U.S. Armed Forces or the Selected Reserve of the Ready Reserve;
• Two identical passport style photos;
• Evidence of any favorable discretionary factors that the alien wishes for USCIS to consider.

Conclusion

Before applying for parole in place, an alien should consult with an experienced immigration attorney.  An experienced immigration attorney will be able to assess the alien’s unique situation and determine whether requesting parole in place would be to the benefit of the alien.  Furthermore, in the event that the alien is granted parole in place, an experienced immigration attorney will have the tools necessary to assist the alien in applying for adjustment of status if he or she is eligible.

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.

1. Policy Memo, USCIS, Parole of Spouses, Children and Parents of Active Duty Members of the U.S. Armed Forces, the Selected Reserve of the Ready Reserve, and Former Members of the U.S. Armed Forces or Selected Reserve of the Ready Reserve and the Effect of Parole on Inadmissibility under Immigration and Nationality Act § 212(a)(6)(A)(i), PM-602-0091 (Nov. 15, 2013)
2. Q&As, Meeting USCIS Field Operations Directorate with AILA (Apr. 10, 2014), published on AILA InfoNet at Doc. No. 14050844

Please Read our Full Article to Learn More:

http://myattorneyusa.com/parole-in-place-for-families-of-military-service-members-and-veterans

Or Read our Overview of Immigration Parole:

http://myattorneyusa.com/parole

Lawyer website: http://myattorneyusa.com

Texas City Councilman Accused of Alien Smuggling

In our myriad immigration debates, it is common to see politicians accuse each other of advancing policies that will make our immigration system worse. If you read my 2016 Presidential Candidate Profiles, you will find that I think there is often something to the accusations. However, I recently came across a story of a politician accused of flaunting our immigration laws so egregiously that I think Republicans, Democrats, and the unaffiliated will be able to unite in calling this a bona fide example of a politician damaging our immigration system.

KENS 5 Eyewitness News in San Antonio reports that Marco Antonio Rodriguez, a City Councilman from Crystal City, Texas, was arrested for allegedly smuggling three undocumented aliens into the United States.[1]

Rodriguez was reportedly pulled over by a Border Patrol agent. Rodriguez attempted to run away after a brief conversation, but the Border Patrol agent caught up to him and discovered three undocumented aliens who he was smuggling. Breitbart reports that according to the criminal complaint, Rodriguez admitted that he had been hired by the three aliens who he was smuggling and was paid up to $1,900 to transport them to San Antonio.[2] Reportedly, Rodriguez also admitted that he had transported aliens on two other occasions for $500 and $1,400.

As if to add insult to injury, the Associated Press reports that the truck Rodriguez was using was reported stolen by a Denver-based company.[3]

Rodriguez is being held in a federal detention center and is reportedly facing federal human smuggling charges.

Unfortunately, because I have not seen the criminal complaint, I cannot comment more specifically on the Crystal City Councilman's particular situation. However, we can use this as an opportunity to look at some of the Immigration and Nationality Act's (INA) provisions that criminalize “bringing in and harboring certain aliens.”

The INA discusses criminal penalties for bringing in and harboring certain aliens in 274(a)(1)(A) and (B) [codified as 8 U.S.C. 1324]. Section 274(a)(1)(A) criminalizes:

1. Smuggling aliens into the United States;
2. Transporting unlawful aliens within the United States;
3. Harboring unlawful aliens within the United States;
4. Encouraging or inducing unlawful entry;
5. A conspiracy to commit any of the acts above.

(2-5 only criminalize the activities if they are done knowingly, or in reckless disregard of the alien's lack of status)

Section 274(a)(1)(B) lists the penalties for the violations described in 274(a)(1)(A). All activities covered by 274(a)(1)(A) are punishable by fines and imprisonment. The maximum possible sentences depend on certain facts regarding the specific violation.

Again, I must reiterate that we do not know all of the facts of the Rodriguez's situation. However, both smuggling aliens into the United States and transporting unlawful aliens within the United States for private financial gain is punishable by a fine under title 18 of the U.S. Code and/or imprisonment of up to 10 years.

In any case, I think we can all agree that if the allegations as reported are proven true, the City Councilman from Crystal City is an elected official who is certainly not making a positive contribution to U.S. immigration enforcement and reform.

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.

1. “South Texas city councilman accused of smuggling immigrants,” KENS 5, January 6, 2015, http://www.kens5.com/story/news/2016/01/05/south-texas-city-councilman-accused-smuggling-immigrants/78337444/
2. Houston, Warner Todd, “South Texas City Official Arrested for Smuggling Illegals Across the Border,” Breitbart, January 6, 2015, http://www.breitbart.com/big-government/2016/01/06/south-texas-city-official-arrested-smuggling-illegals-across-border/
3. Associated Press, “State briefs: South Texas city councilman charged in human smuggling case,” The Courier of Montgomery County, http://www.yourhoustonnews.com/courier/news/state-briefs-south-texas-city-councilman-charged-in-human-smuggling/article_8465e1a7-ae77-568a-80e7-aa6075da1831.html

Lawyer website: http://myattorneyusa.com

Rules for Using a TPS-Related EAD While Holding a Valid Nonimmigrant Status

Introduction

An alien who is granted temporary protected status (TPS) may obtain an Employment Authorization Document (EAD) along with TPS.  Furthermore, he or she may maintain a valid nonimmigrant status along with TPS.  Certain nonimmigrant statuses limit or outright prohibit the employment that the nonimmigrant may engage in while on status.  This leaves open the question of whether an alien may work based off his or her employment authorization from TPS and maintain a valid nonimmigrant status that would not allow that employment.

Using a TPS-Related EAD Affects Nonimmigrant Status that Limits or Prohibits Employment

A United States Citizenship and Immigration Services (USCIS) FAQ[1] addressed the following question:

“Can someone with a non-immigrant status (e.g. F-1, B-2, etc.) apply for TPS?  If so, will having or using a TPS-related EAD affect his or her status?”

As we explained in the introduction, an alien holding a valid nonimmigrant status may obtain TPS if he or she is eligible.

USCIS answered the second question as follows:

“The individual can continue to hold both statuses, as long as he or she remains eligible for both.”

USCIS further explained:

“Receiving TPS or a TPS-related EAD does not alter any rules limiting employment for certain nonimmigrants, such as F-1 students or B-2 visitors.  Before someone holding both nonimmigrant status and TPS chooses to work using a TPS-related EAD, he or she should carefully consider whether that employment could violate the terms of the nonimmigrant status…”

In short, while a person may obtain a TPS-related EAD regardless of whether he or she holds a nonimmigrant status that limits or prohibits employment, that fact does not change any requirements for the nonimmigrant status.  For example, if a B-2 visitor with TPS were to engage in employment using a TPS-related EAD, he or she would be considered to have violated the B-2 status.

Conclusion

Under USCIS’s current interpretation of the TPS rules, an alien holding TPS and a valid nonimmigrant status that limits or prohibits employment will be considered to have violated his or her nonimmigrant status if he or she uses a TPS-related EAD to engage in employment that is authorized by the EAD, but not under the nonimmigrant status.

A person holding TPS and a valid nonimmigrant status should consult with an experienced immigration attorney for guidance on whether accepting employment using the TPS-related EAD would conflict with his or her nonimmigrant status.  This will always depend on the rules of the nonimmigrant status in question.

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.

Please Read our Full Article to Learn More:

http://myattorneyusa.com/using-employment-authorization-from-tps-while-holding-nonimmigrant-status

1. USCIS, FAQs: Statelessness and the Ability to Work for Joint F-1/TPS, published on AILA InfoNet at Doc. No. 15090306 (Posted on September 3, 2015)

Lawyer website: http://myattorneyusa.com