What is International Adoption?

What is International Adoption?

When a U.S. citizen or lawful permanent resident (LPR) decides to adopt a child from overseas, one of the most important legal considerations is following the proper set of international adoption procedures to lawfully adopt the child and in order to confer U.S. citizenship or LPR status to the newest member of his or her family.  In this article, I will provide a brief overview of the main international adoption programs to give readers a general picture of how the international adoption laws and procedures work. Due to the complicated nature of the process, it is important to consult with an experienced immigration attorney who has experience working as an international adoption attorney.

Hague Convention Process

The Hague Convention Process for international adoption is available to U.S. citizens only.  If a certain U.S. citizens seek to adopt a child after the effective date of the Hague Convention, April 1, 2008, from a Hague Convention country, he or she must follow the Hague Process.

The Hague Process is required if all of the following are true:

• The child is under the age of 16;
• The child habitually resides in a Hague Country;
• The parents are married and U.S. citizens who habitually reside in the United States, both of whom sign the application; or
• The parent is an unmarried U.S. citizen who is at least 25 years of age and who habitually resides in the United States.

Under section 101(b)(1)(G) of the Immigration and Nationality Act (INA), the birth sibling of a Hague Convention adoptee may qualify to be adopted if he or she is over the age of 16, but under the age of 18.

In order to complete an adoption through the Hague Process, the applicants must work with a Hague Accredited Adoption Service Provider (ASP) and must complete a Hague adoption home study.  The applicant(s) must have approved a Form I-800A, Application for Determination of Suitability to Adopt a Child from a Convention Country, to move forward with adopting the child.  After the provisional approval of the Form I-800, Petition to Classify Convention Adoptee as an Immediate Relative, the applicants may work with the Department of State (DOS) to obtain a visa for the child and complete the adoption.  It is important to note that it is illegal to adopt a child from a Hague Convention country without undergoing the proper Hague Convention international adoption process. If the adoption will be completed overseas, the child may receive an IH3 visa, whereas if the adoption will be completed in the United States, the child will be classified as an IH4.

If the child is inadmissible for any reason (most commonly for health grounds), the applicant or applicants may file a Form I-601, Application for Waiver of Ground of Inadmissibility.

Orphan Process

The Orphan Process is used in cases where the Hague Process would be used, but in cases where the adoption is from a non-Convention country.  Like the Hague Process, the Orphan Process may only be used by married U.S. citizen parents who habitually reside in the United States or by an unmarried U.S. citizen parent who habitually resides in the United States and is over the age of 25.

To begin the process, the applicants must undergo a home study completed by an person authorized to conduct a home study in the applicant’s state.  If the identity of the intended adopted child is known, the applicant or applicants must file the Form I-600, Petition to Classify Orphan as an Immediate Relative.  If the applicant or applicants do not know the identity of the child, the correct form is the Form I-600A, Application for Advance Processing of Orphan Petition.  The Form I-600A may also be used if the country from which a child will be adopted is not yet known, although this will not allow the applicant or applicants to adopt a child from a Hague Convention country.

The age requirements for a child to be defined as an “adopted child” are the same in Orphan cases as in Convention cases.  The application must be filed before the child turns 16 years of age, except in the case of the natural born sibling of an Orphan Process adoptee, in which case the application may be filed after the child turns 16 years of age but before the child turns 18 years of age.  The USCIS is required to investigate whether the intended adoptee is actually an orphan as defined by U.S. law and that the applicant or applicants obtained a valid adoption or grant of custody in the child’s home country.

After completing these requirements, the applicant or applicants may work to complete the process by obtaining a visa for the child with DHS.  The child will receive an IR3 visa if the adoption is being completed overseas or an IR4 visa if the adoption child is being admitted for the adoption to be completed in the United States.

If the child is inadmissible for any reason (most commonly for health grounds), the applicant or applicants may file a Form I-601, Application for Waiver of Ground of Inadmissibility.

Immediate Relative Petition

Finally, if a legal adoption has taken place, if the child has resided with the legal adoptive parent(s) for at least two years, and if the child qualifies as an adoptive child under the immigration laws, the parent(s) may file an immediate relative petition to confer status to the child.  Unlike the Hague Convention and Orphan international adoption processes, this process is open to LPR parents as well as to U.S. citizens.  The child must meet the following requirements to qualify as an adoptive child under the immigration laws:

• Have been adopted before his or her 16th birthday (or 18th birthday in the case of the natural sibling of an adopted child);
• Have resided with the adoptive parent(s) for at least two years (unless the child is subjected to battery or extreme cruelty by an adoptive parent or by a family member of the adoptive parent residing in the same household).

An adopted child entering the United States through the immediate relative petition process may be granted an IR2 visa.

Conclusion:  International Adoption

It is important for parents seeking to obtain an international adoption to carefully consider whether they are ready to provide a child from overseas a loving home in the United States.  Provided that the answer is yes, parents should carefully consider how they want to adopt a child and obtain good counsel for guidance through the immigration components of the international adoption processes.

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.

Resources and materials:

Alexander J Segal - "International Adoption"

Lawyer website: http://myattorneyusa.com

Provisional Unlawful Presence Waiver

Introduction to Provisional Unlawful Presence Waivers

The provisional unlawful presence waiver was originally created in regulations in 2013.  A new provisional unlawful presence waiver final rule will take effect on August 29, 2016.  The new rule will generally broaden the number of people who will be able to seek and be granted provisional unlawful presence waivers.  This article will examine the new regulatory scheme.

The provisional unlawful presence waiver allows for certain beneficiaries of approved immigrant visa petitions to apply for a provisional unlawful presence waiver before proceeding abroad to apply for an immigrant visa through the Department of State (DOS).  A provisional unlawful presence waiver only applies to inadmissibility under section 212(a)(9)(B)(i) of the Immigration and Nationality Act (INA) for the 3- and 10-year unlawful presence bars.  It does not provisionally waive any other ground of inadmissibility.

The concept of the waiver is that, if approved, it may greatly shorten the visa application process for a waiver beneficiary and help promote family unity.  It is important to note that the granting of a provisional unlawful presence waiver still requires an alien to proceed abroad to seek a visa from the DOS.  An alien who is granted a provisional unlawful presence waiver will not be eligible for adjustment of status.

Furthermore, if the beneficiary of a provisional unlawful presence waiver is found to be ineligible for an immigrant visa for reasons other than for being subject to a 3- or 10-year bar of inadmissibility, the provisional unlawful presence waiver will become moot and the applicant would have to apply for a waiver of the unlawful presence bar from overseas.

Eligibility for Provisional Unlawful Presence Waivers

First, an alien must be the beneficiary of an approved immigrant visa petition in one of the following categories:

• Family-sponsored;
• Employment-based; or
• Diversity visa.

Secondly, the alien must be subject to the 3- or 10-year bar of inadmissibility for unlawful presence. This is important because the provisional unlawful presence waiver only applies to inadmissibility for the 3- or 10-year bars.  It is important to note that the provisional unlawful presence waiver cannot waive inadmissibility stemming from the permanent bar, which is triggered by having been subject to the 10-year bar of inadmissibility and then attempted to reenter without being admitted or paroled.

In order to be granted a provisional unlawful presence waiver, an applicant must demonstrate that the refusal of his or her admission would result in “extreme hardship” to a:

• U.S. citizen spouse;
• U.S. citizen parent;
• LPR spouse; or
• LPR parent.

Although a provisional unlawful presence waiver will be revoked if an alien is found to be inadmissible on other grounds or otherwise ineligible for the visa being sought by the DOS, the United States Citizenship and Immigration Services (USCIS) have abandoned the “reason to believe” that the alien may be inadmissible on other grounds standard.  Under the previous regulatory scheme, the USCIS could deny a provisional unlawful presence waiver application if it had reason to believe that the alien was inadmissible on other grounds.  Under the new rules, the USCIS will only consider whether the applicant satisfied the extreme hardship to a qualifying relative requirement and whether he or she merits a favorable exercise of discretion.

Application for a Provisional Unlawful Presence Waiver

The provisional unlawful presence waiver process begins with the filing of the Form I-601A, Application for Provisional Unlawful Presence Waiver.  An applicant must meet the following requirements in order to file and have approved Form I-601A:

• Be at least 17 years of age;
• Be present in the United States at the time of the filing of the application;
• Have a pending case before the DOS based on an approved immigrant visa petition for which the processing fee has been paid (or based on selection to participate in the Diversity Visa program for the fiscal year for which he or she registered);
• Must intend to depart after being granted a provisional unlawful presence waiver in order to apply for an immigrant visa with the DOS;
• Must meet the requirements for an unlawful presence waiver.

An alien who is in removal proceedings may not be granted a provisional unlawful presence waiver. An alien who is subject to an administratively final order of removal, deportation, or exclusion must have filed and had approved a Form I-212, Application for Permission to Reapply for Admission in order to apply for a provisional unlawful presence waiver.

The alien must submit any and all required biometrics with his or her application and pay the requisite fees.  If the alien is not thorough in filing his or her application, the application will be denied.

The alien carries the burden of proof of establishing that he or she is eligible for a provisional unlawful presence waiver and that he or she merits a favorable exercise of discretion.

Approval or Denial

If approved, the provisional unlawful presence waiver does not take effect until the alien departs from the United States, appears for an immigrant visa interview with DOS, and is determined to be otherwise eligible for an immigrant visa.  The petition will be automatically revoked if the applicant is found to be ineligible for the immigrant visa for which he or she obtained a provisional unlawful presence waiver.  If the petition is still valid, the applicant may apply for an unlawful presence waiver abroad.  If the alien attempts to reenter the United States without inspection and admission or parole at any time before obtaining an immigrant visa, the provisional unlawful presence waiver will be revoked.

If the provisional unlawful presence waiver application is denied, it will be denied without prejudice to a subsequent application for a provisional unlawful presence waiver or unlawful presence waiver. However, the applicant must establish eligibility from scratch in any subsequent applications.

Conclusion

The provisional unlawful presence waiver expedites the visa application process for a qualifying individual who would only be ineligible for an immigrant visa based on the 3- or 10-year bar of inadmissibility.  Any immigrant visa applicant who may be subject to the 3- or 10-year bar should consult with an experienced immigration attorney before taking action.  An experienced immigration attorney will be able to assess the situation and determine whether applying for a provisional unlawful presence waiver may be beneficial given the facts of the specific situation.

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.

Resources and materials:

Alexander J Segal - "Provisional Unlawful Presence Waivers (Rules Taking Effect August 29, 2016)", "New Final Rule on Provisional Unlawful Presence Waivers"

Lawyer website: http://myattorneyusa.com

Estimated AAO Case Processing Times as of July 1, 2016

On July 14, 2016, the Administrative Appeals Office (AAO) released its updated case processing times report [link]. The processing times are as of July 1, 2016.

The AAO case processing times are for appeals of unfavorable decisions by United States Citizenship and Immigration Services (USCIS) field offices after an “initial field review.” After initially receiving an unfavorable decision, an applicant may ask for the field office to conduct an initial field review. The USCIS advises that the initial field review should be completed within 45 days.

If the field office does not take favorable action on the appeal, it will then send the applicant a Notice of Transfer to the AAO. The following chart will indicate the estimated AAO processing times for handling appeals.

The expected case processing times for the AAO to render a decision is 6 months or less for all forms as of July 1, 2016. This is mostly unchanged from the expected AAO case processing times as of February 1, 2016, save for the I-129F, Petition for Fiancée, and the Form N-600, Certificate of Citizenship, which were both 7 months as of February 1, 2016 [see blog]. The chart [link] contains the estimated AAO case processing times as of July 1, 2016.

The USCIS explains that the AAO cannot provide case status information on appeals awaiting initial field review by a USCIS field office. However, the USCIS explains that the applicant may contact the USCIS National Customer Service line at (800) 375-5283 (the TTY number is (800) 767-1833) to inquire about a case if the applicant has not received any of the following from the USCIS within 75 days of filing the appeal:

• An approval notice;
• A request for evidence;
• A Notice of Transfer to the AAO; or
• Any other correspondence or action from the [USCIS] field office.

Persons filing immigration forms for benefits or immigration relief should always consult with an experienced immigration attorney. An experienced immigration attorney will not only be of assistance in the process of appealing an unfavorable decision by the USCIS, but also in the initial filing of a form in helping the applicant to ensure that he or she is filing for the correct immigration benefits and that the forms are properly filed with all of the requisite evidence.

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.

Lawyer website: http://myattorneyusa.com

How to Apply for Asylum and Withholding of Removal

What are Asylum and Withholding of Removal?

Asylum, statutory withholding of removal, and withholding of removal under the Convention Against Torture (CAT) are three distinct forms of immigration relief.

A person may apply for asylum affirmatively (outside of immigration proceedings) or defensively (while in immigration proceedings). A person may be granted asylum based on past persecution or prospective persecution in his or her home country. A grant of asylum confers immigration status and a path to permanent residency. An asylee may confer benefits on certain derivatives.

Withholding of removal is only available in removal proceedings. Unlike asylum, it only applies to prospective threats to the life or freedom of the applicant (statutory) or prospective torture (CAT). An order of withholding of removal or deferral of removal (a separate CAT benefit) may only be entered after a final order of removal is first entered against the applicant. A grant of withholding of removal does not confer a lawful immigration status, a path to permanent residency, or derivative benefits. Furthermore, withholding of removal only withholds the removal of an applicant to a specific country.

Affirmative Asylum Applications

In order to apply for asylum outside of removal proceedings, the person must be present in the United States and file the Form I-589, Application for Asylum and for Withholding of Removal. In general, the applicant must file within one year of arrival in the United States. The applicant will have an asylum interview after filing his or her application. The applicant should receive his or her decision within 180 days of the interview.

Although an alien cannot apply for withholding outside of removal proceedings, his or her application will be considered for withholding of removal if the applicant is served with a Notice To Appear during the pendency of the asylum application.

Defensive Asylum Applications in Removal Proceedings and Withholding of Removal

An alien already in removal proceedings may file the Form I-589 defensively. An application for asylum in removal proceedings on a Form I-589 shall also be considered an application for withholding of removal. It may also be considered an application for relief under CAT if the applicant indicates on the Form I-589 that he or she has a fear of torture or if the evidence submitted by the applicant suggests that he or she would be tortured in the country of intended removal. An applicant in removal proceedings may file the Form I-589 even if he or she is subject to a bar to applying for asylum and the application will be considered for withholding of removal.

Under certain circumstances, an alien who is ordered removed may be eligible to file a motion to reopen removal proceedings or to ask the Board of Immigration Appeals (BIA) to reconsider its decision on an asylum/withholding application. In general, this is a potential remedy if there is evidence pertinent to the applicant’s eligibility for relief that is based on changed country conditions and that could not have been available at the time of the original application.

Special Cases

If an alien is found to be inadmissible at the border, he or she may be granted a credible fear interview if he or she expresses a fear of persecution or of being returned to his or her home country. If the alien is found to have a credible fear of persecution, he or she will be subject to section 240 or section 208(c) (if a stowaway) proceedings.

Aliens who are placed in expedited removal proceedings or who become subject to an order of reinstatement of removal may express a fear of persecution and be granted a reasonable fear interview. Such aliens will only be eligible for withholding of removal and not for asylum. If the alien is found to have a credible fear of persecution, he or she will be referred to immigration proceedings for full consideration of the claims.

Conclusion

If an alien believes that he or she has a claim to asylum or withholding of removal, he or she should consult with an experienced immigration attorney immediately. An experienced immigration attorney will be able to assess the alien’s situation and determine whether it warrants applying for asylum and/or withholding of removal. If so, an experienced immigration attorney will be able to guide the applicant through the entire process. The asylum and withholding of removal application process is complicated, and it requires extensive documentation and testimony to corroborate an applicant’s claims.

It is important to note that there are severe penalties for filing a “frivolous” asylum application or for not being truthful in the context of the asylum application process. Applying for asylum and withholding of removal is a serious step and not simply a procedural way to seek immigration status or relief from removal. It is crucial to be honest when making an asylum claim and throughout the application process.

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.

Resources and materials:

Alexander J Segal - "Asylum in the United States", "Withholding of Removal for Aliens Subject to Expedited Removal as Aggravated Felons or Reinstatement", “Applying for Withholding of Removal in Section 240 Removal Proceedings”

Lawyer website: http://myattorneyusa.com