Law Office of Joseph Muller

New rule impacting immigration court procedures

Last updated on May 30, 2024

On May 29, 2024 the Executive Office for Immigration Review published a final rule titled “Efficient Case and Docket Management in Immigration Proceedings.” The rule makes important changes to the management of immigration cases in court and will be final on July 29, 2024.

Some of the notable changes include:

  • Amending regulations to give “noncitizen” the same meaning as “alien”
  • Explicitly giving immigration judges and the members of the Board of Immigration Appeals (BIA) authority to order “administrative closure, termination of proceedings, and dismissal of proceedings.”
  • Setting out the procedures for review of appeals at the BIA
  • Articulating the authority for immigration judges and the BIA to administratively close cases and the standards for closing and recalendaring cases, and similarly the authority to terminate cases

Changes to administrative closure

Administrative closure is a way for immigration judges and the BIA to close a case without reaching a decision. After being closed, cases can still be recalendared.

The authority of immigration judges and the BIA to administratively close cases has been unclear during the past few years. While it was used in many cases for many years, the BIA changed course under the Trump Administration in Matter of Castro-Tum, 27 I&N Dec. 271 (A.G. 2018). This decision was part of an effort to restrict immigration judges and make it more difficult for them to suspend cases, rather than to deport people. That decision was overturned under the Biden Administation in Matter of Cruz-Valdez, 28 I&N Dec. 326 (A.G. 2021). Cruz-Valdez promised to maintain the status quo while regulations were promulgated, and a mere three years later they are finally ready.

New regulations for immigration judges

The new regulations on motions to administratively close and recalendar cases for immigration judges are:

1003.10(b) * * * In deciding the individual cases before them, and subject to the applicable governing standards set forth in paragraph (d) of this section, immigration judges shall exercise their independent judgment and discretion and may take any action consistent with their authorities under the Act and regulations that is necessary or appropriate for the disposition or alternative resolution of such cases. Such actions include administrative closure, termination of proceedings, and dismissal of proceedings. The standards for the administrative closure, dismissal, and termination of cases are set forth in § 1003.18(c), 8 CFR 1239.2(c), and § 1003.18(d), respectively. Immigration judges shall administer oaths, receive evidence, and interrogate, examine, and cross-examine noncitizens and any witnesses. * * *

1003.18(c)

Administrative closure and recalendaring.

Administrative closure is the temporary suspension of a case. Administrative closure removes a case from the immigration court’s active calendar until the case is recalendared. Recalendaring places a case back on the immigration court’s active calendar.

(1) Administrative closure before immigration judges.

An immigration judge may, in the exercise of discretion, administratively close a case upon the motion of a party, after applying the standard set forth at paragraph (c)(3) of this section. The administrative closure authority described in this section is not limited by the authority provided in any other provisions in this title that separately authorize or require administrative closure in certain circumstances, including 8 CFR 214.15(l), 245.15(p)(4), 1214.2(a), 1214.3, 1240.62(b), 1240.70(f) through (h), 1245.13, 1245.15(p)(4)(i), and 1245.21(c).

(2) *** Standard for administrative closure and recalendaring.

An immigration judge shall grant a motion to administratively close or recalendar filed jointly by both parties, or filed by one party where the other party has affirmatively indicated its non-opposition, unless the immigration judge articulates unusual, clearly identified, and supported reasons for denying the motion. In all other cases, in deciding whether to administratively close or to recalendar a case, an immigration judge shall consider the totality of the circumstances, including as many of the factors listed under paragraphs (c)(3)(i) and (ii) of this section as are relevant to the particular case. The immigration judge may also consider other factors where appropriate. No single factor is dispositive. The immigration judge, having considered the totality of the circumstances, may grant a motion to administratively close or to recalendar a particular case over the objection of a party. Although administrative closure may be appropriate where a petition, application, or other action is pending outside of proceedings before the immigration judge, such a pending petition, application, or other action is not required for a case to be administratively closed.

(i) As the circumstances of the case warrant, the factors relevant to a decision to administratively close a case include:

(A) The reason administrative closure is sought;

(B) The basis for any opposition to administrative closure;

(C) Any requirement that a case be administratively closed in order for a petition, application, or other action to be filed with, or granted by, DHS;

(D) The likelihood the noncitizen will succeed on any petition, application, or other action that the noncitizen is pursuing, or that the noncitizen states in writing or on the record at a hearing that they plan to pursue, outside of proceedings before the immigration judge;

(E) The anticipated duration of the administrative closure;

(F) The responsibility of either party, if any, in contributing to any current or anticipated delay;

(G) The ultimate anticipated outcome of the case pending before the immigration judge; and

(H) The ICE detention status of the noncitizen.

https://www.federalregister.gov/d/2024-11121/p-521

New regulations for the BIA to administratively close and recalendar cases

The new regulations on motions to administratively close and recalendar cases for the BIA are:

(3) Standard for administrative closure and recalendaring. The Board shall grant a motion to administratively close or recalendar filed jointly by both parties, or filed by one party where the other party has affirmatively indicated its non-opposition, unless the Board articulates unusual, clearly identified, and supported reasons for denying the motion. In all other cases, in deciding whether to administratively close or to recalendar a case, the Board shall consider the totality of the circumstances, including as many of the factors listed under paragraphs (l)(3)(i) and (ii) of this section as are relevant to the particular case. The Board may also consider other factors where appropriate. No single factor is dispositive. The Board, having considered the totality of the circumstances, may grant a motion to administratively close or to recalendar a particular case over the objection of a party. Although administrative closure may be appropriate where a petition, application, or other action is pending outside of proceedings before the Board, such a pending petition, application, or other action is not required for a case to be administratively closed.

(i) As the circumstances of the case warrant, the factors relevant to a decision to administratively close a case include:

(A) The reason administrative closure is sought;

(B) The basis for any opposition to administrative closure;

(C) Any requirement that a case be administratively closed in order for a petition, application, or other action to be filed with, or granted by, DHS;

(D) The likelihood the noncitizen will succeed on any petition, application, or other action that the noncitizen is pursuing, or that the noncitizen states in writing or on the record at a hearing that they plan to pursue, outside of proceedings before the Board;

(E) The anticipated duration of the administrative closure;

(F) The responsibility of either party, if any, in contributing to any current or anticipated delay;

(G) The ultimate anticipated outcome of the case pending before the Board; and

(H) The ICE detention status of the noncitizen.

https://www.federalregister.gov/d/2024-11121/p-455

Significance of the changes to administrative closure

Some of the changes here are noteworthy. The rule requires granting joint and unopposed motions absent “unusual” reasons for not doing so. For other motions, immigration judges and the Board will consider the “totality of the circumstances” using the listed factors, but it may also consider other factors not listed. They may also grant a motion even over the opposition of the government or the noncitizen.

The rule is clear that it is not necessary to show any petition or application is pending with USCIS or otherwise in order to close a case. The factors suggest that closure will be used for cases like I-601A waiver applications, which cannot proceed otherwise. They will be evaluating the likelihood of success on those petitions or applications, suggesting that supporting evidence will be required. All things considered, the factors provide a large degree of flexibility for immigration judges and the BIA to close many cases for a variety of reasons.

Motions to terminate

The rule also provides clear guidance on the authority of immigration judges and the BIA to terminate cases. Termination is different from administrative closure because the case is complete and without any opportunity to recalendar. The new rule would add the following regulations for immigration judges and the BIA respectively.

New regulations on motions to terminate for immigration judges

The new regulations providing authority for immigration judges to terminate proceedings are:

1003.18(d) Termination.

Immigration judges shall have the authority to terminate cases before them as set forth in paragraphs (d)(1) and (2) of this section. A motion to dismiss a case in removal proceedings before an immigration

judge for a reason other than authorized by 8 CFR 1239.2(c) shall be deemed a motion to terminate under paragraph (d)(1) of this section.

(1) Removal, deportation, and exclusion proceedings

—(i) Mandatory termination.

In removal, deportation, and exclusion proceedings, immigration judges shall terminate the case where at least one of the requirements in paragraphs (d)(1)(i)(A) through (G) of this section is met.

(A) No charge of deportability, inadmissibility, or excludability can be sustained.

(B) Fundamentally fair proceedings are not possible because the noncitizen is mentally incompetent and adequate safeguards are unavailable.

(C) The noncitizen has, since the initiation of proceedings, obtained United States citizenship.

(D) The noncitizen has, since the initiation of proceedings, obtained at least one status listed in paragraphs (d)(1)(i)(D)(1) through (

4) of this section, provided that the status has not been revoked or terminated, and the noncitizen would not have been deportable, inadmissible, or excludable as charged if the noncitizen had obtained such status before the initiation of proceedings.

(1) Lawful permanent resident status.

(2) Refugee status.

(3) Asylee status.

(4) Nonimmigrant status as defined in section 101(a)(15)(S), (T), or (U) of the Act.

(E) Termination is required under 8 CFR 1245.13(l).

(F) Termination is otherwise required by law.

(G) The parties jointly filed a motion to terminate, or one party filed a motion to terminate and the other party affirmatively indicated its non-opposition, unless the immigration judge articulates unusual, clearly identified, and supported reasons for denying the motion.

(ii) Discretionary termination.

In removal, deportation, or exclusion proceedings, immigration judges may, in the exercise of discretion, terminate the case upon the motion of a party where at least one of the requirements listed in paragraphs (d)(1)(ii)(A) through (F) of this section is met. The immigration judge shall consider the reason termination is sought and the basis for any opposition to termination when adjudicating the motion to terminate.

(A) The noncitizen has filed an asylum application with USCIS pursuant to section 208(b)(3)(C) of the Act pertaining to unaccompanied children, as defined in 8 CFR 1001.1(hh).

(B) The noncitizen is prima facie eligible for naturalization, relief from removal, or lawful status; USCIS has jurisdiction to adjudicate the associated petition, application, or other action if the noncitizen were not in proceedings; and the noncitizen has filed the petition, application, or other action with USCIS. However, no filing is required where the noncitizen is prima facie eligible for adjustment of status or naturalization. Where the basis of a noncitizen’s motion for termination is that the noncitizen is prima facie eligible for naturalization, the immigration judge shall not grant the motion if it is opposed by DHS. Immigration judges shall not terminate a case for the noncitizen to pursue an asylum application before USCIS, except as provided for in paragraph (d)(1)(ii)(A) of this section.

(C) The noncitizen is a beneficiary of Temporary Protected Status, deferred action, or Deferred Enforced Departure.

(D) USCIS has granted the noncitizen’s application for a provisional unlawful presence waiver pursuant to 8 CFR 212.7(e).

(E) Termination is authorized by 8 CFR 1216.4(a)(6) or 1238.1(e).

(F) Due to circumstances comparable to those described in paragraphs (d)(1)(ii)(A) through (E) of this section, termination is similarly necessary or appropriate for the disposition or alternative resolution of the case. However, immigration judges may not terminate a case for purely humanitarian reasons, unless DHS expressly consents to such termination, joins in a motion to terminate, or affirmatively indicates its non-opposition to a noncitizen’s motion.

(2) Other proceedings

—(i) Mandatory termination.

In proceedings other than removal, deportation, or exclusion proceedings, immigration judges shall terminate the case where the parties have jointly filed a motion to terminate, or one party has filed a motion to terminate and the other party has affirmatively indicated its non-opposition, unless the immigration judge articulates unusual, clearly identified, and supported reasons for denying the motion. In addition, immigration judges shall terminate such a case where required by law.

(ii) Discretionary termination.

In proceedings other than removal, deportation, or exclusion proceedings, immigration judges may, in the exercise of discretion, terminate the case upon the motion of a party where terminating the case is necessary or appropriate for the disposition or alternative resolution of the case. However, immigration judges may not terminate a case for purely humanitarian reasons, unless DHS expressly consents to such termination, joins in a motion to terminate, or affirmatively indicates its non-opposition to a noncitizen’s motion.

(iii) Limitation on termination.

Nothing in paragraphs (d)(2)(i) and (ii) of this section authorizes immigration judges to terminate a case where prohibited by another regulatory provision. Further, nothing in paragraphs (d)(2)(i) and (ii) of this section authorizes the immigration judge to terminate a case for the noncitizen to pursue an asylum application before USCIS, unless the noncitizen has filed an asylum application with USCIS pursuant to section 208(b)(3)(C) of the Act pertaining to unaccompanied children, as defined in 8 CFR 1001.1(hh).

https://www.federalregister.gov/d/2024-11121/p-543

New regulations on motions to terminate for the BIA

The new regulations providing authority for the BIA to terminate proceedings are:

(m) Termination. The Board shall have the authority to terminate cases before it as set forth in paragraphs (m)(1) and (2) of this section. A motion to dismiss a case in removal proceedings before the Board for a reason other than authorized by 8 CFR 1239.2(c) shall be deemed a motion to terminate under paragraph (m)(1) of this section.

(1) Removal, deportation, and exclusion proceedings —(i) Mandatory termination. In removal, deportation, and exclusion proceedings, the Board shall terminate the case where at least one of the requirements in paragraphs (m)(1)(i)(A) through (G) of this section is met.

(A) No charge of deportability, inadmissibility, or excludability can be sustained.

(B) Fundamentally fair proceedings are not possible because the noncitizen is mentally incompetent and adequate safeguards are unavailable.

(C) The noncitizen has, since the initiation of proceedings, obtained United States citizenship.

(D) The noncitizen has, since the initiation of proceedings, obtained at least one status listed in paragraphs (m)(1)(i)(D)( 1) through ( 4) of this section, provided that the status has not been revoked or terminated, and the noncitizen would not have been deportable, inadmissible, or excludable as charged if the noncitizen had obtained such status before the initiation of proceedings.

( 1) Lawful permanent resident status.

( 2) Refugee status.

( 3) Asylee status.

( 4) Nonimmigrant status as defined in section 101(a)(15)(S), (T), or (U) of the Act.

(E) Termination is required under 8 CFR 1245.13(l).

(F) Termination is otherwise required by law.

(G) The parties jointly filed a motion to terminate, or one party filed a motion to terminate and the other party affirmatively indicated its non-opposition, unless the Board articulates unusual, clearly identified, and supported reasons for denying the motion.

(ii) Discretionary termination. In removal, deportation, or exclusion proceedings, the Board may, in the exercise of discretion, terminate the case upon the motion of a party where at least one of the requirements listed in paragraphs (m)(1)(ii)(A) through (F) of this section is met. The Board shall consider the reason termination is sought and the basis for any opposition to termination when adjudicating the motion to terminate.

(A) The noncitizen has filed an asylum application with USCIS pursuant to section 208(b)(3)(C) of the Act pertaining to unaccompanied children, as defined in 8 CFR 1001.1(hh).

(B) The noncitizen is prima facie eligible for naturalization, relief from removal, or a lawful status; USCIS has jurisdiction to adjudicate the associated petition, application, or other action if the noncitizen were not in proceedings; and the noncitizen has filed the petition, application, or other action with USCIS. However, no filing is required where the noncitizen is prima facie eligible for adjustment of status or naturalization. Where the basis of a noncitizen’s motion for termination is that the noncitizen is prima facie eligible for naturalization, the Board shall not grant the motion if it is opposed by DHS. The Board shall not terminate a case for the noncitizen to pursue an asylum application before USCIS, except as provided for in paragraph (m)(1)(ii)(A) of this section.

(C) The noncitizen is a beneficiary of Temporary Protected Status, deferred action, or Deferred Enforced Departure.

(D) USCIS has granted the noncitizen’s application for a provisional unlawful presence waiver pursuant to 8 CFR 212.7(e).

(E) Termination is authorized by 8 CFR 1216.4(a)(6) or 1238.1(e).

(F) Due to circumstances comparable to those described in paragraphs (m)(1)(ii)(A) through (E) of this section, termination is similarly necessary or appropriate for the disposition or alternative resolution of the case. However, the Board may not terminate a case for purely humanitarian reasons, unless DHS expressly consents to such termination, joins in a motion to terminate, or affirmatively indicates its non-opposition to a noncitizen’s motion.

(2) Other proceedings —(i) Mandatory termination. In proceedings other than removal, deportation, or exclusion proceedings, the Board shall terminate the case where the parties have jointly filed a motion to terminate, or one party has filed a motion to terminate and the other party has affirmatively indicated its non-opposition, unless the Board articulates unusual, clearly identified, and supported reasons for denying the motion. In addition, the Board shall terminate such a case where required by law.

(ii) Discretionary termination. In proceedings other than removal, deportation, or exclusion proceedings, the Board may, in the exercise of discretion, terminate the case upon the motion of a party where terminating the case is necessary or appropriate for the disposition or alternative resolution of the case. However, the Board may not terminate a case for purely humanitarian reasons, unless DHS expressly consents to such termination, joins in a motion to terminate, or affirmatively indicates its non-opposition to a noncitizen’s motion.

https://www.federalregister.gov/d/2024-11121/p-474

Significance of the changes to termination of cases

The rule has some interesting components. It requires immigration judges and the BIA to terminate proceedings if “[f]undamentally fair proceedings are not possible because the noncitizen is mentally incompetent and adequate safeguards are unavailable.” This creates a kind of analogue to protections in criminal proceedings which are absent from immigration law. People who are not competent in proceedings are provided some safeguards, but currently are still required to proceed in court and can be ordered removed. It also must terminate cases where there is a joint motion to terminate or the motion is not opposed.

This rule also provides for discretionary termination in certain cases that have been unclear until now. Unaccompanied children who have filed for asylum with USCIS may now clearly ask for termination. It also allows for termination upon showing a “prima facie” case of eligibility for “naturalization, relief from removal, or a lawful status.” Here, the most likely cases might be people who become eligible for U or T nonimmigrant status or permanent residency through family while immigration court or BIA proceedings are pending.

The rule also makes clear that immigration judges and the Board can dismiss proceedings for noncitizens with approved I-601A provisional unlawful presence waivers. Notably, the rule does not allow them to dismiss proceedings for purely humanitarian reasons unless it is a joint motion or affirmative non-opposition. It will be important to present more than humanitarian reasons for motions to terminate as a result.

Evidence of a Bona Fide Marriage for Immigration Applications

Last updated on April 18, 2024

The United States Citizenship and Immigration Services (USCIS) requires marriage-based green card applicants to demonstrate that their marriage is bona-fide. A bona-fide marriage means that the married couple intends to share a life together. Sometimes people are unsure about what documents are useful or need ideas for what to include. This article reviews some of the most common types of evidence we use to prove a bona-fide marriage.

It is worth mentioning that a marriage certificate on its own is not sufficient. Immigration laws do not simply accept that a valid civil marriage is enough. Immigration cases which are based on marriage must prove that the marriage is bona-fide. Put another way, every applicant must prove that they did not marry for immigration purposes.

Generally speaking, if a couple has children together it is very important to include their birth certificates. In many cases, USCIS will not doubt that a marriage is bona-fide when the couple has children together. Even so, it is better to include diverse types of evidnece. Some of the most common types of evidence are shown below.

Financial Ties: Sharing Your Resources

  • Joint bank accounts: This is a big one. Combining finances shows a long-term commitment.
  • Shared ownership of property: A house, car, or even furniture in both names speaks volumes.
  • Joint tax returns: Filing taxes together is a common sign of a married life.
  • Shared bills and debts: Utility bills, mortgages, or credit cards with both names demonstrate intertwined finances.

Building a Life Together: Shared History

  • Lease agreements or property deeds: If you live together, official documentation proves it.
  • Insurance policies listing each other as beneficiaries: Planning for the future together is a good sign.
  • Medical records or employer documents listing your spouse as an emergency contact: Being there for each other in emergencies matters.

Memories and Moments: Sharing Your Story

  • Photos of you together: Throughout your relationship, at events, and vacations.
  • Affidavits from friends and family: People who know you well can attest to your relationship.
  • Travel itineraries for trips you took together: Shared adventures strengthen bonds.

Remember: USCIS weighs evidence differently. Financial documents are strongest as they’re difficult to fake. Affidavits and photos are considered weaker but can still be helpful.

The Key Takeaway: Be Thorough

The more evidence you submit, the better. Aim to paint a clear picture of your married life together. Don’t forget to include explanations for any gaps or inconsistencies in your documentation.

Changes in the Biden Administration’s new immigration enforcement priorities memo

Last updated on June 4, 2021

President Biden ordered immigration agencies to review enforcement priorities early on in his administration. There was also a provisional memo which made some changes, but in practice most ICE attorneys have been saying “we’re waiting for guidance” when asked for prosecutorial discretion. Now the new guidance has officially arrived, as of the May 27, 2021 memo titled “Interim Guidance to OPLA Attorneys Regarding Civil Immigration Enforcement and Removal Policies and Priorities.”

What is prosecutorial discretion in immigration cases?

The idea of prosecutorial discretion is that the government cannot or should not prosecute every case to the fullest extent of the law. In the criminal context, government lawyers do not always charge people for crimes they believe have been committed, and often agree to plea deals for less severe crimes. The reasons for this are to promote justice, maintain efficient operations, law enforcement goals, and avoid harm to others such as dependent children.

The same is true of civil proceedings like immigration cases. In many ways immigration cases feel like criminal cases but they are technically civil. Immigration attorneys and other officers decide whether to bring immigration charges against people to remove them, take away their green cards, or deport them. They can also decide whether to fight against approval of a case or to concede that it is warranted.

The Trump Administration effectively eliminated discretion by making everyone a priority. This created chaos in the court system and prevented government attorneys from effectively handling routine and non-controversial cases. Now, a new enforcement memo is out and there are new options for people in removal proceedings.

The Biden Administration’s new enforcement priorities

Under the new memo, the Biden Administration is going to prioritize deportations and other actions against the following groups:

  1. National security threats
  2. Border security risks
  3. Public safety risks

The new memo states that enforcement actions against people in these groups are justified without any other authorization. As a result, people with criminal convictions, illegally crossing the border, or putting national security at risk are not likely to get much relief from this memo. However, there are specific types of criminal convictions that matter for immigration enforcement purposes, so not every person with a criminal record is included

These priorities are mostly good news because they mean that most everyone else is not a priority for enforcement. Depending on the particular circumstances of their cases, they may be interested in requesting discretion from the government.

What kinds of discretion can you ask for from immigration?

Prosecutorial discretion relates to all kinds of immigration actions and can occur at all stages of a case. From start to finish, this could include:

  1. Requesting affirmative benefits for someone who is not in removal proceedings, such as Deferred Action or Parole
  2. Not issuing a Notice to Appear (NTA) which is the charging document which starts removal proceedings
  3. Canceling an NTA which has already been issued
  4. Agreeing to terminate removal proceedings
  5. Agreeing to administratively close certain cases
  6. Agreeing that an individual is eligible for the benefit sought and conceding they are eligible for relief
  7. Providing stays of removal for people who have already been ordered removed
  8. Agreeing to reopen cases for people with removal orders

In many cases, there will be strategic reasons to ask for different types of relief. Sometimes, people don’t even want to terminate their cases because it could cause other unintended effects. Speaking with an experienced immigration lawyer will be the best way to assess this situation.

What are the circumstances when immigration will generally allow people to terminate removal proceedings?

The new guidelines create certain circumstances where it will generally be appropriate to allow a court proceeding to be terminated. There is no right to terminate, but it will generally be allowed where:

  1. Military family – a noncitizen or immediate relative is a current or former member (honorably discharged) of the Armed Forces, including the U.S. Army, Air Force, Navy, Marine Corps, Coast Guard, and Space Force, or a member of a reserve component of the Armed Forces or National Guard
  2. Viable immigration options – a noncitizen has a viable avenue available to regularize their immigration status outside of removal proceedings, whether through temporary or permanent relief (such as green cards, consular processing abroad, TPS, SIJS, or other benefits)
  3. Humanitarian factors – there are compelling humanitarian factors present
  4. Victims of crimes and those assisting law enforcement – the noncitizen is a cooperating witness or otherwise assisting state or federal law enforcement (such as U visas, T visas, S visas, deferred action, or other relief)
  5. Long-time residents – Long-time permanent residents with close family and community ties

How to request prosecutorial discretion from immigration

The new priorities memo states that each ICE office “should maintain email inboxes dedicated to receiving inquiries
related to this memorandum, including requests for OPLA to favorably exercise its discretion, and socialize the existence and use of these mailboxes…” Most likely there will be publicly announced addresses before long, but they are not yet released. Individuals can request relief as well as lawyers, although lawyers may be able to present such a request in the most beneficial way and help strategize about individual cases. There is no need to wait, however, because there are already existing email addresses and other methods of submitting requests to ICE officers.

Read the May 27, 2021 ICE enforcement priorities memoDownload

Everything you need to know about the DREAM Act 2021

Last updated on February 20, 2021

Students at a Table

The U.S. Citizenship Act includes within it a long demanded piece of immigration law – the DREAM Act, named after the “dreamers” who were brought to the US as children. Many of them have been unable to legalize their status due to unforgiving immigration laws which don’t take into account many hardships. This article reviews the DREAM Act as it is included in the U.S. Citizenship Act.

It’s important to know that the DREAM Act is only a proposed law, not a law which has been passed by Congress. There is no benefit to apply for as of the date of this article. While I hope it becomes law soon, in reality immigration laws are hard to pass. We are in a rare moment where it might be possible for big immigration reforms to happen. But keep in mind that this is a proposed law rather than a law which has been passed by Congress.

What is the DREAM Act?

The DREAM Act has been through numerous versions for more than a decade, but today I’m writing about the one included in the U.S. Citizenship Act. This was recently introduced in the US House and Senate after being proposed as a priority by President Biden. The DREAM Act starts at page 19 of the U.S. Citizenship Act, and it is only a small part of this bill. There are many other changes which are really important but not technically included as the DREAM Act.

The DREAM Act would insert a new section into the Immigration and Nationality Act at INA § 245D. It is only about 10 pages long, out of a bill that is 353 pages, and it could easily be separated and passed with minimal modification if required to get it passed.

What does the DREAM Act do?

The DREAM Act allows the government to “adjust the status” of certain people to allow them to get permanent residency, AKA green cards. Adjustment of status is the typical process that people use to apply for green cards through their family, including spouses, through employment, or in some other limited circumstances.

This law creates a new path. It also creates a broader path for legalization of other people but that is beyond the DREAM Act itself. Applying for the DREAM Act green card would also lead to US Citizenship, but not as the first step. First, the applicants would become permanent residents. Most people who are residents can apply for US Citizenship after 4 years and 9 months of residency, and this would be no exception.

This law allows the government to give people green cards if they meet some basic requirements. It also includes a streamlined process for those who already have DACA.

DREAM Act Requirements

As written in the proposed law, the requirements are:

  • Being younger than 18 years old on the date of their initial entry to the US
  • Earning a high school diploma, GED, or similar types of awards
  • Meeting an additional set of education requirements by having either
    • Earned a degree from an institution of higher education, or
    • Completed at least two years of a program in the US leading to a bachelor’s degree or higher or some type of recognized technical credential, or
    • Served in the US armed forces for at least two years, or
    • Earned income for periods of at least 3 years AND at least 75% of the time that they have had valid work authorization, reduced by time enrolled at an institution of higher learning or a technical education school
  • Registration under the Selective Service Act if applicable
  • Admissibility requirements – cannot be inadmissible under INA 212(a)(2), (3), (6)(E), (8), (10)(C), and (10)(E)
  • No convictions for felony offenses (excluding some immigration status felonies)
  • No convictions for three or more misdemeanor offenses, excluding:
    • Simple possession of cannabis or cannabis paraphernalia
    • Civil disobedience without violence
    • Minor traffic offenses
  • Physical presence on the day the application is submitted
  • Present in the US by January 1, 2021 and continuously, with some exceptions, through the date of approval

A number of these requirements are subject to waivers and exceptions. So even if someone doesn’t qualify under the above requirements they still may qualify for the new law.

Other important changes in the DREAM Act

The law contains some other important provisions that are worth mentioning.

Waiver for the education requirement

There is a significant waiver for people who cannot meet the education requirement. There are two separate education requirements, one which can be called the high school requirement and the other which can be called the higher education requirement (or exceptions). The latter is more challenging to meet and this waiver covers that requirement.

Waivers are available if the applicant can demonstrate that there are “compelling circumstances” that they cannot meet the education requirement. This standard is really quite low in relation to other areas of immigration law. It also appears to be a new standard which hasn’t been applied before.

Spouses and children

There is a short yet important provision which allows any spouses and children of noncitizens who meet the general DREAM Act requirements to qualify on their own. This is important. It means that many spouses and children of people who qualify for this new law also qualify. Most of the children mentioned here would normally be US Citizens already, but some children might benefit. But in the case of stepchildren, who are considered children under immigration law, this could be a really important benefit.

The spouse benefit has wider applicability. It allows spouses of people who qualify for the DREAM Act to also qualify, even if they don’t meet many of the requirements. It appears that a spouse would qualify even without meeting the education requirements or without having entered before age 18. If passed, this would legalize a large amount of people and keep families together.

Special streamlined process for DACA recipients

The DREAM Act requires the government to established a streamlined process for those who have received DACA and who meet the requirements to renew DACA. This mainly excludes those who became ineligible to renew DACA, usually for criminal reasons. The process is not described but it would presumably include faster processing so long as someone can show they have DACA. While it is not entirely clear, there is a good argument to be made that this applies to everyone who has ever had DACA and not only those who have it at the time they apply.

Public benefits and the DREAM Act

The DREAM Act specifically allows DREAM Act recipients to access many important public benefits. Additionally, it allows many DACA recipients (who are not yet permanent residents) to obtain certain benefits. Not every benefit is included, but some relate to home loans and health insurance coverage.

Frequently asked questions about the DREAM Act

The DREAM Act is a powerful pieces of legislation, but there are many questions still remaining. Here are some quick answers based on the way the statute is currently written.

Can I file for the DREAM Act now?

No, it’s not a law. A bill must be passed by Congress and signed by the President to become law. The DREAM Act is only a bill being considered by Congress. It will be extremely clear from the news, reputable law firms and nonprofits when there is something to apply for.

Can I pay now to apply for the DREAM Act?

No. It is likely that anyone asking for payment as of the date of this article is a scammer. There is nothing to pay for at this time, and there is no need to secure legal services at this time for the DREAM Act. It is not recommended to pay for legal fees in advance.

What should I do now if I might qualify for the DREAM Act?

If you appear to qualify for the DREAM Act if it becomes law, you can take some important steps now. First, know that there will likely be a streamlined process for people who already have DACA. If you are eligible for DACA, you should consider applying now. DACA also provides other benefits, such as work authorization and protection from deportation.

Second, look at the higher education requirements and think about how you might meet them. Some involve attending higher education institutions, but those are not the only options. You can also demonstrate eligibility through work and military service. There are also waivers available, but it’s usually better not to rely on a waiver.

Trump announces deferred enforced departure for Venezuelans

Last updated on January 19, 2021

In a last minute presidential memorandum, President Trump ordered “deferred enforced departure” to prevent the removal (deportation) of most Venezuelans for a limited period of time. This action, which falls short of designating Venezuela for Temporary Protected Status (TPS), may be surpassed before long with the incoming Biden Administration.

What is deferred enforced departure?

Deferred enforced departure is a discretionary benefit to allow someone to remain in the US despite being deportable, but only for a limited period of time. This is just a fancy way of saying prosecutorial discretion in the immigration context – the Trump Administration is not giving anyone lawful status, but rather preventing their deportation for a period of time.

Deferred enforced departure has previously been extended to certain citizens of China, Haiti, Liberia, and on some other occasions. It has typically been used on a temporary basis to prevent suffering and hardships for people from other countries facing unrest, war, or humanitarian disasters.

What are the requirements for deferred enforced departure for Venezuelans?

The presidential memorandum defers the removal (deportation) of Venezuelans present in the US as of January 20, 2021. It is extremely broad but has some restrictions. It does not apply to people who voluntarily returned to Venezuela, did not continuously reside in the US after the effective date, are inadmissible under terrorism grounds, convicted of certain crimes, were deported prior to the effective date, or who present security or foreign policy issues for the US Government.

In short, most Venezuelans should qualify unless they have criminal convictions or unique circumstances, so long as they are in the US as of January 20, 2021. The full requirements are listed in the memorandum.

What is the significance of announcing deferred enforced departure for Venezuelans?

It is not clear why Trump decided that announcing this decision on the last full day of his presidency was the right moment. He had four years to allow Venezuelans to apply for TPS, which would have been an easy and powerful solution for many Venezuelans currently struggling to have their asylum cases heard. These cases are clogging up the USCIS offices and courts when they could be funding USCIS operations and giving people reliable work permits and status in the US.

Most likely the Biden Administration will announce programs that surpass and overshadow this announcement. There is little doubt that Biden will announce TPS for Venezuelans but it has not yet been announced. For the moment, some individuals may benefit if ICE and the immigration courts step down enforcement efforts against Venezuelans.

Memorandum on Deferred Enforced Departure for Certain VenezuelansDownload

H-4 work permits and EADs for H-1B dependents

Last updated on January 10, 2021

Students at a Table

The nonimmigrant status known as H-4 is common for spouses and certain children of individuals who hold H status, for example H-1B. In some circumstances, but not all, H-4 status holders can apply for a work permit, known as an EAD or employment authorization document.

Which H-4 status holders are eligible for a work permit?

Today, some H-4 nonimmigrants are eligible to apply for employment authorization and EADs. However, it’s important to know that the permission to work is not automatic and it does not extend to everyone who has H-4 status.

There are several ways that someone with H-4 status can become eligible to file for work authorization.

Work permits based on marriage to an H-1B holder who meets certain requirements

The most common is for a spouse of an H-1B holder who are in the process of applying for permanent residency. More specifically, that H-1B holder must be:

  • the principal beneficiary of an approved Form I-140, Immigrant Petition for Alien Worker; or
  • granted H-1B status under sections 106(a) and (b) of the American Competitiveness in the Twenty-first Century Act of 2000

The reference above to the American Competitiveness in the Twenty-First Century Act mostly includes those with a labor certification or I-140 petition pending for more than a year.

Work permits based on suffering abuse by one’s spouse

Separately, there is another type of work permit available for H-4 spouses who have been abused. This category extends to all H visas rather than just H-1B spouses. It is best to consult with a lawyer before filing to see if other benefits might also be available for victims of crimes and domestic violence.

Work permits based on compelling circumstances for individuals and their families awaiting priority dates under EB-1, EB-2, and EB-3 petitions

There is a special regulatory provision which allows for work permits under category (c)(35) for certain individuals and their families who are awaiting priority dates. The requirements for this type of EAD are very technical and determining what circumstances are considered compelling is a legal question best reviewed with a lawyer. This category can help people who encountered unusual circumstances which impacted them or their company prior to reaching a priority date. This category can include spouses and children as well.

How can an H-4 nonimmigrant apply for a work permit?

H-4 spouses desiring a work permit must formally submit an application and are not otherwise authorized to work unless that application has been approved. Work permit applications are completed on USCIS form I-765 and each applicant must follow the detailed instructions for that form, which are available at the USCIS website.

H-4 nonimmigrants should take note that their work permit does not itself provide immigration status and a change or extension of status may still be required. It is best to consult with an immigration attorney if any questions come up.

For spouses who are requesting a work permit based on abuse, a slightly different form is used, USCIS form I-765V.

How much does it cost to apply for an H-4 EAD work permit?

Filing fees should always be reviewed at USCIS.gov and applicants may review the USCIS fee calculator. The filing fee for the I-765 for H-4 nonimmigrants in category (c)(26), which is the most common category, is $410. However, for those applying under the special circumstances categories, (c)(35) and (c)(36), they must add the $85 biometric fee for a total of $495.

There is no filing fee for the form I-765V if the applicant is filing based on having suffered abuse.

What kinds of jobs can an H-4 nonimmigrant with an EAD do?

The H-4 work permit is unrestricted and not tied to a particular employer. This means that an H-4 nonimmigrant who has an approved EAD can work at any job, unless US Citizenship is required. Often H-4 nonimmigrants with EADs can work at a wider range of jobs that the H principal nonimmigrant, who are often subject to employment restrictions.

Who is eligible for H-4 status?

H-4 nonimmigrant status is a dependent status for all of the H status categories. These categories include H-1B, H-2A, H-2B, and H-3. Eligible dependents in these categories include spouses and unmarried children under age 21.

How to change status to an F-1 nonimmigrant student in the US

Last updated on December 6, 2020

Students at a Table

Many people who are already in the US in a nonimmigrant status decide that they would like to enroll in school. There are typically three options depending on that person’s status: see if they are eligible to attend classes without changing to F-1 status, apply for a new visa at a US embassy or consulate and then reenter, or file a USCIS form I-539 to change status within the US. This article will focus primarily on the third option of changing status within the US.

Those seeking a change of status within the US should be aware of some general requirements for the process. First, they must have been admitted in a nonimmigrant status of some kind. Second, that status must remain valid at the time of filing. Third, they cannot have violated the conditions of their status, committed crimes, or been placed in removal proceedings.

Changes of status take time. Often, this is the primary reason that people will choose to leave the US rather than wait for a change of status. Waiting on USCIS could mean that they are spending months waiting for a response and even missing the start of classes. In many cases, starting classes without an approval would violate their current nonimmigrant status. However, during the pandemic and for many other reasons, many individuals prefer to do the change of status within the US.

Typical processing times can be seen on the USCIS processing times page, but take note that they are not entirely reliable. They are at best averages, and in many times vastly overstate the typically processing times. Changes of status are notoriously slow and have only increased during 2020.

What is the process of filing an I-539 change of status with USCIS?

Not every case is the same, but for most people filing a change of status to an F-1 nonimmigrant requires the following steps:

Do not assume that because a form I-539 is pending that you are allowed to start classes. USCIS sometimes requires “bridge applications” to be filed as necessary to ensure that an applicant is in status up to the 30-day period before their program is scheduled to start, or the deferred start date in the event it had to be deferred. This can even require multiple bridge applications.

Frequently asked questions about changes of status to an F-1 student

Here are some common questions that frequently arise for people changing status to study as an F-1 nonimmigrant.

Can I start classes if USCIS has not approved my form I-539?

Most individuals cannot start classes if they have not been approved for their change of status. This is unfair and can cause big headaches for students, but unless their current status permits enrolling in school, actually starting classes would be a violation of their status. Read what USCIS has to say:

If you are requesting to change from another nonimmigrant status to F or M student status and your current nonimmigrant status does not permit you to enroll in classes, do not enroll in classes or begin your studies until USCIS has approved your change of status. If USCIS has not adjudicated your change of status at least 15 days before the program start date on your Form I-20, contact the DSO at your new school. If USCIS does not grant your request to change status prior to the start date of classes, you will need to defer attendance and wait until the following term in order to begin your studies at the school in F or M status.

https://www.uscis.gov/working-in-the-united-states/students-and-exchange-visitors/students-and-employment/changing-to-a-nonimmigrant-f-or-m-student-status

However, some nonimmigrant statuses do permit studying, and not all types of education are treated the same under immigration law. The best practice is to check with the school DSO or an immigration attorney to confirm that your status does allow a full-course of study. In some instances, full time study is not permitted but part time is.

In what types of nonimmigrant status can I study without changing to F-1 status?

It’s extremely important to be sure that you are permitted to enroll in classes before starting school. If there is a mistake, you could be determined to be out of status and there may be long-term consequences. US Immigration and Customs Enforcement has created a chart which describes which nonimmigrant statuses can enroll in full-time studies, including their spouses and dependents.

Many people seeking to transfer to F-1 status are in B-1 or B-2 visitor status. Sometimes, visitors are accepted into a program and want to start on their original start date. However, they should be cautious because a full course of study is not allowed for a B-1/B-2 nonimmigrant. As USCIS describes, ” the regulations at 8 C.F.R. § 214.2(b)(7) specifically prohibit a course of study in the United States while in B-1 or B-2 status.”

USCIS has unfortunately interpreted the law in a very rigid and unforgiving way that can create serious problems for people seeking a change of status to enroll in full-time classes. In some cases, bridge applications are required to maintain lawful status.

What is a bridge application and how do I file it?

USCIS has taken the position that a nonimmigrant with a pending change of status must make sure that they maintain lawful status throughout the period of time that they wait for a response from USCIS. Regulations allow USCIS to approve a change of status up to 30 days before the educational program is going to start. See 8 CFR 214.2(f)(5)(i). If a change of status has not been decided, students will be deferred by their school to a later start date. Frequently, they won’t then be able to maintain status until 30 days before their start date. USCIS now requires a bridge application to be filed to cover that time.

A bridge application is one which is used to cover the period of time following approval of an application and before starting another status, usually F-1 or H-1B. For example, if a B-2 nonimmigrant files a change of status to F-1, they will often be required to file a bridge extension of their B-2 status up until the 30-day period before they begin classes. Bridge applications are inherently risky because they often are filed prior to receiving a decision on a prior extension. If they later receive a denial on that initial application and were then out of status when the bridge was filed, it will not cover the gap in lawful status.

In most cases, B-1/B-2 nonimmigrants would need to file both a change of status to F-1 status and an extension of status of the B-1/B-2 status. If the change of status is still not approved within the time requested in the extension, a new extension must be filed. USCIS describes this process on its website:

Note that because of processing times, your F-1 or M-1 program start date may be deferred to the following academic term or semester because USCIS did not make a decision on your Form I-539 change of status application before your originally intended F-1 or M-1 program start date. In that instance, you will need to obtain status all the way up to the date which is 30 days before your new program start date. If you had already filed an I-539 to bridge the original gap, you may need to file another I-539 to bridge the new gap.

https://www.uscis.gov/working-in-the-united-states/students-and-exchange-visitors/students-and-employment/changing-to-a-nonimmigrant-f-or-m-student-status

Because these applications are complicated and unforgiving, it’s a good idea to discuss your personal situation in detail with a school DSO or an immigration attorney.

Proposed Regulation to Restrict Work Permits for Individuals with Final Orders of Removal

Last updated on November 17, 2020

Under current law, some individuals who have received an order of removal from an immigration judge are not actually able to be removed. In some cases, no country will accept the person and in other cases the US Government declines to actually remove them. Some people are given “orders of supervision” during the period of time that they live in the US, which typically requires frequent appointments with ICE or other types of monitoring.

A person with an order of removal and an order of supervision has been able to apply for a work permit. This makes sense, because those people are not in fact going to be removed from the US and there should not be a policy of forcing them into poverty, homelessness, or unauthorized employment. Now, the Trump administration has released a 120 page proposed rule to restrict this relatively small population of individuals from getting work permits. The proposed regulation shows that the annual number of work permit applications for these individuals has never exceeded 27,000 in any fiscal year between 2010 and 2019.

Additionally, the proposed rule does not entirely eliminate the work permits anyway. It creates a carve-out for those individuals who cannot be removed because DHS has received a rejection from all countries from which it has requested travel documentation. It’s not clear what percentage of the current applicants will be restricted under the new regulations. However, it is clear that the new rule is quite complicated and will only add unnecessary levels of bureaucracy to a work permit category that only allows very limited employment to begin with.

The rule is available to review at https://www.federalregister.gov/public-inspection/2020-25473/employment-authorization-for-certain-classes-of-aliens-with-final-orders-of-removal

Biden’s Immigration Plan – What Does a Biden Presidency Mean for Immigration Reform?

Last updated on November 7, 2020

Many immigrants and immigration lawyers are wondering what the election of Joe Biden will mean for immigration reform. No one is sure yet, but we do know that Biden will likely be much more pro-immigrant and in support of immigration reform than the Trump Administration. Presidents aren’t able to change immigration laws on their own because only Congress can propose and pass laws. However, presidents do make significant changes to immigration regulations and policies. We know that because the Trump Administration has changed them about as much as possible.

First, we should ask what Biden’s platform is currently. Then, we should consider what the political realities are for implementing that platform.

What has President-Elect Biden said about immigration?

Immigration lawyers are laser-focused on the particular details of a candidate’s platform. We have clients who would benefit from one policy or another. What does a President Biden want to do?

The overall tenor of President Biden’s plan is a more compassionate immigration policy that takes into consideration a balance of enforcement actions and humanitarian concerns. That means that a President Biden would likely reverse some of the immoral and controversial policies of the Trump Administration, such as separating families and punishing asylum seekers. We can also probably include the travel bans and public charge rules. It seems like that Biden and his administration will also be good faith negotiators on immigration reform. This would be a welcome change, because Trump has repeatedly expressed support for different policies only to take actions against them, such as rescinding DACA.

Biden has publicized his immigration policies. These are really campaign points and it remains to be seen what he will do on his own and what he will propose to Congress for new legislation. As a lawyer, the most impactful changes would be:

  • Ending family separation at the border. This Trump policy has separated many parents from their children, perhaps forever, and created a humanitarian crisis at the border.
  • Reverse some of the Trump Administration’s changes to asylum. Trump has punished asylum seekers, sending them to Mexico to await court hearings (which are constantly canceled) and prevented others from living their lives here in the US. Biden has committed to ending these changes.
  • Biden will reverse the public charge rule. This rule has basically turned routine immigration processes into paperwork nightmares. The point is to discourage people from immigrating to the US, as with many other Trump policies. Biden will end it.
  • Protecting Dreamers. Dreamers have been waiting since at least 2006 for Congress to take action. When Trump took power, he only made life worse for them. Biden will work to not only keep the DACA program alive, but also to push for a DREAM Act rather than pretending to while undercutting benefits, as Trump has.
  • Ending the travel bans. Trump has not missed an opportunity to restrict immigration. The COVID Pandemic has not only upended the lives of many people, it also presented an opportunity for Trump to end immigration. Today, many parents and children of US Citizens and permanent residents are stuck abroad under the imaginary guise of “affecting the labor market.” Biden will end the travel bans.
  • Prioritizing sensible immigration enforcement. When Trump took power, he decided to prioritize everyone who was in the country without permission. In reality, you can’t prioritize everyone. Case backlogs have grown by hundreds of thousands during every year of the Trump Administration. Biden would focus on dangerous people and not spend resources on people like mothers and fathers of US Citizens.

These proposals are high level policies that will impact millions of people. They aren’t detailed laws or regulations, which is to be expected. But they clearly show a compassionate and sensible response to immigration policy that would both enforce US laws and take into consideration the personal stories of people living in the US.

Is immigration reform like to happen during a Biden presidency?

When a candidate proposes certain policies, it’s generally understood that they might not happen. That’s because a president of the United States has limited power. The president and propose laws and enact policies. But Congress passes laws. The President only gets to approve or veto a particular law. As a result, Presidents have limited influence in legislation.

Congress has the responsibility to create immigration laws. If immigration laws have been stagnant for years, it’s because Congress has not changed the laws. Arguably, most immigration laws have not changed for decades. President-elect Biden must work with Congress to get immigration reform passed.

Because Biden cannot go it alone, he has to depend on the House and Senate to craft and pass immigration reforms. That’s likely to be a struggle if the Senate is not controlled by Democrats. But it’s worth noting that immigration legislation has always been a challenge. Even when the Democrats held both Congress and the Presidency during the Obama Administration, very little immigration change occurred. Immigration bills are always compromises, and there is wide disagreement even within the Democratic Party about many immigration issues. As a result, it’s always a challenge to pass immigration reform.

Becoming a US Citizen through naturalization after divorce

Last updated on November 1, 2020

Many US residents wonder whether they can still become US Citizens if they divorced the person who helped them get residency. There is no rule against getting divorced and it’s a common situation. At the same time, there are some situations which could come up and complicate the process. It’s best to speak with an immigration lawyer before applying for US Citizenship to make sure there are no issues in a particular case.

Here are some frequently asked questions by people applying for citizenship by naturalization.

Can I file for citizenship if I divorce the person who filed the family petition for me?

Some people became residents of the US through a family petition by a US Citizen or lawful permanent resident spouse. While no one is required to stay married, getting divorced can have consequences in different situations. USCIS is always concerned with marriage fraud, which usually means getting married only to get immigration status. And so, at each stage of the immigration process, USCIS checks to see if the marriage was intended for immigration purposes or other purposes.

Of course, it’s not unusual or illegal for a couple to have immigration issues in mind when they get married. After all, there are no immigration options for people who are dating or simply cohabitating. Immigrant couples often consider marriage more quickly than other couples because it impacts their ability to stay together lawfully. This is completely normal. What is not allowed is to pay for immigration paperwork, to get married only to get immigration status, or to lie about a relationship in some capacity as part of the immigration process.

Problems with a current or past marriage can come up at citizenship interviews

USCIS officers frequently meet with people who divorced from the spouse who filed for them. For many people, this comes up for the first time at the stage of applying for citizenship. All citizenship cases involve an interview and a thorough background check. Sometimes, USCIS realizes that information provided at an earlier stage was incorrect. This can lead to denial of a citizenship application and even deportation proceedings. Some common issues that come up are:

  • Claiming an incorrect marital status in any immigration application, such as filing a B2 visitor visa application as a married person rather than a single person
  • Failing to list children in a visa application or green card application, especially if doing so made it less likely that immigration would find some other problem such as another marriage or infidelity
  • Chain marriages where two people separate, get married to other people, immigrate to the US, and then later remarry
  • Undisclosed or common law marriages that were not properly terminated according to the laws of the country or state where the divorce took place
  • Having an affair or children outside of the marriage during the required good moral character period for the citizenship process

USCIS will likely look for these issues, so it’s a good idea to talk with an experienced immigration lawyer to review a case before filing.

How does getting divorced change the citizenship process?

There are a few important changes that can happen once someone has gotten divorced. For citizenship cases, USCIS wants to document the person’s marital status. For that reason, USCIS will typically require an original or certified divorce as part of the case.

USCIS reviews cases involving divorce for signs of marriage fraud

USCIS may screen cases of divorce more carefully. This is especially true where the applicant divorces from the person who petitioned for him or her. USCIS just wants to confirm that the marriage was valid. This comes up directly on the form N-400, and the officer will ask about all marriages, children, and whether any marriage was entered into for immigration purposes. This question is referring to marriage fraud, not whether the person intended to file some kind of immigration application when they got married.

People granted a two-year conditional residency must file to remove the conditions

If someone received a conditional residency (valid for two years), they must also make sure to file and complete the process. In most cases, you cannot become a citizen if you did not file the petition to remove conditions on the residency – but not all residents are subject to these conditions. Sometimes, people can file the petition to remove conditions and then file for naturalization while that process is pending. This is fine, so long as USCIS makes a decision on the petition before approving the naturalization application. They should do this automatically during the interview, but sometimes cases are not handled correctly.

Getting divorced can change the required amount of time to file for citizenship

The period of time that the applicant must wait before filing for naturalization also can change when the person has divorced. Spouses of US Citizens can often file after three years of residency rather than five. But it’s important to review the correct filing date for naturalization applications carefully.

Green Cards for Stepchildren and Stepparents

Last updated on October 31, 2020

US immigration laws permits green cards for stepchildren as well as for stepparents under certain circumstances. There are some special rules that apply in these cases. To be considered a stepchild, the marriage between the biological parent and the stepparent must have taken place before the stepchild’s 18th birthday. In many other respects, the process is similar to other child and parent green card applications.

Stepchildren and stepparents in US immigration law

Many people are not aware that US immigration law considers stepchildren to be just like other children as long as some basic requirements are met. This is because in most parts of immigration law that reference children, a specific definition of a “child” applies. That definition includes stepchildren.

Section 101 of the Immigration and Nationality Act defines a child for immigration law purposes (but only for titles 1 and 2 of the act). In immigration law, all children must be under 21 years of age. The law typically refers to older children as “sons and daughters” and they are treated differently in many respects. The stepchild definition says that a child includes:

“a stepchild, whether or not born out of wedlock, provided the child had not reached the age of eighteen years at the time the marriage creating the status of stepchild occurred”

INA Sec. 101(b)(1)(B)

This means that as long as the marriage between the stepparent and the biological parent occurred before the child’s 18th birthday, the law considers the child to be a stepchild. In some states, common law marriage allows the person to backdate the actual date of marriage. This can potentially be done even if the parents later married in a normal ceremony.

Stepchildren are not always considered children for immigration purposes. The most common situation that they aren’t considered to be children is for deriving citizenship from a US Citizen parent.

Green card applications for stepchildren

Based on this definition, there are greencards for stepchildren much like there are for biological children. A stepmother or stepfather can file an I-130 family petition for their step child if they meet all the requirements. If the stepparent is a US Citizen, the children may also be eligible to apply for a green card at the same time. Note, however, that the petition and green card applications are actually separate processes. Schedule a consultation with an immigration lawyer to review the entire process and confirm eligibility.

The simplest and most common situation is that a US Citizen marries a person who has children already. Assuming that the spouse and children entered with a visa, the US Citizen can then file I-130 petitions for the spouse and the children. Separate I-130 petitions are required for each person, even if they are applying together. Listing children in an I-130 does not mean that they are included as derivatives – there are no derivatives allowed if the relationship is considered to be “immediate relatives.” The spouse and children will also need to file I-485 adjustment of status applications in many cases. Again, each person must have their own I-485 with a separate fee, and the cases are technically separate but often decided at the same time.

Sometimes, people are not eligible to adjust status in the US, but this is not unique to the stepchild process. For example, if a child entered the US on a visa with her parent, but overstayed her status, she may be ineligible to adjust status in some cases. This is true for stepchildren of a lawful permanent resident. However, the stepparent can still file the petition for the stepchild, who can often consular process by attending an interview in her home country.

Green card applications for stepparents

Similarly to stepchildren, there are also green cards for stepparents if they meet the requirements. Stepparents can also be petitioned for by their stepchildren. The same definition of a child that applies to help the child also applies to the parent petitions. Petitions for parents follow different rules, however. In most circumstances, a child must be a US Citizen and over age 21 in order to file a petition for a parent. Stepchildren must also prove that the marriage which formed their stepchild relationship occurred before they turned 18.

In many cases where a stepchild relationship exists, the spouse would be the person filing the petition rather than their child. But there are some circumstances where it would still be helpful. One example would be if a parent came to the US, overstayed a visa, and then had a child in the US. The child is a US Citizen, and we can assume that their parent gets married at some point before the child turns 18. Both the biological parent and stepparent are out of status but entered on visas. Once the US Citizen child turns 21, he or she may be able to file for both the parent and stepparent.

It’s important to review all adjustment of status cases with a lawyer, because there are many requirements and getting denied can lead to deportation. In addition, completing the paperwork and forms has become more and more burdensome over the years. Schedule a free consultation to discuss a particular case.

When can you apply for US Citizenship and naturalization?

Last updated on October 25, 2020

Most permanent residents must have four years and nine months of residency in order to apply for naturalization. The general rule is that someone can apply three months before the required time period, which is usually five years. As such, four years and nine months would be the earliest date to file.

There are a number of exceptions and variations on this general rule, some of which allow people to file even earlier, depending on their circumstances.

Filing for US Citizenship early based on marriage to a US Citizen

There is an important exception to the general five-year rule for spouses of US Citizens. If they meet all the requirements, spouses of US Citizens can apply for naturalization in two years and nine months. This is because they are permitted to apply in three years rather than five, and they can also take advantage of the three-month early filing law.

Spouses of US Citizens should carefully review the requirements to make sure they qualify for naturalization early, including:

  • The spouse must remain a US Citizen until the spouse becomes a US Citizen at the oath ceremony
  • The spouse must have lived in a marital union for three years prior to filing, which is not subject to the early-filing period. This may be an issue for spouses who married US Citizens after becoming permanent residents, rather than becoming permanent residents through marriage to a US Citizen.
  • The spouses must reside together and live in marital union up until the date of the oath ceremony, unless there are compelling reasons for living separately.
  • This early filing period may not be possible in the event of divorce, annulment, or death of the US Citizen spouse.

Filing for US Citizenship early based on a VAWA self-petition or abuse by a US Citizen

The early-filing period for spouses of US Citizens also applies in some cases to people who were abused by US Citizen spouses. This may be possible even if the spouse has since divorced the US Citizen. USCIS will allow certain spouses to file if they became permanent residents based on:

  • An approved I-360 self-petition as an abused spouse of a US Citizen
  • An approved I-360 self-petition as an abused spouse of a lawful permanent resident who later became a US Citizen
  • Approved beneficiaries of special-rule cancellation of removal where the abusive spouse was a US Citizen or in some cases an intended spouse
  • Marriage-based residency applications where an I-751 removal of conditions application was approved on the basis of battery or extreme cruelty by a petitioning citizen or lawful permanent resident

Filing for US Citizenship early based on a relationship to a member of the US Armed Forces

Spouses of US Citizens who are residing abroad and in the employment of the US Government can sometimes file without any specific period of time as a permanent resident, so long as they are residents. This is a common situation with spouses of members of the US Armed Forces. The naturalization ceremony typically must occur in the US, and certain modifications are possible for conditional permanent residents as well.

There are other options available to spouses and children of members of the US Armed Forces, veterans, and members who died in active duty. It’s important to review some of these less common options with a lawyer in order to determine eligibility and discuss the process.

Filing for US Citizenship based on current or prior service in the US Armed Forces

In recent years, most people must become US Citizens before or shortly after joining the US Armed Forces. There are some exceptions to this. However, in previous decades, some people joined the US Armed Forces and served in active duty without ever becoming US Citizens. Some people never even had lawful status to begin with. If that individual served during a period conflict (including 09/11/2001 to the present date), they may qualify for direct naturalization without ever becoming a permanent resident.

Backdating of green cards and filing early for US Citizenship

Certain permanent residents receive their green cards dated to before the actual date of approval. As long as USCIS has correctly dated the green card, this is normal and that date can be used to figure out when they can file for naturalization. USCIS does sometimes make errors with the dates on green cards, so it is always important to compare that date to the actual date of approval and the applicable law for the type of residency application. Green card backdating usually applies to only certain case types, such as:

  • Cuban Adjustment Act green cards (date of arrival or 30 months prior to green card approval)
  • Refugees (date of entry to the US)
  • Asylee green cards (one year prior to date of approval)
  • Lautenberg parolees (date of parole into the US)

If the green card has been dated incorrectly, it does not affect the actual date of eligibility for citizenship and the applicant should review the issue with a lawyer.