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Immigration News Articles

Supreme Court Strikes Down DOMA, Affirms Immigration Rights of Gay and Lesbian Couples

 

On June 27, 2013, the Supreme Court issued its decision in the case, United States v. Windsor, striking down section 3 of the Defense of Marriage Act, or DOMA, on the basis that it violated equal protection under the due process clause of the 5th Amendment. DOMA established an exclusively heterosexual definition of “marriage,” and denied same-sex couples any federal benefits, including immigration benefits. This is a historic day for gay and lesbian marriage rights, as DOMA disqualified same-sex couples from over a thousand federal benefits, and made same-sex couples in committed relationships second-class citizens in the eyes of the federal government.

In particular, the case involved whether Edith Windsor should have been forced to pay hundreds of thousands of dollars in federal estate taxes, taxes that married persons do not have to pay, upon the death of her spouse that she had lawfully married in 2007. Because of DOMA, the Internal Revenue Service did not recognize their marriage and refused to refund the estate tax.

Although the case does not directly involve immigration law, the Supreme Court’s decision will profoundly affect the lives and rights of gay and lesbian bi-national couples. Under DOMA, lesbian and gay U.S. citizens and lawful permanent residents were barred from obtaining permanent residency and any other immigration protections for their same-sex spouses.  As a result, gay and lesbian families have been torn apart, same-sex spouses of citizens have been deported and thousands of U.S. citizens have been forced to choose between their life-partners and exile from the United States.

In the 5-4 ruling, Justice Kennedy stated that “DOMA…violates basic due process and equal protection principles…the avowed purpose and practical effect of the law here in question are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages…[DOMA] is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in person hood and dignity.”

Secretary of Homeland Security Janet Napolitano has issued a statement applauding the decision striking down the discriminatory law. She vows to immediately begin implementing the decision to allow same sex spouses to obtain immigration benefits: “This discriminatory law denied thousands of legally married same-sex couples many important federal benefits, including immigration benefits. I am pleased the Court agreed with the Administration’s position that DOMA’s restrictions violate the Constitution. Working with our federal partners, including the Department of Justice, we will implement today’s decision so that all married couples will be treated equally and fairly in the administration of our immigration laws.”

The importance of this decision for the immigration rights of gay and lesbian couples cannot be understated. There are an estimated 28,500 bi-national same-sex couples in the United States. These couples will now be afforded many of the same immigration benefits and protections as all other couples under the U.S. immigration laws.

Same-sex couple can enjoy the federal immigration benefits as any other heterosexual couple ranging from simple alien relative petition (I-130) to waiver, cancellation of removal and more.

 

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Provisional Unlawful Presence Waivers (Form I-601A) (2013)

(Readers are advised to read the 2016 changes to the rules of 2013 Provisional Unlawful Presence Waivers mentioned below)

Beginning March 4, 2013, certain immigrant visa applicants who are spouses, children and parents of U.S. citizens (immediate relatives) can apply for provisional unlawful presence waivers before they leave the United States. The provisional unlawful presence waiver process allows individuals, who only need a waiver of inadmissibility for unlawful presence, to apply for a waiver in the United States and before they depart for their immigrant visa interviews at a U.S. embassy or consulate abroad.


The new process is expected to shorten the time U.S. citizens are separated from their immediate relatives while those family members are obtaining immigrant visas to become lawful permanent residents of the United States. Under current law, immediate relatives of U.S. citizens who are not eligible to adjust status in the United States must travel abroad and obtain an immigrant visa. Individuals who have accrued more than 180 days of unlawful presence while in the United States must obtain a waiver of inadmissibility to overcome the unlawful presence bars under section 212(a)(9)(B) of the Immigration and Nationality Act before they can return to the United States. Under the existing waiver process, which remains in effect, immediate relatives cannot apply for a waiver until after they have appeared for an immigrant visa interview abroad, and a Department of State (DOS) consular officer has determined that they are inadmissible to the United States. Immediate relatives of U.S. citizens who are eligible for the new provisional unlawful presence waiver can still choose to apply for a waiver using the existing process by filing a Form I-601, Application for Waiver of Grounds of Inadmissibility, after a DOS consular officer has determined that he or she is inadmissible to the United States.

 What You Need to Know:

The new provisional unlawful presence waiver process does not change the immigrant visa process. Even if your provisional unlawful presence waiver is approved, you are still required to depart the United States for your immigrant visa interview with a U.S. consular officer abroad.

If a provisional unlawful presence waiver is approved, it will only take effect after:

1.You depart the United States and appear for your immigrant visa interview, and
2. A DOS consular officer determines that you are otherwise admissible to the United States and eligible to receive an immigrant visa.
NOTE:  Do not depart until the National Visa Center (NVC) notifies you of your scheduled immigrant visa interview date and time at the designated U.S. Embassy or Consulate. DOS may cancel your immigrant visa application process if you fail to appear at your interview.

If you are in removal proceedings, you are ineligible for a provisional unlawful presence waiver unless, at the time you file your Form I-601A, your proceedings are administratively closed and have not been put back on the Department of Justice, Executive Office for Immigration Review (EOIR) calendar to continue your removal proceedings.
While USCIS does not envision placing I-601A applicants in removal proceedings, USCIS will follow current Department of Homeland Security (DHS) and USCIS Notice to Appear (NTA) guidance governing initiation of removal proceedings. For more information on USCIS NTA priorities, see USCIS Policy Memorandum, Revised Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Removable Aliens (Nov. 7, 2011).

 Eligibility Requirements:

 To be eligible for a provisional unlawful presence waiver you must fulfill ALL of the following conditions:

1. Be 17 years of age or older.
2. Be an immediate relative of a U.S. citizen (not a preference category immigrant who has a visa available). An immediate relative is an individual who is the spouse, child or parent of a U.S. citizen.
3. Have an approved Form I-130, Petition for Alien Relative, or Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant.
4. Have a pending immigrant visa case with DOS for the approved immediate relative petition and have paid the DOS immigrant visa processing fee.
5. Be able to demonstrate that refusal of your admission to the United States will cause extreme hardship to your U.S. citizen spouse or parent.
6. Be physically present in the United States to file your application for a provisional unlawful presence waiver and provide biometrics.
7. Not have been scheduled for an immigrant visa interview by DOS before January 3, 2013.
8. Meet all other requirements for the provisional unlawful presence waiver, as detailed in 8 CFR 212.7(e) and the Form I-601A and its instructions. 

You are not eligible for a provisional unlawful presence waiver if any of the following conditions apply to you:

1. You are subject to one or more grounds of inadmissibility other than unlawful presence.
2. DOS initially acted before January 3, 2013, to schedule your Immigrant Visa (IV) interview for the approved immediate relative petition upon which your provisional unlawful presence waiver application is based, even if your immigrant visa interview has been canceled, you failed to appear for the interview, or your interview was rescheduled on or after Jan. 3, 2013.
Note: The date and time that you are scheduled to appear for your immigrant visa interview at the designated U.S. Embassy or Consulate is not the date USCIS will use to determine if you are eligible to file a Form I-601A. If DOS initially acted before January 3, 2013, to schedule your immigrant visa interview, you are not eligible to file a Form I-601A, even if you failed to appear for your interview or if you or DOS cancelled or rescheduled your interview for a date on or after January 3, 2013.
Instead, you may file a Form I-601, Application for Waiver of Grounds of Inadmissibility, from outside the United States after you have been interviewed for your immigrant visa, and the consular officer has found that you are inadmissible for a ground that may be waived.
3. You are in removal proceedings that have not been administratively closed.
4. At the time of filing, you are in removal proceedings that have been administratively closed but have been placed back on the EOIR calendar to continue your removal proceedings.
5. You do not meet one or more of the requirements, as outlined in the Form I-601A and its instructions.

How to Apply:

Carefully follow the Form I-601A instructions and fully complete the application. USCIS will reject any application that is not accompanied by the proper filing and biometric fees OR that does not meet the filing criteria specified in 8 CFR 212.7(e)(5). Use the checklist available on the last page of the form instructions to make sure your application is complete before filing.
Do not concurrently file Form I-601A with any other application or petition.


Please make sure that you follow these steps to prevent your application from being rejected and returned to you:

1. Complete Form I-601A.
2. Enclosed a check for the USCIS fee. The fee is $585. If you are under 79 years of age, you must also pay the $85 biometric services fee. If you are 79 years of age or older, you do not have to pay the $85 biometrics fee.The Form I-601A fees cannot be waived.

Having a pending application for a provisional unlawful presence waiver or an approval of such a waiver will NOT: 

1. Grant you any benefit or protect you from being removed from the United States.
2. Allow you to apply for interim immigration benefits such as work authorization or advance parole.
3. Guarantee you will be issued an immigrant visa.
4. Guarantee your admission into the United States by U.S. Customs and Border Protection.
5. Give you a legal immigration status.
6.  Change the requirement that you must depart the United States in order to obtain an immigrant visa.   

Until your approved unlawful presence waiver takes full effect, USCIS may reopen or reconsider its decision on the Form I-601A at any time.

 Reasons Your Provisional Waiver May Be Revoked:

 Your approved provisional unlawful presence waiver is automatically revoked if:

1. DOS ends the immigrant visa application process.
2. USCIS revokes the underlying approved immigrant visa petition (Form I-130 or Form I-360).
3. The consular officer at the U.S. embassy or consulate determines that you are inadmissible on grounds of inadmissibility other than unlawful presence.
4. You reenter or attempt to reenter the United States without being inspected and admitted or paroled, before or after your provisional unlawful presence waiver is approved or before your immigrant visa is issued.

 If You Are in Removal Proceedings:

 If USCIS approves your Form I-601A, you and/or your legal representative should take steps immediately to have your removal proceedings formally terminated or dismissed by EOIR before you depart the United States to attend your immigrant visa interview. If you leave the United States before your removal proceeding is terminated or dismissed, you may experience delays in the processing of your immigrant visa or risk becoming ineligible for an immigrant visa based on another ground of inadmissibility.
After you receive the approval notice for your Form I-601A, you and/or your legal representative should contact the Office of the Principal Legal Advisor at U.S. Immigration and Customs Enforcement (ICE) to make arrangements to have those proceedings dismissed.  

Denial of Form I-601A or Withdrawal of Form I-601A:
No Appeal or Motion to Reopen from the Denial:
If USCIS denies your provisional unlawful presence waiver, you cannot file an administrative appeal or a motion to reopen or reconsider. 

However, if your provisional unlawful presence waiver request is denied or if you withdraw your provisional unlawful presence waiver application before USCIS makes a final decision, you may file a new Form I-601A, in accordance with the form instructions and with the required fees. Your immigrant visa case must also be pending with DOS. In the case of a withdrawn Form I-601A, USCIS will not refund the filing fees because USCIS has already taken steps to adjudicate the case. 

Alternatively, if USCIS denies your Form I-601A or you withdraw your Form I-601A before USCIS makes a final decision, you can apply for a traditional waiver using the existing process and Form I-601, Application for Waiver of Grounds of Inadmissibility.  You cannot apply for a Form I-601 until after you attend your immigrant visa interview and after DOS determines that you are subject to other grounds of inadmissibility.  If you decide to file Form I-601 after the interview abroad, you must file the Form I-601 in accordance with its instructions and with the required fees.


AMENDMENTS TO RULES OF PROVISIONAL WAIVER OF 2013 ALLOWING ADDITIONAL APPLICANTS TO BECOME ELIGIBLE FOR PROVISIONAL WAIVER

This article will provide the difference between the current rules of 2013 and the new rules of 2016 that will be effective on August 29, 2016.

On July 29, 2016, DHS published a final rule expanding the availability of the provisional unlawful presence waiver to individuals who would be statutorily eligible for an unlawful presence waiver under INA §212(a)(9)(B)(v). The rule also makes additional changes to the current provisional waiver process. The following FAQs provide background information on the unlawful presence bars, the provisional waiver process and an overview of the changes that will be implemented as of the effective date of the rule, August 29, 2016. 

BACKGROUND 

Q: What Are the “Unlawful Presence” Bars to Admissibility?  

A: Under INA §212(a)(9)(B), a person who has accrued more than 180 days of “unlawful presence” in the United States is subject to a 3-year bar to readmission that is triggered upon departure from the United States. A person who has accrued one year or more of unlawful presence will trigger a 10-year bar to readmission. “Unlawful presence” is a term of art that is not defined in the regulations. On May 6, 2009, USCIS rescinded its prior unlawful presence guidance and issued a 51-page consolidated unlawful presence memorandum with corresponding updates to the USCIS Adjudicator’s Field Manual.  

 In general, individuals who have an approved immigrant visa petition, but who are present in the United States without having been inspected and admitted or paroled, are ineligible to adjust their status to lawful permanent resident (LPR) while remaining in the United States. Instead, such individuals must leave the United States and apply for an immigrant visa at a U.S. embassy or consulate abroad. However, as described above, departure may trigger a 3- or 10-year bar to readmission. As a general matter, the 3- or 10-year bar to readmission may be waived, under INA §212(a)(9)(B)(v), if the applicant can demonstrate that the refusal of his or her admission would cause “extreme hardship” to a U.S. citizen or LPR spouse or parent.  

Q: What Is a Provisional Waiver and How Is it Different from a Regular Waiver? 

A: Prior to 2013, when the provisional waiver process was rolled out, an individual who departed the United States to apply for an immigrant visa at a U.S. embassy or consulate, and who was found inadmissible based on prior unlawful presence, could only apply for a waiver of inadmissibility by filing Form I-601, Application for Waiver of Grounds of Inadmissibility, with USCIS, and only after a consular officer made a finding of inadmissibility at the visa interview. In 2013, in recognition of the hardships that are imposed upon American families during the lengthy separation that often accompanies the “regular” waiver process, USCIS published a final rule implementing a new “provisional” unlawful presence waiver.

The provisional waiver process allows an applicant who knows he or she will be subject to the 3- or 10-year bar upon departure to apply for “provisional” approval of an unlawful presence waiver prior to departing the United States for the immigrant visa interview. Assuming there are no other eligibility or admissibility issues, an approved provisional waiver should permit a consular officer to issue an immigrant visa without undue delays. It is reported that the average length of time a person must remain outside the United States to await issuance of an immigrant visa following the grant of a provisional waiver is about two weeks. Prior to the implementation of the provisional waiver process, it was not uncommon for individuals to be stuck outside the United States for many months, and sometimes years, while they awaited approval of a waiver.  

THE 2016 RULES 

Q: Who Can Apply for a Provisional Waiver Under the 2016 Rule and How Is This Different From the 2013 Rule? 

A: A number of changes to the threshold eligibility requirements are included in the final 2016 rule: 

a. Visa Classification/Qualifying Relative:  

• 2013 Rule: Under the 2013 rule, a provisional waiver was limited to those immigrating to the U.S. as “immediate relatives,” (spouses and children of U.S. citizens and parents of adult U.S. citizens) who could demonstrate extreme hardship to a U.S. citizen spouse or parent.  

• 2016 Rule: Under the 2016 rule, anyone who is statutorily eligible for an unlawful presence waiver under INA §212(a)(9)(B)(v), may apply for a provisional unlawful presence waiver, regardless of their immigrant visa classification. In other words, if the visa applicant can demonstrate extreme hardship to a U.S. citizen or LPR spouse or parent, he or she may apply for and receive a provisional waiver, whether the basis for the immigrant visa is an employment-based preference category, a family-based preference category, the diversity visa lottery, or a special immigrant classification.   

b. Elimination of Cut-off Dates:  

• 2013 Rule: Under the 2013 rule, if the Department of State (DOS) initially acted to schedule the immigrant visa interview prior January 3, 2013 (the date of publication of the final 2013 rule), the individual was ineligible for a provisional unlawful presence waiver. The actual date and time of the interview was not relevant to the eligibility determination. This rule applied even if the individual failed to appear for the interview, cancelled the interview, or requested that it be rescheduled.  

• 2016 Rule: Under the 2016 rule, DHS is eliminating the restrictions based on the date that DOS acted to schedule the immigrant visa interview.        

c. Final Order of Removal: 

• 2013 Rule: Under the 2013 rule, an individual with a final order of removal, deportation, or exclusion was ineligible for a provisional waiver. 

• 2016 Rule: Under the 2016 rule, an individual with a final order of removal, deportation, or exclusion may apply for a provisional waiver if he or she has filed a Form I-212, Application for Permission to Reapply for Admission into the United States After Deportation or Removal, and such application has been conditionally approved. This change is considered an important one as it allows the individuals who are otherwise eligible but got stuck in the country due to an outstanding order of removal.  

Q: I Heard that USCIS Is Eliminating the “Reason to Believe” Standard. What Does This Mean?  

A: One significant change in the 2016 rule is the elimination of the “reason to believe” standard. Under current 8 CFR §212.7(e)(4)(i), USCIS must deny a provisional waiver application if USCIS has “reason to believe” that the applicant may be subject to a ground of inadmissibility other than unlawful presence at the time of the immigrant visa interview. 

The “reason to believe” standard has been the source of much confusion. Since its implementation in 2013, USCIS was applying an overly rigid interpretation of “reason to believe,” and denying applications for individuals who would clearly not be deemed inadmissible for reasons other than unlawful presence at a consular interview. On January 24, 2014, USCIS issued a memorandum revising its policy in this area, but only when reviewing potential criminal ground of inadmissibility. 

Noting the confusion that has persisted over the past few years, USCIS is eliminating the “reason to believe” standard from the provisional waiver adjudication process with the 2016 rule. Thus, when adjudicating a provisional waiver application, USCIS will only consider whether extreme hardship has been established and whether the applicant warrants a favorable exercise of discretion. 

In addition, it is essential to thoroughly review the applicant’s entire immigration, criminal, and personal background and ensure all potential grounds of inadmissibility are vetted and reasonably eliminated prior to filing.   

Q: What Does the New Rule Say About Reinstatement of Removal?  

A: Under current 8 CFR §212.7(e)(4)(vii), an individual is ineligible for a provisional waiver if he or she is “subject to” reinstatement of a prior removal order under INA §241(a)(5). In the 2016 rule, USCIS clarified that individuals are ineligible for a provisional waiver if ICE or CBP, after following notice procedures outlined in 8 CFR §241.8, has reinstated a prior removal order, either before the client filed a provisional waiver application or while the application is pending. Thus, individuals who are “subject to” reinstatement, but have not yet received notice under 8 CFR §241.8, may apply for a provisional waiver under the 2016 rule. However, it should be noted that the provisional waiver approval would be automatically revoked if the applicant is ultimately found inadmissible under INA §212(a)(9)(C) for having unlawfully returned to the United States after a prior removal or prior unlawful presence. 

Q: Did USCIS Address “Extreme Hardship in the 2016 Rule?  

A:  No, USCIS did not define or otherwise address the “extreme hardship” standard in the 2016 rule, saying only that it will continue to make extreme hardship determinations on a case-by-case basis, consistent with agency guidance. However, on October 7, 2015, USCIS released proposed guidance on extreme hardship determinations, including information on the burden of proof, relevant case law, factors that adjudicators should consider, and special circumstances that may exist. While USCIS has not yet published the final guidance, it is expected to be released in the coming weeks. 

Q:  Will There Be a New Version of Form I-601A, Application for Provisional Unlawful Presence Waiver? 

A:  Yes, USCIS announced in the supplementary information to the 2016 rule that changes to Form I-601A, Application for Provisional Unlawful Presence Waiver, are forthcoming. USCIS stated in a press release that these changes would go into effect along with the final rule, and that the updated form would be posted on USCIS’s website on August 29, 2016.  

Q:  When Does the 2016 Rule Become Effective? 

A:  The 2016 rule is effective August 29, 2016. 

 

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Supreme Court Decision Protects Right to Immigration Advice

On March 31, 2010, Supreme Court held that criminal defense lawyers must advise their noncitizen clients about the risk of deportation if they accept a guilty plea. The Court recognized that current immigration laws impose harsh and mandatory deportation consequences onto criminal convictions, and that Congress eliminated from these laws the Attorney General’s discretionary authority to cancel removal in meritorious cases. The Court said, “These changes to our immigration law have dramatically raised the stakes of a noncitizen’s criminal conviction. The importance of accurate legal advice for noncitizens accused of crimes has never been more important.” The case, Padilla v. Kentucky, involved a Vietnam War veteran who has resided lawfully in the U.S. for over 40 years. His criminal defense lawyer told him not to worry about the immigration consequences of pleading guilty to a crime, but that advice was wrong. In fact, the guilty plea made Mr. Padilla subject to mandatory deportation from the United States. The state of Kentucky said that Mr. Padilla had no right to withdraw his plea when he learned of the deportation consequence. Today’s decision reverses the Kentucky court. It also rejected the federal government’s position (which had been adopted by several courts) that a noncitizen is protected only from “affirmative misadvice” and not from a lawyer’s failure to provide any advice about the immigration consequences of a plea. The right to counsel is at the very core of the criminal justice system. The Court affirms that immigrants should not be held accountable when they rely on incorrect advice from their lawyers or where counsel fails to provide any immigration advice at all.

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Supreme Court Holds that Courts Have Jurisdiction to Review Motions to Reopen

Kucana v. Holder, 558 U.S. ___, 2010 U.S. LEXIS 764 (Jan. 20, 2010)

In a unanimous decision, the Supreme Court held that the courts of appeals have jurisdiction to review a BIA decision denying a motion to reopen.The case focuses on the scope of INA § 242(a)(2)(B)(ii), the bar to judicial review of discretionary decisions. This section provides that “no court shall have jurisdiction to review … any other decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified under this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland Security.” In the underlying decision, Kucana v. Holder, 533 F.3d 534 (7th Cir. 2008), the Seventh Circuit had said that this provision applies to determinations declared discretionary by the Attorney General through regulation. Thus, according to the Seventh Circuit, motions to reopen, which are discretionary by regulation, are not reviewable. The Supreme Court reversed the Seventh Circuit, finding that § 242(a)(2)(B)(ii) bars review only of determinations made discretionary by statute.

The Court began its analysis by noting that a “motion to reopen is an ‘important safeguard’ intended to ‘ensure a proper and lawful disposition’ of immigration proceedings” and that there is long history of judicial review over reopening decisions. Employing tools of statutory interpretation, the Court looked to § 242(a)(2)(B)(ii)’s context and placement in the statute. It found that the surrounding judicial review provisions, § 242(a)(2)(A) (barring review over expedited removal decisions under § 235(b)(1)) and § 242(a)(2)(C) (barring review where person is removable based on specified criminal grounds) depend on statutory provisions, not on regulations, to define their scope. The Court also found that § 242(a)(2)(B)(ii) must be read in conjunction with § 242(a)(2)(B)(i), which likewise bars review over the granting of relief under specified statutory provisions (namely, waivers under 212(h) and 212(i), cancellation of removal, voluntary departure, and adjustment of status). Moreover, the Court found significant the character of the decisions Congress enumerated in § 242(a)(2)(B), which are “substantive decisions . . . made by the Executive in the immigration context as a matter of grace.” Such decisions are distinguishable from decisions on motions to reopen, which are a procedural device “serving to ensure that aliens are getting a fair chance to have their claims heard.” Finally, the Court found that had Congress intended the jurisdictional bar to apply to decisions specified as discretionary by regulation, it could have said so explicitly as it did in other places.

Next, the Court looked to the history of the motion to reopen and judicial review provisions. The Court noted that through IIRIRA Congress simultaneously codified the motion to reopen statute and numerous bars to judicial review of executive decisions. “Had Congress elected to insulate denials of motion to reopen from judicial review,” the Court said, “it could have so specified together with its codification of directions on filing motions to reopen.”

Finally, the Court found that any “lingering doubts” about § 242(a)(2)(B)(ii) would be resolved by the presumption in favor of judicial review. There is no “clear and convincing evidence” that Congress intended to bar review over determinations made discretionary by regulation. Moreover, the Court said that under the Seventh Circuit’s construction of the statute “the Executive would have a free hand to shelter its own decision from abuse of discretion appellate review simply by issuing a regulation declaring those decisions ‘discretionary.’ Such an extraordinary delegation of authority cannot be extracted from the statute Congress enacted.”


This landmark decision has protected the immigrants' rights to challenge the BIA's denial of motion to reopen under the "abuse of discretion" standard.

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Congress Ends The Widow Penalty

On October 28, 2009, President Obama signed on the bill that became Public Law Number 111-83, ending Widow Penalty. The bill contains two measures to address survivors’ issues: 1) self-petitioning rights for all widow(er)s of American citizens and their children; and 2) certain survivors’ rights for other immigrants.

PART ONE: WIDOW(ER)S OF AMERICAN CITIZENS AND THEIR CHILDREN

The law removes the two-year marriage requirement from the current law (Immigration and Nationality Act Section 201(b)(2)(A)(i)) that permits widows and widowers (“widow(er)s”) of U.S. citizens to file a self-petition for themselves and their children, while retaining the requirement to show a good faith marriage. The law does not alter the rights of widow(er)s who were married two years or more, who have been able to self-petition since 1990.

It will allow a widow(er) who was married less than two years at the time of the citizen spouse’s death to file an I-360 self-petition form within two years of the law’s passage. This self-petition can be filed concurrently (together) with an Application for Adjustment of Status to Lawful Permanent Resident (Form I-485) if the widow(er) is in the United States pursuant to a lawful entry. If the widow(er) is outside the United States, he or she can apply for an immigrant visa following the I-360 approval. The law does not require that a petition have ever been filed by the U.S. citizen spouse.

In cases where the widow(er) was already the beneficiary of an I-130 Petition for Alien Relative filed prior to the citizen petitioner’s death, such I-130 petitions can be considered automatically converted to an I-360 self-petition. Current regulations already allow such auto-conversion for self-petitions. 8 C.F.R. 204.2(i)(1)(iv). USCIS will apply those regulations to the new law, and allow for a previously denied I-130 petition (and accompanying I-485 application) to be reopened and approved as an I-360 petition.

If you are relying on the automatic conversion of a previously-filed I-130 petition, be aware that an I-360 should be filed within the two years following the law’s passage if guidance is not established by that time.

Does the law require me to obtain an Affidavit of Support Sponsor?

No. The law allows the widow(er) to self-petition, which removes the requirement that another person file an affidavit of support on behalf of the immigrant. Form I-864, Affidavit of Support, will not be required of self-petitioners. Widow(er)s must still prove they are not likely to become a public charge, based on a totality of factors listed under INA Sec. 212(a)(4)(B).

Does the law allow my children to be included?

Yes. Unmarried children of the widow(er) may be included on Form I-360 that is filed by the widow(er). Those children who are under the age of 21 years at the time the petition is filed should be eligible, as well as those children whose age determination is calculated under 201(f) of the Immigration and Nationality Act (Child Status Protection Act, or “CSPA”). CSPA allows children to qualify, even when over age 21, where the petition was filed before the child’s 21st birthday. CSPA calculations can be difficult, so competent counsel should be consulted.

If an I-130 was previously filed by the U.S. citizen on behalf of the child before the child’s 21st birthday, such petition may be considered automatically converted, and may be used to establish the child’s age for self petitioning purposes. This will be particularly helpful in cases where children have already reached age 21 at the time of the law’s passage. In cases where the child is still under 21 at the time of the law’s passage, however, it is urged that widow(er)s file the I-360 self-petition for themselves and their children in case of controversy over this auto-conversion and CSPA interpretation.

Can I receive benefits if I have remarried?

While the self-petition provision in the new law specifically requires that the widow(er) not have remarried, the provision dealing with “Surviving Relative Consideration” (see PART TWO below) does not. That section requires a petition to have been filed previously, so if no previous petition was ever filed before the death, remarriage prior to receiving permanent resident status may foreclose benefits. If a petition was filed on your behalf by your spouse, but you have now remarried, please review PART TWO below.

Are there deadlines?

Yes. For those married less than two years at the time of the citizen’s death, the law permits the filing of a self-petition on Form I-360 within two years of the law’s enactment. Because the law was enacted October 28, 2009, the deadline is October 28, 2011. After this two-year period, a petition must be filed within two years of the citizen’s death. In cases where an I-130 was previously filed by the U.S. citizen, it can be considered to have automatically converted to an I-360 petition. For those married at least two years at the time of the citizen’s death, the law remains the same: an I-360 must be filed within two years of the citizen’s death, unless automatic conversion occurs as explained above. This new law does not change that deadline.

PART TWO: OTHER SURVIVORS

What other benefits to survivors does the law provide?

The law adds a new section of law, Sec. 204(l), to the Immigration and Nationality Act. The new section allows petitions that were filed prior to the death to be adjudicated despite the death of the petitioner or the principal immigrant in cases where the beneficiary or derivative beneficiary resided in the United States at the time of the death and continues to reside in the United States. The law covers the following survivors:

  • Immediate relatives (spouse, parent, minor child of a U.S. citizen)
  • Family Preference relatives (unmarried son or daughter of a citizen, married son or daughter of a citizen, spouse or child of a permanent resident, brother or sister of a citizen)
  • Employment-based dependents (derivative beneficiaries)
  • Refugee/Asylee relative petition beneficiaries
  • Nonimmigrants in “T” (victims of trafficking) or “U” (victims of crime) status
  • Asylees

Does the law require an Affidavit of Support?

Yes. Unlike the self-petitioning widow(er)s (see PART ONE), 204(l) requires an Affidavit of Support, Form I-864. The law amends INA 213A(f)(5) to provide for a substitute sponsor in the case of a petition that is being adjudicated under the new INA 204(l).

I resided abroad at the time that my relative died. Am I covered under this new law?

Only self-petitioning widow(er)s and their qualifying children (see PART ONE) are covered under the new law where the survivor resided abroad at the time of the qualifying relative’s death. If the petition was approved prior to the qualifying relative’s death, however, current “humanitarian reinstatement” provisions found at 8 C.F.R. 205.1(a)(3)(i)(C)(2) may allow continued validity of the previously-approved petition, followed by consular processing of an immigrant visa. This would be the case even where the beneficiary was residing abroad.

Can I receive benefits if I have remarried?

While the self-petition provision in the new law specifically requires that the widow(er) not have remarried, the provision dealing with “Surviving Relative Consideration” does not.

Specifically, if a widow(er) resided in the United States at the time of the death of the qualifying relative and continues to reside in the United States, he or she shall have a petition or application for adjustment of status and any related applications adjudicated notwithstanding the death of the qualifying relative as long as the widow(er) “was…the beneficiary of a pending or approved petition for classification as an immediate relative…immediately prior to the death of his or her qualifying relative.” The clear language of the statute requires only that the person was an immediate relative immediately prior to the death. In the case of a widow(er) who remarries, this requirement is met despite the remarriage, provided a petition was filed prior to the death.

Can my petition still be denied?

The law gives the Secretary of Homeland Security some discretion to deny a petition if it is determined that approval would not be in the public interest. Most cases should be approved under this standard.

Will other related applications be adjudicated on the same basis?

Yes. New INA Section 204(l) provides that the petition, any application for adjustment of status, “and any related applications” be adjudicated notwithstanding the death of the qualifying relative. It is clear from this provision that it was the intent of Congress that such cases be treated humanely, and that the death of the relative should not form the sole reason for denial. Applications related to petitions and applications for adjustment of status include such things as waiver applications (Form I-212, Form I-601).

Under the new law, it should be possible for survivors (including spouses of American citizens, and all listed survivors) to be approved for waivers of inadmissibility notwithstanding the death of the qualifying relative, provided a petition was filed by the qualifying relative prior to the death, or in the case of a derivative, on behalf of the qualifying relative.

(Note: This information is of a general nature and cannot be substituted for advice of competent counsel in an individual case.)

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USCUS Issues a Memorandum on Rescission Of
Deferred Action For Childhood Arrivals (DACA)

September 5, 2017

9/5/2017 Memorandum on Rescission Of DACA.

Reasons stated in the Fifth Circuit and district court opinions regarding DAPA and expanded DACA. The letter from US Attorney General, Jeff Sessions, notes that if DHS does not rescind the DACA memo by September 5, 2017, the States will seek to amend the DAPA lawsuit to include a challenge to DACA.

The Attorney General sent a letter to the Department on September 4, 2017, articulating his legal determination that DACA “was effectuated by the previous administration through executive action, without proper statutory authority and with no established end-date, after Congress' repeated rejection of proposed legislation that would have accomplished a similar result. Such an open-ended circumvention of immigration laws was an unconstitutional exercise of authority by the Executive Branch.”

The letter further stated that because DACA “has the same legal and constitutional defects that  the courts recognized as to DAPA, it is likely that potentially imminent litigation would yield similar results with respect to DACA.” Nevertheless, in light of the administrative complexities associated with ending the program, he recommended that the Department wind it down in an efficient and orderly fashion, and his office has reviewed the terms on which our Department will do so.

Rescission of the June 15, 2012 DACA Memorandum

Elaine C. Duke, Acting Secretary of DHS stated that "taking into consideration the Supreme Court’s and the Fifth Circuit’s rulings in the ongoing litigation, and the September 4, 2017 letter from the Attorney General, it is clear that the June 15, 2012 DACA program should be terminated. In the exercise of my authority in establishing national immigration policies and priorities, except for the purposes explicitly identified below, I hereby rescind the June 15, 2012 memorandum."

Recognizing the complexities associated with winding down the program, the Department will provide a limited window in which it will adjudicate certain requests for DACA and associated applications meeting certain parameters specified below. Accordingly, effective immediately, the Department:

Will adjudicate - on an individual, case-by-case basis—properly filed pending DACA initial requests and associated applications for Employment Authorization Documents that have been accepted by the Department as of the date of this memorandum, i.e., 9/5/2017.

Will reject - all DACA initial requests and associated applications for Employment Authorization Documents filed after the date of this memorandum, i.e., 9/5/2017.

Will adjudicate—on an individual, case by case basis—properly filed pending DACA renewal requests and associated applications for Employment Authorization Documents from current beneficiaries that have been accepted by the Department as of the date of this memorandum (9/5/2017), and from current beneficiaries whose benefits will expire between the date of this memorandum and March 5, 2018 that have been accepted by the Department as of October 5, 2017. In other words, individuals whose DACA status is expired, they will will remain eligible for renewals and can file their DACA renewals applications on or before October 5. 2017.

Will reject - all DACA renewal requests and associated applications for Employment Authorization Documents filed after 10/5/2017.

Will not terminate - the grants of previously issued deferred action or revoke Employment Authorization Documents solely based on the directives in this memorandum for the remaining duration of their validity periods.

Will not approve - any new Form I-131 applications for advance parole under standards associated with the DACA program, although it will generally honor the stated validity period for previously approved applications for advance parole. Notwithstanding the continued validity of advance parole approvals previously granted, CBP will, of course, retain the authority it has always had and exercised in determining the admissibility of any person presenting at the border and the eligibility of such persons for parole.

Further, USCIS will, of course, retain the authority to revoke or terminate an advance parole document at any time.

Will administratively close - all pending Form I-131 applications for advance parole filed on or before 9/5/2017 under standards associated with the DACA program, and will refund all associated fees.

Will continue to exercise its discretionary authority to terminate or deny deferred action at any time when immigration officials determine termination or denial of deferred action is appropriate.

USCIS states that this memorandum is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable at law by any party in any administrative, civil, or criminal matter. Likewise, no limitations are placed by this guidance on the otherwise lawful enforcement or litigation prerogatives of DHS.

Significantly, while the DACA denial notice indicates the decision to deny is made in the unreviewable discretion of USCIS, USCIS has not been able to identify specific denial cases where an applicant appeared to satisfy the programmatic categorical criteria as outlined in the June 15, 2012 memorandum, but still had his or her application denied based solely upon discretion.

[The previous posting on DACA below is left intact only for the purpose of reference]

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DEFERRED ACTION FOR CERTAIN YOUNG PEOPLE WHO CAME TO THE UNITED STATES AS CHILDREN

On June 15, 2012, Department of Homeland Security (DHS) Secretary Janet Napolitano issued a new memorandum to U.S. Customs and Border Protection (CBP), U.S. Citizenship and Immigration Services (USCIS), and U.S. Immigration and Customs Enforcement (ICE) explaining how prosecutorial discretion should be used with respect to individuals who came to the United States as children. Specifically, the memorandum directs that certain young people who do not present a risk to national security or public safety and meet specified criteria will be eligible to receive deferred action for two years, subject to renewal, and to apply for work authorization. Requests for relief are to be decided on a case-by-case basis, and applicants must pass a background check before they can receive deferred action. The memorandum, which was accompanied by a list of Frequently Asked Questions (FAQ), builds on prior DHS guidance regarding the exercise of prosecutorial discretion in low priority cases.

Individuals who meet the following criteriafrom Secretary Napolitano’s June 15, 2012 memorandum will be considered for deferred action:

  • Have arrived in the U.S. when they were under the age of sixteen;
  • Have continuously resided in the U.S. for at least five years prior to June 15, 2012 and have been present in the U.S. on June 15, 2012;
  • Currently be in school, have graduated from high school, have a GED, or be an honorably discharged veteran of the U.S. Coast Guard or the U.S. Armed Forces;
  • Not have been convicted of a felony offense, a "significant misdemeanor offense," three or more non-significant misdemeanors, or otherwise pose a threat to national security or public safety; and
  • Have been under thirty-one years old on June 15, 2012.

Deferred action is a discretionary DHS decision not to pursue enforcement against a person for a specific period. A grant of deferred action does not confer lawful immigration status or alter an individual’s existing immigration status. While deferred action does not cure any prior period of unlawful presence, time in deferred action status is considered a period of stay authorized by the Secretary of DHS. An individual does not accrue unlawful presence for purposes of INA §§212(a)(9)(B) and (C)(i)(I) while in deferred action status. However, deferred action cannot be used to establish eligibility for any immigration benefit that requires maintenance of lawful status. A grant of deferred action can be renewed or terminated at any time.

The deferred action offer will be available to those in proceedings, as well as those who apply affirmatively. [NOTE: Individuals who are NOT in proceeding should NOT apply affirmatively at this time.]

Some provisions of the memorandum took effect immediately. Notably, ICE and CBP were instructed to exercise their discretion to refrain from placing individuals who meet the eligibility criteria into removal proceedings or being removed from the United States. ICE further was instructed to grant deferred action to anyone who meets the eligibility criteria and was offered prosecutorial discretion under ongoing review of pending removal cases first announced in August 2011, regardless of whether the offer was accepted or declined.

Individuals who meet the eligibility criteria and are not currently in removal proceedings, including those subject to final orders of removal, will be able to submit affirmative applications for deferred action to USCIS. USCIS must establish an application process within 60 days of the date of the memorandum, i.e., on or before August 14, 2012. Applicants should not submit applications to USCIS before this process has been established, as they will be rejected. ICE will review cases of individuals in removal proceedings to determine whether they meet the eligibility criteria. ICE’s process for review is evolving. Currently, ICE Headquarters appears to be granting deferred action to individuals known to meet the eligibility criteria without requiring any further action on their part.

It should be noted that the memorandum does not require uninterruptedphysical presence for five years—only continuous residence.Brief and innocent absences undertaken for humanitarian purposes will not violate this requirement. Eligible applicants must provide documentations that will satisfy each requirement or criteria mentioned above.

From August 15, 2012, USCIS has started accepting the Deferred actions applications. The Form 821D, I-765, I-765Ws should be utilized.

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EXECUTIVE ACTION PROVIDES CERTAIN H-4 WORK AUTHORIZATION

As part of the package of executive actions announced in November 2014, the secretary of Homeland Security directed the immigration agencies to implement new policies and regulations intended to support U.S. high-skilled businesses and workers. Last week, U.S. Citizenship and Immigration Services (USCIS) issued the first of these new regulations: effective May 26, 2015, spouses of certain highly-skilled workers in H-1B status will be able to apply for employment authorization. This is a welcome change, as this regulation will support efforts to grow the American economy and help retain much-needed skilled workers who have committed to permanent employment in the United States.
This new regulation only applies to H-4 spouses where the H-1B spouse is already on the path to permanent resident status. Specifically, the spouse in H-1B status must fit into either of the following situations. He or she must be the principal (direct) beneficiary of an employment-based immigrant visa petition already approved by USCIS. Or the person must have H-1B status based on a law (“AC21”) that authorizes USCIS to extend this status beyond the normal six-year limit when the employer has met the law’s requirements for beginning
the permanent status process.

Because of various limits on the number of immigrant visas available each fiscal year, many H-1B workers and their families must wait an extremely long time before they can apply to adjust their status to permanent residence in the U.S., at which time the H-4 spouse also could apply for work authorization. As USCIS Director Leon Rodriguez stated, “Allowing the spouses of these visa holders to legally work in the United
States makes perfect sense.  It helps U.S. businesses keep their highly skilled workers by increasing the chances these workers will choose to stay in this country during the transition from temporary workers to permanent residents.”

This new regulation also is consistent with laws that try to ensure that necessary skilled workers remain in the United States despite processing delays for permanent resident status. In 2000, Congress enacted AC21, which provides for extensions of H-1B status beyond the sixth year, to prevent disruption to U.S. businesses. Without this law, many H-1B workers otherwise would leave the U.S. since they wouldn’t be permitted to work during the long wait for permanent resident status. Work authorization for H-4 spouses likewise incentives high-skilled workers to stay in the United States. Other countries already provide work authorization to spouses. This new regulation for H-4s will help to keep American businesses competitive in a global market for talent.

This regulation is not available to those dependents of H-1Bs who do not meet the requirements listed above. An approved ETA 9089 (permanent labor certification application) or a pending ETA 9089 for more than one year or an approved I-140 Petition for the principal H-1Bs is required for H-4s to become eligible for the benefit of work authorization document (EAD).  

USCIS has estimated that at the high end, 179,600 spouses would be eligible to apply for work authorization in the first year, and 55,000 would be eligible annually in later years. Even if all of the H-4 spouses eligible for work authorization—many of whom also are likely highly educated and highly skilled—entered the work force, they represent only a very small fraction of the overall U.S. work force. Allowing H-4s to work also has strong societal benefits, such as increased family stability, increased community involvement and increased economic contributions.

While this new regulation does not change the need for comprehensive immigration reform, including eliminating—or at least reducing—the backlogs that make these “fixes” necessary, allowing these H-4 spouses to work is a “win-win” for U.S. employers, the U.S. economy and the H-1B/H-4 families that are “in line” waiting to become permanent residents of our country. 
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BRIEF OVERVIEW & FREQUENTLY ASKED QUESTIONS (FAQ) ABOUT TEMPORARY    PROTECTED STATUS (TPS) FOR NEPAL

[The article primarily details the initial designation of TPS for Nepal on June 24, 2015. Readers must be aware of the fact that TPS designation for Nepal has been extended for another 18 months until June 24, 2018. The 60-day re-registration period for TPS starts from October 27, 2016 and ends on December 27, 2016. Qualified applicants who failed to submit initial TPS may be eligible for initial application filing late provided they satisfy both requirements for standard TPS filing and late filing.]


What Is It?

On June 24, 2015, Department of Homeland Security (DHS) granted TPS for Nepal due to the devastating earthquakes that hit Nepal on April 25, 2015 and on May 12, 2015. This is a form of humanitarian immigration relief. TPS establishes a temporary safe haven in the USA for the nationals of a foreign state (or if stateless if person habitually resided in the foreign state). Regardless of their status, legal or illegal, a grant of TPS will allow the nationals of Nepal (and those stateless individuals who habitually resided in Nepal) to remain in the United States for the period of 18 months ending 12/24/2016. It will also allow the TPS recipient to work in the USA and to travel abroad. TPS is generally a protection from removal and also a lawful status, however, it will not cure the preexisting inadmissibility and deportability. It is just a deferred action, means DHS will not remove the person until TPS is valid. Absent unauthorized employment or overstay resulting in inadmissibility, TPS recipient may adjust or change his/her status. Upon approval of TPS status, even if the TPS recipient fails to maintain or opts not to maintain his/her existing nonimmigrant status, the TPS recipient will still be considered being in a lawful status. Applicants who are on any nonimmigrant status are encouraged to file TPS application before the visa expires.
However, TPS itself will not provide a basis for a permanent resident status or green card regardless how long the recipient has been on this status.

What Are The Requirements To Become Eligible For TPS?

1)    Must be a national of Nepal or a stateless person who habitually resided in Nepal prior to entering the United States.
2)    Must have been resided since June 24, 2015. In other words, must establish the continuous residence in the United States.
       In certain circumstances, brief, casual or innocent departure from the United States for less than 90 days will not disrupt the continuous residence.
3)    Must file the application for TPS (Form I-821) on or before December 21, 2015.
4)    Must not have been convicted for Felony or two or more misdemeanors.
5)    Must pass the security checks. 

When Can I Start Filing For It And What Forms Should Be Filed?

There is a 6 month window time to file for TPS registration commencing from June 24, 2015 to December 21, 2015. The application must be received by USCIS on or before December 21, 2015.  Form I-821 must be properly filed with the USCIS. If one wishes to obtain employment authorization document (EAD) and advance parole document, Form I-765 and Form I-131 can be filed with Form I-821. The EAD will be valid for one year and travel document is valid for either one year or for the entire period of TPS. But it is case-by-case and depends on the reasons provided by the applicant.

USCIS fees:
Form I-821    $135,
Form I-765    $380,
Form I-131     $360,

For the applicant under 14 years of age and above 65 years of age, the fees are different. Check www.uscis.gov for fee schedule. Fee waiver can be requested by filing Form I-912.

Application can be filed together or can be filed separately. However, in order to obtain EAD/Advance Parole document, a proof of TPS approval must be presented. Even if an applicant does not wish to apply for EAD, he/she still must fill out and submit an I-765 application but does not need to pay USCIS fee of $380. 

As TPS does not provide “derivative benefits”, each family member must apply independently and must pay separate fees.

What Documents Need To Be Attached To TPS Application?

1) Proof of Nationality: Passport, Nepalese citizenship certificate, birth certificate, Driver’s license, photo IDs, and anything that would establish the nationality or for stateless, last habitually resided in Nepal.

2) Continuous residence:  employment records, rent receipts, taxes, w-2 forms, medical records, birth certificates of children born in USA, bank accounts, utility bills, etc.

3) If arrested, attach a certificate of disposition for each arrest.

In terms of documentations, always more is better, but do not file redundant documents.

If I Leave The USA, Can I Return To USA?

Yes, with a valid advance parole document and a valid passport, one can return to the USA. It will be wise to keep the original TPS approval document handy. Although there is nothing in the regulation that one who departs with advance parole document must leave after TPS is granted, it will be prudent to wait until application for TPS is approved.

Upon My Return To The United States With Advance Parole, Will It Have Any Impact On My Status Or Future Possibility Of Obtaining A Green Card?

It depends. If the TPS recipient has never been out of status or never been unlawfully present in the USA until the time the TPS application was filed with USCIS, his/her return to the USA with advance parole will not have any adverse impact on his/her admissibility. But if the TPS recipient had accrued more than 6 months or more than 1 year of unlawful presence and he/she left with advance parole document and reentered, that person will be subject to 3/10 years of bar. In other words, he/she will be inadmissible for 3 to 10 years for adjustment of status. However, persons who obtained advance parole based on a pending adjustment of status application may not be subject to 3/10 year bar even if he/she accrued more than 6 months or more than 1 year of unlawful presence in the USA. In addition, people who entered the USA without inspection (EWI) may also tend to leave with an advance parole document obtained through TPS and later try to adjust his/her status through various applications. The impact of the reentry into the USA with advance parole varies depending on the particular jurisdiction or the applicant’s place of residence across the USA and also the underlying application they are pursuing in the future. Therefore, it is complex. As such, it is highly recommended that one must consult a competent immigration lawyer before making a decision to depart the USA with an advance parole document.    

If I Have Asylum Application Pending Before Asylum Office, Court/BIA Or An Outstanding Order Of Removal, Can I Apply For TPS? What Will Happen To My Application For Asylum If I Obtain TPS?

Yes, you can. However, in order to travel outside of the United States, you must consult with your attorney since there are some requirements that must be fulfilled prior to departure and also consequences for leaving the USA. Filing for TPS will not have any negative impact on the pending application for asylum. As stated above, however, one must consult with a legal counsel before applying for advance parole. Departing with advance parole might cause an adverse impact on the claim for asylum. As TPS is considered as lawful status, if the application is denied, it is very possible that the asylum office might find the applicant in a lawful status and may conclude the matter as final instead of referring the matter to EOIR or Immigration Court for further proceeding by issuing a Notice to Appear (NTA). In other words, the applicant will not be placed in a removal proceeding. In this case, the applicant may lose a chance to pursue his/her case before an Immigration Court. In the alternative, one may argue that the asylum office should hold the case in abeyance and issue an NTA in a later date when TPS is terminated. However, looking at the past practice and current position of asylum offices, it is very likely it will close the matter marking “Final Denial” if it denies the application for asylum. As such, it is strongly recommended that applicants waiting for an interview for asylum before USCIS or Asylum Office should analyze the merit of their asylum applications and prioritize their future immigration goals prior to filing for TPS.   

If one’s case is pending before an Immigration Court and the applicant has obtained TPS, it is very likely that the DHS will request for administrative closure of the proceeding. However, parties must agree on administrative closure. If the applicant does not agree on administrative closure, then the Court will either proceed with hearing for underlying relief or continue the case for another date. If the Court proceeds with hearing and denies the application for asylum or any other relief then it can enter an order of removal against the applicant. However, any such removal order could not be executed during the period in which the applicant’s TPS status is valid.       

If the applicant is already subject to an order of removal (regardless the matter is now with BIA or Circuit Courts), he/she shall simply obtain TPS and obtain EAD. However, it is not recommended to apply for advance parole as discussed above.

What If I Miss The Deadline To Register For TPS For Nepal?

Everyone is strongly advised to apply for TPS on or before December 21, 2015. If you missed the deadline, there are very few exceptions for late registration for TPS. This will not be discussed in this article as the registration time will not sunset until 12/21/2015.

I Am On Nonimmigrant Status (F-1, M-1, H-1B, L-1). Do I Need To Maintain My Nonimmigrant Status Once I Obtain TPS?

As mentioned above, as long as you are eligible for TPS, anyone (nationals of Nepal or stateless persons who habitually resided in Nepal) can apply for TPS. Even if TPS is a bonus for those who are maintaining nonimmigrant status, nonimmigrants like students and H-1B visa holders must pay attention to the inherent requirement of their respective visas. TPS will not automatically maintain F-1, M-1, L-1 and H-1B or other nonimmigrant visas. TPS recipients must comply with the terms and conditions of their visas. Students must take full-time courses in order to maintain their F-1 or M-1 status, unless they have obtained EAD under the grounds of economic hardships. ESL or Vocational F-1 students also must fulfill their hours of study to maintain F-1 status. H-1B visa holders can obtain EAD through TPS, but in order to maintain H-1B visa status, they must maintain the payroll with the petitioning company. Even if students obtain EAD through TPS, they must inform their DSO of their TPS filing and obtaining EAD since F-1 or M-1 does not allow them to obtain employment outside of the campus. It must be timely reflected in the SEVIS otherwise, SEVIS can be terminated.        

Every case is different. F-1 Students who have issues with continuation of study, timing of graduation and OPT are encouraged to discuss with their DSOs. DSOs are well trained and well informed to handle such issues when a country gets designated for TPS. Currently, Nepal is the twelfth country to receive TPS designation, as such; it is not a new thing for DSOs of colleges and universities.

What If TPS Expires After 18 Months?

The newly granted TPS for Nepal is valid for 18 months. It will sunset on December 24, 2016. DHS may extend the TPS period. If it is extended, then the TPS recipient must re-register for TPS for the extended period. If TPS finally terminates, the TPS individuals will return to the status what they had before the grant of TPS. Depending on the individual visa status, background and situation, in the event TPS expires, TPS recipients can also seek asylum and/or cancellation of removal as a relief from possible removal from the United States or change of status.    

What If My TPS Is Denied By USCIS?

If your TPS application is denied, you can file an appeal from the denial to Administrative Appeals Office (AAO). After the denial, if the applicant is placed in a removal proceeding by an issuance of a charging document or Notice to Appear (NTA), you can still renew your application and ask the Immigration Judge (IJ) to consider the application. The IJ shall review it de novo. In other words, the IJ is not bound by USCIS' or AAO's adverse decision. If the IJ again denies it, then you can file your appeal from the IJ’s decision to Board of Immigration Appeal (BIA) in Falls Church, VA.


(Disclaimer: This FAQ cannot be construed as a legal advice for any particular matter. It is only for information purpose. Everyone is strongly advised to seek a legal advice from a licensed attorney.)
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