Laura
02-27-2008, 03:56 PM
Laurel: I'm here. Let's just jump in today. What happens here does not create an attorney-cient relationship.
Laurel: Legal advice is the application of the law to the facts of the case. Because I have not had the opportunity to review your entire case, I recommend that you not act on the statements made in the chat. The statements are for informational purposes only. I recommend you consult with an attorney so that the attorney can completely review the facts of your case before proceeding.
Venus_and_Mars: Hi Laurel , I 've a waiver pending from Feb 6th,07. Haven't gotten anything yet, sent an inquiry by mail last january and another last week by fax. Do you think that I am in time to send anymore documents to support my waiver?
Laurel: Where is the case? I think you should enlist the assistance of your Congressman to find out what's going on.
mtoledo: Good morning Laurel. One of the questions on the I-864(Affidavit of Support) asks the Citizenship/Residency of the joint sponsor(Question 19). Our joint sponsor became a US Citizen back in '97(he was previously an LPR). We are a bit confused on which answer he should choose. These are the two choices:
- I am a US Citizen
- I am a US National(for joint sponsor only)---->[What is a US National?]
Laurel: I've been practicing for several years now and I still don't understand what it means to be a national, but not a citizen. I think its something for people in outlying territories or something. Like Fiji. Anyway, if he naturalized, he is a citizen.
CJ: Good Morning Laurel, my question is, Is it ok for my wife' co sponer to turn in his 2007 taxes since he lost his 2006? Her appt. is in less than 2 weeks and by the time the IRS sends him a transcript it will be to late. Also my wife just found out she is pregnant and already have a 2 year old should we go and take the risk and go to the appt. She was brought to the US at age3 and has never left or been in trouble with the law. Thank You!
Laurel: 2007 returns are even better than 2006. Whether to proceed with the case is up to you, but assuming you're eligible to file the waiver and you've put together a strong case, normal pregnancy alone shouldn't stop you from proceeding.
laurafern11: From Emily:
1. My husband attempted a ewi in dec 99. He made it into the us, and was caught less then 1 hour later. He was detained with the rest of his group, and sent back across the border. My husband states they took him to a large room, and him and all the people he was with waited there until they were sent back to the border. He doesn't feel it was a deportation and doesn't remember signing anything. Is this still a "throwback". He then made it succesfully the next day and had never left. Worse case senerio, what can happen? Is it even worth trying to get fingerprints if this is all he has or is it a waste of time?
2. What's the scoop on I-9 forms, and claiming USC? My husband says he always left them blank, but who knows what the employer did next. Will this cause is problems ever?
Laurel: 1. Sounds like a catch and release, but run the fingerprints by the FBI as a precaution so you know you don't have a 9C problem before you depart.
2. If he thinks he never claimed to be a USC on the I-9 he can answer 'no' to any questions regarding false claim of citizenship. I-9 forms are not sent to CIS, but are kept on hand by the employer in case of inspection by CIS, which happens infrequently. Even when the I-9 forms are inspected, they are rarely kept unless there is a problem.
laurafern11: From Pasa - (not sure if this person consulted with you already, if so disregard this question, he asked on the forum and I suggested he consult with you but his response was vague) - I came to the us in April 30th 2001 as an F-1 student originally from Kenya. I transferred from my original college in Illinois to one in Michigan. I was doing good till September 2002 when I was involved in an accident. I was charged with two counts of negligent homicide (mcl 750.324) though I had no recollection of the accident nor were there any witnesses nor the police could not really know what happened except for the fact that my car had crossed the centerline. It was around 10:30 pm on a country road. I was not aware of what was going on until one of the victims mother visited me at the hospital told me what had happened. We became friends from that time on, anyway one year later I was charged with the offense. I did end up pleading a no-contest to the offense with the victims families and prosecutor advising me to plead a no-contest. I had a court appointed lawyer then. I was sentence to 12 months probation and community service, I also had to pay court fees amounting to $1400 and no restitution as the families did not want me to pay. After a long therapy I went back to school taking fewer classes and progressing up. I did end up dropping out of school in 2006 september due to the fact that I couldn’t present the with affidavit of support and bank statements. This was due to the fact that my mom had gotten cancer and she was not able to do anything, I got the hospital papers to show, she passed away in 2007 September. So I was out of status for 1 and half years. I met my wife who is a USC in 2003 got married in September 2006, we do have a 3 year old daughter and a ten-year-old stepdaughter, we still married and I wanted to have your opinion on what I should do, I already did all my paper work for adjustment of status, got to certified copies for my criminal record, all is set to be mailed in.
Please advice me and tell me what my situation is? Will i need an I-601 waiver?
Laurel: Negligent homicide due to motor vehicle accident in which alien plead no contest ... I had a similar case a few years ago. Usually not considered a crime of moral turpitude, depending on the details of the negligence. Assuming you've never left the country, sounds like you'll be able to adjust status and probably will not need an I-601, though I recommend you retain counsel so that you're ready with an argument that the conviction is not a crime of moral turpitude.
Laurel: The similar case I had a few years ago was one of the very few times I've seen an offense with serious consequences to the victim be ruled as NOT a crime of moral turpitude.
laurafern11: From Auntlily: Should I go prepared with an I-601 in case they find that my hubby needs a waiver? Hubby was in the US since he was 15 on a tourist visa and lived here until he turned 21 and would come and go after that. E.g. he would stay here for the weekend and leave during the week. Then at one point he was denied entry and had his tourist visa taken away. Also, most of that time he had a form which permitted him to be in the US for 6 months. I think we would get one twice a year b/c we would travel a lot. Anyhow, can you ask her if he would need a waiver at all b/c he lived here before 21 on a tourist visa? He graduated from high school and all.
Laurel: He'll need a waiver, but it doesn't sound like he ever triggered 9C as there was no EWI.
laurafern11: A few questions regarding the whole cokezero/memos controversy:
1. Youth EWI with parents at age 12 (for example), leaves at age 17 and EWI again before his 18th birthday and does not leave again. He applies through a spouse five years later when he is married, gets approved, goes to CDJ, etc. Under the 1997 memo, could this theoretically be 9(c)?
2. Youth EWI with parents at age 12, leaves the U.S. at age 17, then EWI again at age 20. Could this individual be tagged with 9(c) theoretically? Is this the same scenario was cokezero's case in theory, or is the fact that cokezero's husband ***left and re-entered*** after his 18th what triggers the problem?
Laurel: Ok, I'll tackle this now. The answers are not cut and dry. I don't think the 1997 CIS memo really clarifies the issue (and by the way, there are two 1997 memos on the subject, but I usually just refer to the second, which over-rules the first). The 1997 memo suggests that unlawful presence accumulated prior to age 18 does count toward 9C, even though it doesn't count toward 9B, however it never states this explicity. I also think the 1998 DOS cable states that the 9B exceptions do apply to 9C, which means it would over-rule the 1997 memo, assuming that's what the 1997 memo says. However, the 1998 cable also does not explicitly state that the 9B exceptions apply to 9C.
Laurel: There's really no clear rule to follow.
Laurel: However, presuming that the 9B excpetions DO NOT apply to 9C, then it really wouldn't matter if both the year of unlawful presence and subsequent EWI all occur when the alien is a minor, or even a baby.
Laurel: To me it is the most convincing argument to apply the 9B exceptions to 9C that if you don't apply the exceptions, you can have a toddler triggering 9C.
Laurel: I'm going to present my argument to Mr. B today, but the fact of the matter is that this is a grey area of law that has not be satisfactorily clarified by any memo, cable, case law or official precent of any kind.
MARIA: HIMRS. LAUREL I HAVE MY SON IN JAIL ,HE COME ILEGAL TO USA.HE HAS 20 YRS. OLD ,HE HAS 2 CASES 1.- ASSAUL 2ND-ON PEACE OF 2.-VEHICULAR ELUDING W/INJURY, LEAVING SCENCE OF ACCIDENT, HIT AND RUN-UNATT-VEH/PROPERTY,I MARRIED WITH A CITIZEN 5 YRS. AGO.BUT WE NOT APPLY YET FOR LEGAL STATUS HERE,WE HAVE 15 YRS, IN USA. MY SON HAS A THAT TIME 4 YRS. OLD, DID YOU KNOW MY HUSBAND CAN APPLY FOR A TYPE FOR STATUS HERE, OR ANY ONE ELSE THAT CAN HELP HIM WITH INMIGRATION HOLD,WHAT ITS YOUR RECOMENDATION FOR THIS WICH OR WICH ITS THE NEXT STEP TO FOLLOW.
Laurel: Please do not type in all caps. It gives the appearance that you are shouting and is surprisingly difficult to read. I will not attempt to read questions in all caps. Thank you for your cooperation.
adawncruz: Hi - My question is it ok in the waiver to admit that qualifying spouse met the petitioner in Mexico and brought her over - could that be grounds for denial?
Laurel: I would avoid admitting that. Don't lie. But don't volunteer more than you need to. If the qualifying relative knowingly participated in the alien's violation of the law, it will be considered a major aggravating factor significantly diminishing the chances of success. There will be times when you would want to admit such a thing, but such times are rare.
Pat: Hi Laurel. For my finantial hardships I'am arguin that moving to Mexico and losing my job would not aloud me to keep saving and adding funds to: 1.My children's collegue fund 2.Savings account to make an addition to my house and have my old parents to live with me. 3.My 401k plan. The sum of the 3 accounts is a considerable amount of money. Should I show them bank statements? I'm affraid that they migth assume that I can easily afford to move abroad. But then again, I'm 45. I should have a little something. My house is almost paid off too. Would you please give me your opinion?. I'm confused!. Thanks.
Laurel: You are absolutely right to be concerned about making this argument. I almost never (never say never) reveal that the qualifying relative has a large amount of money stashed away, even if its retirement funds. And the reason is exactly what you pointed out ... it begs the question, "well, if you have all that money, it looks like you can easily move abroad"
Genesis: My friends husband ewi and after they got the I-130 approved they filed the I-765 and he got a work permit and ssn, how is this possible for someone who ewi'ed ? What can happen when they realize (if they ever do) it was a mistake?
Laurel: If its a 245i case, what you describe is normal (though the I-485 and I-485 Supplement A would have also been filed). If its not a 245i case, then the EAD will be revoked and the alien placed in removal proceedings once the government denies the I-485. Furthermore, if he naively shows up to the adjustment of status interview, he will be handcuffed and immediately taken to detention. Don't try it.
Venus_and_Mars: it is in Juarez, yes my congress woman sent an inquiry but we haven't heard from her
Laurel: Call her office.
mach: Originally, my lawyer listed on the 601, ds230 and 325a that hubby had one entry. In time for his interview this week we changed it to list his 4 tourist visa entries cause we figured they would ask and we wanted to be honest. They never asked him to turn in updated forms. Yesterday at his interview the officer and my hubby did talk about a few of his legal entries. My question is, should I include the updated forms with the waiver packet since they know there was more than one entry or since they didn’t ask for updated forms…just turn in the old forms?
Laurel: Tell the truth on your forms even if you didn't tell the truth in the past. Do not let the misrepresentional or "error" snowball.
monki12: I know that there has always been a grey area when it comes to minors who ewi. Do you think a person who ewi twice as a minor on both occasions, would be eligible for a waiver?
Laurel: I don't know whether I've ever maybe mentioned this before but ... its not about how many times you EWI, its about whether you EWIed after accumulating more than one year unlawful presence in the aggregate or EWIed after a deportation. The mere number of times you EWIed does not trigger 9C.
Mendoza: Question for Kathy: My fiance was here on a 1 month visa and overstayed by 2 months. He departed without turning in the permit. A month later he flew into Atlanta and tried to re-enter on the visa. The fingerprinted him and sent him back (they told him it was not a deportation; he entered on a round-trip ticket.....). Before doing so they wrote in his passport the code: ATL#4052 212c(7)(A)and then some other things which are not clear. After leaving, he hasn't been back to the US. Can you help with what the code means and does it mean he is going ot need any waivers when he goes to his interview? If he does need a waiver, which one and would you be able to help if I hire you? Thanks!
Laurel: If he was entering as a visitor for business on a B1/B2 consular visa, it is permissible for them to allow entry of anywhere from a day to a year. If he was entering as a visitor for pleasure on a B1/B2 consular visa, it was not permissible for them to allow entry for any period of time other than six months. But if he violated the terms of his stay, his consular visa became null and void as a matter of law regardless of the expiration date. When he attempted to return on it, they voided it. The 7A finding simply indicates that he did not have the proper documentation to enter. Doesn't sound like a deportation or anything that will lead to him needing a waiver.
meemofrog: ATTENTION, UNDOCUMENTED MALES
& IMMIGRANT SERVICING GROUPS!
If you are a man ages 18 through 25 and living in the U.S., then you must register with Selective Service. It’s the law. You can register at any U.S. Post Office and do not need a social security number. When you do obtain a social security number, let Selective Service know. Provide a copy of your new social security number card; being sure to include your complete name, date of birth, Selective Service registration number, and current mailing address; and mail to the Selective Service System, P.O. Box 94636, Palatine, IL 60094-4636.
Be sure to register before your 26th birthday. After that, it’s too late!
Selective Service does not collect any information which would indicate whether or not you are undocumented. You want to protect yourself for future U.S. citizenship and other government benefits and programs by registering with Selective Service. Do it today.
Laurel: Even illegal aliens must register for the draft before age 26 or you won't be able to naturalize until age 31 if you legalize. Legal nonimmigrants do not need to do this. Alien males under age 26 are automatically registered when they get a green card and do not need to do anything.
Pat: Is it relevant to mention in the hsl that my wife finish college in her country?
Laurel: Depends on the facts of the case, but I'm having a hard time imagining a scenario where that will support an extreme hardship argument.
Mendoza: Question for a friend: Is it correct that you remove the conditional residency 90 days from being in the US for 2 years (not 90 days from the 2 year anniversary of the marriage, right?)? Thanks!
Laurel: 90 from the expiration of conditional permanent residence
adawncruz: Good Morning We just did a 10 page letter - then we read abjudicator has to go thru everything in 15 minutes. Is that true? It will take 10 minutes just to read the Letter. How much time do they spend on the exhibits?
Laurel: They skim through the packet in an attempt to find something that will cause them to approve. If after 15 minutes of skimming they haven't found a reason to approve, they refer for a thorough read-through. Make it easy for them to find something in 15 minutes of skimming. Be convincing, but be CONCISE!!! Do not submit 3 inches of documents.
Laurel: Avoid presenting lots of weak arguments that will make it harder to find the strong ones.
Heather91001: Hi Laurel, my fiance arrived EWI about 10 years ago. Right before he arrived for good in the US he caught 2-3 times. He said he was caught & released afte crossing the Rio Grande & was fingerprinted but gave them a different name because he had no ID on him. Can those times he was previously caught be reasons for ineligibility for the I-160? I'm not clear on whether those are considered "deportations" or "catch & release" and how big of a play they have on everything.
Laurel: FBI fingerprint check to find out if any of them were deportations. I don't know whether I've ever mentioned this, but its not about how many times you EWIed or attempted to EWI ... do I need to go on?
Venus_and_Mars: do you think that i am in time to send anymore documents to support my waiver.? Have a letter from the pshycologist my little girl is 4 years and having extreme anxiety and emotional problems due to her dad is not with us.
Laurel: I'm hesitant to start recommending updates when its already been pending over a year. A decision is likely already made.
californiadreamin_: Good morning Laurel, I will marry a USC in April. We have been living together for 4 years. I was brought to the USEWI at the age of 5. Have never been in trouble with the law/immigration. We will start filing shortly after the wedding. My question is....the USC does not have any grave medical conditions nor does his family...do you think we can still make a strong case for the waiver?
Laurel: I would say that fewer than half my approved cases involve any kind of medical hardship.
Mgarcia: Hello Laurel, My husband had a mexican visa/passport at age 15 in 1991 and it was goos for 10 years while on a visit to the US it was stolen in 1998 his permit was up for 6 months in december and he left to MX in Feb (2months after) i was able to get a letter from his employer in MX just in case they ask for proof at CDJ. do i need this letter to be notarized and translated? he only has 1 EWI in 2001 and the 2 month overstay from 1999 do you think they will have records of the overstay or be found inadmissable under 9C? The only proof i have of when he left from 1999-2001 is his employer letter. Thanks
Laurel: You're probably ok, though I can never promise. As the 9C issue will be resolved at the consulate, you don't need the letter translated.
imhere: Hi Laurel. I had my Aos interview back in 11/07. The AO indicated that he is inclined to deny my AOS but also added he will check with his supervisor before a decision is made. He did not specify when I will receive an answer. What happened was, I applied for a visa in 1996 to visit relatives in American Samoa. I did 10 years ago but I also used my visa to enter NY several times since then. In 2001, I married my USC spouse and filed for AOS last year. The AO is arguing that I never should have entered the US in the first place and that my visa was only good for American Samoa but the visa did not indicate any restriction. Do you think I have a chance? If not, typically how long would they sit on a case like mine before they make a decision? Your input is appreciated.
Laurel: I'm not sure whether he is concerned about potential fraud and INA 212 a6C or potential improper admission and INA 245a. If its the former, argue that you had no intent to commit fraud, believing it was valid for entry, and misreprestation requires intent. If its the latter, argue Matter of Areguillin (sp?).
evevelyn4: Hi! Laurel!. Do you know how long it takes to get a Work permit visa?. My brother's boss is an Electric Contractor and he wants to help him.
Laurel: There's a lot of variation in how long it takes to get an employment-based visa, either immigrant or nonimmigrant. But due to visa availability backlogs, unless its an extraordinary employment-based category (such as internationally acclaimed performer or athlete) I think its going to take a long time. Also beware that once you go out of status, unless you're 245i eligible, you can almost never legalize through employment.
Mendoza: Question for a friend: My husband EWI in 1997 at the age of 17. He then went ot Tijuana for 1 day at the age of 21. He was caught by immigration trying to pass with his license (under a different name) and was caught. They finger printed him and told him he had a 5 year ban. 4 months later he EWI and has been here since. Will he be eligible for a waiver if we go to the interview?
Laurel: Sounds like an expedited removal followed by EWI, which makes him 9C inadmissible, but run fingerprints by FBI to be sure.
adawncruz: adawncruz: Laurel - What is a Infopass Irregularity? I read that this was one of the 3 options
Laurel: No longer an issue as appointments are no longer made through Infopass.
auntlily: Laurel, thanks for answering the question that Laurafern11 posted for me, but I have an addition to that question. you said I would be needing a waiver, should I call and make an appointment for the waiver then? Out appointment is April 7 at 7:30 for the K-3 visa.
Laurel: Yea, call and make the waiver appointment. There is now about an 8-10 week backlog for waiver appointments.
majmikew: Hi, Miss Scott, I don't know that you still remember me or not, I and my wife want to ask you to be our attorney to process her case. I live in Florida. So how do we start our first consultation ? Do we need to meet in person or by phone and video conference ? So I can know what kind of documents I should prepare.
Laurel: You can click on the consultation button on the menu to the left, but it might be best for you to wait until next week or so as I'm a bit overwhelmed at the moment with the election, an article I'm working on that's due this week, and tax returns that must be done this week so I can get the mortgage for the house I'm supposed to be closing on in a few weeks.
adawncruz: adawncruz: Laurel - we did live scan fingerprinting. Results came back from Dept of Justice - Is that the same as the FBI?
Laurel: Send them in to the FBI in the way described on my memo. There's a link to the memo on my homepage.
Laurafern11: So, is it true that these memos can apparently trump the actual wording of the law? Because doesn't the INA text actually state something like "no time before the person turns 18 can be counted as illegal presence?" or was I reading that in a part that apparently only refers to 9(b) and that is the whole issue here?
Laurel: Very rarely do the memos over-rule the wording of the statute, though that does sometimes occur (for example, in the INA the tolling provision is specifically limited to I think 120 days, but in a memo CIS said they would not limit it to 120 days). The 9C problem is that the statute does not, in fact, carve out an exception for unlawful presence prior to age 18 for 9C. It does for 9B. But the failure to carve out the exception appears to have been an oversight by Congress.
Mendoza: If someone receives VD and leaves and then comes back and they file the I-130 and then realize that they would be banned for life with eligiblity for the waiver in 10 years and they decide not to continue with the case, would having submitted the I-130 raise a red flag that that person is back in the country after a VD? Would ICE possibly come to their house?
Laurel: Unlikely
adawncruz: adawncruz: Laurel - When I filed the I-130, I used married name. On the ID is the maiden name. Interview in Juarez in 2 weeks, could that cause a problem?
Laurel: Unlikely
Susan: We are going for our K-1/Waiver appointment in April. If everything is approved and we would like to have a prenuptial agreement before actually getting married. Will having a prenuptial agreement negatively effect us at AOS?
Laurel: Yes. One of the things they look for on adjustment of status is comingling of funds, something a prenup is designed to prevent. It won't automatically lead to denial, but you will have a more challenging time proving real marriage.
Laurel: Very active chat today guys. But its noon and I'm quite swamped. See you all next week after the Primary. Go Obama!!!
Laurel: Legal advice is the application of the law to the facts of the case. Because I have not had the opportunity to review your entire case, I recommend that you not act on the statements made in the chat. The statements are for informational purposes only. I recommend you consult with an attorney so that the attorney can completely review the facts of your case before proceeding.
Venus_and_Mars: Hi Laurel , I 've a waiver pending from Feb 6th,07. Haven't gotten anything yet, sent an inquiry by mail last january and another last week by fax. Do you think that I am in time to send anymore documents to support my waiver?
Laurel: Where is the case? I think you should enlist the assistance of your Congressman to find out what's going on.
mtoledo: Good morning Laurel. One of the questions on the I-864(Affidavit of Support) asks the Citizenship/Residency of the joint sponsor(Question 19). Our joint sponsor became a US Citizen back in '97(he was previously an LPR). We are a bit confused on which answer he should choose. These are the two choices:
- I am a US Citizen
- I am a US National(for joint sponsor only)---->[What is a US National?]
Laurel: I've been practicing for several years now and I still don't understand what it means to be a national, but not a citizen. I think its something for people in outlying territories or something. Like Fiji. Anyway, if he naturalized, he is a citizen.
CJ: Good Morning Laurel, my question is, Is it ok for my wife' co sponer to turn in his 2007 taxes since he lost his 2006? Her appt. is in less than 2 weeks and by the time the IRS sends him a transcript it will be to late. Also my wife just found out she is pregnant and already have a 2 year old should we go and take the risk and go to the appt. She was brought to the US at age3 and has never left or been in trouble with the law. Thank You!
Laurel: 2007 returns are even better than 2006. Whether to proceed with the case is up to you, but assuming you're eligible to file the waiver and you've put together a strong case, normal pregnancy alone shouldn't stop you from proceeding.
laurafern11: From Emily:
1. My husband attempted a ewi in dec 99. He made it into the us, and was caught less then 1 hour later. He was detained with the rest of his group, and sent back across the border. My husband states they took him to a large room, and him and all the people he was with waited there until they were sent back to the border. He doesn't feel it was a deportation and doesn't remember signing anything. Is this still a "throwback". He then made it succesfully the next day and had never left. Worse case senerio, what can happen? Is it even worth trying to get fingerprints if this is all he has or is it a waste of time?
2. What's the scoop on I-9 forms, and claiming USC? My husband says he always left them blank, but who knows what the employer did next. Will this cause is problems ever?
Laurel: 1. Sounds like a catch and release, but run the fingerprints by the FBI as a precaution so you know you don't have a 9C problem before you depart.
2. If he thinks he never claimed to be a USC on the I-9 he can answer 'no' to any questions regarding false claim of citizenship. I-9 forms are not sent to CIS, but are kept on hand by the employer in case of inspection by CIS, which happens infrequently. Even when the I-9 forms are inspected, they are rarely kept unless there is a problem.
laurafern11: From Pasa - (not sure if this person consulted with you already, if so disregard this question, he asked on the forum and I suggested he consult with you but his response was vague) - I came to the us in April 30th 2001 as an F-1 student originally from Kenya. I transferred from my original college in Illinois to one in Michigan. I was doing good till September 2002 when I was involved in an accident. I was charged with two counts of negligent homicide (mcl 750.324) though I had no recollection of the accident nor were there any witnesses nor the police could not really know what happened except for the fact that my car had crossed the centerline. It was around 10:30 pm on a country road. I was not aware of what was going on until one of the victims mother visited me at the hospital told me what had happened. We became friends from that time on, anyway one year later I was charged with the offense. I did end up pleading a no-contest to the offense with the victims families and prosecutor advising me to plead a no-contest. I had a court appointed lawyer then. I was sentence to 12 months probation and community service, I also had to pay court fees amounting to $1400 and no restitution as the families did not want me to pay. After a long therapy I went back to school taking fewer classes and progressing up. I did end up dropping out of school in 2006 september due to the fact that I couldn’t present the with affidavit of support and bank statements. This was due to the fact that my mom had gotten cancer and she was not able to do anything, I got the hospital papers to show, she passed away in 2007 September. So I was out of status for 1 and half years. I met my wife who is a USC in 2003 got married in September 2006, we do have a 3 year old daughter and a ten-year-old stepdaughter, we still married and I wanted to have your opinion on what I should do, I already did all my paper work for adjustment of status, got to certified copies for my criminal record, all is set to be mailed in.
Please advice me and tell me what my situation is? Will i need an I-601 waiver?
Laurel: Negligent homicide due to motor vehicle accident in which alien plead no contest ... I had a similar case a few years ago. Usually not considered a crime of moral turpitude, depending on the details of the negligence. Assuming you've never left the country, sounds like you'll be able to adjust status and probably will not need an I-601, though I recommend you retain counsel so that you're ready with an argument that the conviction is not a crime of moral turpitude.
Laurel: The similar case I had a few years ago was one of the very few times I've seen an offense with serious consequences to the victim be ruled as NOT a crime of moral turpitude.
laurafern11: From Auntlily: Should I go prepared with an I-601 in case they find that my hubby needs a waiver? Hubby was in the US since he was 15 on a tourist visa and lived here until he turned 21 and would come and go after that. E.g. he would stay here for the weekend and leave during the week. Then at one point he was denied entry and had his tourist visa taken away. Also, most of that time he had a form which permitted him to be in the US for 6 months. I think we would get one twice a year b/c we would travel a lot. Anyhow, can you ask her if he would need a waiver at all b/c he lived here before 21 on a tourist visa? He graduated from high school and all.
Laurel: He'll need a waiver, but it doesn't sound like he ever triggered 9C as there was no EWI.
laurafern11: A few questions regarding the whole cokezero/memos controversy:
1. Youth EWI with parents at age 12 (for example), leaves at age 17 and EWI again before his 18th birthday and does not leave again. He applies through a spouse five years later when he is married, gets approved, goes to CDJ, etc. Under the 1997 memo, could this theoretically be 9(c)?
2. Youth EWI with parents at age 12, leaves the U.S. at age 17, then EWI again at age 20. Could this individual be tagged with 9(c) theoretically? Is this the same scenario was cokezero's case in theory, or is the fact that cokezero's husband ***left and re-entered*** after his 18th what triggers the problem?
Laurel: Ok, I'll tackle this now. The answers are not cut and dry. I don't think the 1997 CIS memo really clarifies the issue (and by the way, there are two 1997 memos on the subject, but I usually just refer to the second, which over-rules the first). The 1997 memo suggests that unlawful presence accumulated prior to age 18 does count toward 9C, even though it doesn't count toward 9B, however it never states this explicity. I also think the 1998 DOS cable states that the 9B exceptions do apply to 9C, which means it would over-rule the 1997 memo, assuming that's what the 1997 memo says. However, the 1998 cable also does not explicitly state that the 9B exceptions apply to 9C.
Laurel: There's really no clear rule to follow.
Laurel: However, presuming that the 9B excpetions DO NOT apply to 9C, then it really wouldn't matter if both the year of unlawful presence and subsequent EWI all occur when the alien is a minor, or even a baby.
Laurel: To me it is the most convincing argument to apply the 9B exceptions to 9C that if you don't apply the exceptions, you can have a toddler triggering 9C.
Laurel: I'm going to present my argument to Mr. B today, but the fact of the matter is that this is a grey area of law that has not be satisfactorily clarified by any memo, cable, case law or official precent of any kind.
MARIA: HIMRS. LAUREL I HAVE MY SON IN JAIL ,HE COME ILEGAL TO USA.HE HAS 20 YRS. OLD ,HE HAS 2 CASES 1.- ASSAUL 2ND-ON PEACE OF 2.-VEHICULAR ELUDING W/INJURY, LEAVING SCENCE OF ACCIDENT, HIT AND RUN-UNATT-VEH/PROPERTY,I MARRIED WITH A CITIZEN 5 YRS. AGO.BUT WE NOT APPLY YET FOR LEGAL STATUS HERE,WE HAVE 15 YRS, IN USA. MY SON HAS A THAT TIME 4 YRS. OLD, DID YOU KNOW MY HUSBAND CAN APPLY FOR A TYPE FOR STATUS HERE, OR ANY ONE ELSE THAT CAN HELP HIM WITH INMIGRATION HOLD,WHAT ITS YOUR RECOMENDATION FOR THIS WICH OR WICH ITS THE NEXT STEP TO FOLLOW.
Laurel: Please do not type in all caps. It gives the appearance that you are shouting and is surprisingly difficult to read. I will not attempt to read questions in all caps. Thank you for your cooperation.
adawncruz: Hi - My question is it ok in the waiver to admit that qualifying spouse met the petitioner in Mexico and brought her over - could that be grounds for denial?
Laurel: I would avoid admitting that. Don't lie. But don't volunteer more than you need to. If the qualifying relative knowingly participated in the alien's violation of the law, it will be considered a major aggravating factor significantly diminishing the chances of success. There will be times when you would want to admit such a thing, but such times are rare.
Pat: Hi Laurel. For my finantial hardships I'am arguin that moving to Mexico and losing my job would not aloud me to keep saving and adding funds to: 1.My children's collegue fund 2.Savings account to make an addition to my house and have my old parents to live with me. 3.My 401k plan. The sum of the 3 accounts is a considerable amount of money. Should I show them bank statements? I'm affraid that they migth assume that I can easily afford to move abroad. But then again, I'm 45. I should have a little something. My house is almost paid off too. Would you please give me your opinion?. I'm confused!. Thanks.
Laurel: You are absolutely right to be concerned about making this argument. I almost never (never say never) reveal that the qualifying relative has a large amount of money stashed away, even if its retirement funds. And the reason is exactly what you pointed out ... it begs the question, "well, if you have all that money, it looks like you can easily move abroad"
Genesis: My friends husband ewi and after they got the I-130 approved they filed the I-765 and he got a work permit and ssn, how is this possible for someone who ewi'ed ? What can happen when they realize (if they ever do) it was a mistake?
Laurel: If its a 245i case, what you describe is normal (though the I-485 and I-485 Supplement A would have also been filed). If its not a 245i case, then the EAD will be revoked and the alien placed in removal proceedings once the government denies the I-485. Furthermore, if he naively shows up to the adjustment of status interview, he will be handcuffed and immediately taken to detention. Don't try it.
Venus_and_Mars: it is in Juarez, yes my congress woman sent an inquiry but we haven't heard from her
Laurel: Call her office.
mach: Originally, my lawyer listed on the 601, ds230 and 325a that hubby had one entry. In time for his interview this week we changed it to list his 4 tourist visa entries cause we figured they would ask and we wanted to be honest. They never asked him to turn in updated forms. Yesterday at his interview the officer and my hubby did talk about a few of his legal entries. My question is, should I include the updated forms with the waiver packet since they know there was more than one entry or since they didn’t ask for updated forms…just turn in the old forms?
Laurel: Tell the truth on your forms even if you didn't tell the truth in the past. Do not let the misrepresentional or "error" snowball.
monki12: I know that there has always been a grey area when it comes to minors who ewi. Do you think a person who ewi twice as a minor on both occasions, would be eligible for a waiver?
Laurel: I don't know whether I've ever maybe mentioned this before but ... its not about how many times you EWI, its about whether you EWIed after accumulating more than one year unlawful presence in the aggregate or EWIed after a deportation. The mere number of times you EWIed does not trigger 9C.
Mendoza: Question for Kathy: My fiance was here on a 1 month visa and overstayed by 2 months. He departed without turning in the permit. A month later he flew into Atlanta and tried to re-enter on the visa. The fingerprinted him and sent him back (they told him it was not a deportation; he entered on a round-trip ticket.....). Before doing so they wrote in his passport the code: ATL#4052 212c(7)(A)and then some other things which are not clear. After leaving, he hasn't been back to the US. Can you help with what the code means and does it mean he is going ot need any waivers when he goes to his interview? If he does need a waiver, which one and would you be able to help if I hire you? Thanks!
Laurel: If he was entering as a visitor for business on a B1/B2 consular visa, it is permissible for them to allow entry of anywhere from a day to a year. If he was entering as a visitor for pleasure on a B1/B2 consular visa, it was not permissible for them to allow entry for any period of time other than six months. But if he violated the terms of his stay, his consular visa became null and void as a matter of law regardless of the expiration date. When he attempted to return on it, they voided it. The 7A finding simply indicates that he did not have the proper documentation to enter. Doesn't sound like a deportation or anything that will lead to him needing a waiver.
meemofrog: ATTENTION, UNDOCUMENTED MALES
& IMMIGRANT SERVICING GROUPS!
If you are a man ages 18 through 25 and living in the U.S., then you must register with Selective Service. It’s the law. You can register at any U.S. Post Office and do not need a social security number. When you do obtain a social security number, let Selective Service know. Provide a copy of your new social security number card; being sure to include your complete name, date of birth, Selective Service registration number, and current mailing address; and mail to the Selective Service System, P.O. Box 94636, Palatine, IL 60094-4636.
Be sure to register before your 26th birthday. After that, it’s too late!
Selective Service does not collect any information which would indicate whether or not you are undocumented. You want to protect yourself for future U.S. citizenship and other government benefits and programs by registering with Selective Service. Do it today.
Laurel: Even illegal aliens must register for the draft before age 26 or you won't be able to naturalize until age 31 if you legalize. Legal nonimmigrants do not need to do this. Alien males under age 26 are automatically registered when they get a green card and do not need to do anything.
Pat: Is it relevant to mention in the hsl that my wife finish college in her country?
Laurel: Depends on the facts of the case, but I'm having a hard time imagining a scenario where that will support an extreme hardship argument.
Mendoza: Question for a friend: Is it correct that you remove the conditional residency 90 days from being in the US for 2 years (not 90 days from the 2 year anniversary of the marriage, right?)? Thanks!
Laurel: 90 from the expiration of conditional permanent residence
adawncruz: Good Morning We just did a 10 page letter - then we read abjudicator has to go thru everything in 15 minutes. Is that true? It will take 10 minutes just to read the Letter. How much time do they spend on the exhibits?
Laurel: They skim through the packet in an attempt to find something that will cause them to approve. If after 15 minutes of skimming they haven't found a reason to approve, they refer for a thorough read-through. Make it easy for them to find something in 15 minutes of skimming. Be convincing, but be CONCISE!!! Do not submit 3 inches of documents.
Laurel: Avoid presenting lots of weak arguments that will make it harder to find the strong ones.
Heather91001: Hi Laurel, my fiance arrived EWI about 10 years ago. Right before he arrived for good in the US he caught 2-3 times. He said he was caught & released afte crossing the Rio Grande & was fingerprinted but gave them a different name because he had no ID on him. Can those times he was previously caught be reasons for ineligibility for the I-160? I'm not clear on whether those are considered "deportations" or "catch & release" and how big of a play they have on everything.
Laurel: FBI fingerprint check to find out if any of them were deportations. I don't know whether I've ever mentioned this, but its not about how many times you EWIed or attempted to EWI ... do I need to go on?
Venus_and_Mars: do you think that i am in time to send anymore documents to support my waiver.? Have a letter from the pshycologist my little girl is 4 years and having extreme anxiety and emotional problems due to her dad is not with us.
Laurel: I'm hesitant to start recommending updates when its already been pending over a year. A decision is likely already made.
californiadreamin_: Good morning Laurel, I will marry a USC in April. We have been living together for 4 years. I was brought to the USEWI at the age of 5. Have never been in trouble with the law/immigration. We will start filing shortly after the wedding. My question is....the USC does not have any grave medical conditions nor does his family...do you think we can still make a strong case for the waiver?
Laurel: I would say that fewer than half my approved cases involve any kind of medical hardship.
Mgarcia: Hello Laurel, My husband had a mexican visa/passport at age 15 in 1991 and it was goos for 10 years while on a visit to the US it was stolen in 1998 his permit was up for 6 months in december and he left to MX in Feb (2months after) i was able to get a letter from his employer in MX just in case they ask for proof at CDJ. do i need this letter to be notarized and translated? he only has 1 EWI in 2001 and the 2 month overstay from 1999 do you think they will have records of the overstay or be found inadmissable under 9C? The only proof i have of when he left from 1999-2001 is his employer letter. Thanks
Laurel: You're probably ok, though I can never promise. As the 9C issue will be resolved at the consulate, you don't need the letter translated.
imhere: Hi Laurel. I had my Aos interview back in 11/07. The AO indicated that he is inclined to deny my AOS but also added he will check with his supervisor before a decision is made. He did not specify when I will receive an answer. What happened was, I applied for a visa in 1996 to visit relatives in American Samoa. I did 10 years ago but I also used my visa to enter NY several times since then. In 2001, I married my USC spouse and filed for AOS last year. The AO is arguing that I never should have entered the US in the first place and that my visa was only good for American Samoa but the visa did not indicate any restriction. Do you think I have a chance? If not, typically how long would they sit on a case like mine before they make a decision? Your input is appreciated.
Laurel: I'm not sure whether he is concerned about potential fraud and INA 212 a6C or potential improper admission and INA 245a. If its the former, argue that you had no intent to commit fraud, believing it was valid for entry, and misreprestation requires intent. If its the latter, argue Matter of Areguillin (sp?).
evevelyn4: Hi! Laurel!. Do you know how long it takes to get a Work permit visa?. My brother's boss is an Electric Contractor and he wants to help him.
Laurel: There's a lot of variation in how long it takes to get an employment-based visa, either immigrant or nonimmigrant. But due to visa availability backlogs, unless its an extraordinary employment-based category (such as internationally acclaimed performer or athlete) I think its going to take a long time. Also beware that once you go out of status, unless you're 245i eligible, you can almost never legalize through employment.
Mendoza: Question for a friend: My husband EWI in 1997 at the age of 17. He then went ot Tijuana for 1 day at the age of 21. He was caught by immigration trying to pass with his license (under a different name) and was caught. They finger printed him and told him he had a 5 year ban. 4 months later he EWI and has been here since. Will he be eligible for a waiver if we go to the interview?
Laurel: Sounds like an expedited removal followed by EWI, which makes him 9C inadmissible, but run fingerprints by FBI to be sure.
adawncruz: adawncruz: Laurel - What is a Infopass Irregularity? I read that this was one of the 3 options
Laurel: No longer an issue as appointments are no longer made through Infopass.
auntlily: Laurel, thanks for answering the question that Laurafern11 posted for me, but I have an addition to that question. you said I would be needing a waiver, should I call and make an appointment for the waiver then? Out appointment is April 7 at 7:30 for the K-3 visa.
Laurel: Yea, call and make the waiver appointment. There is now about an 8-10 week backlog for waiver appointments.
majmikew: Hi, Miss Scott, I don't know that you still remember me or not, I and my wife want to ask you to be our attorney to process her case. I live in Florida. So how do we start our first consultation ? Do we need to meet in person or by phone and video conference ? So I can know what kind of documents I should prepare.
Laurel: You can click on the consultation button on the menu to the left, but it might be best for you to wait until next week or so as I'm a bit overwhelmed at the moment with the election, an article I'm working on that's due this week, and tax returns that must be done this week so I can get the mortgage for the house I'm supposed to be closing on in a few weeks.
adawncruz: adawncruz: Laurel - we did live scan fingerprinting. Results came back from Dept of Justice - Is that the same as the FBI?
Laurel: Send them in to the FBI in the way described on my memo. There's a link to the memo on my homepage.
Laurafern11: So, is it true that these memos can apparently trump the actual wording of the law? Because doesn't the INA text actually state something like "no time before the person turns 18 can be counted as illegal presence?" or was I reading that in a part that apparently only refers to 9(b) and that is the whole issue here?
Laurel: Very rarely do the memos over-rule the wording of the statute, though that does sometimes occur (for example, in the INA the tolling provision is specifically limited to I think 120 days, but in a memo CIS said they would not limit it to 120 days). The 9C problem is that the statute does not, in fact, carve out an exception for unlawful presence prior to age 18 for 9C. It does for 9B. But the failure to carve out the exception appears to have been an oversight by Congress.
Mendoza: If someone receives VD and leaves and then comes back and they file the I-130 and then realize that they would be banned for life with eligiblity for the waiver in 10 years and they decide not to continue with the case, would having submitted the I-130 raise a red flag that that person is back in the country after a VD? Would ICE possibly come to their house?
Laurel: Unlikely
adawncruz: adawncruz: Laurel - When I filed the I-130, I used married name. On the ID is the maiden name. Interview in Juarez in 2 weeks, could that cause a problem?
Laurel: Unlikely
Susan: We are going for our K-1/Waiver appointment in April. If everything is approved and we would like to have a prenuptial agreement before actually getting married. Will having a prenuptial agreement negatively effect us at AOS?
Laurel: Yes. One of the things they look for on adjustment of status is comingling of funds, something a prenup is designed to prevent. It won't automatically lead to denial, but you will have a more challenging time proving real marriage.
Laurel: Very active chat today guys. But its noon and I'm quite swamped. See you all next week after the Primary. Go Obama!!!