Laurel Scott's Chat 2/3/10

[Tiojuan]

Laurel: Good morning

Laurel: My associate attorney Katherine will be joining us in a moment.

Laurel: At this time I'd like to take the opportunity to recommend to everyone that they review the tips for getting the most out of the chat.

Laurel: There is a link just about the chat window.

Laurel: If you review that document, I think you will enjoy the chat more.

IminCa: SHould be quiet we couldn't get any questions from the I2US website

Laurel: Why not?

IminCa: The website is unavailable

Laurel: What happened?

IminCa: They are moving to a new server (I think)

Laurel: Oh, ok.  Well then I suppose we'll have time for some of the longer questions today.

Xyz: Hi Laurel,  Naturalized citizen applying for undocumented spouse.  Spouse came by driving through canada borderwith the help of cayote.  Spouse is not canadian but another country's citizen.  At the border spouse was asked where you going and said to sight seeing in the year 2000 and ws let in.  Never left, no criminality  no medical hardship and none of our family members here. one us citizen child.  both are from the same country.  Is my spouse inspected and admitted, if so how can I prove that?  No record of anything with us.  Is COR possible?  or consular processing?  Will you take such a case?  Thanks

Laurel: Technically, she's been inspected and admitted and should be able to apply for adjustment of status without a waiver, HOWEVER, cases like that are always about providing that things happened at the border the way you say they happened.  The burden of proof for something like that is actually quite high, so most such cases are unsuccessful.  While you would be eligible to apply for Cancellation of Removal, you would first have to be placed in removal proceedings, but as I wrote in one of my articles (Why can't aliens' turn themselves in?), that can be surprisingly difficult.  As you seem to already know, if you consular process abroad, you will have to do the waiver.  I would have to do a consultation with you to make a determination of whether I would take the case.

Laurel: But as I've said before, we do take most cases where there is more than a 25% chance of success.

alinaj: Hi Laurel My Name is Alina US Citizen, married to a Mexican immigrant who entered without inspection in 1999 at the age of 12. He was later sent back to mexico by parents at the age of 17. He then came back to US without inspection again. We have a lawyer that has been “helping” us. We did the I-130 we were approved, we paid nvc a payment of $400 and $70, we also got back a clean FBI record. Point is we got up to the point where they were going to send our application to Juarez so we could get an interview date but then they told us that it wasn’t a good idea because my husband would get a permanent bar because the Juarez Consulate interprets the immigration law differently and counted my husband entry at age of 12 as the times he came in. We are very confused our lawyer is not being clear. We already paid him $3,000 and he is still expecting us to pay the the rest which is $5,000.  What do you suggest? Does my husband have a chance if any to gain legal status?     

Laurel: Your husband is clearly inadmissible under 9C and will not be able to apply for a waiver.  Though the consulate in CDJ claims that they never changed their position on this and always counted unlawful presence as a minor for 9C, there is some debate over whether they did actually change their policy about two years ago or so.  It is not unreasonable for your attorney to keep the portion of his fee that was earned prior to the change in policy.  However, he cannot continue to charge you for work that was done after the change in policy was announced/clarified some time ago.

Laurel: Katherine is on the phone with a client and will join us shortly.

IminCa: FromMe: CDJ - 1st visa interview in 2007. 3yr ban for drug use. During 1st visa interview, forms (completed by notary) submitted to the NVC and Consulate had incorrect previous employment and EWI dates (just found out about addt EWIs from parents recently). The forms from 1st Visa interview only had 1st EWI with incorrect month of EWI dates. New visa interview after ban is in Feb 2010, filling forms out ourselves, how do we rectify the incorrect previous employment and EWIs dates? Do you think this will affect us? We want to tell all the truth and not be banned for not disclosing all of the information we are aware of. Our EWI dates are 1st EWI in 05/91 age 6, 2nd ewi in 94 age 9, and 3rd ewi in 08/97(not sure of exact dates) age 12. Is this considered 9c?

Laurel: While unlawful presence as a minor is counted toward 9C, unlawful presence prior to April 1, 1997 is NOT COUNTED.  9C is not about the number of entries without inspection.  9C is about entering without inspection AFTER a prior removal or prior unlawful presence of over a year in the aggregate.

As long as you bring up the errors in prior forms before the government brings them up or grants a benefit based on the erroneous form, then the errors are 'withdrawn' and you would not be found to have committed fraud.

Please note that you are responsible for the information on any form that bears your signature.  Always review forms before you sign.  Never sign blank forms.  Do not use a notary to complete your forms.  Never try to evade responsibility for what's on the forms by telling the government its not your fault, its the notary's.  You signed it.  Its your responsibility.  Even if an attorney filled it out.  Its still your responsibility.

Laurel: I'm not trying to lecture you here.  I'm just letting everyone know that as a matter of law you are responsible for things you sign your name to.  That's not just immigration law.  that's all areas of law.

Laurel: Ok, Katherine is here.  I'll be sending some questions over to her.

Laurel: Katherine, we don't have as many questions today as the Immigrate2us forum is currently down and usually we have lots of questions from there.

dmg06: my hubby ewi from venezuela to here when he was 8 married to me a u.s. citizen i talked to you on here a few weeks back. now i found out that my hubby has legit papers that states hes a ecuadorian (citizen birth certificate, passport and everything) under a different name and family, his family there all have visas for here and his "sisters" live in the U.S. my question is would it be faster for him to go back there and file for a visa, him go back and i do the fiance papers, or we try do it with him bein here(georgia) ewi from venezuela? and which has the shortest time period?  and which state has to highest approval rates for this kind of case sorry its long thank u

Laurel: I'm confused.  Are you saying that your husband is an EWI from Venezuela, but is in possession of some documents - obtained fraudulently, even if the document is 'real' - that say he is from Ecuador and entered on a valid visa?  And you're asking me if you should continue to perpetuate this fraud?  The answer to that is that as an attorney I can never recommend to anyone that they continue to perpetuate immigration fraud.  Period.

maxcool24: i have a friend that was in the US in 04 with a tourist visa. He got and stayed for 6 months permit but he worked during that time.  He went back to mexico and returned the permit.  In 07 he came back for a visit again, at the border, he was questioned about the time before he was here and he confessed that he did work and was paid in 04 but he didnt overstay

Laurel: When you say he 'returned the permit', I presume you mean he handed back his I-94 card.  If he worked without employment authorization within 60 days of entering on a B visitor's visa, then there is a presumption of fraud and he would need a waiver for misrepresentation.  If it was after 60 days, then there is no presumption of fraud.

foreverhopeful: Good morning,
I EWI at the age of 7.  I am now married to a usc, and have 2 children. I graduated from High school and attended college for 2 years but do not have a degree.  He is a police officer and 2 years ago he was diagnosed with Hodgkin’s lymphoma.  He is now in remission after 8 months of Chemo,do you think this would be good arguments for my waiver(I know I need evidence which I have)?  Do you consider claiming citizenship for DL  a lifetime ban?


Katherine: I'm so sorry about your husband's cancer, but I am very happy that it's in remission. That's a great sign! The fact that you entered as a young child is a huge point in your favor for the waiver, and it sounds as though - with your husband's cancer - there is some real hardship in your husband's life. While you would of course need to show how your presence in the US eases your husband's hardship, it does sound as though, assuming there is no criminal or complicated immigration history in your past, you are a good candidate for the waiver. We don't typically get into specific types of evidence needed here. That said, the government could definitely consider claiming citizenship for a driver's license to be a false claim of citizenship, which as you seem to know is a lifetime bar. You would DEFINITELY want to meet with an attorney to discuss in detail what claims you made prior to embarking upon the waiver process. It could pose a real problem to you.

Lorna_: An asylee who comits a crime while in status as asylee, would be deportable or inadmissible?

Laurel: Someone in valid asylee status is non-deportable.  However, he may do something that would make him deportable if he were not an asylee.  Sometimes in those situations - depending on the severity of the crime - the person may wind up with a lengthy detension period.  As for inadmissibility, depending on the crime he make himself inadmissible.  That becomes a problem when he goes to adjust status.

Laurel: You can be either deportable or inadmissible or both.

epm: If an expedite is denied, is there a need to send the additional hardship information from the denied expedite a second time for the I-601?  Just wondering...

Katherine: You know, that's a tough call. While one would assume that the expedite information remains in the applicant's file for consideration during the waiver adjudication, we do advise making one update to the case after it has been referred. I would probably include the information contained in the expedite request (along with any other new information) in this update, just to be sure that it is reviewed as part of the file.

nefeli: Hi Laurel. My US citizen mother filed an I-130 petition for my brother (her son) who is over 21 years old and unmarried.  The I-130 filed with the Vermont Service Ctr.  Got note saying that it was transfered to the Texas Service ctr without any further explanation.  On the initial receipt notice the category for the immigrant visa for my brother is 201 (a) (1) INA.  Is this wrong?  Shouldn't it be 203 (a) (1) INA? Thanks

Laurel: Oh, I forget where in the law they list the family categories.  I'd have to look that up and put it as a footnote.  But as for the transfer from one Service Center to another, that's nothing to worry about.  That happens all the time when one office gets busy and sends stuff to another office or when they change procedures and filing locations.  Its when it gets transferred to the local office (and you're not adjusting status) that something is up.

maxcool24: He was sent back to mexico and they took his visa away.  In oct 09 he received an offer to work in the US in a restaurant.  The owner submitted a petition through work and he is waiting on that. He also has an american citizen girlfriend and they are wondering what is the best option for them.  What do you suggest????????

Katherine: I'm sorry, it doesn't seem as though your full question was transmitted to me. I'm not sure what you mean when you state that he "was sent back to Mexico and they took his visa away." Who sent him back, and in what context? Did he overstay? Was he deported? Was he given voluntary departure? Did he return on his own? The circumstances of his departure (and of his initial presence in the US) are necessary to determine the best course of action for him.

IminCa: My friend's bf is MX. He hired a shady attorney who filed paperworks for him as a Honduras native. He was able to get work permit, ssn# and etc. How will that affect him now if he decided to apply for IV? This is considered MisRep right? Are his chances for visa ruined now is she decides to file on his behalf ?

Laurel: Yes, that's misrep.  In fact its some pretty serious misrep as far as misrep goes.  He still has maybe a 50-50 chance of getting a waiver approved, depending on the hardships.  But there's no way they won't refer this case.  File a bar complaint against the attorney if you have not already done so.  But that won't get you out of the misrep.  The client still signed forms saying he was Honduran when he knows he’s Mexican.

ihavefaith: I am a US citizen and my husband is now a permanent resident. My sister in law and her two children (12 & 14) ewi from Mexico in 1999 and have been here since. The parents are getting divorced.  The father has a temporary visa expiring this year.  My husband and I have considered adopting our nephews so that they can become legal residents. Is this legally possible?

Katherine: Well, in-state adoptions are usually performed by family law attorneys, so while it is probably possible, we can't really offer much advice on that procedure. I know that in order for you and your husband to adopt the kids, their parents would be required to terminate all of their rights to the kids, which is a pretty major step. As long as the adoptions take place before the kids reach a certain age, and as long as the kids have lived with you for a certain number of years prior to sponsoring them, then yes, it is legally possible to petition for them. You would need to act very quickly though, particularly in the case of the 14-year old.

Laurel: Let me just say a few things about decisions the attorney makes and decisions the clients make.  As long as your lawyer is representing you, he/she calls all the shots.  You can make suggestions, but all the decisions are the attorneys. If your attorney wants you to do anything that you are not comfortable with, then the remedy is for you to get a new attorney.  Even though the attorney makes all the decisions while he is your attorney, you will still be responsible for any fraud committed on any forms that bear your signature.  If the attorney commits fraud on your behalf WITHOUT YOUR KNOWLEDGE, then you are not responsible for it.  But if your signature is on it, then it is presumed that you knew about it and collaborated. 

visa01: I am an Indonesian.. I was a student in USA from June 2006 until April 2007.. Because of economy problem that hit my family, I had to work in couple restaurants for the last 2 years (2007-2009). I went back home in December 2009 because I was thinking to go back to school in Canada.. I went to the Embassy of Canada a month ago, and unfortunately i got rejected. During the time I was in the United States, I met a girl, and she became my girlfriend up until now,we still maintaining our relationship.  She a citizen of USA.. We've been thinking to get married here in Indonesia. I heard  about the possibality of waiver, how big is the chance for me to get the waiver?

Katherine: Without knowing your hardships, the full circumstances regarding your visa rejection (was it just overstay? misrepresentation and overstay?), and your immigration status in Canada, it is hard for me to assess the likelihood of your receiving a waiver. You would an approved I130 or I129F petition to even pursue a waiver, of course.

dmg06: have you had any approval of venezuelans geting asylum? and once a person gets asylum they can nvr go back to visit there country right?

Laurel: We don't do asylum, we do I-601 waivers.  An asylee who needs a waiver to adjust status (e.g. if he entered on a fraudulent visa/passport) normally needs an I-602, not an I-601, where the standard for approval is much easier: "in the interest of family unity or for humanitarian reasons".  Asylees normally go to their asylum attorneys for the I-602.  So, we don't see many cases in our office where the person has actually been granted asylum.  We usually see cases where people have been denied.  Most of our 'denied asylum' clients are from Eastern Europe and Colombia, with the occasional African or Middle Eastern person.

As for whether an asylee can travel home - that is a matter of debate.  Certainly once you naturalize you can.  But until then, the law is not clear.

Laurel: I'd like to again recommend to everyone that they review the tips for getting the most out of the chat.  I'm pointing this out again as I just posted the tips last week and I imagine not many people have had a chance to review them.  There is a link above the chat window.  When you click on the link it will automatically log you out of the chat, but after you read the tips, just hit your 'back' arrow and log back on to the chat.  Thanks.

Laurel: Here's a question that I'm going to cut down just a bit before answering:

" I overstayed my medical visa by 12yr- then voluntarily departed 6yrs ago. While I was in the US I got married and my wife who recently became a USC. The I-130 has been submitted. Currently I reside in Abu Dhabi-UAE- 1) is it true that my 601 waiver application will be sent to Athens-Greece 2) is it true that Athens is one of the toughest cities to get 601 approved in3) should I get it moved to Pakistan- since those waivers get sent to New Dellhi? 4) the extreme hardship on my wife is that she has to take care of her mother who suffers from Dementia ( a brain degenerative disease) , father- heart patient and a diabetic and brother that has down syndrome- she lives with them and are very dependent on her- how strong do you think my case will be? 5) In addition to the letter what other documents should we submit when the time comes to submit the I-601 applications?"

Answer:
I don't think its any tougher to get an approval through Athens then through New Delhi.  And the consulate in Abu Dhabi is way easier to deal with than Islamabad.  As always the strenghts of your hardships always depends on all the facts of your case.  You will need to supply a variety of documents with your waiver packet when you submit, but the documents are always unique to every caes.

ether: From Ether; Hi Laurel, I'm from El Salvador currently on TPS. I entered the US on a B1 visa in 1997, in 1998 I was expeditely removed at the airport on my second visit.  In 1999 I entered US and got caught at the border but they release me the next day. I never showed up for court and where removed in absentia. I'm a candidate for the Waiver process and what type of bars would a trigger if I leave?

Katherine: Well, first of all you didn't say whether you are married or engaged to a US Citizen or LPR. To even begin to pursue a waiver ordinarily, you would need to first establish the qualifying relationship. You also didn't say where you entered the country when you were caught and released this most recent time. Were you admitted or paroled? Again, this ordinarily determines whether you would be eligible to adjust status from within the US. That said, an in abstentia deportation order (which you received) triggers a bar during which no waiver is available at all. If you left the country, you would must certainly be subject to this. You are probably unable to adjust status as well because of this bar (if you were otherwise eligible to do so).

Lorna_: What is the maximum sentence an alien receives for a crime in order for that alien(granted assylum) not to be deported out of USA? In other words what is the cut off line?

Lorna_: So a person in valid asylee status, can not be deported even if he commits a crime but he can be inadmissible when it comes to adjustment right?

Laurel: Why don't you tell me what he did?

Lorna_: he is not charged yet

Laurel: That doesn't answer my question.

Lorna_: Can a person in valid asylee status be removable? or is this the same as deportable?

Katherine: They are the same thing, just different terminology. Yes, if after receiving valid asylee status you do something to make you deportable (such as committing a certain crime), you could be deportable / removable.

Lorna_: oh ok receipt of stolen property across state lines

Laurel: Depending on the value of the property, it could be a felony.  Generally speaking, felonies make non-LPRs deportable and also make you inadmissible.  If you're an asylee you can't be deported.  I think they'd be unlikely to put an asylee in detension for an offense like that since its nonviolent.  So its most likely to be a problem when he goes to adjust status.

Lorna_: can a person who enters on VWP and is out of status file for cancellation of removal after ten years of residence in the USA?

Katherine: A person who enters on Visa Waiver Program basically waives his or her right to appear before an immigration judge. So, in all likelihood, no, you cannot file for cancellation of removal.

Laurel: We won that waiver, BTW.  And it was in fact an adjustment of status case.  But a big part of the case was the length of time since conviction.

Laurel: It is almost noon.  I want to thank Katherine for joining us again. 

Laurel: We are still offering our money-back guarantee for certain cases.  There is a link on our main page so you can read more about it.

Laurel: We will see you all next week!