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Cleveland Immigration & Naturalization Law Blog
Many family based immigrant visa applicants run into issues with the required affidavit of financial support. The Affidavit of Support proves to the government that the family based applicant for permanent residence will not be inadmissible to the U.S. pursuant to INA 212(a)(4). All intending immigrants must prove they are not likely to become a public charge. A public charge is someone who will need means tested benefits from the government in the future. The affidavit of support indicates that if the applicant does need means tested benefits from the government, then the affiant will reimburse the government. The affidavit of support overcomes the ground of inadmissibility.
The Board of Immigration Appeals ("BIA") issued a crimmigration (criminal-immigration) decision last week; Matter of Chairez-Castrejon. This case deals with the BIA's use of the categorical and modified categorical approach in determining whether or not the conviction can support removal and how it impacts any applications for relief from removal. When an immigration judge or the BIA analyzes a crimmigration (criminal-immigration) case, they have a specific process to use. This case deals with the BIA's interpretation of that process and how two recent Supreme Court cases impacted that process.
On July 11, 2014, USCIS issued a memo updating and clarifying its position on Nurses and H-1B visas. This memo opens up new opportunities for registered nurses ("RN's") with bachelor's degrees (or its equivalent) to be considered for H-1B visa petitions.
The Eleventh Circuit Court of Appeals, in Ruga v. Holder, found the Form I-589 gave sufficient notification of the consequences for filing a frivolous asylum application. When a foreign national files for asylum in the United States, they must complete the Form I-589 Application for Asylum and Withholding of Removal. That form and all attachments must contain only true and accurate information. The applicant signs this form under penalty of perjury. Immediately preceding the signature line and in bold print is the warning regarding filing a frivolous asylum application.
The Seventh Circuit Court of Appeals, in Ortiz-Estrada v. Holder, held that petitioner's lengthy list of traffic offenses showed he did not possess good moral character and upheld the denial of his cancellation of removal application. Cancellation of removal for nonlawful permanent residents requires that the alien show he has been physically present for ten years, that he is a person of good moral character, that he has not been convicted of certain disqualifying offenses and that there is an exceptional and extremely unusual hardship to a qualifying relative. Cancellation of removal for nonlawful permanent residents is generally used to defend removal proceedings where the foreign national entered the United States without inspection.
The Ninth Circuit Court of Appeals applied the terrorist bar to asylum and withholding of removal retroactively in Bojnoordi v. Holder. "Aliens who have engaged in terrorist activities are precluded from seeking several forms of relief from removal, including asylum, withholding, and CAT protection in the form of withholding but remain eligible for deferral of removal under the CAT." Haile v. Holder, 658 F.3d 1122 (9th Cir. 2011)(listing statutory provisions). The Immigration and Nationality Act ("INA") distinguishes terrorist organizations in three categories based on an official designation by the Secretary of State, an unofficial designation by the Secretary of State joined by the AG or the Secretary of Homeland Security and other organizations where there are "two or more individuals....which engage(s) in" terrorist activity as definded by 8 U.S.C. 1182(a)(3)(B)(iv)(I)-(VI). This terrorist bar was enacted through the Patriot Act and in general the amendments to the INA are retroactive.
A continuing trend in crimmigration (criminal-immigration law intersect) case law happened in the District Court of Illinois (Eastern Division) last month. The court determined that immigration detainers are not mandatory and found that plaintiff had a claim against the police and country defendents for detaining him without probable cause pursuant to the Fourteenth Amendment. In particular the court noted that the arrest and detention were based on a civil violation and not a criminal matter. Villars v. Kubiatowski, 2014 U.S. Dist. LEXIS 61697 (N.D. Ill. May 5, 2014).
These immigration strategies for consular processing, which is a difficult, frustrating and overwhelming process, can help avoid errors made during consular processing. Remember, one misstep can delay your application by weeks or even months.
The Department of Homeland Security (DHS) proposed work authorization for H-4 dependents of H-1B visa holders through an update to current regulations aimed at harmonizing H-1B1, E3 and CW-1 non-immigrant categories and the EB-1 outstanding professor and researcher immigrant category with similarly situated employment based categories. This proposed rule would allow H-4 dependent spouses to request and receive employment authorization. H-4 dependent spouses are eligible if there is an approved I-140 or an AC21 extension granted for the primary applicant.