January 21, 2005 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.1 MICPEL CLE Seminar The Nuts and Bolts of Immigration Practice Critical Immigration Issues

January 21, 2005 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.

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MICPEL CLE SeminarThe Nuts and Bolts of Immigration Practice Critical Immigration Issues for the Family Law Practitioner

By: Michael L. Kabik, Esq. © 2005Immigration, Nationality & Consular Practice Group

Shulman, Rogers, Gandal, Pordy & Ecker, P.A.

11921 Rockville Pike, Rockville, Maryland 20852-2743 U.S.A.

Telephone: (301) 231-0937 Facsimile: (301) 230-2891

E-Mail: [email protected] Web Site: www.shulmanrogers.com


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Federal Government

Immigration & Naturalization Service AbolishedNew Dept. of Homeland Security assumed Immigration Functions

Customs and Border ProtectionImmigration and Custom EnforcementCitizenship and Immigration Services


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Immigration Framework

Nonimmigrant VisasImmigrant VisasNaturalizationDeportation


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Nonimmigrant Visas

Temporary visasAllow limited time entry into USA

For a specific purpose, including• Employment• Tourism• Study

Many classificationsDerivative visa classifications for dependents


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Immigrant Visas

Permanent Residence in USAGreencard

Employment-Based sponsorshipFamily-Based sponsorshipDerivative status for dependents


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Naturalization

Acquisition of US CitizenshipResidence requirementPhysical Presence requirementGood Moral Character requirement


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Deportation

Applies to:Permanent Resident AliensNIV Status AliensUndocumented Aliens

Violation of:Criminal LawsImmigration Laws


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Immigration Crossover into Family Law

Family-Based Permanent ResidenceDomestic ViolenceDeportationNaturalization


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Family-Based Permanent Residence

Immediate Relatives (IR’s)Spouse of US CitizensChildren (<21) of US Citizens• Definition of Child includes Step-Children

Parents of Adult US Citizens

Immediately eligible to apply to immigrate


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Preference CategoriesFB-1: Unmarried Sons/Daughters (21+) of US Citizens FB-2A: Spouses/Children (<21) of Permanent ResidentsFB-2B: Unmarried Sons/Daughters (21+) of Permanent Residents


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Preference CategoriesFB-3: Married Sons/Daughters (21+) of US CitizensFB-4: Brothers/Sisters of Adult US Citizens

Requires a current “Priority Date” in order to immigrate

Variable Backlog of PD’s (~4–22 years)


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The ProcessImmigrant Petition (I-130)• Filed by US Citizen/Perm. Resident

Sponsor

Adjustment of Status (I-485)• Filed by Alien• Must be IR or have current Priority Date• Affidavit of Support (I-864) by Sponsor


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The Affidavit of Support (I-864)Required in all FB Permanent Residence Sponsorships since 1997• Minimum income requirements based on

household size• Joint Sponsors permitted in order to meet

income requirements


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The Affidavit of SupportEnforceable Contract Against Sponsor (and Joint Sponsors)• By Sponsored Alien• By Federal or State government or any

agency providing a means-tested public benefit


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The Affidavit of SupportMeans-Tested Public Benefit (MTPB):• Supplemental Security Income (SSI)• Medicaid• Temporary Assistance Needy Families

(TANF)• State MTPBs


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The Affidavit of SupportBinding contract in force until:• Alien becomes US Citizen• Alien has earned or been credited with 40

qualifying quarters under Title II SSA excluding periods of MTPBs

• Alien dies• Alien relinquishes PR status


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The Affidavit of SupportSurvives divorce

• Enforceable against Sponsor• Enforceable against Joint Sponsor


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Marriage Cases – ProcessProcessing by CIS based on state of residenceInterview required at CIS District Office of Sponsor and AlienTimeline – Filing to Decision: ~12–18 months


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Marriage Cases – ProcessType of Residence – based on length of marriage at time of approval• Conditional Residence

– if married <2 years

• Permanent Residence– if married 2+ years


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Marriage Cases – ProcessPermanent Residence• Does not expire• Greencard valid for 10 years

– Update Photograph


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Marriage Cases – ProcessConditional Residence• Valid only for 2 years• Must file Petition to Remove Conditions

on Residence (I-751) within 90-day window before expiration


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Marriage Cases – ProcessPetition to Remove Conditions on Residence (I-751)• File jointly with Spouse• Seek waiver of joint filing requirement due to:

– Death of Spouse– Termination of Marriage through

divorce/annulment– Battered or subjected to extreme cruelty– Deportation would result in extreme hardship


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Marriage Cases – ProcessLoss of ResidencePermanent and Conditional Residence can be lost if • Alien outside US for certain periods of

time• Alien commits certain

immigration/criminal offenses


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Marriage Cases – Legal StandardMust be bona fide marriage when entered into by the parties• Not solely for immigration benefit

Must continue to be married for approvalApproval possible even if parties living apart and marriage no longer viable


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Marriage Cases – Legal StandardIf marriage occurs after commencement of Removal Proceedings• Alien must remain outside USA 2 years

before residence is granted• Unless Alien meets higher burden of

proof– Clear and convincing evidence


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Adoption – Legal ProcessAdopted child may be sponsored for permanent residenceImmigrant Petition (I-130)Adjustment of Status (I-485)


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Adoption – Legal RequirementsAge Requirement: Must be <16 unless:• Natural sibling of another adopted child,

then <18• Court order entered nunc pro tunc prior

to 16th birthday


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Adoption – Legal RequirementsLegal Custody Requirement: 2 yearsResidence w/Parents Requirement: 2 years• May occur before or after adoption


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Orphans – Legal ProcessApplication for Advance Processing of Orphan Petition (I-600A)• Before an orphan is located• Avoids later processing delays with

Orphan Petition

Petition to Classify Orphan as Immediate Relative (I-600)


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Orphans – Legal RequirementsDistinguished from adopted childrenDo not have two-year legal custody/residence requirementPre-existing family relationship not contemplated


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Orphans – Legal RequirementsMust be adopted abroad or coming to the USA for adoption• If adopted in USA, must comply with pre-

adoption requirements of state of proposed residence

If in USA, then not orphan but adoption


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Orphans – Legal RequirementsAge Requirement: Must be <16Adoptive Parent(s) Requirement:• US Citizen + Spouse (need not be citizen)• Unmarried US Citizen at least 25

Home Study RequirementFingerprint Requirement• Parent(s)/all adults in household


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Orphans – Legal RequirementsIf adopted abroad, parent(s) must see and observe child prior to or during adoption proceedingsIf proxy adoption abroad, parents must readopt child in USA


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Orphans – Legal RequirementsOrphan Requirement:• death or disappearance of, abandonment

or desertion by, or separation or loss from both parents

• if only one parent, not capable of taking care of child, in writing irrevocably release child for emigration and adoption

Abandonment Requirements: parents forsake all parental rights


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Domestic Violence

Alien Victims of Domestic ViolenceMay obtain Permanent ResidenceAlien battered/subjected to extreme cruelty• By US Citizen/Permanent Resident

spouse/ex-spouse• Includes physical and mental cruelty• Also applies where marriage not legally

valid due to bigamy


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Domestic Violence

Alien Perpetrators of Domestic Violence or Violators of Criminal/Civil Protection Orders

Subject to Removal Proceedings and deportation


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Deportation

Family-Based immigration sponsorshipDependent on a family relationship

Where sponsorship is withdrawn or where family relationship is terminated

Alien becomes deportable for failure to maintain lawful immigration status

Unless Alien obtains alternate status


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Naturalization

Potential Adverse Good Moral Character Finding (subject to “extenuating circumstances” balancing test)

Willfully failing or refusing to support dependents

Extramarital affair tending to destroy an existing marriage


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Naturalization

Divorced Alien sponsored for Permanent Residence based on marriage

CIS will request divorce complaint indicating date of separation

Date of separation is key issue for Naturalization application


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Naturalization

If complaint indicates earlier separation date that contradicts previous immigration applications

Naturalization may be denied based on immigration fraudAlien may be placed into Removal or Recision Proceedings and be deported


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Key Considerations

Know your clientUS Citizen?Permanent Resident?Conditional Resident?Pending Residence Application?Pending Petition to Remove Conditions on Residence?


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Key Considerations

Know your clientNonimmigrant visa status?In Removal Proceedings?Overstay of NIV status?Enter without inspection?

Know the adverse partySame status questions


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Key Considerations

What is in the best interests of your client (and children)?

Undocumented spouse (parent)?Deportation of spouse (parent)?Financial support to client/children?Emotional ties to children?


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Legal DisclaimerFacts of individual cases differThe information provided herein is general in nature and is not intended as legal adviceConsult with an experienced immigration attorney with regard to specific cases

Documents

January 21, 2005 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.1 MICPEL CLE Seminar The Nuts and Bolts of Immigration Practice Critical Immigration Issues