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Special Immigrant Juvenile Status

“There can be no keener revelation of a society’s soul than the way in which it treats its children.” – Nelson Mandela

Special Immigrant Juvenile Status allows immigrant children who have been abused, neglected or abandoned by their parents, to obtain lawful permanent resident status.  The process is unique in that in requires a state court order from Juvenile, Family or Probate court, finding that the child cannot be reunited with one or both of their parents, due to said abuse, neglect or abandonment.  A state court order must be obtained first before the child can apply for benefits with immigration.

In order to qualify for SIJS status, the child must:

– Be under 21, unmarried, and within the United States

– Have been abused, neglected or abandoned by one or both parent

– Have a state court order from Juvenile, Family or Probate Court holding that reunification with one or both parents is no longer viable due to abuse, neglect, abandonment or a similar basis under state law; AND that it is not in the best interest of the child to return to his or her home country

Our office has handled many SIJS cases and the most common ways in which we obtain the necessary state court order are: (1) if the child is living with one parent, a petition for sole physical and legal custody by that parent, or (2) if the child is living with another family member or friend, a petition for legal guardianship by their caretaker.  Custody cases are handled in family court, and the child must be under 18.  Guardianship cases are handled in probate court and in California, guardianships can be granted up to 21 years of age.

Once a state court order is obtained, the child can then file a petition for themselves with immigration which must be filed before the child turns 21.  That petition is subject to a priority date, which in the simplest terms, means the child must “wait in line” behind others who have filed similar petitions.  Unlike many immigration petitions, however, the wait time is usually not very long and in many instances, depending on where the child is from, the priority dates are current, which means there is no wait time and the petition can be filed along with the permanent residency application.

This multi-step process is complicated and we suggest you seek advice from an immigration attorney. This information is not intended, and must not be taken, as legal advice on any particular set of facts or circumstances. You need to contact a lawyer licensed in your jurisdiction for advice on specific legal issues problems.

Executive Action: what we HOPED would be immigration reform

On November 20, 2014, President Obama announced a series of executive actions aimed at helping the millions of undocumented people living in the United States.

The initiatives included:

(1) Deferred Action for Parents of Americans (DAPA): this would allow the parents of US Citizens and Lawful Permanent Residents (green card holders) to obtain employment authorization for three years.  In order to obtain such authorization, they would have to prove that they have lived in the US since January 1, 2010 and pass required background checks.

(2) Expansion of Deferred Action for Childhood Arrivals (DACA): this would allow those who arrived in the US before turning 16, graduated from high school here in the US (or obtained a GED or are currently enrolled in high school or a GED program), have lived continuously in the US since January 1, 2010 and passed required background checks, to obtain work authorization for three years.  This would greatly expand the current DACA program because it has no age limit (currently, you have to been born after June 15, 1981) and would require proof of your presence in the US from 2010 until the present whereas currently, you have to show presence in the US from 2007 to the present).

(3) Expansion of the use of unlawful presence waivers to include the spouses and children of US Citizens and Lawful Permanent Residents.  This would apply to people who need to consular process and who have to file a waiver for how long they have been in the US without permission.  Currently, only spouses and minor children of US Citizens and LPRs can file a waiver.  This would extend that eligibility to adult children.

The initiative also included cracking down on illegal immigration at the border and prioritizing the deportation of felons.

Unfortunately, the implementation of the executive actions was halted by a court case filed by 26 states against the administration, arguing that the President overstepped his executive authority.  The District Court Judge on the case ordered an injunction blocking the programs from taking effect while the court considers the lawsuit.  The Department of Justice then filed an emergency request to allow the programs to proceed, however, that request was denied and the programs remain “in limbo.”

At this point, everything is on hold until the court case is decided.  There are a myriad of opinions out there about how long this will take and whether or not the programs will ever take effect.  The only guarantee at this point is that there is nothing new to report.  I have spoken to so many people who are very confused about what is going on — and rightfully so.  My only advice at this point is to stay informed.  People have been taken advantage of by people who supposedly know about “new” immigration programs.  As I have said in previous blogs — ASK questions.  Make sure that the person/people you are getting advice from are immigration attorneys or accredited representatives.

As always, immigration law is difficult to navigate and every case is unique.  This blog is meant to provide general information, and cannot address every avenue of relief that may be available to you.  Additionally, immigration law is always changing and that can change options available to you.  You should always consult with an immigration lawyer before filing for anything.

DACA Renewal: What You Need to Know

US Citizenship and Immigration Services (USCIS) officially announced the process for Deferred Action for Childhood Arrivals (DACA) recipients to renew their status. If you have DACA, here are the things you need to know for your renewal:

(1) The form is still I-821D, but it is a NEW version and there is NO grace period between the old form and the new one. This means that any forms sent in beginning today (June 5, 2014) must be on the updated form or else they will be rejected as improperly filed.

(2) It is suggested that you file 120 days before your status expires. This is not a requirement, however, if you do not give USCIS enough time to grant the renewal before your current DACA expires, you may experience a gap where technically you have no proof of lawful status or employment authorization because your DACA is expired and your have not yet been granted a renewal. You can file up to 150 days before the expiration of your DACA.  Please note, if you file more than 150 before your status expires, USCIS may reject your renewal with instructions to resubmit closer to the expiration date.

(3) If for some reason you do not file before your DACA expires, all hope is not lost. You have one year to renew your DACA after is has expired. If you fail to file renewal within one year from the expiration, you have to start all over again.

(4) You are eligible to renew your DACA as long as you still meet the initial requirements AND: (a) you didn’t leave the US on or after August 15, 2012 without advanced parole (i.e. advance permission from immigration to depart the country); (b) you have continuously resided in the US since you were granted DACA; and (c) you have not been convicted of a felony, significant misdemeanor, three or more misdemeanors, and you do not otherwise pose a threat to national security or public safety. You do NOT have to submit any supporting documentation with your renewal unless you have new documents regarding immigration court proceedings or criminal history that you did not previously submit with your initial DACA application. If you have any question at all regarding your eligibility to renew your DACA status, please seek out competent representation or legal counsel.  

DACA was the beginning of what we all believed would be comprehensive immigration reform and while that has not yet happened, it is encouraging to know that according to the Secretary of Homeland Security, Jeh Johnson, more than 560,000 people have received DACA as of April of 2014. That means valid identification and the ability to work and attend school without the fear of removal, for all of those applicants. With this renewal process, it is also heartening to see that at least Congress can continue to support the young people who were brought here illegally by their parents/family members seeking a better life, and who had no say in the immigration consequences of that decision.

As always, immigration law is difficult to navigate and every case is unique. This blog is meant to provide general information, and cannot address every avenue of relief that may be available. Additionally, immigration law is always changing and that can change options available to you. You should always consult with an immigration lawyer before filing for anything.

"Parole in Place" – special procedures for active duty military families

As I have written in previous blogs, generally, if you entered the United States without permission (i.e. just crossed the border) and you do not have an I-130 petition from before April 30, 2001, you have to exit the country to complete the green card process — also known as consular processing.  This may not be the case, however, for the immediate relatives (usually spouses) of active duty family members.

Parole in Place is a process that, if granted, allows immediate relatives of active duty military servicemen and women to remain in the United States for the entire green card application process.  It basically grants the applicant the same status as a person who entered the US with permission. 

Due to the fact that this is a relatively new process, there are no official guidelines, however, applicants are advised to file the following forms and documentation with their local USCIS (immigration) office:

• Form I-131, Application for Travel Document with the filing fee of $360 and $85 in biometric (fingerprint) fees. 
• Suggested supporting documentation:
• A letter from the active service member stating the hardship they would suffer if their family member is not allowed to adjust status to lawful permanent resident
• Marriage certificate & proof that the marriage between the service member and applicant is valid – e.g. bills, lease agreements, photos, mailings, etc.
• Birth certificates for both the service member and the applicant
• Birth certificates for children of the service member and applicant
• The applicant’s military family member identification car
• A copy of Defense Eligibility Enrollment Reporting System enrollment documentation for the applicant
• Two original passport photos of the applicant
• A copy of any deployment orders for the service member
• Any additional documents substantiating the case for hardship

When parole in place is granted, the family member will receive a parole document in the form of an I-94 card, effectively changing their status from EWI (entered without permission) to someone who entered the United States with permission.  Once they are issued the I-94, the applicant can continue the green card process. 

Now this is a DISCRETIONARY request, and therefore, the applicant has to understand that they are alerting immigration to their presence in the U.S. If the I-131 is not granted, there is always a possibility (although very slim) that the applicant will be placed in removal (deportation) proceedings.  Due to the risk, it is imperative that the applicant seek out legal counsel, to make sure that they have the strongest possible case to present to immigration.  Also, if the applicant has ANY type of criminal record, no matter how minor, or if the applicant has entered and exited the US multiple times without permission, that can also affect their eligibility. 

As with any “new” form of relief that is filed with local offices, the procedures and adjudication rates vary from place to place.  For example, in some offices, they prefer the applicant to file everything together – Form I-131 and all of the forms associated with permanent residency.  In other offices, they only want the I-131 and once that is approved, they will request the rest of the applications/documentation.  The applicant’s attorney, or the applicant, should check with their local office regarding their specific procedures for Parole in Place. 

All in all, this is a great way for the immediate relatives of active service members to remain in the US while they apply for permanent residency, thus eliminating the risk and uncertainty that accompanies having to return to their home country to consular process. 

New SHORTER Procedure for Applying for a Green Card Outside of the U.S.

On January 2, 2013, the Secretary of Homeland Security Janet Napolitano announced the posting of a final rule in the Federal Register that reduces the time U.S. citizens are separated from their immediate relatives (spouse, children and parents), who are in the process of obtaining visas to become lawful permanent residents of the United States under certain circumstances.  This rule allows qualifying applicants to apply for a provisional unlawful presence waiver before they leave the United States for their immigrant visa interviews in their home countries. 

This is for people who have US Citizen immediate relatives applying for them, but will need to leave the U.S. to complete the process in their home country.  This is called Consular Processing and involves applying for an immigrant visa to reenter the United States as a lawful permanent resident – i.e. green card holder.  The problem that most people have in this situation have usually been in the US for a long period of time, so when they exit the US they trigger a bar to their return.  Most commonly, people trigger what is called the 10-year bar because they have been in the US without permission for over one year.  This only applies to people who have ONE entry into the US and when they leave for their visa appointment it will be their FIRST exit.  If you have more than one entry or exit, depending on how long you were in the country on each visit, you are likely NOT eligible to consular process. 

Now, once an applicant triggers the bar, in addition to applying for their visa to return to the US, they also need to file an I-601 waiver for the time they were here without permission.  This is basically asking immigration to waive or “pardon” the time they were here when they shouldn’t have been.  BEFORE this new rule, people would file their waiver in their home country and wait for a decision.  Decisions could take months or even years, and the applicant would be required to wait outside the country for that entire time. 

This new rule, allows certain individuals to file their waivers HERE in the US and wait for the decision HERE.  That way, before they go to attend their visa interview in their home country, their waiver will have already been approved (hopefully) and instead of waiting months/years for a decision, they are merely out of the country for the amount of time it takes to obtain their visa — usually a matter of weeks. 

In order to be eligible for the waiver under the new rule the applicant must:
(1) be an IMMEDIATE RELATIVE of a US Citizen (this means Spouse, Parent or Child – sorry, siblings don’t count)
(2) be the beneficiary of an approve immediate relative petition (Form I-130 filed by one of the above listed relatives
(3) be 17years of age or older
(4) be present in the US at the time of filing the application for a provisional waiver and for biometrics (fingerprints) their local application support center
(5) have a case pending with the Department of State based on the approved I-130 petition and have paid the immigrant visa processing fee
(6) show extreme hardship to US citizen spouse or parent

PLEASE NOTE #6 – this is where it gets a little tricky: while your US Citizen over 21 CHILD can petition for you, the extreme hardship cannot be BASED on them.  So basically, you have to be married to a US citizen or you have to have a US citizen parent that you can base the hardship on.  This part is complicated, I know, so make sure you seek competent counsel before filing. 

The new rule will take effect on March 4, 2013.  It will definitely benefit so many people who had not yet filed because they did not want to take the risk of being stuck outside the US for an extended period of time.  That being said, it has very SPECIFIC eligibility requirements and you should seek legal counsel to determine your own eligibility.

DERIVATIVE CITIZENSHIP – are you a citizen and you don’t even know it?

Derivative Citizenship is citizenship that you gain after your birth, through the naturalization of one of your parents.  This is different from citizenship by descent which you acquire at birth and can be conferred to you, even if you were born outside of the U.S.  Let me warn you that in certain situations, depending on (1) when you were born, (2) when your parent(s) naturalized and (3) how hold you were when your parent(s) naturalized, there is a very complicated CHART involved in figuring out whether or not you can claim derivative US citizenship and what you need in order to prove your eligibility.  I am going to talk about the most simple situations in this blog. 

The current law that governs this is called the Child Citizenship Act (CCA) and came into effect on 2/26/01.  The CCA allows certain children of American citizens to get American citizenship automatically. These children did not acquire American citizenship at birth, but rather are granted it following their parents’ naturalization.  Under the CCA, you can automatically acquire US Citizenship on the date that all of the following requirements are met:

• At least one parent is a US citizen, whether by birth or naturalization
• You are under age 18
• You are currently residing permanently in the US in the legal and physical custody of a US citizen parent
• You are a lawful permanent resident

Those simple requirements are ONLY for people who were under 18 at the time CCA went into effec (i.e. 02/27/01).  If you were OLDER than 18 on that date, then you do NOT qualify for automatic citizenship, but rather you are subject to the chart I mentioned above and would have to file an application to prove your eligibility.  Now that being said, even if you do fall under all of the requirements above – you effectively have NO proof of your citizenship because all you have is a green card and the knowledge that you fulfill all the requirements on the list.  IF you want proof of your citizenship on PAPER, you need to either (1) apply for a US Passport or (2) file Form N-600, Application for Certificate of Citizenship.  In my experience, I find that it is more effective to file the N-600 before trying to get your passport.  Despite the fact that the law is clear on this matter and you are, under the law, a US Citizen, most passport offices will not approve your passport application without a Naturalization Certificate. 

As stated above, if you were over 18 at the time CCA was enacted, all is not lost, you simply need to seek the advice of a competent immigration attorney who can determine your eligibility and what you will need to prove your derivative citizenship.  In your case, you will have to file an N-600 with documentary evidence of your derivative citizenship.  That evidence varies depending on when you were born and when your parent became citizens. 

Preserving your status as a "child" for immigration purposes

In 2002, Congress passed the Child Status Protection Act (CSPA), changing who can be considered a “child” for immigration purposes.  Before 2002, when a child turned 21 he/she was no longer eligible to immigrate with his/her parents – regardless of how long they may have been waiting.  This would mean that parents would get their residency and immediately turn around and petition for the children who had “aged-out,” which resulted in their now adult children being basically kicked to the back of an even longer line than the one they had been waiting in with their parents.   

With the enactment of CSPA, children who had “aged-out” are, in some circumstances, allowed to remain children (i.e. under 21) for immigration purposes.  The “circumstances” I am referring to can often be complex and vary depending on the type of petition, who was petitioning, and the preference category.  The most common situation is the one I described above, where a parent is the direct beneficiary to a non-immediate relative petition, and the child is a “derivative” – i.e. the petition wasn’t filed specifically for them, but the mere fact that they are the child of the principal beneficiary (their parent) makes them eligible to be attached to the application.  ** Please note: by non-immediate relative, I mean that the person who filed for the parent was not their: (1) USC spouse or (2) over 21 USC child – in those cases, there are NO derivatives allowed.  Often times, the parent has to wait months or even years for their petition to be approved and in that time, their derivative child turns 21.  Through CSPA, those months/years that they had to wait for their approval can be subtracted from the child’s age and if after the math, the child is under 21, then they can immigration with their parents.  This basically ensures that kids are not punished for how long it takes USCIS to process a petition. 

Until a recent 9th Circuit Court of Appeals decision, this calculation, called an automatic conversion was only allowed in situations where the original petition was an F2A petition – meaning it was filed by a resident spouse or parent.  So, in situations where a US citizen brother or sister applied for a person, a child who was a derivative on that petition could not subtract the time it too that petition to be approved from their age.  In September, the 9th Circ. in De Orosorio v. Mayorkas, held that the plain language of CSPA provides automatic conversion and to aged-out beneficiaries in all family based categories.  So that means, if your mom’s sister filed for her waaaay back when, and you were under 21 at the time, depending on how long it too for that petition to be approved, you may still be under 21 for immigration purposes and you could possibly get your green card too. 

Other things can freeze someone’s age under 21 as well.  For example, if a resident father files for his son and then becomes a US citizen before that son turns 21 – his age is frozen under 21 and the petition his father filed becomes an immediate relative petition – i.e. it is immediately available for use – no waiting in line for your date to come up. 

There are also this which make someone INELIGIBLE for CSPA.  For example, if you are the derivative on your mom’s petition from your resident grandfather.  The petition takes several years to be approved, and then several more for the priority date to become current.  If in that time YOU get married, even if the automatic conversion would have worked to freeze your age under 21, your marriage rendered you ineligible to make use of it. 

In addition to the above scenarios, there are a MULTITUDE of other situations which can arise which may affect your eligibility in both positive and negative ways – including things your parents may have done while waiting for their petition to be approved that can affect you and your eligibility to “ride” on that petition.  That being said, as always, you need to seek out competent legal advice.

Applying for an Immigration Benefit with a Criminal Record

The benefits of citizenship

This post is for those of you that have been legal residents of the U.S. for several years, or were born in American Samoa and are currently US Nationals.  I cannot stress enough the importance of becoming a citizen, especially for those of you who are only green card holders because, while your green card gives you a certain amount of rights in this country, at the end of the day – it can be taken away.  You are never completely secure of your place in the United States unless you are a citizen.  Obviously, there are other benefits to becoming a citizen: (1) you can vote in state and federal elections and personally, I believe there is no greater responsibility than participating in the governing of our nation; (2) if you are a green card holder, you no longer have to renew your card every ten years; (3) and you can obtain a U.S. passport and travel with ease.

If you are a resident, depending on how you obtained your residency, you can become a citizen either 3 or 5 years after getting your green card.  For those of you who got your green card through your US Citizen spouse, you can apply for naturalization 3 years after getting your card as long as you are still married.  For all other green card holders, you can become a citizen 5 years after getting your card.  For those of you who were born in American Samoa, you can apply for naturalization as long as you have at least two years of residency in any U.S. state.  While the length of residency requirements are fairly straight forward, if you have had any trouble with the law, it would benefit you to seek legal counsel before applying because some criminal violations could render you ineligible for citizenship (and would likely result in getting your green card revoked if you tried to renew it).  Some of these types of violations can been “cleaned up,” even years later.  This is called “post-conviction relief” and usually requires returning to criminal court.  But that is for another post.

Did someone file for you a long time ago and you just never completed the process?

There are three types of people who can do all of their paperwork here in the U.S.: (1) if you entered the country lawfully, you are still “in status” (i.e. you haven’t overstayed your visa) and a resident spouse or parent, or citizen spouse, parent (if you are under 21) or child (fover 21) is petitioning for you, (2) you entered the country the country lawfully, overstayed your visa/permission, and you have a citizen spouse, parent (if you are under 21) or child (over 21) to petition for you, or (3) you have an old petition filed on or before April 30, 2001.  If you do not fall into any of those categories, then you most likely have to consular process – i.e. leave the country and apply to reenter from outside the U.S. – but that is for another blog.

Becoming a green card holder even if you overstayed your welcome (and your visa)

As a member of the Polynesian community, specifically Samoan – but this applies to pretty much everyone – I often meet people who came to the U.S. many years ago on a tourist visa and never left.  Sometimes after decades of living here, working, raising families, these people believe that there is no hope of becoming legal residents.  In many cases, however, that is not the case and in fact, they can quite easily apply for a green card if they have (1) a U.S. citizen spouse or child (over 21) and (2) they have never left the U.S. after their initial entry all those years ago.  This is key: if you overstayed your visa, left the U.S. and then returned, depending on when you left and returned, and how long you overstayed, your case can be greatly affected – from perhaps requiring a waiver, to not being eligible to apply at all.  It also helps if they have proof of their legal entry into the U.S., like an original passport or an I-94 (the card you get stamped when you enter) – but I will get back to that later.