AILA Small Group-June
June 14, 2006
1. Will the district office of Dallas be accepting 1 I-864 from the petitioner with
copies for each derivative, the derivatives being included in page 1 of the principal
beneficiary?
Or will they require separate I-864s for each I-485 applicant no matter if they are
derivatives or not?
Will they require notarizations of the I-864s at the time of the DORA appt?
Yes, we will accept a copy for the derivatives, but we need an original signature
page on each copy. The form either has to be notarized or signed in front of an
officer.
2. I would like to ask a question to the DDO. Has the DDO established an internal
policy regarding interim EAD's for pending I-485 cases where the applicant's case is in
the Fraud Unit?
An employee of our client has an I-485 case that has been with the Fraud Unit for a
couple of years. He filed an I-765 as an adjustment applicant on February 20, 2005 (with
MSC) and the case has not yet been adjudicated.
The applicant has received interim EAD's from the DDO for the past six months. Last
week he made application for yet another interim EAD and was told that the DDO policy
is to no longer issue interim EAD's if the I-485 case is in the Fraud Unit.
Again, my question is to confirm that the new DDO policy is that no interim EAD will be
issued if a file is in the Fraud Unit. Also, is this indefinite in that there will never be an
interim EAD issued until a case is released from the Fraud Unit and the I-485 is
ultimately adjudicated?
There is no formal policy and this is normally done on a case by case basis. This
person can do an e-mail inquiry on this specific case to see what is happening.
3. I have a question regarding Infopass procedures. This morning my client and I
arrived for our Internet scheduled DORA appointment. However, when we submitted the
Infopass printout, we were told that we did not have an appointment. In addition, we were
told that they had no information on our appointment. Is there any way that I can check
and confirmed that an Infopass appointment made over the Internet is valid?
Background history.
I made the initial Infopass appointment for May 15, 2006 with a confirmation number of
DAL-06-16271 and personal identification number 08049. I canceled the appointment
and rescheduled for June 6, 2006 with a confirmation number of DAL-06-19727 and
personal identification number 99621. The second appointment is the one that I was told
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is not on their records sheet. I have made a third Infopass appointment for June 29, 2006
with a confirmation number of DAL-06-23629.
Most appointments are valid, but if any of the parameters of the appointment
requirements are not met-(i.e. correct address, e-mail address, good telephone
number, or birth date), then they are subject to cancellation. We do a spot check
and cancel any appointments that do not appear to be legitimate or missing basic
information. We have a high “no show” rate which has caused the need to review
the appointments before hand. (in this particular case, we can see that they do have
an appointment scheduled on June 29, 2006)
4. I recently attempted to submit an I-485 packet under the DORA provisions. The
beneficiary was the IR of a USC and had entered with an advance parole document
obtained under the LIFE Act Legalization provisions. The IO’s at the DORA window
would not accept the packet for consideration, stating that “the case could not be filed
because the applicant was paroled into the United States from Mexico.” However, INA
§245(a) states that:
(a) The status of an alien who was inspected and admitted or paroled into the United
States 1/ or the status of any other alien having an approved petition for classification
under subparagraph (A)(iii), (A)(iv), (B)(ii), or (B)(iii) of section 204(a)(1) or may be
adjusted by the Attorney General, in his discretion and under such regulations as he may
prescribe, to that of an alien lawfully admitted for permanent residence if
(1) the alien makes an application for such adjustment,
(2) the alien is eligible to receive an immigrant visa and is admissible to the United
States for permanent residence, and
(3) an immigrant visa is immediately available to him at the time his application is
filed.
Shouldn’t this applicant thus be eligible for AOS under INA §245(a), bearing in mind the
possible application of INA §212(a)(9)(B).
This could have been a mistake, but we would need more facts to be sure. Please do
a specific inquiry on the “w” line and reference the AILA meeting on June 14th.
5. I was wondering if you could get this clarified/question answered. I went to the
3010 office this morning for a DORA interview. A US citizen, ------, is petitioning for
his Mexican stepson, ------. For some reason when USC, filed for Stepson’s mom almost
3 years ago, they did not include him. Now, Mom is a LPR and we're trying to get
stepson’s residency.
Stepson entered in 1991 with a tourist visa and overstayed. He has never been back. He
is 17 years old so he is an immediate relative of a USC. When I went this morning to do
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the interview, Officer Weirman (sp?) told me he did not qualify because he was NOT an
immediate relative and we should have filed an I-130 petition for him and waited for his
priority date to be current under the first and 2A category. I tried explaining to her that
he was an immediate relative and thus qualified to no avail.
At this point, I'm wondering why she said that, and if I make an appointment again for
him under DORA, if I can actually have the interview and file everything then. Thank
you, Emma
This was erroneously rejected, please re-file, we have gone over this issue with the
IO’s.
6. Question: What's the proper procedure of inquiring about the non-receipt of the I-
485 approval notice in the following situation:
Case 1) DORA: Interview Date: 05/24/2004 Second Fingerprint: 12/16/2005
Received I-130 approval notice dated May 1, 2006. To date, have received neither I-485
approval notice nor a permanent resident card.
Case 2) Regular Processing: Filing date of I-130 & I-485: 08/14/2005 Interview Date:
05/05/2006 I-485 applicant and her husband/petitioner were told their cases were
approved on the day of interview. Another fingerprint notice dated June 1. Was advised
by the officer via e-mail to disregard it as the cases were approved on May 10, 2006.
Received I-130 approval notice but again, no I-485 approval notice and no green card.
Sent e-mail inquiries to the Dallas CIS on the above cases, and the responses are a) Case
One: still waiting for the response; b) on Case 2, first response was for the applicant to
make an infopass app and go down to CIS to inquire of the non-receipt of I-485, and
second response was quite terse, i.e, outside the inquiry cut-off date. I was not inquiring
about the status of the case as I know that the case was approved on 05/10/2006 as
advised via e-mail from the Inquiry Officer.
So, what do we do? Generally CIS does not approve I-130 unless I-485 is also approved
(one-step filing cases).
This is an unusual situation, please allow 30 days for the production of the card, if
no card within 30 days, please reference the “AILA Meeting” and send a specific
inquiry on the “w” line.
7. DAL DO routinely denies N-400s where someone has been on probation during a
portion of the statutory period required for good moral character. I have always believed
that compliance with the law is a good thing. The regulations at 316.10 speak to the
“applicant’s conduct”, “conduct and acts”, “conduct of the applicant”, “conduct and
acts”, and, finally, “committed one or more crimes….”. What is the legal basis for
ignoring the date of the bad moral character conduct (the date of the crime) and focusing
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on the date of the good moral conduct (compliance with terms of probation) to determine
that that compliance constitutes bad moral character?
Text of regulation follows.
8 CFR § 316.10 Good moral character.
(a) Requirement of good moral character during the statutory period.
(1) An applicant for naturalization bears the burden of demonstrating that, during
the statutorily prescribed period; he or she has been and continues to be a
person of good moral character. This includes the period between the
examination and the administration of the oath of allegiance.
(2) In accordance with Section 101(f) of the Act, the Service shall evaluate claims
of good moral character on a case-by-case basis taking into account the
elements enumerated in this section and the standards of the average citizen in
the community of residence. The Service is not limited to reviewing the
applicant's conduct during the five years immediately preceding the filing of
the application, but may take into consideration, as a basis for its
determination, the applicant's conduct and acts at any time prior to that
period, if the conduct of the applicant during the statutory period does not
reflect that there has been reform of character from an earlier period or if the
earlier conduct and acts appear relevant to a determination of the applicant's
present moral character.
(b) Finding of a lack of good moral character.
(1) An applicant shall be found to lack good moral character, if the applicant has
been:
(i) Convicted of murder at any time; or
(ii) Convicted of an aggravated felony as defined in section 101(a)(43) of the
Act on or after November 29, 1990.
(2) An applicant shall be found to lack good moral character if during the
statutory period the applicant:
(i) Committed one or more crimes involving moral turpitude, other than a
purely political offense, for which the applicant was convicted, except as
specified in Section 212(a)(2)(A)(ii)(II) of the Act;
(ii) Committed two or more offenses for which the applicant was convicted
and the aggregate sentence actually imposed was five years or more,
provided that, if the offense was committed outside the United States, it
was not a purely political offense;
(iii) Violated any law of the United States, any State, or any foreign country
relating to a controlled substance, provided that the violation was not a
single offense for simple possession of 30 grams or less of marijuana;
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(iv) Admits committing any criminal act covered by paragraphs (b)(2)(i), (ii),
or (iii) of this section for which there was never a formal charge,
indictment, arrest, or conviction, whether committed in the United States
or any other country
This is not done routinely .
8. I have the following situation. A USC mother files for her married daughter in
Sept 1991. The married daughter adjusts in 2000 but at that time her children
(derivatives under the original petition) were respectively 22 and 25 years of age. Mother
becomes an LPR and petitions her now grown up single son and daughter in separate
petitions in 2002
Children are now 28 and 30 yrs old and they are grandfathered under 245(i)
My question is whether they can start their adjustment process now using the priority date
of Sept 1991 of the original petition by the USC grandmother or they are only
grandfathered under 245(i) and only able to adjust here once their new 2002 priority date
is reached?
Can the children now be protected by the Child Status Protection Act of 2002 since they
were minor when the grandmother petitioned for her daughter? Or they are out of luck
because CSPA only covers Immediate Relative petitions and would not cover the
grandchildren?
This is only good for the 245(i) grandfathering. The priority date does not get
retained with the new petition. There are several memos out on this issue and the
law is very clear.
9. I have a client A# 91-629-763 who applied for Natz in 2003 and was denied on
July, 2005. He filed an appeal form N-336 with a receipt date of August 12, 2005. He
was also placed into removal proceedings. The case was terminated On January 23, 2006
because the government could not sustain the charge. It was a final order and both
parties agreed that the alien was not deportable. Since that time, we have been waiting for
a hearing on the remaining NATZ application. We finally received an answer after
several e-mail inquiries and were told that the file was with the TA’s office and we would
have to wait “180 days” before we inquire again. This just does not seem right. My
client has been waiting almost 180 days for the first response only to be told that he has
to wait another 180 days for them to find the file. Isn’t there some procedure to make
sure that cases that are with the TA’s office can get routed to where they need to be
within a reasonable amount of time?
We are trying to get the file from ICE Counsel’s Office.
10. A question from ILS: Can the DDO confirm that for AOS and Affidavits of
Support, the DDO will consider the income of a Sponsored
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immigrant/Household Member, even if that person lacks an EAD or legal
status?
According to the CIS policy memo, we will accept the income of anyone in the
household as long as they have filed their income tax returns as required. They do
have to have lived in the household for at least six months and be related to the sponsor by birth,
blood or marriage. They must provide proof of their residency within the household and proof of
their relationship to the sponsor.
11. In the FAQ section of the CIS web site, it states, "In some places, you can choose
to take the Oath the same day as your interview." (response to question #18). Is this
option available at the Dallas CIS office? If it is, what is the procedure to request this
option.
We do not provide this as an option here in Dallas because we do not have a good
facility in which to be able to accommodate that service. We will do it on a VERY
LIMITED basis, but arrangements must be made before hand. It must be a very
unique situation.
12. There is one DAO, ----------, that will not allow the attorney to translate unless the
attorney withdraw as representative. What is the District's policy regarding the attorney
as translator. This same DAO also requires the birth certificate of a naturalized USC
when the USC is the petitioning spouse contrary to the regulatory requirements for I-130
petitions. Does the District require the birth certificate in such cases?
In general we let the attorney translate, but if there is a problem with the case we
will require a translator. It just depends on the Officer and the case, the Officer
must use their judgment as to whether to allow this or not. It is always safer to have
one.
13. Regarding extension of temporary I-551 for conditional permanent residents
whose I-751 has been denied by CIS but is pending review before an IJ, an October 9,
1997 memorandum (HQ 70/23.13-C from Kathy Redman, Acting Assistant
Commissioner, Adjudications) states that the alien has a right under the statute and
regulations to a review of termination and therefore the terminated conditional lawful
permanent resident should be issued a temporary I-551 during the pendency of such
review. What are current procedures for a terminated CPR in proceedings to receive
evidence of status and employment authorization while the case is on review before the
IJ? Will the original I-751 receipt notice suffice?
This memo that is mentioned is no longer in effect and we do not provide any proof
of status. We do not believe that we are required to provide any proof once we have
made the decision to terminate.
14. "It seems that the District Office is misreading section 245(c) with respect to
VAWA applicants with approved I-360s who entered EWI and are not protected under
245(i). Section 245(c) allows an abused spouse with an approved I-360 to be eligible for
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adjustment of status notwithstanding an EWI entry. However, attorneys are reporting
that the District Office is denying I-485 applications for a VAWA applicant with an
approved I-360 if the applicant is an EWI who is not grandfathered under section 245(i).
Section 245(c) clearly references (A)(iii) of section 204(a)(1) as eligible for adjustment of
status. If the District contends that interpretation is incorrect, please advise us as to the
source of the District's legal interpretation in that regard. Thank you for your input!”
See answer : AILA May 18, 2006 meeting Question # To use 245(i) today, the I485
application must be based upon an I-360 that was filed before 4-30-2001 or an I-360 that can be
grandfathered back to a second petition that was filed before 4-30-2001. The $1000 fee is
waived on those cases.
If they cannot use 245(i) to adjust they would then adjust under 245(a). In order to adjust under
245(a), the approved VAWA self-petitioner must be admissible. If the applicant entered without
inspection she is not admissible and would need a waiver under 212(a)(6)(A)(ii). This waiver
requires that the applicant establish that there was a substantial connection between the battery
or cruelty and the alien’s unlawful entry.
15. Our office has received a denial on a specific VAWA case. Service contends that,
irregardless of an approved I-360 petition, client remains inadmissible unless they can
show that they qualified under 245(i). If entered EWI, client has to file a waiver under
212(a)(6)(A)(ii). We believe this to be misapplication of the law. It appears that DO is
ignoring section 245(a) where it clearly states "[t]he status of an alien who was inspected
and admitted or paroled into the United States OR THE STATUS OF ANY OTHER
ALIEN HAVING AN APPROVED PETITION FOR CLASSIFICATION UNDER
(A)(iii) OF SECTION 204(a)(1) MAY BE ADJUSTED...." Of course
204(a)(1)(A)(iii)(I)(bb) describes a VAWA client. It appears that few other attorney in
the area have received similar denials. We believe this to be a misinterpretation and
misapplication of the VAWA law.
See answer : AILA May 18, 2006 meeting Question # To use 245(i) today, the I485
application must be based upon an I-360 that was filed before 4-30-2001 or an I-360 that can be
grandfathered back to a second petition that was filed before 4-30-2001. The $1000 fee is
waived on those cases.
If they cannot use 245(i) to adjust they would then adjust under 245(a). In order to adjust under
245(a), the approved VAWA self-petitioner must be admissible. If the applicant entered without
inspection she is not admissible and would need a waiver under 212(a)(6)(A)(ii). This waiver
requires that the applicant establish that there was a substantial connection between the battery
or cruelty and the alien’s unlawful entry.
***Other issues: Effective immediately, N-400’s will not be scheduled for interviews
until after all security checks have cleared.
There will be Saturday interviews in June, July and maybe August.
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USCIS is shipping approximately 500 N-600’s to the CSC for review and
adjudication. Most have been filed within the last 5-6 months. So, if you receive an
RFE from the CSC on an N-600 filed with the DDO, that is the reason.
.
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