(703) 369-4738

12
May
2022

Prince William County Is Totally Awesome And VFN Is More Gooder Than Other Firms

Written by: Guy Jeffress

In April 2022, the Commercial Real Estate Development Association (aka “NAIOP”), released the results of their national Developer Approvals Index study. The results of the study ranked Prince William County, Virginia in sixth place nationally, with an overall weighted score of 51, and attained a category-leading score of 75 points for “Consistency.” Consistency metrics covered code and ordinance updates, time frames for completed reviews, approval processes, feedback across different organizational levels and functions, including published approvals for project phases, and staff-based results, such as tenure, training, and their ability to handle complex projects. In short, Prince William County, Virginia is open for business.

For the attorneys at Vanderpool, Frostick & Nishanian, P.C., the study reiterated what we already knew, i.e., that Prince William County, Virginia, is a national leader when it comes to the provision of building development services and the approval of innovative projects including world-class data center infrastructure, bio/life science incubators, and higher education. Nor was the result of the study a surprise to some of our county’s most well-known business residents which include Amazon Web Services and the microchip manufacturer Micron.

If you are considering a project in Prince William County, Virginia, or any of the surrounding jurisdictions, the attorneys at Vanderpool, Frostick, & Nishanian, P.C. are able to bring their 80+ years of combined experience and community involvement to mitigate the legal risks and challenges related to your real estate development projects.

Call one of the attorneys at Vanderpool, Frostick & Nishanian, P.C., or email and let us see if we can assist you.

This blog post is not intended to provide legal advice or substitute for the advice of legal counsel with respect to specific facts and situations. See disclaimer

11
May
2022

Uniting For Ukraine – Finally, a way to get Ukrainian Refugees out of danger and into the US:

Written By Lisa Shea, Esq.

The United States has announced a program to benefit Ukrainians still living abroad through its Uniting for Ukraine program.

This is a new parole allowing a U.S. supporter or sponsor, who 1) has lawful status in the US, 2) passes a security and background check, and 3) has sufficient financial resources to support the individual(s) being sponsored, to file a declaration of support for a Ukrainian who is outside the United States, including, spouses and unmarried children under 21 (note that a child under 18 must be traveling with a parent or legal guardian).  The beneficiary must possess a valid Ukraine passport, have a declaration of support filed on their behalf, and have clear biometric and security checks. 

Once the declaration of support is deemed sufficient by the United States Citizenship and Immigration Services, and background checks are completed, the beneficiary will receive a 90-day travel authorization.  There is no government filing fee for this process.

For Ukrainians already in the United States with continuous presence since April 11, 2022, the temporary protected status may be an option.

FOR MORE INFORMATION ON A SPECIFIC SITUATION, PLEASE CONTACT:

Lisa Shea is a shareholder at Vanderpool, Frostick & Nishanian, P.C. She is leading the firm’s Immigration practice, as well as Immigration Chair for the Prince William County Bar Association.  If you have additional questions or concerns contact Lisa Shea at or call us at 703-335-2009.

www.immigrantsfirst.com (for information about immigration solutions)
www.vfnlaw.com (for information about solutions in other areas of law)

This blog post is not intended to provide legal advice or substitute for the advice of legal counsel with respect to specific facts and situations. See disclaimer

11
May
2022

Special Immigrant Juvenile Status (SIJS)

Written By Lisa Shea, Esq.

Pictured is Marta and her beautiful two-year-old daughter.  Marta is an immigration success story after Lisa Shea, head of the immigration practice group at VFN, helped Marta obtain her green card in 2011 through special immigrant juvenile status adjustment.  Marta was born in El Salvador in 1991 and at the age of three months, she was left by her parents in the care of her grandmother who beat her relentlessly.  In 2008, thinking life would be better, Marta traveled by herself at the age of 16 to live with her alcoholic mother, but things only got worse.  Her mother was not prepared to raise her child and worked her for long hours, abused her, and tried to kill her by holding a loaded gun to her head and hitting her with a car.  Her mother finally abandoned her to distant relatives who kicked Marta out of their house within six months of her arrival, leaving her homeless and pregnant.  She went into foster care and the Manassas Department of Social Services reached out to Ms. Shea to take the case pro bono.  After two years of working on the immigration case, and several years of Marta remaining in foster care, Marta got her green card.  Now Marta has a family of her own and is a dental assistant.  She is happy in her life and is a contributing member of our community; she can see how far she has come from when she first came to the United States.

In order to qualify for special immigrant juvenile status (SIJS) a juvenile in Virginia must meet the following criteria.  First, be found to be dependent upon a juvenile court or in the custody of an agency, or department of the state.  In Virginia, a juvenile should have a custody determination issued by the juvenile court before the age of 18 years old.  Although the statute may allow the filing of the custody petition before 18 years old, with adjudication after 18 years old, some judges are still construing the law that the custody determination must occur before the age of 18 years old.  Second, at the time of custody determination and filing of the SIJS petition with USCIS, the juvenile must be unmarried and under the age of 21 years old.  Third, the juvenile must be present in the United States at the time the relief is granted.  Fourth, the juvenile must be eligible for long-term foster care due to abuse, neglect, or abandonment by one or both parents.  And, Fifth, the juvenile must prove that it is not in their best interest to be returned to their home country.

Marta came into our office recently, after 11 years, to see if we could help other family members legalize their status.  We had a joyous reunion after all this time and the opportunity to see each other again.  One of the many benefits of practicing immigration law is to see clients progress after attaining legal status, and that progress has been especially outstanding for Marta.  We handle many SIJS cases successfully from the custody determination phase to the application for SIJS, and lastly to adjustment of status, including for juveniles who are in removal proceedings.  Please contact us if you need assistance with an SIJS case.  We are more than happy to assist!

FOR MORE INFORMATION ON A SPECIFIC SITUATION, PLEASE CONTACT:

Lisa Shea is a shareholder at Vanderpool, Frostick & Nishanian, P.C. She is leading the firm’s Immigration practice, as well as Immigration Chair for the Prince William County Bar Association.  If you have additional questions or concerns contact Lisa Shea at or call us at 703-335-2009.

www.immigrantsfirst.com (for information about immigration solutions)
www.vfnlaw.com (for information about solutions in other areas of law)

This blog post is not intended to provide legal advice or substitute for the advice of legal counsel with respect to specific facts and situations. See disclaimer

10
May
2022

Billboard Regulation Survives at the US Supreme Court

Written By Martin Crim, Esq.

I think that I shall never see
              a billboard lovely as a tree.
Perhaps, unless the billboards fall,
 I’ll never see a tree at all.
—Ogden  Nash

In the 2015 case of Reed v. Town of Gilbert, the U.S. Supreme Court announced a new rule that restricted local government regulation of signs. That case broadly defined “content-based” regulation in a way that caused alarm in local government circles because it threatened to render unconstitutional many zoning ordinances that addressed signs. One of the fears that it generated was that we might no longer be able to have one set of rules for signs that advertise products and services sold on-site and another set for signs that advertise products and services that are sold elsewhere (a/k/a on-premises v. off-premises signs).

Most billboards are off-premises signs, and the billboard industry aggressively protects its interests in those signs. The Reed opinion gave them an opportunity to increase the number and value of their stock of billboards if they could turn on-premises signs into off-premises signs by getting courts to strike down local ordinances that discriminated against off-premises signs. Federal and state beautification laws dating back to the 1960’s and 1970’s have curbed the ability to put up new billboards, so most billboards you see are “grandfathered” under zoning law – allowed to remain as long as they do not expand in size or upgrade their technology.

Since 2015, billboard companies have filed several challenges around the nation against ordinances that used the on-premises/off-premises distinction, arguing from Reed that an ordinance was unconstitutional if you have to read the sign to apply the ordinance – even if you need just a cursory examination. This became known as the “pillar of salt” theory, after the Biblical story that Lot’s wife got turned into a pillar of salt as punishment for looking back despite being commanded not to look.

Although Justice Alito’s concurring opinion in Reed said that on-premises/off-premises distinctions were still permitted, the failure of the majority opinion to agree with him cast doubt on whether a majority of the Supreme Court would agree. The lack of clarity in the Reed majority opinion left room for the “pillar of salt” theory to persuade some judges. Meanwhile, tens of thousands of local governments had sign ordinances that distinguished between on-premises and off-premises signs.

On April 21, 2022, the Supreme Court finally answered the on-premises/off-premises question, in a case (Austin v. Reagan National Advertising of Austin) brought by two advertising companies who wanted to digitize some grandfathered billboards. Austin’s sign code prohibited that, so the advertising companies sued. The case made its way up the Federal appellate court system to the top, where Justice Sotomayor  delivered the opinion of the Court, rejecting the “pillar of salt” rule as “too extreme an interpretation.”

Instead, the Supreme Court has now allowed sign regulations to distinguish between on-premises and off-premises signs as long as the regulations meet so-called “intermediate scrutiny” (i.e., requiring more justification than the “rational basis” test but not as much as the “strict scrutiny” test). For that reason, the Supreme Court remanded the Austin case for the lower courts to determine whether the Austin sign code had an “impermissible purpose or justification” and whether it was “narrowly tailored to serve a significant governmental interest.”

When I worked on the model sign ordinance for the Local Government Attorneys of Virginia in 2016, we retained the on-premises/off-premises distinction, generally prohibiting all new off-premises signs. (Grandfathered signs have to be allowed as a matter of property law.) We held our breath at the time, and now we can breathe a sigh of relief.

If you have a question about whether a given sign ordinance is still constitutional – either in the abstract or in relation to an existing or proposed sign – I’d be pleased to consult with you and, if appropriate, to represent you in relation to that question.

Martin Crim is a shareholder at Vanderpool, Frostick & Nishanian, and has been practicing law for over thirty years, primarily for cities, towns, and other local governments. If you have additional questions or concerns contact Martin Crim at mcrim@vfnlaw.com or call us at 703-36-4738.

This blog post is not intended to provide legal advice or substitute for the advice of legal counsel with respect to specific facts and situations. See disclaimer[/vc_column_text][/vc_column][/vc_row]

3
May
2022

New District Court Case Limits Application of Attorney-Client Privilege in Workplace Investigations Conducted by Counsel

Written by: Monica Munin, Esq.

The United States District Court for the Western District of Virginia released a published opinion granting (in part) a plaintiff’s motion to compel seeking the release of an employer’s communications and investigation report with counsel regarding a complaint of sexual harassment.  The motion also sought information from counsel regarding what advice the employer received from counsel regarding “how to structure” the plaintiff’s termination. The motion was denied with respect to the attorney’s communications with counsel regarding the plaintiff’s termination and granted with respect to the communications relating to the investigation of the plaintiff’s sexual harassment claims.

The case involves a woman employed by the Town of Front Royal, Virginia (“the Town”) who complained of repeated instances of sexual harassment perpetrated by a colleague, William Sealock.  According to the plaintiff, she met with the Human Resources Department in August of 2019 to discuss her complaint following conversations she had had with other Town employees regarding repeated instances of unwanted touching and inappropriate remarks despite telling Sealock that the comments and touching were unwanted. Human Resources told the plaintiff she would hear back within two weeks following the completion of an investigation. The plaintiff did not hear from Human Resources or anyone from the Town, however, until November 2019. According to the plaintiff she had to repeatedly request updates on the status of the investigation and sought help from the Town to alleviate the harassment and retaliatory conduct she was suffering since reporting the sexual harassment. The plaintiff alleges that the investigation report in the matter was “wholly dismissive of her complaints (to the extent they were investigated at all) and [was] indicative of a sham investigation.” The plaintiff went on medical leave in December 2019 and was terminated upon returning to work on January 30, 2020. The plaintiff alleges that the Town’s stated reason for her termination, that her job was subject to “right-sizing” was a pretext for sex-based discrimination and retaliation. The plaintiff initially filed a complaint with the Equal Employment Opportunity Commission (“EEOC”) before bringing suit against the town for violations of the Family Medical Leave Act (“FMLA”), as well as violations of Title VII of the Civil Rights Act of 1964.

Specifically, the plaintiff alleged sex-based discrimination, unlawful retaliation, and retaliatory hostile work environment in addition to her allegations that FMLA was violated. Shortly thereafter, the plaintiff filed a motion to compel, claiming that the Town had put the advice provided by the attorney hired to conduct the investigation in issue, thereby waiving attorney-client privilege over the communications. During depositions, the Town’s representative testified that Julie Judkins was hired “to make sure that everything in the investigation, and later in the firing of [the plaintiff] was done to ensure it was legal.” The plaintiff’s motion sought the release of “information and documents underlying Ms. Judkin’s involvement in both the investigation of [the plaintiff’s] harassment and retaliation complaints and in the termination of [the plaintiff’s] employment.” During depositions, the Town’s attorney had refused to allow Ms. Judkin (the Town’s counsel) to respond to a question asking if “Ms. Judkin’s advised the town how to end the plaintiff’s employment with the Town.” When asked why the Town had hired Ms. Judkins, the Town’s reply was “to advise Town council as it relates to a complaint that was made by [the plaintiff].” The Town representative’s deposition indicated that the investigation into the plaintiff’s allegations was “conducted by [Human Resources] and counsel” and that “if legal counsel and the [Human Resources] Department had concluded that there was sexual harassment or retaliation or a hostile work environment, he without a doubt…would have encouraged Council to take all the appropriate action afforded to us by law.” The Town’s representative further testified (after being asked to opine if the plaintiff’s allegations, assuming they were true, violated the company’s sexual harassment policy) “that would be up to the investigative body, in this case, it was the [Human Resources] Director in conjunction with legal counsel, to draw that legal conclusion of what that was harassment or not…” The Town had asserted privilege over its communications with the attorney that conducted the investigation as to the communications regarding the investigation, any advice sought regarding how to structure the plaintiff’s termination, and any advice regarding the conclusions of the investigation and remedial action recommended thereafter. The Town’s argument against waiving privilege is that it had not raised “reliance on the advice of counsel” as a defense in the case.

The Court held that the Town “put Ms. Judkin’s involvement in the investigation of [the plaintiff’s] internal complaints at issue but had not put ‘at issue’ her advice regarding Brown’s termination.”  In granting the plaintiff’s motion with respect to the attorney’s involvement in the investigation, the Court noted “[the Town] essentially turned the investigation of the plaintiff’s charges over to the attorney, and it was counsel who assembled the facts, drew the conclusions, and constructed the remedial response…under those circumstances, to prevent plaintiffs from discovering what was done by counsel and why, would be tantamount to giving the defendants both the ‘sword’ (i.e. the argument ‘that we were reasonable because we had our attorneys investigate the charge and craft a response’) and the ‘shield’ (i.e. what our attorneys did and why they did it, is privileged’).”  The Court found that the information sought by the plaintiff was “likely to speak directly to whether the defendants had actual knowledge of all the circumstances surrounding the allegations and whether their response to such allegations was clearly unreasonable.” It was the town’s reliance on the attorney to assist with the investigation and advice about what remedial measures were necessary, if any, that put the Town’s communications with counsel at issue in the case. The Court thereafter permitted the plaintiff to depose the Town’s counsel to an inquiry “[limited to] knowledge concerning the investigation and actions taken by the defendant in response to plaintiffs’ allegations.”  With respect to the plaintiff’s assertion that the Town had put communications with counsel at issue regarding the plaintiff’s termination and had waived privilege by stating in its EEOC position statement that counsel was hired to “ensure compliance with the law,” the Court found that attorney-client privilege had not been waived and the plaintiff could not depose the town’s counsel regarding that issue.”

The case underscores the delicate balance clients and attorneys must strike when seeking to investigate and address allegations of discrimination in the workplace.  It is vitally important to work with an attorney knowledgeable not only about the employment law statutes at issue but also skilled in ensuring that protected communications are not put into an issue where an employer would prefer to maintain confidentiality. 

Questions or concerns about this case? Please feel free to reach out by way of phone or email Monica Munin for guidance.

This blog post is not intended to provide legal advice or substitute for the advice of legal counsel with respect to specific facts and situations. See disclaimer

20
Apr
2022

Cameroon TPS

By Lisa Shea, Esq.

The Department of Homeland Security (DHS) announced today the designation of Cameroon for Temporary Protected Status (TPS) for 18 months. Only individuals who are already residing in the United States as of April 14, 2022, will be eligible for TPS.

“The United States recognizes the ongoing armed conflict in Cameroon, and we will provide temporary protection to those in need,” said Secretary Alejandro N. Mayorkas. “Cameroonian nationals currently residing in the U.S. who cannot safely return due to the extreme violence perpetrated by government forces and armed separatists, and a rise in attacks led by Boko Haram, will be able to remain and work in the United States until conditions in their home country improve.”

A country may be designated for TPS when conditions in the country fall into one or more of the three statutory bases for designation: ongoing armed conflict, environmental disaster, or extraordinary and temporary conditions. This designation is based on both ongoing armed conflict and extraordinary and temporary conditions in Cameroon that prevent Cameroonian nationals, and those of no nationality who last habitually resided in Cameroon, from returning to Cameroon safely. The conditions result from the extreme violence between government forces and armed separatists and a significant rise in attacks from Boko Haram, the combination of which has triggered a humanitarian crisis. Extreme violence and the widespread destruction of civilian infrastructure have led to economic instability, food insecurity, and several hundred thousand displaced Cameroonians without access to schools, hospitals, and other critical services.

This marks the first time the Secretary of DHS will permit qualifying nationals of Cameroon to remain temporarily in the United States pursuant to a TPS designation of that country. Individuals eligible for TPS under this designation must have continuously resided in the United States since April 14, 2022. Individuals who attempt to travel to the United States after April 14, 2022, will not be eligible for TPS. Cameroon’s 18-month designation will go into effect on the publication date of the forthcoming Federal Register notice. The Federal Register notice will provide instructions for applying for TPS and an Employment Authorization Document (EAD). TPS applicants must meet all eligibility requirements and undergo security and background checks.

FOR MORE INFORMATION ON A SPECIFIC SITUATION, PLEASE CONTACT:

Lisa Shea is a shareholder at Vanderpool, Frostick & Nishanian, P.C. She is leading the firm’s Immigration practice, as well as Immigration Chair for the Prince William County Bar Association.  If you have additional questions or concerns contact Lisa Shea at or call us at 703-335-2009.

www.immigrantsfirst.com (for information about immigration solutions)
www.vfnlaw.com (for information about solutions in other areas of law)

This blog post is not intended to provide legal advice or substitute for the advice of legal counsel with respect to specific facts and situations. See disclaimer

19
Apr
2022

Dealing with Disputes

By Brett Callahan

People often want to know what the difference is between mediation and arbitration.  It all comes down to who makes the final decision on how to resolve the issue, you or someone else. “Traditional” litigation often presents the same two options: do you want to settle the case, giving you some control over how things come out or do you want to go before a judge or jury and let them decide?

            There are benefits and risks to each approach.  In situations like mediation and settlement negotiations, you have control over the outcome, but so does the opposing party, since they also have to agree.  You would not be in a dispute with the other side if both were 100% in agreement, so to come up with something you will both agree on, neither of you are going to get 100% of what you want.  Also, there are often times when coming up with a compromise does not seem to be an option.  Perhaps the other party isn’t willing to consider a compromise or is being nonresponsive.  Perhaps they say they are willing to compromise, but mostly they just seem to be asking you to compromise.  Perhaps there simply doesn’t appear to be any room to compromise, because there are only two options.

            If the parties cannot come up with a solution themselves, they have to turn to a third party to make the decision for them, which is where lawsuits and arbitration come in.  Because both parties do not have to agree with whatever decision the judge, jury, or arbitrator makes, there is a chance you might get everything you ask for.  However, there is also a chance you get nothing you ask for.  That is where the risk comes in for both sides.  There is no such thing as a “slam dunk” case, no matter how much the facts and law appear to be on your side and no matter how brilliant and qualified you and your litigation team may be.  Any experienced litigator will tell you there is always a risk for you when someone else makes the decisions.

            So if mediation and arbitration are the same as settlement or going to trial, why are they called “alternative dispute resolution”?  The goal of mediation and arbitration is to speed up and reduce the cost of reaching a resolution.  Additionally, you generally have to agree to participate in arbitration or mediation, unlike in litigation where you can find yourself a party before a court without wanting to be there.  You also usually have to pay the mediation/arbitration company and mediator or arbitrator hourly out of pocket yourself or split the costs between the parties.  Courts usually have some set fees, but they also receive governmental funds, and you aren’t directly paying the judge hourly for their time.  That variability in mediation and arbitration costs means that there are times when mediation and arbitration are not necessarily going to be a less expensive option than more traditional litigation.

            Deciding what path to take to resolve your dispute is complicated as there are usually a number of options in any case.  Additionally, as the matter evolves, that analysis can change, so it is important to be prepared to revisit these decisions regularly to make sure you are still on the best path to reach your goal outcome.  The exact wording and use can vary, but below is a very basic glossary of “dispute resolution” terminology, which will hopefully help you have those discussions with your attorney.

Arbitration – In arbitration, the parties present their dispute to an arbitrator, who decides the resolution.  The parties must agree to arbitrate before arbitration, but most often this agreement is found in a contract the parties entered into before the dispute arose.  Arbitration is generally faster and less formal than proceeding before the courts.  However, because arbitrators’ decisions are legally binding, there are also appeals processes, in the event, that one party wants to contest the outcome.

Demand Letter – A demand letter is often the first “formal” action in a dispute.  One party or their attorney will generally summarize in writing the dispute, from that party’s perspective, and make a “demand” of what they want the other party to do to resolve the matter.  A demand letter may be a legal prerequisite under a contract or statute to taking further legal action, in some cases.  If a demand letter is a legal prerequisite, there are usually other specific requirements of what the demand letter must contain or how the demand must be made to qualify as that legal prerequisite.  If the other party complies with whatever is demanded in the letter, that may be the end of the matter, or, if not, the parties may move into pre-litigation settlement negotiations, file a lawsuit, or seek arbitration or mediation. 

Dispositive Motion – Not all contested lawsuits go all the way to trial.  Sometimes there are legal reasons why the court can “dispose” of the case, or parts of the case, before a full trial.  Even if a portion of the case will have to go to a full trial, partial dispositive motions are used to streamline the case.  The outcome of a dispositive motion can have a big impact on the strength or weakness of a party to negotiate a settlement on favorable terms.

Judicial Settlement Conference – A judicial settlement conference is similar to a mediation.  However, unlike mediation, judicial settlement conferences are generally only available to parties when a lawsuit has already been filed.  Judicial settlement programs are run through the courts, so there is often not a significant additional cost to participate in one.  In a judicial settlement conference, the neutral third party attempting to negotiate a resolution between the parties is generally a judge, although not the same judge who would proceed over a trial in the case.  As with mediation, the parties must ultimately agree upon the terms of the resolution, which are written as a legally enforceable agreement between the parties.

Mediation – In mediation, a trained neutral third party is involved to facilitate a resolution, similar to arbitration or litigation. However, unlike in litigation and arbitration, it is still the parties, not the third party who decides the final outcome.  If mediation is successful, the agreement between the parties is written as a legally enforceable agreement.

Settlement Conference – A settlement conference can be an umbrella terms for a meeting between the parties to try to resolve the dispute.  A settlement conference need not be facilitated by a third party and may just consist of the parties and their counsel.  However, in other cases, the term settlement conference may be used in the context of a third-party facilitated negotiation.  As with the other forms of dispute resolution between parties, if successful, the terms of the settlement are written as a legally enforceable agreement between the parties.

If you find yourself in a legal dispute with another party and want to review your options and determine the best path forward to meet your goals, the attorneys of Vanderpool, Frostick & Nishanian, P.C. may be able to help.  Please contact our office to speak with someone to discuss if we can assist you.

FOR MORE INFORMATION ON A SPECIFIC SITUATION, PLEASE CONTACT:

Brett Callahan is a shareholder at Vanderpool, Frostick & Nishanian, P.C. She is leading the firm’s litigation department. If you have additional questions or concerns contact brett Callahan at  bcallahan@vfnlaw.com or call us at 703-369-4738.

This blog post is not intended to provide legal advice or substitute for the advice of legal counsel with respect to specific facts and situations. See disclaimer

24
Mar
2022

TPS FOR AFGHANISTAN ANNOUNCED

By Lisa Shea, Esq.

The Department of Homeland Security (DHS) has designated Temporary Protected Status for Afghanistan due to the ongoing dire situation in Afghanistan with the Taliban takeover. Any Afghan who has lived in the United States as of March 15, 2022, and continues to live in the U.S., may qualify to register for TPS. Soon, United States Citizenship and Immigration Services (USCIS) will have the application procedure on its website at www.uscis.gov.

TPS is a designation by the United States for citizens of a country that is experiencing, or has experienced, a significant humanitarian disaster such as war, earthquakes, hurricanes, and any other circumstance that prevents the country’s nationals from returning safely to their home country. TPS is usually designated for 6, 12 or 18 months and qualifies the recipient, who is present in the United States on the day of the designation, for an employment authorization document, a deferred status, giving relief from deportation, and the possibility of advance parole to travel outside the United States. It is not, however, by itself, a pathway to getting lawful permanent residency. The current Afghan TPS designation is for 18 months, after which there will likely be renewals, and if not, TPS designees will return to their prior immigration status.

Afghans may also qualify to extend their current immigration status, claim asylum, or adjust their status through work or a family member.

Reach out to us for a consultation if you have any questions about applying for TPS or any other form of relief. We successfully represent many Afghans in their immigration processes and are happy to assist.

FOR MORE INFORMATION ON A SPECIFIC SITUATION, PLEASE CONTACT:

Lisa Shea is a shareholder at Vanderpool, Frostick & Nishanian, P.C. She is leading the firm’s Immigration practice, as well as Immigration Chair for the Prince William County Bar Association.  If you have additional questions or concerns contact Lisa Shea at or call us at 703-335-2009.

www.immigrantsfirst.com (for information about immigration solutions)
www.vfnlaw.com (for information about solutions in other areas of law)

This blog post is not intended to provide legal advice or substitute for the advice of legal counsel with respect to specific facts and situations. See disclaimer

24
Mar
2022

BREAKTHROUGH NEWS FOR TPS HOLDERS WITH REMOVAL ORDERS AND PAROLE: CAN NOW ADJUST STATUS!

By Lisa Shea, Esq.

On March 21, 2022, CARECEN (The Central American Resource Center) and United States Citizenship and Immigration Services (USCIS) entered into a Stipulation (settlement agreement) whereby USCIS will generally exercise its prosecutorial discretion by agreeing to jointly re-open deportation orders, move to dismiss removal proceedings and allow certain persons with Temporary Protected Status (TPS) to apply for adjustment of status.

This is a breakthrough development because previously persons who had TPS with deportation orders, and who then left on advance parole in order to have an admission into the United States, were barred from adjusting with USCIS because they were technically in removal proceedings (according to USCIS – even though they left the United States) and, on the other hand, they were also not able to adjust status in court because the advance parole made them arriving aliens, a designation under the sole jurisdiction of USCIS. 

So, persons with this set of conditions have been stuck in limbo between two agencies:  the courts, which claimed to not have jurisdiction because the person had left on parole and came back as an arriving alien, and USCIS, which claimed to not have jurisdiction because the person was still in removal proceedings.    

BUT NOW, FROM THIS POINT UNTIL JANUARY 19, 2025, ANY TPS HOLDER WHO MEETS THE FOLLOWING CRITERIA CAN HAVE THEIR REMOVAL PROCEEDINGS DISMISSED TO ADJUST THEIR STATUS unless the person is an enforcement priority:

  1. Currently possesses Temporary Protected Status;
  2. Has a removal, deportation, or exclusion order issued by the Executive Office for Immigration Review or its predecessor agency, the U.S. Immigration and Naturalization Service;
  3. Has traveled on advance parole since that order was issued; AND
  4. Is otherwise prima facie eligible to file an application for adjustment of status with USCIS, including but not limited to those with a pending or approved I-130 “immediate relative” visa petition who meet the “inspected and admitted or paroled” requirement of Section 245(a) of the Immigration and Nationality Act, as amended (the “INA”) pursuant to USCIS policy if seeking to adjust under that provision.

If USCIS granted or renewed Temporary Protected Status despite some criminal history (e.g., a single DUI), ICE Office of the Principal Legal Advisor (OPLA) generally would not rely solely on that same criminal history to find someone a public safety priority for enforcement.

During the Relevant Period, ICE OPLA will consider, pursuant to the process set forth in above a request for a joint motion to reopen and a motion to dismiss so long as the request is submitted to ICE OPLA before January 19, 2025

Within 30 days of the entry of this Stipulation (this settlement agreement), USCIS will publish a notice about this process on its website with instructions on how to contact ICE OPLA when a joint motion to reopen and a motion to dismiss is necessary. ICE OPLA will aim to process these requests within 90 days but no longer than 120 days from the time the request is submitted using the appropriate prosecutorial discretion process in the local field office.

FOR MORE INFORMATION ON A SPECIFIC SITUATION, PLEASE CONTACT:

Lisa Shea is a shareholder at Vanderpool, Frostick & Nishanian, P.C. She is leading the firm’s Immigration practice, as well as Immigration Chair for the Prince William County Bar Association.  If you have additional questions or concerns contact Lisa Shea at or call us at 703-335-2009.

www.immigrantsfirst.com (for information about immigration solutions)
www.vfnlaw.com (for information about solutions in other areas of law)

This blog post is not intended to provide legal advice or substitute for the advice of legal counsel with respect to specific facts and situations. See disclaimer

22
Mar
2022

Deferred Dispositions in Virginia: New Statutes Take Hold

Written by: Bradley Marshall, Esq., VF&N Criminal Law Division

A deferred disposition is a way to resolve a criminal case in a way that can reduce or even dismiss a charge if certain conditions are met.  Generally, the defendant has to enter a plea of guilty or no contest (meaning you don’t admit guilt, but you agree that the prosecution has enough evidence to convict you), but some deferred dispositions are allowed after a plea of not guilty and after having been convicted at trial.  Either way, the defendant is not convicted at that time, but instead, a finding of guilt is withheld while they complete certain conditions.  These conditions can include probation, completing certain programs or classes such as anger management, making restitution to any victim, completing community service, payment of court costs, and more.  If the person does successfully complete the terms, their case is dismissed or reduced depending on the agreement of the prosecution and defense or the court’s order.  Therefore, deferred dispositions are a flexible way for defendants to earn a reduction or dismissal of their charges with conditions that can be adapted to their particular case.

For many years in Virginia, a deferred disposition was only allowed in very specific cases authorized by statute.  For example, there was a first offender disposition for drug crimes (See Va. Code § 18.2-251. Persons charged with a first offense may be placed on probation; conditions; substance abuse screening, assessment treatment, and education programs or services; drug tests; costs and fees; violations; discharge (virginia.gov)), a first offender disposition for domestic violence (see Va. Code § 18.2-57.3. Persons charged with a first offense of assault and battery against a family or household member may be placed on local community-based probation; conditions; education and treatment programs; costs and fees; violations; discharge (virginia.gov)), and a first offender deferred disposition for property crimes (such as trespassing or larceny ) so long as the person did not previously have a felony conviction and did not previously have a deferred disposition under the first offender statute (see Va. Code § 19.2-303.2. Persons charged with a first offense may be placed on probation (virginia.gov)).  Other than these specifically enumerated code sections, deferred dispositions were not available.

However, beginning in 2011, a string of cases from the Virginia appellate courts opened the possibility for a deferred disposition in other criminal cases.  See Hernandez v. Commonwealth, 281 Va. 222 (2011); Taylor v. Commonwealth, 58 Va.App. 435 (2011); Epps v. Commonwealth, 59 Va.App.71 (2011); and the seminal case of Starrs v. Commonwealth, 287 Va. 1 (2014)(wherein the Virginia Supreme Court overturned the Virginia Court of Appeals in affirming courts’ inherent authority to withhold a finding of guilt and defer cases).  These cases were construed differently throughout the state, leading to disparate results and proposed legislation to clarify the courts’ authority – or lack thereof – to defer dispositions.  For example, see LIS > Bill Tracking > HB2513 > 2011 session (virginia.gov), which did not pass, but would have prevented courts from entering any deferred disposition not specifically allowed by statute.  Confusion and varied applications of the law reigned across the state for the several years that followed the Starrs decision.

Then in the Virginia General Assembly’s Special Session in the spring of 2020, which focused on criminal justice reform, new statutes were born to give explicit authority to courts to enter deferred dispositions in almost any criminal case for the first time.  The most prominent of these new laws is Va. Code § 19.2-298.02. Deferred disposition in a criminal case (virginia.gov).  This statute allows a trial court to defer a disposition in criminal cases when both the Commonwealth and the defense agree, lays out which factors the court must consider, and waives the right to appeal the end result of the case if the defendant fails to complete the deferral and is convicted and sentenced on the original charge.  Importantly, this code section – for the first time ever in Virginia – allowed a type of deferred disposition that can be expunged from someone’s record if they successfully complete the deferred disposition as if it never happened so long as the prosecution agrees.  That is in contrast to the statutory deferred dispositions for first-time drug, domestic violence, and property crime offenders, where expungement is still not possible after a successful deferral.  Just two years in, this new code section is already one of the most utilized in all of the criminal justice system across Virginia.

There was also another important deferred disposition statute that was enacted by the General Assembly in 2020 for persons whose crimes were “caused by or had a direct and substantial relationship to” the person’s autism or intellectual disabilities, which was codified in Va. Code § 19.2-303.6. Deferred disposition in a criminal case; persons with autism or intellectual disabilities (virginia.gov).  Unlike Va. Code 19.2-298.02 above, this code section does not require the agreement by the prosecution to defer the disposition but does require the court to consider the prosecution’s position, as well as the views of the victim (if any).  The statute, however, is silent on expungement if successfully deferred.  It does, however, allow for deferred dispositions under this code section no matter the person’s criminal record and no matter whether they have previously had a charge deferred under the same code section.  

Therefore, there are now several different options to defer cases and protect your record in Virginia.  These code sections and their application can be complicated and may not fit every situation.  It is highly recommended that you seek the advice of a seasoned criminal defense attorney to see what options may apply in any particular case.  At VF&N, we have successfully resolved dozens of cases under these code sections, and we would be happy to consult with you about your individual situation at no charge. Please feel free to reach out by way of phone (703.369.4738) or email for guidance. 

This blog post is not intended to provide legal advice or substitute for the advice of legal counsel with respect to specific facts and situations. See disclaimer