(703) 369-4738

2
Jun
2022

Navigating the Backlog of the American Immigration System

Written By Meghan M. Phillips, Esq.[1]

Introduction: A Case Caught in the Backlog for Ten Years

In March 2022, I litigated case before the immigration court on behalf of an incredibly deserving asylum-seeker who had been waiting ten years to receive a decision on her case. Her hearing would decide whether she would be granted asylum, withholding of removal, or protection under the Convention Against Torture, or if she would be order removed to the country of her citizenship.

Even though recent country condition reports show that our client would likely be harmed, tortured or executed if she returned to her country, asylum is an immigration benefit, which provides access to other governmental benefits and allows asylees to petition for permanent residency after one year. Therefore, a grant of asylum is not guaranteed by an asylum officer or immigration judge: an asylum-seeker must prove they qualify for asylum, and it is also a matter of those factfinders’ discretion.

Although the client and her family knew I believed in the strength of her case and that she truly merited the immigration judge’s positive exercise of discretion, I explained that the burden of proof was ours and we needed to prepare accordingly. So, prepare we did, and it truly was a team effort. Happily, our work, which also included a motion to advance the hearing, paid off, and our client was finally granted asylum.

However, not all cases caught in the U.S. immigration system’s backlogs will end with a positive outcome; in some cases, waiting in the backlog means that the case is prejudiced or that the applicant might no longer qualify for the immigration benefit they seek. For example, country conditions can dramatically improve, causing asylum seekers to lose their case by the time they have their hearing. Evidence could be lost, or a witness crucial to the case could pass away before testifying while waiting in the backlog. Worst of all, certain types of relief require clients or their qualifying relatives to be under a certain age. For instance, for cancellation of removal, if one’s qualifying relative is a U.S. citizen child, the child will no longer be a qualifying relative if he or she reaches the age of twenty-one. Thus, it is important to not only have one’s merits hearing before the qualifying relative ages out, but to also have time for the visa to issue, which currently can take about two to three years.

Even if one does eventually receive a positive outcome, awaiting a decision on an immigration case due to the backlogs can be incredibly stressful and lead to many negative side effects. It can mean families are separated for long periods of time, businesses can be waiting long periods for workers they desperately need, and qualified applicants might not be able to travel, access health care, or other federal benefits such as financial aid for education.

State of the Backlog

Sadly, although the ten-year duration of the above-mentioned asylum case might seem unusually long, the backlogs in the American immigration system mean that long wait-times are not the exception but the norm. The current estimated time for an asylum case is 58 months – in other words, about five years.[2]  For immigrant visa cases, the National Visa Center (NVC) reported that in May 2022, they scheduled 28,447 applicants for visa appointments, but 421,136 eligible visa applicants are still pending the scheduling of their interviews.[3]  As of February 2022, U.S. Citizenship and Immigration Services (USCIS), was reviewing more than 9.5 million pending applications.[4] Finally, the immigration courts have a massive backlog of 1.6 million cases.[5]

Causes of the American Immigration Backlog

These estimates are also sadly unlikely to improve: a number of factors mean that the backlogs are only going to grow.  One of the main reasons for the backlog is the COVID-19 pandemic, which caused shutdowns of embassies, consulates, and immigration offices. However, fiscal issues and a governmental hiring freeze also contributed to backlogs with USCIS.[6]

Ricard Zuniga, the Biden administration’s special envoy for the Northern Triangle region recently predicted that the U.S. is likely to see an increase in asylum requests and immigration from Central America because three countries’ democracies are facing grave difficulties.[7] In Guatemala, an anti-corruption judge went into exile due threats against her life.[8] El Salvador is experiencing a spike of gang-related homicides, causing the government to make mass arrests.[9] Finally, the former president of Honduras, Juan Orlando Hernandez, has been extradited to the United States on drug trafficking charges.[10] Additionally, asylum requests from Ukrainians at the Mexican border are growing, due to the ongoing war.[11]

Strategies to Navigate the Backlog

            So, what can be done to help you, your family, or your business navigate these immigration backlogs so as to achieve your immigration goals? My most important tip is to avoid scammers or fraud notarios and find experienced and licensed legal counsel.[12] Although legal fees have a cost, doing your applications yourself or entrusting your case to an unlicensed person can have terrible consequences; not only could it cause your case to take longer, but you might also lose eligibility for immigration benefits entirely.

One reason your case might take longer is because what you file and where you file for your case matters. Knowing all the evidence needed to process your application and the proper filing address and fees can help you ensure that your application is not rejected and that you avoid Requests for Evidence (RFEs), which can make processing of your application take even longer.

Additionally, once you have retained legal counsel to help ensure your immigration application is properly filed, you can also ask him or her if any of these strategies might be right for you:

  1. Prosecutorial Discretion: Lawyers with the Department of Homeland Security (DHS), who serve as prosecutors in immigration court have been directed to help clear low-priority immigration cases from the immigration court backlog by exercising their discretion in a variety of forms, including motioning to dismiss or administratively close removal proceedings, joining motions to reopen a deportation order, or not opposing immigration relief.[13]  An experienced immigration attorney can help you determine if you might qualify for this, whether such a request to DHS is in your best interest, and help you file a request for prosecutorial discretion with the required evidence with DHS.

 

  1. Motion to Advance: You might be able to file a motion to advance your court date with the immigration court. For example, in the previously discussed asylum case, our firm filed a motion to advance our client’s immigration court hearing date. This motion was granted and allowed our client to finally have her individual merits hearing on her asylum case.

 

  1. Requesting Premium Processing: For certain employment visa categories, you might be able to file a request for premium processing with an additional fee to request faster processing of your case.[14] However, knowing whether your case qualifies, and making sure you comply with all requirements can be tricky without an attorney who can walk you through each step of the process.

 

  1. Expedite Request: In some cases, you might also be able to request that USCIS or NVC expedite your interview. For example, if you can prove that: delay to your case could cause severe financial loss to a company or person; there is an emergency or urgent humanitarian reason to expedite your case; a nonprofit organization has an urgent need to expedite your case based on your specific role within the nonprofit in furthering cultural or social interests; it is in U.S. government interests to expedite your case; or there is a been clear USCIS error in your case.[15]  

 

  1. Case Outside Normal Processing Times Inquiry: After checking the processing times for your application to verify that your case it outside normal processing times, you may be able to submit an inquiry, asking USCIS to explain the delay or to receive an estimated time frame. An attorney can help you check your case processing time and submit such an inquiry.   

 

  1. Assistance Contacting a Member of Congress or Senator: Sometimes, a lawmaker such as your member of Congress or a senator can help make inquiries on your behalf or encourage the relevant immigration agency to expedite your case. An attorney can help you facilitate such a request.

 

  1. Federal Litigation such as a Writ of Mandamus or suit under the APA: When an immigration case has been pending without a decision for an unreasonable amount of time, and no other course of action has led to a decision or timeline for a decision, a lawsuit against USCIS or other government agencies, might be your best option. This lawsuit, called a writ of mandamus or complaint under the Administrative Procedures Act (APA), will order the agency to make a decision on your case. However, this does not mean your case will be approved, only that a decision will be made. The lawsuit must be filed in the correct federal court with jurisdiction over your address or case, and you must show that you have exhausted all other avenues to receive a decision and that the time elapsed without a decision is unreasonable. An experienced immigration attorney can ensure that you file in the correct court and that you have tried all other strategies so as to avoid dismissal of your case. Furthermore, an experienced attorney can advise you on the risks of a negative decision and whether the time elapsed has indeed been unreasonable.

Conclusion

The U.S. immigration system backlog is extensive and navigating the backlog can be extremely difficult alone. Having an attorney help you choose the best strategy for your case can help immensely. However, above all, please do your research and pick a licensed and experienced immigration lawyer or representative for your case.

At VFN Immigrants First, we have four licensed immigration attorneys who are admitted to practice both by state bars and EOIR (the immigration court system) and who take their professional duties extremely seriously. We would be happy to help you find the best legal strategy to meet your immigration goals and help you navigate the immigration system’s enormous backlogs.

Please give us a call at 703-335-2009, visit our website, www.immigrantsfirst.com, or stop by our office at 9200 Church Street, Suite 203, in Manassas, Virginia to learn more or make an appointment for a consultation

 

[1] Meghan M. Phillips, Esq., is an associate immigration lawyer with the Immigration Law Practice Group, Immigrants First, at Vanderpool, Frostick & Nishanian, PC. She primarily handles family and humanitarian immigration, Special Immigrant Juvenile custody, and removal defense and appeal cases. She is a member of the Virginia State Bar and admitted to practice before the U.S. immigration courts (EOIR), the Eastern District of Virginia Court, and the Fourth Circuit Court of Appeals.

[2] Transactional Records Access Clearinghouse (TRAC) Immigration, Syracuse University, A Mounting Asylum Backlog and Growing Wait Times, Dec. 22, 2021, available at: https://trac.syr.edu/immigration/reports/672/.

[3] U.S. Department of State – Bureau of Consular Affairs, National Visa Center (NVC) Immigrant Visa Backlog Report, May 2022, available at: https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/visas-backlog.html.

[4] Cmilo Montoy-Galvez, CBS News, U.S. immigration agency moves to cut 9.5 million-case backlog and speed up processing, Mar. 29, 2022, available at: https://www.cbsnews.com/news/immigration-uscis-case-backlog-processing-delays/.

[5] Rick Jervis, USA Today, COVID-19, surge in new cases create historic backlog jam in US immigration courts, report says, Jan. 19, 2022, available at: https://www.usatoday.com/story/news/nation/2022/01/19/covid-19-creates-huge-backlog-us-immigration-court/6581042001/.

[6] U.S. Citizenship and Immigration Services (USCIS), USCIS Backlog Reduction and Processing Times, May 18, 2022, available at: https://www.uscis.gov/outreach/upcoming-national-engagements/uscis-backlog-reduction-and-processing-times.

[7] Cincy Carcamo, Los Angeles Times, Biden official says U.S. will likely see an uptick in asylum requests and immigration, Apr. 2, 2022, available at: https://www.latimes.com/california/story/2022-04-02/la-me-ricardo-zuniga-on-biden-asylum-reversal-policy-central-america.

[8] Id.

[9] Id.

[10] Id.

[11] Sharif Paget and Karol Suarez, CNN, The number of Ukrainians seeking asylum at the US-Mexico border is growing by the day, Apr. 2, 2022, available at: https://www.cnn.com/2022/04/02/us/ukrainians-us-mexico-border/index.html.

[12] See my previous blog article, The Wrong Immigration Help Can Hurt, for more information about the perils of entrusting your case to an immigration scammer or notario and what you can do to avoid these scams and find licensed, legal help. 

[13] Memorandum from Kerry E. Doyle, Principal Legal Advisor, Guidance to OPLA Attorneys Regarding the Enforcement of Civil Immigration Laws and the Exercise of Prosecutorial Discretion, April 3, 2022 (taking effect April 25, 2022), available at: https://www.ice.gov/doclib/about/offices/opla/OPLA-immigration-enforcement_guidanceApr2022.pdf ; Memorandum from Alejandro N. Mayorkas, Secretary of Homeland Security, Guidelines for the Enforcement of Civil Immigration Law (Sept. 30, 2021), available at: https://www.ice.gov/doclib/news/guidelines-civilimmigrationlaw.pdf.

[14] USCIS, How Do I Request Premium Processing?, May 27, 2022, available at: https://www.uscis.gov/forms/all-forms/how-do-i-request-premium-processing.

[15] USCIS, How to Make an Expedite Request, Mar. 21, 2022, available at: https://www.uscis.gov/forms/filing-guidance/how-to-make-an-expedite-request.

 

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

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

2
Feb
2022

The Wrong “Help” Can Hurt!

The Wrong “Help” Can Hurt: The Importance of Experienced and Licensed Legal Counsel in Immigration Cases and How to Avoid Scams by Fraud Notarios

By Meghan M. Phillips, Esq.[1]

The rapidly changing immigration laws and policies of the United States often require non-citizens or their family members to seek legal assistance. In fact, the complexity of immigration law has earned it comparisons to a maze and the Internal Revenue Code.[2] Studies have shown the extreme importance of counsel to a successful immigration case outcome. In the asylum context, the U.S. Government Accountability Office (GAO) found that asylum applicants who had counsel were twice as likely to win asylum.[3] In the immigration court context, the American Immigration Council found that represented immigrants were four times more likely to be released from detention, eleven more times likely to apply for relief from removal, twice as likely to obtain immigration relief if they were detained, and nearly five times more likely to obtain relief if they were non-detained.[4]

Unlike in the criminal law context where all defendants are provided an attorney if they cannot afford to hire one pursuant to the Sixth Amendment to the U.S. Constitution, immigrants are only afforded the privilege of counsel that they hire and pay for themselves.[5] This is true even when the immigrant is facing removal via immigration court proceedings where the Department of Homeland Security is represented by an attorney, who often argues for the non-citizen’s removal, or when the immigrant is detained and might face obstacles accessing counsel. Although there are exceptions for immigrants with certain mental disabilities, government grants to help certain immigrants like minors obtain counsel, and non-profit organizations that offer pro-bono immigration help, these “free” options cannot meet the demand.[6]

However, the wrong immigration counsel can also hurt.  Due to cost or lack of access or information, sometimes immigrants unwittingly are the victims of immigration scams, particularly by persons calling themselves immigration or visa consultants or notarios. In many Spanish-speaking countries, a notario is a notary who often also has legal licensures. In the United States, however, a public notary is not the same as an attorney.[7] In fact, in the United States only two groups of people may provide legal advice and services in an immigration case: (1) attorneys and (2) accredited representatives of non-profit, religious, charitable, or social service organizations established in the U.S. and recognized by the Board of Immigration Appeals (BIA).[8]

Not only do notarios often charge exorbitant sums for unqualified help, they also have been known to: put false information on immigration forms rendering the immigrant inadmissible due to fraud; submit applications that the immigrants either clearly do not qualify for or consent to, which result in them being placed into removal proceedings; or take immigrants’ original documents, which they might refuse to return. They make promises they often cannot keep, and then when the immigrant faces the consequences of fraud, missed deadlines, or ineligibility, are nowhere to be found. For example, they might promise an immigrant a work permit, and submit an asylum application on behalf of an immigrant who does not realize that the notario has done this on their behalf, leading to an ill-prepared or unfounded claim of a fear to return to their country, which could land them in deportation proceedings or, worse, barred from immigration status for life for submitting a fraudulent asylum application.

So how can non-citizens or their families choose the right help and avoid scams?

  1. Make sure the help you choose is authorized to give immigration legal advice by:
    1. Asking about the attorney’s state bar license, which you can verify with the relevant state bar website; or
    2. Asking about the accredited representative’s recognition by the Executive Office for Immigration Review (EOIR), which you can verify on EOIR’s website: https://www.justice.gov/eoir/recognition-accreditation-roster-reports.
  2. Ask for a written contract before paying anything, which details the services for which you are paying.
  3. Never sign a blank form, a form with incorrect information, or a form with information you do not understand. When you sign, you are saying everything is true and correct, and will later be viewed to understand what you are signing. An attorney or accredited representative has the duty to explain to you the information on forms and should not mind taking the time to do so themselves or with an interpreter into a language you understand.
  4. Never let anyone keep your original documents.
  5. Know what has a government fee and what does not: forms are free and there is no diversity lottery fee, but there are some filing fees for certain forms. An attorney or accredited representative will not charge “fake fees.”
  6. Beware of a representative who does not respond to requests for contact, pretends to have “special connections with immigration” to influence outcomes, or threatens to report information you have told them. Real attorneys and accredited representatives have duties to communicate with you, to keep information you tell them confidential unless you intend to commit a crime or fraud, and to not make guarantees they cannot keep.

In sum, the choice of immigration counsel is extremely important, but trying to “save money” by using an unlicensed notario could be disastrous. Therefore, please do your research and pick a licensed and experienced immigration lawyer or representative for your case. At VFN Immigrants First, we have five licensed attorneys who are admitted to practice both by state bars and EOIR (the immigration court system) and who take their professional duties extremely seriously. We would be happy to help you either start an immigration case or do our best to help you mitigate the harm of a fraud notario. Please give us a call at 703-335-2009, visit our website, www.vfnlaw.com, or stop by our office at 9200 Church Street, Suite 203, in Manassas, Virginia to learn more or make an appointment for a consultation.


[1] Meghan M. Phillips, Esq., is an associate immigration lawyer with the Immigration Law Practice Group, Immigrants First, at Vanderpool Frostick & Nishanian, PC. She primarily handles family and humanitarian immigration, Special Immigrant Juvenile custody, and removal defense and appeal cases. She is a member of the Virginia State Bar and admitted to practice before the Eastern District of Virginia and Fourth Circuit Court of Appeals Courts.

[2] SeeCastro-O’Ryan v. Dept. of Imm. Nat, 847 F.2d 1307, 1312 (9th Cir. 1987) (“With only a small degree of hyperbole, the immigration laws have been termed ‘second only to the Internal Revenue Code in complexity.’ A lawyer is often the only person who could thread the labyrinth.”) (quoting E. Hull, Without Justice For All 107 (1985)). See also, Lok v. INS, 548 F.2d 37 (2d Cir. 1977) (“Immigration laws bear a “striking resemblance …[to] King Minos’s labyrinth in ancient Crete. The Tax Laws and the Immigration and Nationality Acts are examples we have cited of Congress’s ingenuity in passing statutes certain to accelerate the aging process of judges.”).

[3] See U.S. Government Accountability Office, U.S. Asylum System: Significant Variation Existed in Asylum Outcomes Across Immigration Courts and Judges, GAO-08-940 (Washington, DC, 2008), accessed July 25, 2016, http://www. gao.gov/new.items/d08940.pdf (“Representation generally doubled the likelihood of affirmative and defensive cases being granted asylum . . . .”).

[4] Ingrid Eagly, Esq. and Steven Shafer, Esq., Access to Counsel in Immigration Court, American Immigration Counsel, Sept. 2016, available at: https://www.americanimmigrationcouncil.org/sites/default/files/research/access_to_counsel_in_immigration_court.pdf.

[5] See I.N.A. § 240(b)(4)(A) (providing that “the alien shall have the privilege of being represented, at no expense to the Government, by counsel of the alien’s choosing who is authorized to practice in such proceedings”); Orantes Hernandez v. Thornburgh, 919 F.2d 549, 554 (9th Cir. 1990) (finding that immigrants have a due process right to obtain counsel of their choice at their own expense).

[6] See Franco-Gonzalez v. Holder, 767 F. Supp. 2nd 1034 (C.D. Cal. 2011); see also, U.S. Department of Justice, Executive Office for Immigration Review, “Department of Justice and the Department of Homeland Security Announce Safeguards for Unrepresented Immigration Detainees with Serious Mental Disorders or Conditions,” April 22, 2013, available at: https://www.justice.gov/eoir/pages/attachments/2015/04/21/safeguardsunrepresented-immigration-detainees.pdf; Department of Justice, “Justice Department and CNCS Announce $1.8 Million in Grants to Enhance Immigration Court Proceedings and Provide Legal Assistance to Unaccompanied Children,” September 12, 2014, available at: http://www.justice.gov/opa/pr/justice-department-andcncs-announce-18-million-grants-enhance-immigrationcourt-proceedings.

[7] Federal Trade Commission, Avoid Immigration Scams and Get Real Help, May 2021, available at: https://www.consumer.ftc.gov/articles/avoid-immigration-scams-and-get-real-help.

[8] U.S. Department of Justice, Executive Office for Immigration Review, Who Can Represent You in Immigration Proceedings Fact Sheet, Oct. 2, 2009, available at: https://www.justice.gov/sites/default/files/eoir/legacy/2009/10/06/WhoCanRepresentAliensFactSheet10022009.pdf.

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

1
Dec
2021

Six Paths to Legal Immigration Status Without Staying in an Abusive Relationship

Written by: Meghan Phillips

Six Paths to Legal Immigration Status Without Staying in an Abusive Relationship

A topic that sadly affects many immigrants is abusive relationships or domestic violence. One out of four women and one out of nine men in the United States sadly suffer from this issue. Immigrant women and men are not an exception, but their non-citizen status can make it difficult to leave an abusive relationship. Sometimes an abuser might even use a non-citizen’s lack of status to threaten to deport them or make them afraid to call the authorities or medical services for help in order to force them to stay in the relationship. 

The purpose of this post is to tell you that no one should have to put up with violence or abuse and that there are six ways a non-citizen can become or stay a legal permanent resident, sometimes also called a green card holder, without staying in an abusive relationship. 

(1) The first way is called a VAWA petition. VAWA stands for the Violence Against Women Act, but it is the law which states that immigrants, regardless of their gender, can apply for legal permanent residency if their U.S. citizen or legal permanent resident spouse or parent has abused them. It also allows non-citizen parents to apply if their U.S. citizen child has abused them. In other words, most of the time, an immigrant with a U.S. citizen or legal permanent resident spouse or parent or a U.S. citizen child must depend on that person to file a petition for them. This eliminates the dependency on the abusive spouse, parent, or child.

(2) The second path is called an I-751 waiver. This is for someone whose U.S. citizen or a legal permanent resident spouse already petitioned for their green card, but they were issued a temporary or conditional green card. Normally when that happens, after two years, you apply to have the conditions removed and to be issued the ten-year green card by showing you are still in a good-faith relationship. In cases of abuse, the I-751 waiver says you do not need the support of your abuser to have the conditions removed. Instead, you can show that you entered the relationship in good faith, but your spouse was abusive.

(3) The third way is called a U visa. U visas are for immigrant victims of violent crimes such as domestic violence or sexual abuse, but perhaps the abuser did not have any legal immigration status either. If you are able to prove that you were the victim of a violent crime in the United States and you were helpful to U.S. law enforcement in investigating or prosecuting the abuser, you and certain qualifying family members can be issued a U visa. After having the U visa for three years, you can then apply for a legal permanent resident.

(4) The fourth option is similar to the third and is called a T visa. T visas are for victims of human trafficking, which is a form of modern-day slavery in which traffickers use force, fraud, or coercion to compel individuals to provide labor or services, including commercial sex. Like with the U visa, the immigration status of the trafficker does not matter, but victims must comply with reasonable requests to assist law enforcement with investigating or prosecuting their traffickers unless they are a minor or too traumatized to assist. They must also show that it would be an extreme hardship or cause them harm to return to their country. Like the U visa, after having the T visa for three years, you can then apply to become a legal permanent resident.

(5) The fifth path to legal residency for immigrants who have suffered abuse is asylum. Asylum seekers leave their countries and are afraid to return because of persecution. Sometimes this persecution takes the form of domestic violence. In other words, this option might be the right fit if the abuse occurred outside the United States and the person fled their country to get away from his or her abuser. Under current asylum law, these cases can be difficult to win, but if you do win an asylum case, after one year you can apply to become a legal permanent resident.

(6) The sixth option is specifically for immigrant minors and is called Special Immigrant Juvenile Status (SIJS). This status is available to immigrant minors who cannot be reunified with one or both of their parents due to abuse, abandonment, or neglect. The process starts in a county’s juvenile and domestic relations court or family court, where a judge must issue an order finding that the immigrant child has been abused, abandoned, or neglected by a parent, as well as other factual findings. Often, this will be part of a custody order, and sometimes the non-abusive parent or another guardian will receive full custody. After receiving this order, the minor must apply for SIJS with immigration, and after this application is approved, he or she must wait for their visa to become available and remain unmarried. When their priority date is current, Special Immigrant Juveniles can apply for their green card.

If you or someone you know is not a U.S. citizen and is currently or has suffered from abuse, the number one thing is your or their safety. No one should put up with abuse, and your abuser should not use your immigration situation to make you stay with them or make you afraid to call for emergency medical or police help. Please contact VFN Immigrants First today to see if one of these six options can help you with your immigration case. 

 

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

23
Nov
2021

Abandoned, Afghans Desperately Wait for News of Pending Humanitarian Parole Applications Amidst Unprecedented Levels of Poverty and Hunger

Written by: Mosal Hashimee

Abandoned, Afghans Desperately Wait for News of Pending Humanitarian Parole Applications Amidst Unprecedented Levels of Poverty and Hunger

Over three months ago, the world witnessed the fall of Afghanistan to the Taliban for the second time in 25 years. As the U.S. expedited its evacuation of troops and personnel, Afghans desperately sought a way out, risking their lives to avoid living under Taliban rule again. During those first few weeks in mid-August, Afghans received an outpouring of support from the international community. Nations opened their borders to temporarily welcome refugees, while individuals turned out in droves to offer housing, donate clothes, and volunteer their time to ensure Afghans safe passage.

Unfortunately, immigration attorneys knew what was soon to come: news coverage would fade, and with it, fervor for the plight of Afghans. Such is the case with crises that gain traction through media spotlight, only to be abandoned when they are no longer hot topics. Indeed, the first month or so after the U.S.’s withdrawal was critical in terms of setting the stage for how Afghans can seek refuge for themselves and their families. For those who did not work as translators or in other capacities for the U.S. military, and therefore did not qualify for a Special Immigrant Visa (SIV), Department of Homeland Security Secretary Mayorkas issued a memo recommending humanitarian parole as a pathway to obtain entry into the United States. Advanced parole only allows for an individual to stay in the U.S. for a limited period (a year, for example); while here, the person must apply for another form of immigration relief such as asylum.

Still, for millions of Afghans, any option is better than the reality of remaining in their collapsed country at the mercy of a more technologically sophisticated, and more dangerous, Taliban. Those fortunate enough to have family members who could get in touch with attorneys here, and with the financial means to pay up to thousands of dollars in government filing fees, quickly filed applications for humanitarian parole. On Friday, the Associated Press (AP) reported that according to federal officials, out of more than 28,000 of these applications, only about 100 (0.3%) have been approved. Spokespeople for U.S. Citizenship and Immigration Services cited a lack of staff sufficient to process the surge of applications, among uncertainties such as whether and how individuals can interview at third countries now that there is no embassy in Afghanistan, for the delay.

Unable to accept their fate hanging in the balance, some Afghans took up offers from ex-marines conducting clandestine rescue operations and others who paid for chartered private flights to help them leave the country. Despite these efforts, millions of Afghans remain in excruciating limbo. Translators who assisted the U.S. government in its military efforts, deemed indispensable allies, are stranded, often missing a single document needed to complete their SIV applications. They are prime targets for retribution, along with their families. Girls are sold to men and continue to be barred from school in many provinces, with women – those who are not murdered for their activism – facing severe restrictions in working. Religious and ethnic minorities remain subjected to the Taliban’s genocidal violence and displacement. All of this is happening while the country’s assets remain frozen, plunging Afghan citizens into deeper economic despair with each passing day. Indeed, the UN has reported that almost 23 million Afghans – more than half of the country’s population – will face starvation this winter, forcing migration in what is forecasted to be a humanitarian disaster of devastating proportion.

We must resist the urge to become desensitized to this ongoing tragedy. In light of its own promises, the U.S. has a responsibility to make it easier for Afghans to exercise their human right to seek safety and a life free from violent persecution through waiving cost prohibitive government filing fees, hiring more agency staff to process applications, and lifting extensive documentary requirements. The U.S. should also coordinate with the global community to unfreeze the country’s assets. In the age of social media, there is ample evidence to disprove the Taliban’s attempts to rehabilitate its image and gain legitimacy; still, everyday Afghans should not suffer further for an outcome beyond their control.

As an Afghan American, I feel great sorrow at the current situation. Ours is a diaspora that longs to return to a peaceful homeland, a dream that increasingly feels like a fantasy. Yet our identity and culture – a culture based in an ethic of hope in the face of overwhelming adversity – remain strong. To those practitioners currently assisting Afghan clients: thank you. We need your assistance and expertise now more than ever.

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

26
Oct
2021

Immigrants First Joins VF&N!

Vanderpool, Frostick & Nishanian, P.C. is pleased to announce that Ms. Lisa Shea (formerly Lisa Johnson-Firth) and the lawyers and staff of Immigrants First, PLLC have joined our firm.

Ms. Shea has focused her practice in immigration law for 20 years.  As a nationally recognized leader in immigration law, she has used her immigration expertise to win hundreds of cases for her clients, as well as inform and advocate before government and community leaders, judges, and lawyers.  Ms. Shea has been instrumental in significant policy changes and is a 2021 Prince William County Universal Human Rights Award recipient.  She has been an adjunct professor of law at Georgetown University Law Center and George Mason University and has served on various nonprofit boards of directors.  Ms. Shea will head up the new Immigration Practice Group to serve clients in all areas of immigration law, including family, employment, removal defense, and humanitarian-based cases, as well as continuing to be an expert resource to the broader community on immigration issues.

Vanderpool & Nishanian, P.C. has served clients for over 35 years in the areas of business, commercial real estate, litigation, lending, intellectual property, employment, land use and zoning, municipal, and criminal defense law.  Our firm is excited to now offer immigration law solutions to our clients

Lisa Shea (formerly Lisa Johnson-Firth)
Shareholder