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The Immigration and Nationality Act (INA) 245(i)





With the announcement of the new unlawful presence waiver this past March, we have seen many new clients asking questions to see if they qualify. Some of these individuals actually qualify for adjustment of status (the process under which you can obtain your green card, lawful permanent residency) under a law called Immigration and Nationality Act (INA) 245(i).

Two of the main benefits of applying for your greencard under INA 245(i) instead of using the new unlawful presence waiver are:

  1. with INA 245(i) you can obtain your green card here in the U.S. without returning to your home country, with the unlawful presence waiver you can apply here but after approval you must return to your home country to process your immigrant visa;
  2. with INA 245(i), unlike with the unlawful presence waiver, you do not need to prove “extreme hardship” to a qualifying U.S. relative.

What is INA 245(i)?

INA 245(i) is a law allowing certain individuals who are present in the U.S. to obtain a greencard regardless of:

  • How you entered the United States (for example, entering via the border without inspection)
  • Working in the U.S. illegally (without authorization or permission)
  • Failing to continuously maintain lawful status since entry (being illegal in the U.S.)

INA 245(i) sounds amazing, how do I know if I qualify?

In order to qualify, you must:

  • Be the beneficiary of a qualified immigrant petition (Form I-130 or I-140) or application for labor certification (Form ETA-750) filed on or before April 30, 2001
  • Have been physically present in the U.S. on December 21, 2000
  • Be currently the beneficiary of a qualifying immigrant petition (either the original Form I-130 or I-140 through which you are grandfathered or through a subsequently filed immigrant petition)
  • Have a visa immediately available to you (immediate relatives do not have to wait for a visa number)
  • Be admissible to the U.S. (some criminal convictions will make you inadmissible, for example)

What if the petition or labor certification that was filed on my behalf before April 30, 2001 was withdrawn, denied, or revoked?

To meet the first requirement mentioned above the petition or labor certification must have been both properly filed and approvable when filed. At a minimum the filing must have been timely (filed by April 30, 2001) and meet all applicable substantive requirements (“approvable when filed”). Deficiencies such as a missing filing fee or missing signature will disqualify you.

Please contact our office to discuss the reason that your petition or labor certification was withdrawn, denied, or revoked. Whether you qualify for 245(i) will depend on whether the petition or labor certification was “approvable when filed.”

To remain eligible, the changed circumstances must relate to factors beyond your control rather than the merits at the time of filing. For example, you may still qualify for INA 245(i) if the petitioner dies, your spouse who filed the petition divorces you, your employer who filed the labor certification goes out of business, petitioner or the employer chooses to withdraw the petition or labor certification, or petitioner or employer is otherwise not able to maintain the petition or labor certification application.

What about my spouse or child?

Depending on the circumstances, a spouse or child may also be eligible to adjust status as a dependent. We can discuss this in depth during your consultation at one of our offices.

Can I work or travel while my application is pending?

Yes! Current processing times are about 90 days after filing for your employment authorization (work permit) and travel authorization.

If you think you may qualify for your greencard under INA 245(i) or if you would like to discuss other options contact us at one of our offices now. We look forward to serving you in your immigration needs.
















Leiba v. Holder: Aggravated felony bar in INA 212 (h) inapplicable to those who were never “admitted”

Leiba v. Holder: Aggravated felony bar in INA 212(h) inapplicable to those who were never “admitted”

The following is a brief discussion of the recent fourth circuit case of Leiba v. Holder. Said case is controlling in the states of Maryland, North Carolina, South Carolina, Virginia, and West Virginia but can be used as a persuasive authority throughout the United States.

Immigration and Nationality Act (INA) 212(h) is a law that permits individuals to request a waiver of certain criminal conviction/s. Hence, an individual who would otherwise be ineligible for adjustment of status (to become a lawful permanent resident or “greencard” holder) because of a criminal conviction or convictions can request a waiver of the conviction/s and obtain lawful permanent resident status.

INA 212(h) states in part as follow:

“No waiver shall be granted .. in the case of an alien who has previously been admitted to the United States as an alien lawfully admitted for permanent residence if … since the date of such admission the alien has been convicted of an aggravated felony.”

At first glance, this language would appear to bar lawful permanent residents who are convicted of an aggravated felony from seeking relief under INA 212(h). Aggravated felonies are typically the more serious convictions for instance, murder, rape, drug offenses, crimes of violence, and certain theft offenses, among other crimes.

However, Leiba v. Holder has held that an individual who enters the United States illegally and subsequently adjusts status to that of a lawful permanent resident while still in the U.S. and who does not exit and re-enter the U.S. is eligible to apply for relief under INA 212(h) even if convicted of an aggravated felony. The reasoning behind the holding of the Court stems from the Court’s definition of “admission.” The Court reasoned that if an individual entered the U.S. illegally and never subsequently entered the U.S. legally then the individual has never been “admitted” and as such the bar against aggravated felons cannot be applied. Note that the Court distinguished between the term “admission” and the phrase “admitted for permanent residence.”

The decision of Leiba v. Holder is extremely important for lawful permanent residents who have been convicted of an aggravated felony in that it opens an avenue of relief that would otherwise be unavailable to them. You should consult with a qualified immigration attorney to see if you may benefit from the holding of Leiba v. Holder and to prepare and argue the strengths in your specific case.

The California Dream Act: Connected to Legal Immigration

Are you an undocumented immigrant who attended high school in California and came to the U.S. before the age of 16? The California Dream Act of 2011 may be a chance for you to receive financial aid for college. The Act connects to your efforts for a path to permanent residency or citizenship.

The California Dream Act is a set of state laws. It is significantly different from the federal Dream Act that remains unsigned by Congress. The California Dream Act, signed into law by Governor Jerry Brown in October of 2011, provides individuals who attended at least three years of high school in California and earned a high school diploma from a California high school with the chance to receive financial aid at institutions of higher learning.

In order to receive funding, individuals must show that they are in the process of applying to become legal, or documented, immigrants. This means that in order to take advantage of the benefits of the California Dream Act, you should consider seeking the services of a qualified immigration lawyer. If you have applied or are considering applying for Deferred Action for Childhood Arrivals (DACA), be aware that an application for DACA may not be considered a process of applying to become a legal immigrant. DACA offers applicants a two-year deferral from deportation and a two-year work permit. It does not offer a chance to be considered for permanent residency or citizenship.

The California Dream Act will begin to have a serious effect in 2013. Undocumented immigrants who have been accepted by state universities will be eligible for financial aid through Cal-Grants, a public program that in 2011 provided aid to over 370,000 low-income students. Undocumented immigrants will also become eligible for institutional grants (private grants funded by a college or university) in the University of California and California State University systems. In addition, undocumented immigrants will be able to obtain fee waivers for community colleges.

To remain eligible for financial aid, undocumented immigrants must demonstrate financial need and meet the academic standards of the specific aid or grant for which they apply. Contact our office at 415-986-6186 to learn more about your immigration options.

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President Obama vs. Romney on Immigration Law

President Obama and Republican presidential nominee Mitt Romney differ greatly on immigration, but both agree the process of applying for permanent residency or citizenship as a documented immigrant should be easier. During the second presidential debate, Obama and Romney voiced support for reducing the backlog of paperwork.

Romney added that he thought the existing immigration system should be streamlined and “clearer.” Obama stated that he is proud of the immigration reforms his administration has made in the past four years. He did not indicate that he would make additional changes immediately.

After the debate, Romney stated that he would not revoke 2-year deferrals on deportation and work permits awarded through Deferred Action for Childhood Arrivals (DACA). Romney indicated that he would end DACA if he became president. Obama indicated that he would continue DACA.

During the debate, Romney stated that he would not grant amnesty to undocumented immigrants. Romney stated that he wanted to create a path to permanent residency for children of undocumented immigrants but he did not provide any specific details regarding how he would do this. Obama stated that he wanted to give “young people brought here by their parents” a pathway to citizenship.

Both candidates stated before the debate that they are interested in allowing more highly skilled immigrants to apply for visas and citizenship. During the debate, Romney stated that the U.S. should issue green cards to people who “graduate with the skills that we need,” especially those with accredited degrees in science and math.  Would Romney follow through with this promise, when his policy advisor on Immigration was fundamental in drafting Arizona immigration legislation?

During the debate, Obama stated that a strong presence along the Mexican-American border has decreased the flow of undocumented workers into the United States. This statement suggests that Obama will continue to use border patrol agents and federal funds as a primary method to discourage individuals from immigrating to the U.S. Romney did not clarify his position on increasing or maintaining current measures for border control.

During the debate, Obama indicated that his administration has ranked deportations in order of priority. He stated that he has focused on deporting undocumented immigrants who are “criminals” and “gangbangers” rather than “students” and “folks…trying to feed their families.” Romney did not indicate that he would rank deportations.

Tomorrow, election day, will reveal which candidate will keep their political promises.  We look forward to providing you with regular updates on new immigration policies

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Attitude, Viewpoint, and Links to Information – Online Thoughts

Colorful, picturesque, artistic, contemplative, hard to understand – these words describe some of the places in cyberspace I’ve visited this week, researching topics for my blog http://www.ranchodlaw.com/blog/.

One link leads to another, it’s a little like snacking, nothing serious, one byte after another, little by little attention wanders, curiosity clicks through, and time passes as so-called “research.” Today was one of those online adventures worth retelling, only because it so amplifies the statement: “it all depends upon your attitude” (or point of view).

It all started with “research” about jobs and the economy. New York Times has plenty of food for thought. I was pleased to hear about the guy who had converted his hobbies into paid-for job(s) – entitled “Hobbies Add Up to a Career”. http://www.nytimes.com/2011/01/09/jobs/09pre.html?_r=1&ref=business

This scenario would have been interesting to try fifteen years ago before launching into law school. Now my education affords me the ability to give advice about immigration law, on how to come and stay in the U.S. lawfully via work or family. We (readers and me) will someday all become retirees and practice our hobbies. Does that seem like circular thinking to you too, or is it just my viewpoint?

No matter — I did like the career-hobbyist’s advice: “. . . here’s some very important advice: You have to develop a tolerance for the setbacks that come with learning. Mistakes are just a message to try again but in a different way, and failures are a one-room schoolhouse for the adventurous. I tell my shocked gardening students that I’ve killed more plants than all of them put together. But knowing what to do sometimes comes from learning what not to do.

Please contact the Ranchod Law Group with offices serving San Francisco, San Jose, and Sacramento, California, at info@ranchodlaw.com or at 800-753-1399 if you have any questions regarding immigration law.

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IMMIGRATION LAW TEAM BUILDING

Advice from Your Immigration Attorney

Getting Advice from an Online Forum

Question and Answer in Forum: Even when it’s an immigration attorney who replies to your question online (and sometimes, it’s a non-attorney with unanswered questions like you), it is not the same as having representation. It is not a guarantee that the information/answer even applies to your case.

Even with an attorney’s written reply, notice how it must also contain a “Disclaimer” which waters down the answer by stating:

1) The information posted here is of a general nature; and
2) may not apply to any particular set of facts, or
3) may not apply under all circumstances.
4) It should not be considered to be legal advice and
5) Is not constitute an engagement of any particular law firm or
6) establish an attorney-client relationship.
7) In other words, it is stuff to consider before you make up your own mind what to do next.

Advantages of an Expert Opinion When an immigration attorney replies to your question off-line, face-to- face/by phone, you actually are getting an expert opinion, that is, advice from a bona fide legal counselor who is qualified to become your legal representative. And you are interacting with someone who can understand, organize and compile your case to present to a decision-maker to rule on your petition.

Professional Representation from an Immigration Attorney gives value in three ways: your attorney functions as: (1) consultant (expert); (2), counselor (advisor), and (3) coordinator (writes and assembles essential documents) for communicating with Immigration authorities to win favorable result to your case.

Attorney as expert: Not merely law school and previous experience with cases similar to clients; these actions and resulting expertise are all in the past. The practice of Immigration law requires present time action: this means the ongoing monitoring of the changes in law and procedures. These changes are the necessary responses to create efficiencies in both number and types of cases.

For Instance: Your attorney, as member of American Immigration Lawyers Association

(AILA) receives bulletins advising about most up-to-date changes in law/procedures, as well as the efficiencies/improvements to managing immigration processes

For Example: Members of AILA received a December 2010 “Practice Advisory” explaining the “best practices” for avoiding delays in processing and communications between agencies involved in handling requests for waiver of the INA §212(e) home residency requirement prior to adjudicating a J-1 exchange visitor’s change of status. This put immigration attorneys on alert for possible issuance of RFE (Request for Evidence) arising out of a new procedure. Immigration attorneys were also advised how best to submit paperwork to “ensure that CSC can coordinate with VSC as part of the overall petition adjudication.” Obviously, these “tips” are meant to keep immigration attorney members up-to-speed with the most recent changes/improvements to practice and are conveyed in a language that a forum visitor would not readily understand.

Please contact the Ranchod Law Group with offices serving San Francisco, San Jose, and Sacramento, California, at info@ranchodlaw.com or at 800-753-1399 if you have any questions regarding immigration law.

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Immigration Lawyer Offers Advice on Replacement Green Cards

<em>Question Raised by Sacramento Immigrant Focuses on Permanent Resident Card</em>

As an immigration lawyer, I find that there’s often a need to make clarifications
regarding specific forms. There are so many forms associated with immigration
it’s easy to become confused. This happened the other day when someone from
Sacramento had a question regarding her permanent resident card, which is
commonly known as a green card.

<strong>Purpose of Replacement Green Card</strong>

It is important to understand that a replacement green card is not intended
for someone whose status as a conditional resident is expiring or to replace a
non-permanent visa. The replacement card is for people who already possess a
permanent resident card. The immigrant from Sacramento did already hold a green
card.

Replacement cards are intended for those who have had a legal change in biographic
data, whose card contains incorrect information due to an USCIS error, if you need
to renew your green card or if you were issued a card but never received it. You
do not file a for a replacement green card if you’ve changed your address. You may
report a change of address via the USCIS site (www.uscis.gov).

<strong>Filing for Replacement Green Card</strong>

An I-90 application, which may be filed electronically or by mail, is used when
applying for a replacement card. Supporting evidence must also be submitted.
Depending upon your situation forms and types of evidence vary. The filing fee is
$290 and the biometrics fee is $80.

The process can get fairly complicated, as I noted to the Sacramento resident who
needed to file for a replacement of her green card. You must offer your reason
for the replacement card clearly and accurately and this reason influences how
to accurately complete the form. A knowledgeable immigration lawyer can help
facilitate this process.

Please contact the Ranchod Law Group with offices serving San Francisco, San Jose,
and Sacramento, California, at info@ranchodlaw.com or at 800-753-1399 if you
have any questions regarding immigration law.


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