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Adjustment of Status

Attorney Mitchell J. Cohen

Attorney Mitchell J. Cohen

“Adjustment of Status” is a term used to describe the process where a foreign national is processed for permanent resident status (a green card) inside the United States. Adjustment of status generally take the form of an application processed through U.S. Citizenship and Immigration Services (USCIS), or in some instances, the application will take place in front of an Immigration Judge, as a defense to deportation.

Adjustment of status may be an alternative to having an application for permanent residence processed through a U.S. Embassy. That process is generally referred to as “consular processing.” One benefit of adjustment of status – as opposed to consular processing – is that an applicant for adjustment of status may remain in the United States during the time the application is pending, and receive employment authorization while waiting for a decision on the application. On the other hand, applying for an immigrant visa through the U.S. Embassy may result in long wait times outside of the United States. Additionally, for some individuals who have been in unlawful status, departure from the United States may trigger a 3 or 10 year bar to reentering the United States.

Not everyone is eligible for adjustment of status. Attorney Mitchell J. Cohen will evaluate your case and determine your eligibility for either adjustment of status. At the Law Offices of Mitchell J. Cohen, we will carefully prepare your application for adjustment of status, and the associated forms, and will follow through on the case every step of the way. Attorney Cohen thoroughly prepares his clients for the immigration interview, and attends the interviews with his clients to help ensure a successful outcome.

Do not go it alone on something as critical as your residence application. Attorney Cohen has over 13 years experience in representing clients before the USCIS, Immigration Courts, and U.S. Embassies in order to help them obtain U.S. immigration status. Call the immigration law offices of Mitchell J. Cohen, P.A. for an in-person consultation in his Hallandale Beach or Fort Myers offices.

Information contained in this website is not intended to create an attorney-client relationship, nor does it constitute legal advice to any person reviewing such information. No electronic communication with Attorney Cohen on its own will generate an attorney-client relationship. The hiring of a lawyer is an important decision that should not be based solely on advertisements. If you have a question, please call Attorney Mitchell J. Cohen for a consultation: Hallandale Beach (954) 457-1941 or Fort Myers (239) 931-6558  www.GreenCardCohen.com

U.S. Citizenship

U.S. Citizenship

Attorney Mitchell J. Cohen

U.S. Citizenship through Naturalization

by Mitchell J. Cohen, Esquire

U.S. Citizenship is typically obtained by permanent residents through a process called naturalization, and filed with USCIS Form N-400. The applicant must be 18 years of age or older, and be able to show that for the last 5 years (and through the time the application is pending,) that he or she has:

 

 

  • been a lawful permanent resident;
  • been a person of “good moral character”;
  • been continuously resident and physically present (over half the time) in the United States;
  • been attached to the principals of the Constitution.

Permanent residents who are married to and residing with a U.S. Citizen spouse for 3 years and through the time the N-400 application, may apply for naturalization after 3 years of permanent resident status. The rules are even more relaxed for members of the armed services and honorably discharged veterans.

Additionally, the applicant generally must demonstrate a basic knowledge of U.S. history and government and be able to read, write and speak basic English. Applicants over 50 who have been permanent residents for over 20 years are excused from the English proficiency requirement. Applicants over 55 who have been permanent residents for over 15 years are likewise exempt.

Applicants for naturalization are fingerprinted and go through a criminal background check, and applicants are required to submit certified copies of any arrest report(s) and dispositions of the criminal case(s). The USCIS not only uses the criminal history information to determine whether an applicant has been a person of good moral character, the agency also uses the information to determine whether the applicant’s criminal record subjects him or her to deportation. Many individuals who wind up in Immigration Court removal proceedings are there because they filed for naturalization when they should never have done it. Individuals who the USCIS determines are subject to deportation may even be arrested at the time of their naturalization interview.

If you failed to file required income tax returns or are delinquent in your taxes, the USCIS may determine that you are not a person of good moral character and deny your application. If you have minor children residing outside of your home, the USCIS may deny your naturalization application if you do not satisfactorily demonstrate that you have been supporting your children. If you have made multiple trips outside of the United States, the USCIS officer may demand to see documentary evidence that you meet the continuous physical presence and residence requirement (like proof of tax returns, employment, housing, etc.).

“Automatic U.S. Citizenship”

If you were under the age of 18 and a lawful permanent resident, one of your parents was a U.S. Citizen at the time, and you were in that parent’s custody, you may already be a U.S. Citizen by operation of law. The law governing automatic acquisition of citizenship have changed over years. The most recent amendment to the law, the Child Citizenship Act of 2000, eliminated the previous general requirement that both parents had to be naturalized before the child reached the age of 18. The amendment however is not retroactive.   A recent Federal Court of Appeals decision in the 2nd circuit held derivative citizenship under former Section 321(a) does not require permanent resident status prior to turning 18, as long as the individual was residing in the United States before age 18.  Nwozuzu v. Holder (2d Cir. 2013).    The court found Nwozuzu’s application for adjustment of status prior to his 18th birthday was sufficient indication of his intention to remain permanently in the United States to constitute “residing permanently” under the derivation statute.   The second circuit decision applies to cases in the states of New York, Connecticut, and Vermont.   It remains to be seen if this interpretation is adopted in other federal circuits.

Children born abroad to a U.S. Citizen parent may be U.S. Citizens at birth, regardless of whether the birth was registered with the U.S. Embassy. The laws governing acquisition of U.S. citizenship for children born abroad are complicated and have changed many times. Since 1790, there have been two prerequisites for transmitting U.S. citizenship to children born abroad: (1) At least one natural parent must have been a U.S. citizen when the child was born (an exception is for a posthumous child) and (2) The U.S. citizen parent(s) must have resided or been physically present in the United States for the time required by the law in effect when the child was born.

Individuals who automatically acquire U.S. Citizenship may apply for a Certificate of Citizenship from USCIS, by filing a Form N-600 with evidence of eligibility. An alternative, and generally much faster way of acquiring proof of acquisition of automatic citizenship is by filing an application for a U.S. passport with the State Department, along with proof of eligibility.

Schedule an appointment with Attorney Mitchell J. Cohen to determine your eligibility for naturalization, or to determine if you already acquired U.S. Citizenship by operation of law. Call the immigration law offices of Mitchell J. Cohen, P.A. in Hallandale Beach or Fort Myers, Florida.

Information contained in this website is not intended to create an attorney-client relationship, nor does it constitute legal advice to any person reviewing such information. No electronic communication with Attorney Cohen on its own will generate an attorney-client relationship. The hiring of a lawyer is an important decision that should not be based solely on advertisements. If you have a question, please call Attorney Mitchell J. Cohen for a consultation: Hallandale Beach (954) 457-1941 or Fort Myers (239) 931-6558   www.GreenCardCohen.com

 

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Temporary Protected Status (TPS)

Attorney Mitchell J. Cohen

Attorney Mitchell J. Cohen

From time to time, the Secretary of the DHS (Department of Homeland Security) may designate a foreign country for TPS (Temporary Protected Status) due to circumstances in the country that temporarily inhibit the country’s nationals from returning safely, or in certain cases, where the country is unable to adequately handle the return of its nationals. The USCIS (United States Citizenship and Immigration Services) may grant TPS to eligible nationals of certain countries (or parts of countries), who are already in the United States. Eligible individuals without nationality who last resided in the designated country may also be granted TPS.

A successful TPS application will trump an order of removal for the duration of the temporary protected status.

In general, an applicant must show that he or she has been physically present and residing in the United States during the time period specified by the DHS in its TPS designation period. An applicant must additionally be a national of the designated country (or if stateless, one who last resided in the designated country,) – and not have resettled in a 3rd country prior to arriving in the United States.

Individuals who have been convicted of a felony or more than one misdemeanor are generally ineligible for TPS although there is a small exception for certain misdemeanors. The Immigration and Nationality Act defines the term “conviction” broadly, which means that in cases where the defendant plead “no contest” or “guilty” and the judge imposed some form of penalty (jail, probation, fine, etc,) the outcome is considered a conviction, even if the sentence was suspended or the adjudication withheld.

Individuals who are granted TPS, in order to retain such status, must re-register during each of the re-registration periods. Failure to timely re-register will result in termination of TPS status and possible removal from the United States.

In cases of those who failed to register during the initial registration period, the law provides that in certain cases an applicant may file for “late initial” registration. If you had TPS but failed to re-register, the law provides for late re-registration in cases where “good cause is shown.

Applicants denied TPS may be able to appeal a denial to the USCIS Administrative Appeals Office (AAO), or if in removal proceedings, they may renew the application before the Immigration Court.

Before applying for TPS, it is critical that you meet all the legal criteria for TPS status, because USCIS may use the information contained in the application to initiate immigration court removal proceedings against those whose applications are denied. Call the law offices of Mitchell J. Cohen, P.A. in Hallandale Beach (954 457-1941) or Fort Myers (239) 931-6558 to schedule an appointment with the attorney for an in-depth evaluation of your eligibility.

Information contained in this website is not intended to create an attorney-client relationship, nor does it constitute legal advice to any person reviewing such information. No electronic communication with Attorney Cohen on its own will generate an attorney-client relationship. The hiring of a lawyer is an important decision that should not be based solely on advertisements. If you have a question, please call Attorney Mitchell J. Cohen for a consultation: Hallandale Beach (954) 457-1941 or Fort Myers (239) 931-6558.   www.GreenCardCohen.com.

 
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Deferred Action for Childhood Arrivals (DACA)

Attorney Mitchell J. Cohen

Attorney Mitchell J. Cohen

DHS (Department of Homeland Security) has implemented a new process whereby certain foreign nationals who entered the U.S. before their 16th birthday may be considered for “deferred action,” which if granted, allows them to obtain an employment authorization document, and permission to remain in the U.S. for a temporary period of time.
The following criteria are the general criteria of the program:

  1. Was under the age of 31 as of June 15, 2012.
  2. Came to the United States before reaching his or her 16th birthday;
  3. Have continuously resided in the United states since June 15, 2007, up to the present time;
  4. Was present in the United States on June 15, 2007, and at the time of making his or her request for consideration of deferred action with USCIS;
  5. Entered without inspection before June 15, 2012, or your lawful immigration status expired as of June 15, 2012.
  6. Are currently in school, has graduated or obtained a certificate of completion from high school, has obtained a general education development certificate, or is an honorable discharged veteran of Coast Guard or Armed Forces of United States; and
  7. Has not convicted of a felony, significant misdemeanor, three or more other misdemeanors, and does not otherwise pose a threat to national security or public safety.

There are additional wrinkles to the program. It is strongly suggested you consult with an immigration attorney to determine your eligibility for the program, and to advise you of any adverse consequences that may flow from filing the DACA application.

Filing the innocuous-looking Form I-821D is part of a process that may be fraught with hidden perils. For example, an individual who has an outstanding order of removal, deportation or exclusion, whose DACA applications is denied, faces the possibility that DHS will execute the outstanding order and remove him or her from the United States. Applicants who left the United States after an order of removal and then reentered the United States (generally within 10 years of departing) face felony prosecution for “criminal reentry.”

Additionally, DHS generally takes a broader view of the term “conviction” – and will view a withheld adjudication or suspended sentence as a conviction so long as there was a plea of no contest or guilty and some form of penalty was imposed.   The I-821D elicits all the necessary information needed for prosecution. An unwary applicant may in reality by filing an ill-advised DACA application, be handing his head on a platter to the government for prosecution and/or deportation.

The DHS has advised the public that there will be no appeal from a denial of a DACA application. The DHS “one strike and you’re out” policy may seem at odds with the humanitarian goals of the program.  Call the law offices of Mitchell J. Cohen, P.A. to schedule a consultation to determine your eligibility for DACA based on your individual circumstances and history. Attorney Cohen’s law firm is focused on immigration and nationality law.

Information contained in this website is not intended to create an attorney-client relationship, nor does it constitute legal advice to any person reviewing such information. No electronic communication with Attorney Cohen on its own will generate an attorney-client relationship. The hiring of a lawyer is an important decision that should not be based solely on advertisements. If you have a question, please call Attorney Mitchell J. Cohen for a consultation: Hallandale Beach Immigration Law Office (954) 457-1941 or Fort Myers Immigration Law Office (239) 931-6558.  www.GreenCardCohen.com.

 
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Form I-751 Petition to Remove Conditions of Residence

Attorney Mitchell J. Cohen

Attorney Mitchell J. Cohen

If one obtained permanent resident status as a result of a marriage that was less than 2-years old at the time, then the USCIS (United States Citizen and Immigration Services) issues a 2-year permanent resident card. An individual in such status is commonly referred to as a conditional lawful permanent resident.

In the 90-day window prior to the expiration of the 2-year card, a Form I-751 (“joint”) petition to remove conditions of residence must be filed with the USCIS. The petition process may involve a USCIS interview. Failure to properly file the petition will result in the termination of resident status, and normally the initiation of Immigration Court removal proceedings.

A central issue in the joint-petition adjudication is the continuing viability of the marriage upon which the status was obtained. In the cases where the marriage may have deteriorated, there are waivers available for conditional lawful permanent residents who cannot file the petition jointly with the U.S. citizen spouse or stepparent. In certain instances the waiver application may be filed outside of the 90-day window.

Waivers may be filed based on:

  1. extreme hardship that would result if the conditional permanent resident were to be deported,
  2. battery or extreme cruelty by the U.S. citizen spouse or stepparent, or
  3. termination of the marriage to the U.S. citizen as a result of divorce, annulment or death.

In considering the foregoing waivers, the USCIS will want to see documentary evidence that the marriage in question was entered into in good faith. I-751 petitions and waivers denied on the merits by USCIS may be renewed in front of the Immigration Court.

If you are separated from your U.S. citizen spouse or otherwise unable to jointly-file the I-751 petition, it is a very good idea to obtain legal representation as soon as possible, in order to start developing your I-751 waiver application. In some cases, a conditional lawful permanent resident separated from his or her U.S. citizen spouse will want to consider filing for divorce, in order to be positioned to file a waiver based on termination of the good-faith marriage. Attorney Cohen will carefully review your individual case and develop a legal strategy to help retain your permanent resident status in the United States.

Information contained in this website is not intended to create an attorney-client relationship, nor does it constitute legal advice to any person reviewing such information. No electronic communication with Attorney Cohen on its own will generate an attorney-client relationship. The hiring of a lawyer is an important decision that should not be based solely on advertisements.  If you have a question, please call Attorney Mitchell J. Cohen for a consultation: Hallandale Beach (954) 457-1941 or Fort Myers (239) 931-6558
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Deferred Action Status for Childhood Arrivals (Form I-821D)

Attorney Mitchell J. Cohen

Attorney Mitchell J. Cohen

Warns DHS “Childhood Arrival” Procedures are not Child’s Play: Hidden dangers await unsuspecting applicants.

DHS has unveiled a new process whereby certain individuals who entered the United States at a young age may be considered for “deferred action,” allowing them to legally live and work in the United States for a temporary period of time.

The rules appear deceptively simple. According to instructions accompanying Form I-821D “Consideration of Deferred Action for Childhood Arrivals,” an applicant must meet the following criteria to be considered for the program:

1. Was under the age of 31 as of June 15, 2012.
2. Came to the United States before reaching his or her 16th birthday;
3. Have continuously resided in the United states since June 15, 2007, up to the
present time;
4 Was present in the United States on June 15, 2007, and at the time of making his or her request for consideration of deferred action with USCIS;
5. Entered without inspection before June 15, 2012, or your lawful immigration status expired as of June 15, 2012.
6. Are currently in school, has graduated or obtained a certificate of completion from high school, has obtained a general education development certificate, or is an honorable discharged veteran of Coast Guard or Armed Forces of United States; and
7. Has not convicted of a felony, significant misdemeanor, three or more other misdemeanors, and does not otherwise pose a threat to national security or public safety.

Let’s look at items 1 and 2, which deal with proof of the applicant’s date of birth, and continuous residence in the United States since June 15, 2007. It may come as a surprise to learn that the DHS does not necessarily accept at face value the information that is on a birth certificate, especially in instances where there was a late-registered birth. DHS has also taken issue with documents from countries that it believes have a high propensity for document fraud. DHS has even been known to challenge a foreign national’s representation about his date of birth, to the point in some cases of subjecting detained individuals claiming juvenile status to forensic dental examinations to estimate the person’s age.

What about item 3, “continuously resided in the United states since June 15, 2007, up to the present time.” The phrase “continuously resided” has traditionally been a legal “term or art” in immigration law, which means that it has a meaning that is different from the ordinary everyday use of the phrase. “Continuously resided” in immigration law has meant that the foreign national has been “living” in the U.S., as opposed to “visiting” the United States. Physical presence, on the other hand, has generally been used in immigration law to refer to the actual place where you are physically situated, regardless of your intent to ultimately stay or leave. DHS has indicated that “brief, casual, and innocent” absences will not interrupt the period of continuous residence for the new deferred action program. The problem is that individuals who entered on visa categories such as B-1 or B-2 visitor visas and F-1 visas, at the time of their entry, legally had to have the intent to return to their unrelinquished foreign domiciles. If that visitor or student visa holder made multiple trips in and out of the United States on his visitor or student visa, each time he entered the United States he was necessarily representing to the immigration authorities that he was coming into the United States for a temporary purpose (not to reside permanently) and that he continued to have an intent to return to his home country.

A foreign national entering the United States on a visitor visa and may be allowed 6 months in that status. It is possible that an immigration officer may determine that the initial 6 months did not constitute time spent in continuous residence in the United States. What about the person who since June 15, 2007 traveled in and out of the U.S. on a visitor visa on multiple occasions, and then files a Form I-821D, claiming that he was actually continuously residing in the United States for the entire period of time. The question that the DHS may ask is: were you lying then, or are you lying now? Were you visiting the United States or were you actually living here? Possible result: denied I-821D application, and possible notation in that person’s immigration file of visa fraud.

Item 4 requires proof of presence in the United States on June 15, 2007. Many individuals who entered the United States without inspection as young people may not have been immediately registered in school. As a result, it may present a vast challenge to that individual to try to prove to DHS that he was physically present in the United States on June 15, 2007. DHS lists as possible secondary evidence affidavits from individuals aware of the applicant’s presence in the United States. In reality, DHS has a history of giving little or no credence to affidavits, in the absence of “hard evidence” of the applicant’s initial presence.

Item 5, requires that on June 15, 2012 the applicant has been in the U.S. without inspection or that his “lawful status” expired as of that time. “Lawful status” is another immigration law term of art, which has been the subject of much debate and repeated clarifications over the years. The issue of “lawful status” will be particularly tricky for individuals who were admitted to the United States for “Duration of Status.” The form documenting their DHS status (Form I-94), will not have an expiration date, but rather the notation “D/S” (for “duration of status”). F-1 visa students have a “D/S” notation on their I-94 cards. The date of termination of a student’s lawful status has been traditionally defined as when an immigration officer makes a determination in the student’s immigration file that the student has violated his student visa status. The problem is that the former student does not necessarily receive notification from the DHS as the determination that the student is not out of status.

Item 6, dealing with qualifying school or U.S. Armed Services history does not define what “in school” means. Does it apply to trade school? Does it apply to part-time study? What level of accreditation is required? As to the inclusion veterans of the Armed Forces, DHS is presumably aware that in order to enlist in a branch the U.S. Armed Forces, an individual must be a U.S. Citizen or Lawful Permanent Resident (green card holder).

Additionally, Section 329 of the Immigration and Nationality Act provides that an individual who is on active duty during times of declared hostilities or who was honorably discharged, having served during a period of declared hostilities, is entitled to expedited U.S. Citizenship. Since September 11, 2001, the United States has been in a continuous period of declared hostilities (the ongoing “war on terror”).

On to item 7, “significant misdemeanor” is clearly a subjective term. That ambiguity aside, however, there is a deeper problem that he not been explained to the general public by DHS.

The term “conviction” under Sec. 101(a)(48)(A) of the Immigration and Nationality Act is broader than the traditional criminal definition of conviction. In fact, I have seen many instances of foreign nationals caught completely by surprise when DHS arrests them and initiates removal proceedings against them, for judgments that they did not even considered to be criminal convictions.

For example, the person may have – on the advice of criminal counsel – pled “no contest” and received a “withheld adjudication” coupled with a fine or probation. He may have been advised that since the court did not “adjudicate” him “guilty” but instead “withheld” the adjudication, that no conviction resulted. In fact that individual may have been perfectly correct in telling a prospective employer that he was never convicted of a crime. Unfortunately, in 1996 the Immigration and Nationality Act was amended to expand the definition of “conviction” to include situations where the court withholds adjudication of guilt or suspends the sentence. Nowhere in the DHS’s instructions is this critical point made.

Not only do these individuals face receiving denials on their deferred action applications, they also risk being categorized as a “high priority” subjects for their arrest and deportation, depending on the nature of their criminal history.

Filing the innocuously-looking FormI-821D will be a process that is fraught with hidden perils. Individuals who have outstanding orders of removal, deportation or exclusion, whose applications are denied, face the possibility that DHS will execute the outstanding order and remove that person from the United States. Individuals who left the United States after an order of removal and then reentered the United States (generally within 10 years of departing) face felony prosecution for “criminal reentry.” The I-821D elicits all the necessary information needed for prosecution. An unwary applicant may very easily hand his head on a platter to DHS and to the U.S. Attorney’s Office for both prosecution and deportation.

The DHS has announced that there will be no appeal from a denial of the Form I-821D deferred action applications. This “one strike and you’re out” may seem incongruous with the Obama administration’s stated humanitarian goals of this deferred action program. The Form I-821D is one test that these students and former students cannot afford to flunk.

Mitchell J. Cohen, Attorney at Law
501 Golden Isles Drive, Suite 205
Hallandale Beach, FL 33009
Tel. (954) 457-1941
mcohenlaw@yahoo.com
www.greencardcohen.com

Mitchell Cohen is a member of the American Immigration Lawyer’s Association, with offices in Hallandale Beach, Florida.

Information contained in this website is not intended to create an attorney-client relationship, nor does it constitute legal advice to any person reviewing such information. No electronic communication with Attorney Cohen on its own will generate an attorney-client relationship. The hiring of a lawyer is an important decision that should not be based solely on advertisements. If you have a question, please call Attorney Mitchell J. Cohen for a consultation: Hallandale Beach Immigration Law Office (954) 457-1941 or Fort Myers Immigration Law Office (239) 931-6558   www.GreenCardCohen.com.