A refugee may flee his/her country for any number of reasons in order to seek protection from the United States, one of the last bastions of freedom and liberty in the world. However, in order to warrant legal protection and the ability to stay here under our immigration laws, the individual must ordinarily meet the legal definition of refugee as found in the Immigration and Nationality Act (INA) Section §101(a)(42). An applicant will be eligible and qualify for asylum from their native country if he/she can demonstrate past or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. Of these different categories, membership in a particular social group is one of the more complex ones, subject to much interpretation, as obviously borne out by much of the asylum-based litigation.
Just last week, USCIS quietly issued a Field Guidance Memo providing clarity and guidance to USCIS personnel on "reason to believe" issues and how they affect adjudication of Provisional Unlawful Presence Waivers.
(1) What is the L Visa?
If an individual charged with an indictable criminal offense is fortunate enough, he or she will be given the opportunity to participate in PreTrial Intervention or PTI. PTI is a mechanism in New Jersey's criminal justice system by which certain cases that meet a specified criteria are diverted from the prosecution track. The specific guidelines are delineated in Court Rule 3:28. If the defendant successfully completes the program, which entails a probationary period, not to exceed thirty six months, during which he or she must keep out of trouble, the charge or charges will ultimately be dismissed. For a US Citizen, PTI is often one of the first options a criminal defense attorney will explore on behalf of the client. However, for the foreign national who is not a US citizen, PTI-while, for the most part, still an excellent alternative-can be perilous, particularly when it comes to a plea or admission of guilt, which sometimes happens before entry into the program. The reason is that while the PTI ordinarily disposes of the charge and actually results in a dismissal of the charge-the guilty plea still exists or counts for immigration purposes despite the fact that the criminal charge has been dismissed. And as many people know or should know, a conviction of certain criminal offenses will expose an alien to potential removal.
An often-asked question by prospective foreign students is whether they are authorized to work in the United States during their stay. In order to address this, we must first generally review the different classes of international students.
Too often, many conditional lawful permanent residents remain trapped in abusive marital relationships because they believe that they will lose their status if the USC/LPR spouse "cancels their file" or fails to file for their permanent green cards. It is true that in general, the I-751, or Petition to Remove Conditional Residence, is a joint petition that is normally signed by both the USC/LPR spouse and conditional resident. However, a victim of extreme cruelty or battery has the option of requesting that this joint requirement be waived. In other words, this waiver ground does not require that the USC/LPR spouse participate or petition to remove the conditions on the immigrant's residence because the regulations recognize the plight of abused spouses, who should not be expected to remain married to or expose themselves to continued abuse solely in order to secure the abuser spouse's signature on the I-751. Furthermore, the law does not require that the marriage be terminated for these reasons in order to apply under this ground.
This week, I would like to discuss something different. Many people are not aware that in addition to the regular preference categories for family and employment based petitions, USCIS has also designated a special preference category for special immigrants, designated as EB-4. Late last year, in fact, the American public learned of the selfless heroism of Afghani Janis Shinwari and the extraordinary efforts that US Army Veteran Matt Zeller went to to repay a debt of gratitude, ultimately resulting in a special immigrant visa under this category for Mr. Shinwari to come to the United States.
Under the Immigration Marriage Fraud Amendments Act of 1986 (IMFA), immigrants who obtain permanent residence through marriage but who are married for less than two years at the time permanent residence is granted are conferred conditional permanent residence. While the green card holder enjoys all the privileges that are incident to permanent residence, the permanent residence will expire within two years. In order to obtain the immigrant's permanent green card, the couple is normally required to file Form I-751, or Petition to Remove Conditions on Residence. The Petition is a Joint Petition signed by both the U.S. citizen/ LPR spouse and conditional resident, and must be filed at least 90 days prior to the expiration of the two-year green card.
After certain eligibility requirements are satisfied, Lawful Permanent Residents earn the opportunity to become naturalized citizens of the United States. Deciding whether to apply involves weighing the potential benefits and privileges against the responsibilities and obligations of citizenship. (For a general look at some of the benefits, please refer to my earlier post on the benefits of United States Citizenship.) The process of becoming naturalization should not be confused with the act of acquiring citizenship or deriving citizenship. Unlike acquisition or derivation, naturalization involves applying before the Department of Homeland Security, appearing for an examination, and taking an oath of allegiance to the United States upon approval. Acquisition or derivation, on the other hand, occur upon certain conditions or events occurring.