In a disturbing development, the Attorney General indicated in Matter of Thomas and Thompson, 27 I & N Dec. 556 (A.G. 2019), that he will be considering and ultimately rendering a decision on the immigration impact of convictions that are subsequently altered. At issue is "whether, and under what circumstances, judicial alteration of a criminal conviction or sentence-whether labeled 'vacatur,' 'modification,' 'clarification,' or some other term-should be taken into consideration in determining the immigration consequences of the conviction." Put plainly, the AG will be examining what effect a modified, vacated, or overturned conviction will have on whether someone is deportable, inadmissible, or qualifies for some sort of relief or benefit. This issue is mostly encountered in the context of a "PCR" or post-conviction relief application where a criminal case is subsequently re-opened. Once a case is reopened, the conviction is normally vacated, and the charge(s) and/or punishment are disposed of in an alternate manner, sometimes in the form of dismissal, amendment of charges, or reduction of sentence. Depending on what result is arrived at, an individual's immigration situation may change. Someone who may have formerly been held deportable on the basis of a crime involving moral turpitude may no longer be removable if the underlying conviction is vacated or changed into an offense that is not one involving moral turpitude. Ever since the Supreme Court's decision in Padilla v. Kentucky in 2010, droves of foreign nationals with criminal convictions have attempted to stave off deportation by reopening their criminal cases due to ineffective assistance of counsel to warn them of the immigration consequences of their convictions. Some have been successful; some not.
New Question on DS 260 on Visa Form About Social Media
Applicants for immigrant visas may be surprised to see a new question on the electronic DS 260 application pertaining to social media. As of May 31, 2019, the immigrant visa application (and reportedly the electronic DS 160 nonimmigrant visa application as well) now feature arguably invasive questions requesting information regarding social media platforms used within the last five years. Applicants are requested to list their usernames (or "handles") for the following sites/apps/programs:
Can Drunk Driving in a School Zone Cause Deportation or Immigration Problems?
In New Jersey, driving while intoxicated in a school zone is a very serious offense with particularly severe penalties that go well beyond the typical punishment associated with a regular drunk driving offense. The offense is punished under Title 39:4-50(g), which provides for enhanced penalties when a violation under 39:4-50 occurs:
How Do Criminal Charges or Arrest Affect H1 Stamping?
In an earlier article, we briefly discussed the impact of a drunk driving allegation on an individual's H-1b stamp or visa. Matters become even more complicated when the charges are criminal in nature. If one has been arrested or charged with a criminal offense-whether misdemeanor or felony-the issue becomes even more precarious. Being charged or worse, convicted, of a criminal offense poses a potential problem of admissibility for the foreign national, especially in the context of an H-1b specialty worker without a visa who has already left the United States. Since he/she will have to apply for a visa to re-enter, the charges will have to be addressed during the visa application process. If a consular officer determines that conviction of a charge constitutes a crime involving moral turpitude ("CIMT") or worse, an aggravated felony, the individual will be refused a visa unless the ground of inadmissibility can be overcome. In some cases, a conviction is not even necessary. Under current US immigration law, if an individual admits to having committed or admits to having committed acts that form the essential elements of 1) a crime involving moral turpitude (other than a purely political offense) or an attempt or conspiracy to commit such a crime, or 2) a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of title 21) is inadmissible.
What is the I-212? | Green Card After Deportation
It is a commonly misunderstood that an order of removal or deportation is tantamount to permanent banishment from the United States. While an order does bar an individual from re-entry, it does not necessarily mean that a person is forever banned from the United States. In some cases, an order prohibits re-entry for five years. In the vast majority of cases, however, an order bars admission for a period of ten years. The important thing to understand is that once an individual has spent the requisite period of time outside the United States, he or she will not be automatically barred from admission. Of course, there may likely be other grounds of inadmissibility that prohibit a person from coming, (e.g., unlawful presence, fraud, crimes), but the force of the removal order is attenuated and ultimately extinguished once the time period is over.
More I-130 Marriage Interviews Being Scheduled | Minor Spouses
USCIS recently released new guidance pertaining to I-130 marriage cases that directly impacts spousal petitions involving minors. Under the new guidelines, the agency will begin scheduling in-person interviews for I-130 petitions involving minor spouses. Ordinarily, the parties to an I-130 are normally interviewed during the adjustment of status stage or, if the case is abroad, the foreign national is questioned regarding the marital relationship at the visa interview. Now, however, USCIS will begin conducting interviews at an earlier stage, that is, at the time the I-130 is adjudicated. At the interview, the petitioner or parties will be expected to furnish evidence that the marital relationship is genuine. Such evidence is often referred to as the "bona fides" of the marriage and can include such things as joint financial accounts, leases, insurance policies, and any other relevant evidence tending to prove that the marriage was entered into in good faith and out of genuine motivations. USCIS will also be determining whether the marriage was legally performed and whether the marriage is not outlawed in the jurisdiction where the couple resides or intends to reside, even if the marriage was valid in the jurisdiction where it was originally performed. So, for example, one state or country may permit marriages by minors under certain circumstances while others don't. If the couple will live in a state that would not recognize the marriage if performed in that state, that might pose a substantive obstacle in getting the I-130 approved.
Will Legalized Marijuana Laws Affect Immigration?
Although legislation to legalize marijuana abruptly stalled late last month, it is only a matter of time before the issue is revived, perhaps as early as June of this year. In spite of this, legalization of cannabis remains a hot legislative priority for a growing number of states around the country. Perhaps with that in mind, USCIS recently issued a policy alert regarding controlled substance activity and good moral character determinations. The thrust of the bulletin essentially highlights what is often misunderstood by the public: marijuana is classified as a Schedule I controlled substances and under federal law, manufacture, cultivation, possession or distribution is prohibited. Even if possession of marijuana is legal in a state jurisdiction, this does not nullify federal immigration consequences for foreign nationals since our immigration law is federal in nature.
No I-751 Receipt Notice After Filing
One disturbing trend that we have noticed recently is an inexplicable delay in USCIS issuing I751 notices acknowledging receipt of the application and extending an individual's green card. Ordinarily, a receipt notice is typically issued within four to six weeks after receipt. However, in some cases, it has been more than three months and the applicant still has not received the receipt/extension notice. In some cases, individuals have received the biometrics/fingerprint notice but not the extension notice, an interesting scenario which have led some to posit that USCIS may want to investigate/ascertain an individual's criminal history before issuing the receipt notice. Given the administration's emphasis on enforcement, there may possibly be some validity to this. On the other hand, the delay may arise not so much out of nefarious motives but simple government bureaucracy and inefficiency. In any case, regardless of the reasons, the consequences can be severe, especially for those who have waited to the last second to file or worse, attempt to file out of time. Legally, even if the government has terminated or revoked a conditional resident's status due to failure to file, that individual has a right to appear before the Immigration Court where an Immigration Judge will render a final determination. Practically speaking, however, the absence of a receipt notice can cause a great deal of confusion and havoc. For one thing, the individual has no proof verifying that an application to remove conditions has been filed. Without a receipt notice, the individual is ill equipped to prove that he or she is still legally in status (unless that person has some proof of delivery and is able to secure an I-551 stamp from USCIS). This can lead to a person losing his/her job, driving privileges, as well as inability to travel outside the country-even if an application was in fact filed-because the immigrant has no proof that his/his permanent residence has been extended while the case is being considered. Given all these horrible ramifications, it would be especially prudent for conditional residents to consider filing the I-751 as soon as practicable. For joint I-751s filed by a married couple, this usually means ninety days before the 2nd anniversary of the grant of permanent residence. For those who are eligible to file an I-751 waiver, they may even be able to file earlier. For example, those asking for a waiver of the joint requirement due to abuse may file at anytime and do not need to wait until the ninety days prior to the expiration of the card. The same goes for those who entered into the marriage in good faith that has been subsequently terminated. If an application is filed at the earliest possible stage, there may be enough time to secure the receipt notice (or alternative proof that the case is received and pending) prior to the card expiring.
Can ICE Arrest or Pick Someone Up Years After Conviction?
All too often these days, unfortunately, foreign nationals are picked up by Immigration and Customs Enforcement and detained for crimes for which they were convicted of years ago. Under Section 236c of the Immigration and Nationality Act, the government is allowed to hold individuals without affording them an opportunity for bond or release. Otherwise known as mandatory detention, 236c applies to the following classes of individuals:
Can a Person With a 2 Year Green Card File for Child?
Individuals who acquire lawful permanent residence through marriage are often concerned about their foreign-born children residing abroad. One common misconception is that someone who has a conditional green card must first obtain a permanent green card before filing for one's children. This is not necessarily true, and in some cases, waiting too long to file can considerably affect how long it takes for a child to immigrate here. While a conditional permanent resident is obligated to file the I-751 to remove the conditions on his/her green card, he/she is nevertheless a permanent resident and accorded all the rights and privileges of a green card holder, including but not limited to working, traveling, and filing for one's unmarried children. Depending on how old the child is, he/she will fall under preference category F2A (for unmarried children under 21) or F2B (unmarried children 21 or older). Currently, F2A cases are taking approximately 2 years to process, while F2B cases are taking approximately seven to eight years, which is appreciably longer. If a child is nearing twenty, a permanent resident may want to strongly consider filing the I-130 immediately in the hopes of getting the child here before he/she reaches 21.
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