Any Cuban and his/her immediate relatives including spouses and children they have married or have had after the Cuban has been inspected or admitted or paroled into the U.S, may apply for permanent residence one year after admission. There is no time limitation on an application for adjustment. As long as the spouse or child is living with the Cuban, the spouse or child need not be Cuban. However, at the time of an interview for adjustment of status the Cuban must be alive for the spouse or child to become a resident. An exception to this rule is available for a battered spouse or child. An entrance to the U.S., under a tourist visa or even a visa waiver application for permanent residence after one year and this is permissible even if the Cuban has acquired another nationality. This open ended law even extends to Cubans who did not arrive at a designated port of entry, that is, who entered without inspection, provided that the Cuban surrenders himself to the Immigration Services, thereby enabling the Service to parole him/her pending a decision of an Immigration Judge. A Cuban may apply for Adjustment of Status before an Immigration Judge even though he/she entered without inspection.           For Cancellation of Removal:              Cubans, their spouses and children or their overage sons or daughters who have been in the U.S. for more than 10 years may apply for Adjustment of Status even though they entered the U.S. without inspection. For those who have had criminal convictions, a remedy for less than serious crimes exists through a waiver; for serious crimes a waiver may exist on a showing of exceptional and extremely unusual hardship.Under the Cuban Refugee Act Cubans are granted 30 months retroactive residence from the date of their applications.          

An action against the Department of Homeland Security (DHS) to compel the issuance of regulations for detention centers was recently commenced in Federal Court in Manhattan, N.Y.  The Government has been charged with detaining thousands of immigrants in substandard and inconsistent living condition, with inattention to proper medical care and even abuse while the DHS decides whether to deport or release these inmates. The Administrative Procedures Act requires that U.S. Agencies such as DHS issue specific rules for detention. Homeland Security has been accused of being one of the biggest jailers in the world, yet behaving like a lawless local sheriff.          Binding regulations would properly require the DHS to afford decent medical care, visitation rights, functioning telephones and reading materials. The DHS’ own Inspector General recently found that the DHS was out of compliance with proper health care afforded to detainees, inappropriate disciplinary procedures and poor access to reading and legal materials.   

 For H-2A the proposed new regulations provide: 1.      Extension from 10 -30 days are now to be allowed after the H-2A expires.2.      Reduces to 3 months from 6 months H-2A worker’s requirement to remain outside the U.S. after the previous H-2A expires.3.      Enables an H-2A worker to change from one H-2A employer to work for another merely by filing a new petition provided the new employer is in the E-Verify program;4.      Requires an employer attestation of the nature of the H-2A job and the use of recruiters to locate H-2A workers;5.      Forbids employers and recruiters to impose fees on new H-2A workers;6.      An approved temporary labor certification is still necessary. 

State Laws that have arrogated to themselves the exclusive powers of the federal government in immigration enforcement have caused extreme collateral damage in these States because intimidated immigrants leave these regions thus taking their skills to other regions. This reduces the growth and economic vitality of these regions. Farms that can’t find immigrant workers to pick the crop can’t survive. As a result many citizens as well as legal immigrant lose their jobs as well. And these stringent and unevenly applied state laws don’t seem to provide a solution to the problem of undocumented aliens.                                                                                                                      Families have been torn apart when family earners are deported. U.S. citizen children are forced to seek public assistance. The result of these polices have been an enormous drain on these States’ economies, aside from the inhumanness of hounding and humiliating to these millions of immigrants who have entered and stayed for years here, forming family ties and becoming part of their communities and peaceably working and building their lives here. The failure to pass comprehensive immigration reform by Congress has been shown to be not only inhumane but foolish.

  Immigration officials predict to have 930,000 citizenship applications completed by September 30, 2008. The backlog has been a unfortunate. If the Immigration Service keeps its word, tens of thousands of new citizens will be able to vote in the fall election. The immigration projections may be overly optimistic. Of 1,050,000 pending applications, only 70% of them are now being tabulated. Later phases of the process such as background checks, fingerprinting are time consuming so the projections may be unrealistic. Unfortunately the Immigration Service’s delays may prevent at least 500,000 applicants from voting in the November national election. 

A Federal Court recently addressed the systemic problem of Naturalization adjudications.  The Judge found that Congress intended that the Naturalization process be completed without undue delay.  The Judge observed that although careful security must be made for applications for permanent residence, it could not be understated why a security clearance was necessary for an individual who was already a permanent resident.  The Court under the Administrative Procedures Act (APA) has jurisdiction to compel agency action unreasonably delayed.  The government’s explanations for the delay were deemed insufficient and the Immigration Service was found to have adopted a strategy of delay instead of employing a transparent administrative process.  The government was also notifying applicants to get a prompt FBI check that they would need to commence Mandamus proceedings in Federal Court.  Plaintiff’s motion for summary judgment was granted. 

          If you go home without giving your Arrival-Departure record to an Immigration Officer, you could be regarded as having overstayed in the U.S.  You must be able to manifest that you have left the U.S. in a timely manner; otherwise you may be barred from returning. 

For example, if you return to the U.S. on a visa waiver, an immigration officer could refuse to admit you.  Unless you have proof of timely departure, the officer could presume you overstayed. 

 If you didn’t turn in the I-94 when you last left, it is prudent to correct the record.  This may be done by belatedly validating your departure with such proof as a copy of the original boarding pass; a copy of an entry stamp in a foreign country in your passport, or copies of other supporting documentation.  A letter of explanation with the documentation should be sent to the Immigration Service and you should keep a copy for an Immigration Officer when you return to the U.S.  You may also be excused for an unavoidable overstay such as for a medical emergency or a delay in departure beyond your control.   If you go to contiguous territories as Canada, Mexico or the Caribbean Islands, retain your I-94 form to return to the U.S. and only surrender it when you leave at the end of your trip ,If you need help or advise, call us at 212-944-9420.

 A Spouse, parent, or child of a U.S. CITIZEN, who served honorably in the U.S. armed forces and who died as a result of injury or disease incurred or aggravated by combat may petition for permanent residence within two years of the U.S. citizen’s death.  A spouse may apply as long as s(he) is not legally separated at the time of death and does not remarry before the petition is completed.  A child may apply even if s(he) becomes 21 or marries after the death of the U.S. citizen.  And a parent may apply even if the deceased U.S. citizen was under 21 years of age.  The public charge provision is waived for such spouse child or parent. If you need help or advise, call us at 212-944-9420.

       A natural born child may petition for a parent when the child is 21 years of age or older.  A stepchild, whether legitimate or illegitimate who lived with and was cared for as the child of the step parent or for whom the step parent engaged in an active parental interest in the support and welfare of the child and where the step parent-child relationship was formed before the child was 18, may also petition for a parent.  Even if the step child is over 21, if step relation continues it is valid even if a divorce occurs of the step parent.  There is no numerical limitation for the number of visas issued for parents or step parents of U.S. citizens, natural or step. If you need help or advise, call us at 212-944-9420.

The Freedom of Information Act (FOIA), was originally enacted to provide individuals information about government actions. This is very important for the processing of immigration cases because it affords us the details of a client’s case.

 This law has been more honored in the breach than the observance.

Congress just passed a reform measure to:
a) require enforcement of a strict tracking system;
b) penalties for delays;
c) creation of an ombudsman to resolve disputes;
d) prevent private contractors who work for the government to have a shield from FOIA requests.
This law would shed light on activities of the governments. It is also a democratic reform. Let’s hope that the President doesn’t veto this bill.