US Temporary Protected Status for citizens of Yemen

Today foreign nationals from Yemen present in the U.S. were granted temporary protected status due to emergency humanitarian conditions in the country. 

The U.S. Department of Homeland Security issued a press release stating:

Secretary of Homeland Security Jeh Johnson announced his decision to designate Yemen for Temporary Protected Status (TPS) for 18 months due to the ongoing armed conflict within the country. Yemen is experiencing widespread conflict and a resulting severe humanitarian emergency, and requiring Yemeni nationals in the United States to return to Yemen would pose a serious threat to their personal safety. As a result of Yemen’s designation for TPS, eligible nationals of Yemen residing in the United States may apply for TPS with U.S. Citizenship and Immigration Services (USCIS). The Federal Registernotice posted today provides details and procedures for applying for TPS.

The TPS designation for Yemen is effective September 3, 2015, and will be in effect through March 3, 2017. The designation means that, during the designated period, eligible nationals of Yemen (and people without nationality who last habitually resided in Yemen) who are approved for TPS will not be removed from the United States and may receive an Employment Authorization Document (EAD). The 180-day TPS registration period begins today and runs through March 1, 2016.

This press release can be found in full at www.uscis.gov

If you need any assistance please do not hesitate to contact our firm. 

Obama announces immigration reform November 2014

President Obama addressed the nation tonight and has laid out a plan for executive actions on immigration allowing some individuals to stay in the US, work legally, and not fear deportation.

The President still wants to work with Congress regarding comprehensive immigration reform that he believes is common-sense and helps our country to be a better place.  

The plan that he outlined tonight will include:

• An expansion of deferred action for childhood arrivals (DACA) to include a larger class of individuals who arrived to the US as children.  Eligibility will be expanded to cover those who entered the US before the age of 16 and before January 1, 2010.  The relief will expand to 3 years instead of 2 and there is no age limit.
• Parents of US citizen or Lawful Permanent Resident children will be eligible for deferred action as well and will be eligible for work authorization.  They will have to have been in the US for at least 5 years.  Have children as of today who are US citizens or lawful permanent residents and have no other factors that would make them ineligible.
• I-601A waivers that allow individuals with unlawful presence to get a waiver approval here in the US before traveling to their home country for their immigrant visa interview will be expanded to include spouses and children of lawful permanent residents.  Previously this was only for spouses and children of US citizens.

Additional priorities include strengthening border security, replacing the "secure communities" program, promoting citizenship, revising deportation policies among others.  Find a full list of the announced reform here: http://www.dhs.gov/immigration-action  

Please note that there is nothing to file for as of today 11/20/2014 and beware of scammers that will charge you for a process that is not yet available.  There may be a process in place if you qualify in early 2015.  You should work with a skilled immigration lawyer or nonprofit when possible for the best outcome in your case.

TPS Announced for nationals of Liberia, Guinea and Sierra Leone due to Ebola

TPS has just been designated for nationals of Liberia, Guinea and Sierra Leone who are currently residing in the United States.  These nationals are currently eligible to apply for TPS with USCIS.

Here are the details of the announcement directly from uscis.gov:

Due to the outbreak of Ebola virus disease in West Africa, Secretary of Homeland Security Jeh Johnson has announced his decision to designate Liberia, Guinea, and Sierra Leone for Temporary Protected Status (TPS) for 18 months.  As a result, eligible nationals of Liberia, Guinea, and Sierra Leone who are currently residing in the United States may apply for TPS with U.S. Citizenship and Immigration Services (USCIS). The Federal Register notices provide details and procedures for applying for TPS and are available at www.uscis.gov/tps.

The TPS designations for the three countries are effective Nov. 21, 2014 and will be in effect for 18 months. The designations mean that eligible nationals of Liberia, Guinea, and Sierra Leone (and people without nationality who last habitually resided in one of those three countries) will not be removed from the United States and are authorized to work and obtain an Employment Authorization Document (EAD). The 180-day TPS registration period begins Nov. 21, 2014and runs through May 20, 2015.

To be eligible for TPS, applicants must demonstrate that they satisfy all eligibility criteria, including that they have been “continuously residing” in the United States since Nov. 20, 2014 and “continuously physically present in” the United States since Nov. 21, 2014.  Applicants also undergo thorough security checks.  Individuals with certain criminal records or who pose a threat to national security are not eligible for TPS. The eligibility requirements are fully described in the Federal Register notices and on the TPS Web page at www.uscis.gov/tps 

Liberians currently covered under the two-year extension of Deferred Enforced Departure (DED) based on President Obama’s Sept. 26, 2014 memorandum may apply for TPS. If they do not apply for TPS within the initial 180-day registration period, they risk being ineligible for TPS because they will have missed the initial registration period. Liberians covered by DED who already possess or have applied for an EAD do not need to also apply for one related to this TPS designation. However, such individuals who are granted TPS may request a TPS-related EAD at a later date as long as the TPS designation for Liberia remains in effect.

Applicants may request that USCIS waive any or all fees based on demonstrated inability to pay by filing Form I-912, Request for Fee Waiver, or by submitting a written request. Fee-waiver requests must be accompanied by supporting documentation. USCIS will reject any TPS application that does not include the required filing fee or a properly documented fee-waiver request.

Overstayed the Visa Waiver Program/ESTA, can I return to the US?

Overstaying the Visa Waiver Program means that you will face more difficulty trying to return to the US.  You will be ineligible for the Visa Waiver Program in the future, because you overstayed.  You will have to apply for a B-2 visitor visa to visit the US. 

The B-2 tourist visa has an application process and fees that you must pay at the US consulate in your home country.  As part of the application process you have to prove that you do not have immigrant intent (you are not coming to the US to live). 

If you overstay the time that you were given on the visa waiver program you will start accruing unlawful presence.  You may be barred from returning to the US for 3 or 10 years depending on your length of overstay.  Click here for more information on the 3 or 10 year bars. 

If you have overstayed your authorized stay in the US, VWP travelers have less immigration relief available to them than do travelers that came with a visa.  For instance, if you had received a B-2 visa you would be able to apply to extend your stay.  You cannot extend your stay as a VWP visitor, unless you have a true emergency situation (ex. medical emergency).  You may be eligible to apply for asylum, but you should speak to an immigration lawyer about making an asylum claim.  Feel free to contact me if you have any questions about adjusting status in the US or returning to the US.

Marriage-based immigration applications for same-sex couples

Gay and lesbian marriages are now recognized by USCIS as valid marriages for the purposes of filing immigration petitions as the Supreme Court of the United States held that Section 3 of the Defense of Marriage Act is unconstitutional.  These couples can now file I-130 and I-485 petitions based on their marriages and also file fiance petitions for their loved ones abroad.  The service is also reopening petitions that have been denied since 2010, and if you have a recently denied same-sex case that has not been reopened you should be able to request a reopening of that case.

Secretary of Homeland Security Janet Napolitano issued this statement about the historic Supreme Court decision:

“After last week’s decision by the Supreme Court holding that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional, President Obama directed federal departments to ensure the decision and its implication for federal benefits for same-sex legally married couples are implemented swiftly and smoothly.  To that end, effective immediately, I have directed U.S. Citizenship and Immigration Services (USCIS) to review immigration visa petitions filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex spouse.”

USCIS posted these Frequently Asked Questions:

Q1:  I am a U.S. citizen or lawful permanent resident in a same-sex marriage to a foreign national.  Can I now sponsor my spouse for a family-based immigrant visa?

A1: Yes, you can file the petition. You may file a Form I-130 (and any applicable accompanying application). Your eligibility to petition for your spouse, and your spouse’s admissibility as an immigrant at the immigration visa application or adjustment of status stage, will be determined according to applicable immigration law and will not be automatically denied as a result of the same-sex nature of your marriage.

Q2:  My spouse and I were married in a U.S. state that recognizes same-sex marriage, but we live in a state that does not.  Can I file an immigrant visa petition for my spouse?

A2: Yes, you can file the petition.  In evaluating the petition, as a general matter, USCIS looks to the law of the place where the marriage took place when determining whether it is valid for immigration law purposes. That general rule is subject to some limited exceptions under which federal immigration agencies historically have considered the law of the state of residence in addition to the law of the state of celebration of the marriage. Whether those exceptions apply may depend on individual, fact-specific circumstances. If necessary, we may provide further guidance on this question going forward.

If you have any questions about this new change in the law feel free to contact me. 

Adopting a Relative from Jamaica: Adoption Process (Filing Form I-600)

The process to adopt a child from Jamaica is very straight forward. The steps are: 1) Apply to make sure you are eligible; 2) Get matched with a child; 3) Adopt child in Jamaica; 4) Apply for Child's eligibility for orphan status; and 5) Bring child to US. I will go through each step one by one.

1. Apply to make sure you are eligible to adopt:
Your first step is to submit a pre-adoption application with the Child Development Agency so that you can be found eligible to adopt in Jamaica. This application asks for detained information about you, which the Child Development Agency (CDA) uses to asses your suitability to adopt.
If you are residing in the US, you must also submit a home study report from an approved home study provider in the US. The CDA will verify the contents of your home study by writing to the home study agency. This verifies the authorship and gets their agreement to supervise the placement in the future.
You also have the option to use a licensed adoption service provider in the US to help with the adoption. They must be licensed by the state where they operate. In Jamaica, the CDA is the only agency authorized to provide adoption services. In the US, the Department of State has information on selecting an adoption service provider on their website. Contact the CDA here. Also, you may contact my office about meeting US immigration requirements or look at the information on the forms to fill out here.
2. Get matched with a child:
Once you are found eligible to adopt from Jamaica, you can either use the CDA and Adoption Board's assistance to locate a child suitable for adoption or if you already have a child in mind (for instance, a relative) then you can have the CDA assess the child's suitability for adoption. The child must be eligible for adoption as described above and must meet the definitiion of orphan under US immigration law.
Here is the definition of orphan under US immigration law:
Orphan: The Immigration an Nationality Act provides a definition of an orphan for the purposes of immigration to the United States.
A child may be considered an orphan because of the death or disappearance of, abandonment or desertion by, or separation or loss from, both parents. This child of an unwed mother or surviving parent may be considered an orphan if that parent is unable to care for the child properly and has, in writing, irrevocably released the child for emigration and adoption. The child of an unwed mother may be considered an orphan, as long as the mother does not marry (which would result in the child's having a stepfather) and as long as the child's biological father has not legitimated the child. If the father legitimates the child or the mother marries, the mother is no longer considered a sole parent. The child of a surviving parent may also be an orphan if the surviving parent has not married since the death of the other parent (which would result in the child's having a step father or stepmother).
Note: Prospective adoptive parents should be sure that a child fits the definition of "orphan" before adopting a child from another country because not all children adopted abroad meet the definition of "orphan," and therefore may not be eligible to immigrate to the United States.
3. Adopt a child in Jamaica:
Here is the process in Jamaica:
- Adoption Application: You will initiate the process in Jamaica by submitting the pre-adoption application form to the CDA. They have an online application here.
-Role of CDA and Adoption Board: Once the CDA conducts their assesment, their report is forwarded to the independent Jamaican Adoption Board which decides whether the adoption should be approved. The Adoption Board reviews the report and information about you.
-Role of the Court: Once the adoption is approved, the case is sent to a family court which reviews the relevant facts and determines if the Adoption License or Order should be issued. The special Family Courts or local Resident Magistrate's Court will supervise the adoption depending on what parish the adoption is taking place in.
-Time Frame: An adoption license is normally completed in four months. An adoption order may take more time because a locally placed child needs to be supervised by local social workers for at least three months. This can be waived, as stated above, if the prospective adopting parents are Jamaican nationals adopting a relative.
-Adoption Fees: No fee. Each child will need an extensive physical seperate from the one that they will need for immgiration. Costs for the physicals vary but can be up to $100 USD. Most adoptive parents do not hire an attorney for the court proceeding, but you can hire someone local. Attorney fees vary.
-Getting the Adoption License: Documents required include:
-Application Form (available from the CDA's website)
-Home Study-If you do not reside in Jamaica, you will need to provide a certified original home study plus two additional copies to the Jamaican Adoption Board. They can be sent by the home study provider or by you. You can reuse this home study for the form I-600A.
-Medical Examination: This is an examination for you and for the child.
-Letter of Undertaking: The agency that conducted the home study submits a letter agreeing to supervise the placement until the adoption is final and beyond that as determined if needed by the CDA.
-Bank Statement
-Letter from Employer: (can be more than one) Letter should indicate what your annual income is and the nature of your employment.

-Getting the Adoption Order:
-Application Form: Available from CDA's website
-Home Study: If you are not resident in Jamaica, then you need to provide a certified original home study and two additional copies to the Jamaican Adoption Board. These can be sent by you or by the provider. This is usually the same home study as the one used for the I-600A.
-Medical Examination: This is an examination for you and for the child.
- Income Statement
- Personal References (two); and
-Letter of Undertaking - If you are resident in Jamaica then you rpovide a letter of undertaking by the Jamaican agency that conducted the home study to suprvise the placement.
The court can request additional documents at any time.

If you are asked to provide proof that a US document is authentic, you can contact the Department of State Authentications Office to assist.

4. Apply for Child's Eligibility for Orphan Status
Once the adoption is finalized or you have gained legal custody in Jamaica, the Department of Homeland Security, USCIS must determine whether the child meets the definition of orphan as discussed above. In order for them to start processing this information to classify the child as an orphan, you must file form I-600, Petiiton to Classify Orphan as an Immediate Relative.

5. Bring child to the US
Once you have adopted your child or have obtained legal custody, you will need to get certain documents together to start processing for your child's immigrant visa.
-Birth Certificate: If you have been granted an Adoption License, the birth certificate of the child will remain the same. You should get the child's original birth certificate, which lists the child's birth parents fromt he Jamaican Register General's Department. If you received an Adoption Order from a Jamaican court, the child're previuos birth record is sealed and the Adoption Order issued by the Register General's Department replaces the original birth certificate.
-Jamaican Passport: Your child will need a travel document from Jamaica to come to the US since they are not yet a US citizen.
-US Immigrant Visa:
The immigrant visa allows your child to travel home with you. Once the US Embassy in Jamaica receives the approved Form I-600 from USCIS, the embassy will contact the prospective adoptive parent via phone or email to schedule the immigrant visa interview and provide instructions on obtaining the immigrant visa medical exam. After the final immigrant visa interview, visa issuance generally takes at least 24 hours so make sure to plan your travel accordingly since it is not same day. Also, your child may be a citizen upon entering the US with you--make sure to inquire with an immigration lawyer and get proof of citizenship right away if they are eligible.

As always, feel free to contact me if you have any questions or concerns about the process.

Adopting a Relative from Jamaica: Am I eligible?

Note: This will be a 2 part series on adopting from Jamaica, and I hope to do other islands and countries where my clients frequently need assistance with as well. I am focusing on relative adoptions--but as this text is mostly adapted from the Department of State Guidelines so this will apply for non-relative adoptions as well.

Jamaica is not a Hague Adoption Convention country, this means that you do not have to follow the process for Hague countries when doing an intercountry adoption from Jamaica. They are processed in accordance with Federal Regulations and the Immigration and Nationality Act.

Jamaica has two types of adoptions:
1. Adoption Licenses: An Adoption License allows you to take a Jamaican citizen child to your country to be adopted in that country. For instance, you could take the Jamaican citizen child to the US to adopt them here. If you are residing in the US and you are not adopting a relative then you will not qualify for an adoption order and you will have to get an adoption license.
2. Adoption Orders: An adoption order is a full and final adoption under Jamaican law. The adoptive parent has to be a Jamaican citizen or reside in Jamaica to qualify for the adoption order. Adoption orders replace the child's birth certificate legally. It shows the date of birth, new parentage and the child's new name. You can also have the child's Jamaican passport changed to reflect the child's new legal name.

There are certain US immigration requirements for intercountry adoptions that are important. You must meet eligibility and suitability requirements to bring an adopted child to the US from a foreign country. The US government determines who can adopt and whether a child meets the definition of an orphan to be eligible to immigrate to the US on an IR-3 or IR-4 immigrant visa.

Jamaica has additional requirements that you will need to meet in order to adopt a child:
1. Residency: You are not required to reside in Jamaica or to attend the court hearing for an adoption license. A judge can request your presence, but otherwise you are not required to attend. You will need to travel to Jamaica to meet with the Child Development Agency and to apply for a visa. For an adoption order, you are required to reside with the child and be supervised by a local social worker for 3+ months before the court will approve the adoption under Jamaican law (this requirement can be waived for Jamaican nationals who are adopting a relative).
2. Age: If you are not related to the child that you want to adopt, then you will need to be age 25 or older. If the child is related as a brother, sister, niece, or nephew to the adoptive parent, then at least one parent needs to be 18 or older. No required age difference between the adoptive child/parent when they are related.
3. Marriage: Single individuals and married couples are allowed to adopt, but same-sex marriages are not recognized. Therefore, a Jamaican court may refuse to provide an Adoption Order or License to a same-sex married couple.
4. Income: You will have to document your financial status, but there is no specific income requirement.
5. Case-by-case analysis: Every adoption is unique, the Child Development Agency and the Jamaican Adoption Board can take your medical considerations into consideration when they evaluate your eligibility to adopt. However, the Department of State's website indicates that it is extremely rare for a prospective parent to be denied due to this.

The child must meet certain specific requirements of Jamaican law to be eligible for adoption. The Jamaican Child Development Agency will assess the child's suitability for adoption by visiting the child's residence and conducting interviews and counseling with the child/birth parents/adoptive parents if necessary.

Here is a list of the requirements as evidenced on the US Department of State's website:
1. Relinquishment: Jamaica requires the birth parents to consent to relinquishing their parental rights or for them to have had their rights terminated before the adoption can be finalized.
3. Age of Adoptive Child: Children are eligible for adoption between the ages of six weeks and 18.
4. Sibling Adoptions: There is no provision prioritizing sibling placement for family unity purposes but the Child Development Agency and Adoption Board are willing to work with prospective adoptive parents to place siblings together.
5. Special Needs or Medical Conditions: Children need a medical examinations in Jamaica by a registered Jamaican medical practitioner before the adoption can be approved. This is specifically for the adoption, there will need to be a separate medical examination for the immigrant visa later on.
There is no need for abandonment or for a waiting period or foster care.

Part two coming in a few days. As always, if you have any questions feel free to call me or email me.

Immigration Reform 2013 - Proposed Senate Bill

The recently introduced Senate legislation, S. 744, the "Border Security, Economic Opportunity, and Immigration Modernization Act," has been top news lately. I just wanted to explain a bit about what the bill contains as it relates to family immigration.

The two points that I will highlight are the legalization of non-citizens who are present without legal status in the U.S. and the changing of family-based immigration categories:

Legalization: The bill, if passed, will allow noncitizens who are unlawfully present and who entered the U.S. before December 31, 2011 to adjust status to that of Registered Provisional Immigrant (RPI). If you are eligible to apply for this process you would be required to pay a penalty and back taxes. The benefits of entering RPI status are that you would receive work authorization and can also travel out of the U.S. After 10 years in RPI status, you would be able to apply to become a green card holder. After being a green card holder for 3 years, you would be eligible for citizenship. There are different provisions for kids that are deffered action for childhood arrivals - eligible, and agricultural workers.

Family-Based Immigrants: The bill will change the current classification system that creates long wait times for families and remove certain family categories from the process all together. Spouses and children of permanent resident will be classified as immediate relatives and not have to wait for an immigrant visa to become available. Also, immediate relatives will be allowed to have derivatives, this means that you can file one form as a US citizen or as a permanent resident to bring your immediate relative and their children. You will not have to file separate forms for each individual relative (ex. spouse and child). Other changes are that it removes the ability for US citizens to apply for their brothers and sisters, it caps the age of eligibility of married sons and daughters of U.S. citizens at age 31, and it reintroduces the V-visa. The V visa is a nonimmigrant visa created to allow families to stay together while waiting for the processing of immigrant visas (if the family member has been waiting for 3 years, they can apply for a visa to come to the US).

This is a step in the right direction for those of us who believe the US immigration system should be more fair. There are some disappointing things in the bill, for example it removes the diversity visa program which has helped many people from around the world and in African countries to immigrate to the US. Although it is not perfect, as someone who works with naturalized citizens and foreign nationals every day and I have both family and clients who have been patiently waiting for some chance at gaining legal status. This bill is just the first step in what will hopefully be a successful process towards immigration reform.

Nothing has been passed yet, but I am a whole-hearted believer that it is never too early to start preparing for what may come. I have a series on preparing for immigration reform which is posted here on the blog. I also am putting together a YouTube video, which I'll place below soon that recaps some steps that you may want to take or have your family members to take to get themselves prepared if the day arrives that this law or a version of it passes.