May 10, 2013 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.1 Maryland Judicial Conference Federal...

May 10, 2013Shulman, Rogers, Gandal,

Pordy & Ecker, P.A. 1

Maryland Judicial Conference Federal Immigration in State Courts: The Judiciary’s Guide to Family and Individual Immigration Status

Michael L. Kabik, Esq. © 2013Shulman, Rogers, Gandal, Pordy & Ecker, P.A.

12505 Park Potomac Avenue, 6th Floor, Potomac, MD 20854

T: (301) 231-0937 F: (301) 230-2891

[email protected] ShulmanRogers.com



Presentation Objective

To give Maryland’s Judiciary the tools to understand:

Federal Immigration Framework, Infrastructure, and ProcessesKey Immigration TerminologyThe Immigration LifecycleImpact of Immigration Legal Status on Individuals and Families



Federal Government

Immigration & Naturalization Service (INS) within Dept. of Justice

Abolished in 2003Immigration functions transferred to new Dept. of Homeland Security

Split into 3 agencies• Enforcement function (2)• Benefits function (1)



Federal Government

Dept. of Homeland Security’s immigration functions:

U.S. Customs & Border Protection (CBP)U.S. Immigration & Customs Enforcement (ICE)U.S. Citizenship & Immigration Services (CIS)



Federal Government

U.S. Customs & Border Protection (CBP)

Border enforcement• Land border• Sea border• Airports

– Functional border– Pre-Flight Inspection at airports in other

countries



Federal Government

U.S. Immigration & Customs Enforcement (ICE)

Interior enforcement• Detention• Removal• Worksite Enforcement• Employer Sanctions



Federal Government

U.S. Citizenship & Immigration Services (CIS)

Benefits• Nonimmigrant Status• Permanent Residence (Greencard)• Naturalization• Employment Authorization• Temporary Protected Status (TPS)• Deferred Action for Childhood Arrivals

(DACA)



Immigration Lifecycle

UndocumentedEntry Without Inspection (EWI)Out of StatusUnlawful PresenceTemporary Protected Status (TPS)Deferred Action for Childhood Arrivals (DACA)



Immigration Lifecycle

Nonimmigrant Visas (NIVs)Immigrant Visas (IVs)RemovalNaturalization



Temporary Protected Status

Humanitarian relief that establishes a temporary safe haven in the U.S. for nationals of a foreign state

Ongoing armed conflict posing a serious threat to personal safetyEarthquake, flood, drought, epidemic or other environmental disaster resulting in substantial temporary disruption of living conditions• Foreign state is temporarily unable to handle the

return of its nationals



Temporary Protected Status

For qualified applicants, TPS granted for 6 to 18 months, extensions possibleShall not be removed during TPS periodShall be granted employment authorization, extensions with TPS extensionsShall not be detained based on based on TPSExclusions for certain criminal convictions, persecutors, or security considerations



Deferred Action for Childhood Arrivals

Temporary relief for personsNot in legal immigration status Brought to the U.S. as young childrenGranted for 2 years, extensions possibleEligible to apply for employment authorization



Deferred Action for Childhood Arrivals

Criteria include:Under age 31 as of June 15, 2012Came to U.S. before age 16Continuously resided in U.S. since June 15, 2007Presence in the U.S. on June 15, 2012Currently in school, graduated from high school, obtained GED, or honorably discharged veteranNot be convicted of certain criminal offensesNot pose a threat to national security/public safety



Nonimmigrant Visas

Temporary visasAllow limited time entry into U.S.

For a specific purpose, including• Employment• Tourism• Study

Many classificationsDerivative visa classifications for dependents



Immigrant Visas

Permanent Residence in U.S.Greencard

Employment-Based sponsorshipFamily-Based sponsorshipDerivative status for dependents



Immigrant Visas

Special Immigrant Juvenile StatusProvides help to foreign children in the U.S. who have been abused, abandoned, or neglectedChildren unable to be reunited with a parent may obtain Permanent Residence



Immigrant Visas

Special Immigrant Juvenile StatusRequires a State Court order finding• Child is a dependent of the court or

legally placed with a state agency, private agency, or a private person, and

• Not in the child’s best interest to return to home country (or country of last residence)



Immigrant Visas

Special Immigrant Juvenile StatusRequires a State Court order finding• Child cannot be reunited with a parent

due to any of the following– Abuse– Abandonment– Neglect– Similar reason under state law



Immigrant Visas

Special Immigrant Juvenile StatusMust be under 21 years old on the date of filing Special Immigrant Petition with CISState Court order must be in effect on date of filing and when CIS makes decision• Unless “age out” of State Court’s

jurisdiction due to no fault of own

Cannot be married



Naturalization

Acquisition of U.S. Citizenship (optional)

Requirements• Length of Residence• Continuous Residence• Physical Presence• Good Moral Character• English language test (waiver)• U.S. history and government test



Removal

Applies to:Permanent Resident AliensNIV Status AliensUndocumented Aliens

Violation of:Criminal LawsImmigration Laws



Immigration Crossover into Family Law

FederalFamily-Based Permanent ResidenceDomestic ViolenceRemovalNaturalization



Immigration Crossover into Family Law

StateDomestic ViolenceDivorceCustodyAdoption



Family-Based Permanent Residence

Immediate Relatives (IRs)Spouse of U.S. CitizensChildren (<21) of U.S. Citizens• Definition of Child includes Step-Children

Parents of Adult U.S. Citizens

Immediately eligible to apply to immigrate




Preference CategoriesF1: Unmarried Sons/Daughters (21+) of U.S. Citizens F2A: Spouses/Children (<21) of Permanent ResidentsF2B: Unmarried Sons/Daughters (21+) of Permanent Residents




Preference CategoriesF3: Married Sons/Daughters (21+) of U.S. CitizensF4: Brothers/Sisters of Adult U.S. Citizens

Requires a current “Priority Date” in order to immigrate

Variable Backlog of PD’s (~2–23 years)




The ProcessImmigrant Petition (I-130)• Filed by U.S. Citizen/Perm. Resident

Sponsor

Adjustment of Status (I-485)• Filed by Alien• Must be IR or have current Priority Date• Affidavit of Support (I-864) by Sponsor




The Affidavit of Support (I-864)Required in all FB Permanent Residence Sponsorships since 1997• Minimum income requirements based on

household size– 125% Federal Poverty Guidelines– 100% Federal Poverty Guidelines for active

duty military sponsoring spouse/child• Joint Sponsors permitted in order to meet

income requirements




The Affidavit of Support (I-864)Requirement to provide the sponsored immigrant any support necessary to maintain him/her at an income at least • 125% Federal Poverty Guidelines• 100% Federal Poverty Guidelines for

active duty military sponsoring spouse/child




The Affidavit of Support (I-864)Requirement to reimburse a Federal, State or local agency, or a private agency• That provides any covered means-tested

public benefit to the sponsored immigrant




The Affidavit of SupportEnforceable Contract Against Sponsor (and Joint Sponsors)• By sponsored immigrant• By Federal or State government or any

agency providing a means-tested public benefit




The Affidavit of SupportMeans-Tested Public Benefit (MTPB):• Food Stamps• Medicaid• Supplemental Security Income (SSI)• Temporary Assistance Needy Families

(TANF)• State Child Health Insurance Program

(SCHIP)• State MTPBs




The Affidavit of SupportBinding contract in force until the sponsored immigrant:• Becomes U.S. Citizen• Has earned or been credited with 40

qualifying quarters under Title II SSA excluding periods of MTPBs

• No longer has PR status and departs the U.S.

• Dies




The Affidavit of SupportSurvives divorce• Enforceable against Sponsor• Enforceable against Joint Sponsor

Divorce does not terminate a Sponsor’s obligations under the Affidavit of Support




The Affidavit of SupportFederal courts have upheld the Affidavit of Support requirement to provide support to maintain the sponsored immigrant at the 125%/100% Federal Poverty Guideline levels• No duty of sponsored immigrant to mitigate

damages (i.e., seek employment)




Marriage Cases – ProcessProcessing by CIS based on state of residenceInterview required at CIS Field Office of Sponsor and AlienTimeline – Filing to Decision: ~3–6 months




Marriage Cases – ProcessType of Residence – based on length of marriage at time of approval• Conditional Residence

– if married <2 years• Permanent Residence

– if married 2+ years




Marriage Cases – ProcessPermanent Residence• Does not expire• Greencard valid for 10 years

– Update Photograph




Marriage Cases – ProcessConditional Residence• Valid only for 2 years• Must file Petition to Remove Conditions

on Residence (I-751) within 90-day window before expiration




Marriage Cases – ProcessPetition to Remove Conditions on Residence (I-751)• File jointly with Spouse• Seek waiver of joint filing requirement

due to: – Death of Spouse– Termination of Marriage through

divorce/annulment– Battered or subjected to extreme cruelty– Deportation would result in extreme hardship




Marriage Cases – ProcessLoss of ResidencePermanent and Conditional Residence can be lost if • Alien outside U.S. for certain periods of

time• Alien commits certain

immigration/criminal offenses




Marriage Cases – Legal StandardMust be bona fide marriage when entered into by the parties• Not solely for immigration benefit

Must continue to be married for approvalApproval possible even if parties living apart and marriage no longer viable




Marriage Cases – Legal StandardIf marriage occurs after commencement of Removal Proceedings• Alien must remain outside U.S. 2 years

before residence is granted• Unless Alien meets higher burden of proof

– Clear and convincing evidence




Adoption – Different ProcessesIn the U.S.Intercountry Adoption• Hague Convention country• Non-Hague Convention country




Adoption – Different ProcessesHague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption• Multilateral treaty concluded on May 29,

1993• Entered into force for the U.S. on April 1,

2008• Where child habitually resides in another

country party to the Convention, must follow the Hague process




U.S. Adoption – Immigration Legal Process

Adopted child may be sponsored for permanent residence• Immigrant Petition (I-130)• Adjustment of Status (I-485)




U.S. Adoption – Immigration Legal Requirements

Age Requirement: Must be <16 unless:• Natural sibling of another adopted child,

then <18• Court order entered nunc pro tunc prior

to 16th birthday– Recognized for immigration purposes in

certain limited circumstances




U.S. Adoption – Immigration Legal Requirements

Legal Custody Requirement: 2 yearsResidence w/Parents Requirement: 2 years• May occur before or after legal custody or

adoption



Domestic Violence

Alien Victims of Domestic ViolenceViolence Against Women Act (VAWA)

May obtain Permanent Residence• Spouse/ex-spouse: Abused by U.S.

Citizen/Permanent Resident spouse/ex-spouse• Child: Abused by U.S. Citizen/Permanent Resident

parent• Parent of Child: Abused by U.S. Citizen/Permanent

Resident spouse• Parent: Abused by U.S. Citizen son or daughter



Domestic Violence

Alien Victims of Domestic ViolenceAlien battered/subjected to extreme cruelty• By U.S. Citizen/Permanent Resident

spouse/ ex-spouse or parent• By U.S. Citizen son or daughter• Includes physical and mental cruelty• Also applies where marriage not legally

valid due to bigamy

File Special Immigrant Petition with CIS



Domestic Violence

Alien Perpetrators of Domestic Violence or Violators of Criminal/Civil Protection Orders

Subject to Removal Proceedings



Removal

Family-Based immigration sponsorshipDependent on a family relationship

Where sponsorship is withdrawn or where family relationship is terminated

Alien becomes deportable for failure to maintain lawful immigration status

Unless Alien obtains alternate status



Naturalization

Potential Adverse Good Moral Character Finding (subject to “extenuating circumstances” balancing test)

Willfully failing or refusing to support dependents

Extramarital affair tending to destroy an existing marriage



Naturalization

Divorced Alien sponsored for Permanent Residence based on marriage

CIS will request divorce complaint indicating date of separation

Date of separation is key issue for Naturalization application



Naturalization

If complaint indicates earlier separation date that contradicts previous immigration applications

Naturalization may be denied based on immigration fraudAlien may be placed into Removal or Recision Proceedings and be removed



Key Considerations

Know the PartiesU.S. Citizen?Permanent Resident?Conditional Resident?Pending Residence Application?Pending Petition to Remove Conditions on Residence?



Key Considerations

Know the PartiesNonimmigrant visa status?In Removal Proceedings?Overstay of NIV status?Entry Without Inspection?



Impact of State Court on Immigration Status

Legalization of Immigration StatusLoss of Immigration Status

Undocumented spouse (parent)?Removal of spouse (parent)?Financial support to other parent/children if removed?Emotional ties to children if removed?



Impact of State Court on Immigration Status

Unique role of attorneys in representing Immigration clients in State CourtsWhat is in the best interests of their clients (and their children)?

Same 4 factors as above

Result: Attorneys are advocating for Immigration impact beyond State Court decisions

May 10, 2013 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.1 Maryland Judicial Conference Federal...

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