Immigration Blog Luba Smal Attorney at Law - Smal Immigration Law Office

In Response to Russian Sanctions US Dept of State Will Close Down Russian Consulate in San Francisco

8/31/2017

On August 31, 2017, the US Department of State announced it will close down the Russian consulate in San Francisco, CA, as well as annexes in Washington, DC and New York, NY in response to mandated 755 staff cuts at the US mission in Russia in July 2017

The move comes one day before September 1st Moscow's deadline for US personnel to leave their positions and will take effect Saturday.

White House press secretary Sarah Huckabee Sanders told reporters that the decision to close the Russian diplomatic facilities was made directly by President.

In late 2016, President Obama ordered the expulsion of 35 Russian diplomats, and the seizure of two Russian government compounds in response to alleged Russian meddling in the 2016 US presidential election.

Earlier in August 2017, the U.S, Consulates in Russia stopped issuing nonimmigrant visas to Russian citizens in response to Russian sanctions announced in July 2017.

Briefly in Russian:

Госдеп США объявил сегодня о закрытии Российского Консульства в Сан Франциско, Калифорнии, и двух консульских отделов в Вашингтоне и Нью-Йорке.

По словам пресс секретяря Белого Дома, это решение было принято лично президентом.

Напомню, что еще в 2016 президент Обама выдворил из США 35 российских дипломатов и конфисковал два объекта недвижимости за подозрение во вмешательстве в выборы президента США.

Read here.

USCIS Alerts: Immigration Services Available to People Affected by Hurricane Harvey in Houston, TX

8/30/2017

USCIS offers immigration services that may help people affected by unforeseen circumstances, including disasters such as Hurricane Harvey.

The following measures may be available on a case-by-case basis upon request:

Changing a nonimmigrant status or extending a nonimmigrant stay for an individual currently in the United States. Failure to apply for the extension or change before expiration of your authorized period of admission may be excused if the delay was due to extraordinary circumstances beyond your control;
Re-parole of individuals previously granted parole by USCIS;
Expedited processing of advance parole requests;
Expedited adjudication of requests for off-campus employment authorization for F-1 students experiencing severe economic hardship;
Expedited adjudication of employment authorization applications, where appropriate;
Consideration of fee waivers due to an inability to pay;
Assistance for those who received a Request for Evidence or a Notice of Intent to Deny but were unable to submit evidence or otherwise respond in a timely manner;
Assistance if you were unable to appear for a scheduled interview with USCIS;
Expedited replacement of lost or damaged immigration or travel documents issued by USCIS, such as a Permanent Resident Card (Green Card); and
Rescheduling a biometrics appointment.

Note: When making a request, please explain how the impact of Hurricane Harvey created a need for the requested relief.

To learn how to request these measures or determine if an office is open, call the National Customer Service Center at 800-375-5283.

If you require assistance, please don't hesitate to contact our office at email.

What do you need to know if DACA program ends?

8/29/2017

What do you need to know if DACA deferred action program ends? Will you be able to continue to use your EAD, work permit, SSN, driver's license, return to the U.S. from abroad on an advance parole/travel document?

ILRC had published a brief Advisory in English here.

In Russian:

Что произойдет, когда программа ДАКА будет закрыта? Сможете ли вы по прежнему пользоваться своим разрешением на работу, карточкой соц страхования, водительскими правами? Сможете ли вы вернуться в США по документу адванс пароль? Краткое описание на английском тут.

Starting October 1 2017, USCIS to conduct green card interviews in EB and I-730 cases

8/28/2017

U.S. Citizenship and Immigration Services (USCIS) will begin conducting in-person "green card" interviews for new categories of the applicants, who were approved without an interview in the past.

This change complies with Executive Order 13780, “Protecting the Nation From Foreign Terrorist Entry Into the United States,” and is part of the strategy to improve the detection and prevention of fraud and enhance the integrity of the immigration system.

Effective October 1, 2017, USCIS will begin to phase-in interviews for the following:

• Adjustment of status applications based on employment, EB categories (Form I-485, Application to Register Permanent Residence or Adjust Status).

• Refugee/asylee relative petitions (Form I-730) for beneficiaries who are in the United States and are petitioning to join a principal asylee/refugee applicant.

Previously, applicants in these categories did not require an in-person interview with USCIS officers in order for their application for permanent residency to be adjudicated.

Beyond these categories, USCIS is planning an incremental expansion of interviews to other benefit types.

As a practical matter, this new rule may result in severe backlogs now in the USCIS system, and "green card" interview wait times going up to over a year or more in some field offices.

Read more here.

Briefly in Russian:

Начиная с 1 октября 2017, USCIS вводит интервью на грин карту по всем рабочим категориям, а также для родственников тех, кто получил статус политическое убежище или статус беженца, и находится в США.

Ранее эти категорий заявителей на интервью не вызывали.

Также USCIS намекает, не вдаваясь в детали, что в будущем они введут обязательные интервью и для других категорий дел (не только грин карты).

На практике это приведет к задержкам по рассмотрению заявлений на грин карты. Если на сегодняшний день в некоторых городах и штатах США ожидание интервью на грин карту занимает 8-12 месяцев, то эти сроки могут увеличится вдвое.

New USCIS Advance Parole Travel Document Policy

8/25/2017

Warning for travelers on advance parole with I-485 pending: in an abrupt divergence from previous practice, the USCIS has begun denying I-131 Applications for Advance Parole if the Applicant had departed the U.S. while the application was pending.

When denying I-131 advance parole applications, USCIS is citing the I-131 *Form instructions*, "[i]f you depart the United States before the Advance Parole Document is issued, your application for an Advance Parole Document will be considered abandoned" .

Please don't depart the U.S. until after your advance parole or travel document was approved!

Предупреждение для тех, кто планирует путешествовать за пределы США по документу advance parole, пока ваше заявление на грин карту находится на рассмотрении (I-485 pending). USCIS изменило многолетнюю практику, когда требовалось только физическое присутствие заявителя в США во время подачи заявления.

Теперь требуется нахождение заявителя в США на протяжении всего времени, пока заявление находится на рассмотрении (3-4 месяца). В случае выезда за пределы США до утверждения advance parole, заявление будет отклонено, и заявление на грин карту также может пострадать (может быть закрыто).

#advanceparole #traveldocument #I131 #I485

I-864 Affidavit of Support Creates Enforceable Contract Between Sponsor and Immigrant: Effect of Divorce

8/21/2017

On July 28, 2017, the California Court of Appeal, ruled that the USCIS form I-864, Affidavit of Support, creates an enforceable CONTRACT between the sponsor and an immigrant.

In Re Kumar case, an immigrant spouse asked court to enforce her right for support from her US citizen sponsor (spouse), based on the Form I-864, Affidavit of Support (“Form I-864”) that her U.S. spouse submitted to the U.S. federal government in connection with the Form I-130, Petition for Alien Relative he filed on her behalf.

The court held: "We hold that an immigrant spouse has standing to enforce the support obligation created by an I–864 affidavit in state court. We further hold that an immigrant spouse bringing such a claim has no duty to mitigate damages. Because the trial court's ruling in this matter conflicts with our holdings, we reverse. We remand to the trial court to consider the immigrant spouse's contract claim in accordance with this decision."

Facts: US citizen spouse filed a form I–130 immigration visa petition for alien relative on behalf of his foreign wife, and the petition was approved. In connection with bringing his new wife to the United States, he signed a form I–864 affidavit of support (I–864 affidavit) and submitted it to the federal government. The purpose of an I–864 affidavit is “to ensure that an immigrant does not become a public charge.” (Younis v. Farooqi (D.Md. 2009) 597 F.Supp.2d 552, 557, fn. 5.)

”Under the heading “Part 8. Sponsor's Contract,” the I–864 affidavit signed by the sponsor gave the following warning: “Please note that, by signing this Form I–864, you agree to assume certain specific obligations under the Immigration and Nationality Act and other Federal laws.” On the same page, the affidavit explained that, by signing the affidavit, the sponsor agreed to “provide the intending immigrant any support necessary to maintain him or her at an income that is at least 125 percent of the Federal Poverty Guidelines for his or her household size ․” The affidavit further stated, “If you do not provide sufficient support to the person who becomes a permanent resident based on the Form I–864 that you signed, that person may sue you for this support.”

This continues recent court rulings which have expanded the scope of liability for family-based immigration sponsors through the Form I-864, as the U.S. Court of Appeals for the Ninth Circuit did in June 2017.

The purpose of a Form I-864 is to ensure that an immigrant does not become a “public charge” and receive certain publicly funded benefits that would render that immigrant inadmissible under INA § 212(a)(4).

A Form I-864 is required for most family-based immigrants and some employment-based immigrants to show that they have adequate means of financial support and are not likely to rely on the U.S. government for financial support. A sponsor must show on a Form I-864 that he/she has income and/or assets to maintain the intending immigrant(s) and the rest of his/her household at 125 percent of the Federal Poverty Guidelines.

As indicated in the instructions of the Form I-864, the affidavit of support is a contract between a sponsor and the U.S. Government. However, Part 8 of the Form I-864 states that “if an intending immigrant becomes a lawful permanent resident in the United States based on a Form I-864 that you have signed, then, until your obligations under Form I-864 terminate, you must [p]provide the intending immigrant any support necessary to maintain him or her at an income that is at least 125 percent of the Federal Poverty Guidelines for his or her household size.”

In Re Kumar case, the California Court of Appeal looked to the statute, applicable regulations, the actual Form I-864 signed by the U.S. citizen, and federal and other state’s court’s opinions to guide its ruling. In particular, the court cited 8 C.F.R. § 213a.2(c)(2)(i)(C)(2), a federal regulation which provides that
“The intending immigrants and any Federal, state, or local agency or private entity that provides a means-tested public benefit to an intending immigrant are third party beneficiaries of the contract between the sponsor and the other individual or individuals on whose income the sponsor relies and may bring an action to enforce the contract in the same manner as third party beneficiaries of other contracts.”

Additionally, the court ruled that an immigrant spouse seeking to enforce the support obligation of Form I-864 has no duty to seek employment to mitigate damages. The court used the plain language at 8 U.S.C. § 1183a(a) and the rationale included in the case Liu v. Mund, 686 F.3d 418 (7th Cir. 2012) to rule that “an alien’s failing to seek work or otherwise failing to mitigate his or her damages” is not an “excusing condition” of the sponsor’s obligations under the Form I-864.

In response to this case, it is important that U.S. sponsors or immigrants speak with experienced U.S. immigration attorney about the affidavit of support issue before signing any divorce documents. It is important to remember that:
*** the Affidavit of Support obligations don't end with divorce.
***Joint sponsor's obligations don't end with divorce, as well.
***An immigrant doesn't have to work or seek employment in order to mitigate sponsor's obligation of support.
***Sponsor's obligations end, for example, when an immigrant becomes a naturalized U.S. citizen, so it might be in sponsor's interests to ensure that a former spouse becomes a US citizen in order to end his or her financial support.

US Embassy in Russia Suspended Issuance of Nonimmigrant Visitor Visas

8/21/2017

Effective August 23, 2017, the U.S. Embassy suspended issuing nonimmigrant visas for eight days until September 1, 2017 in response to the Russian decision to cut embassy and consulate staff in Russia by 755, or by two-thirds.

The embassy would resume issuing visas in Moscow consulate only on September 1 2017, but will no longer issue any visas at the U.S. consulates in St. Petersburg, Yekaterinburg and Vladivostok indefinitely.

It's expected that visitor visa appointment wait time could be as long as six months!

Nearly a quarter of a million Russian tourists visited the U.S. last year, according to Russian tourism officials.

In August 2017, Russia ordered the U.S. to cut its embassy and consulate staff in Russia by 755. Congress approved sanctions against Russia for meddling in the 2016 U.S. election and for its aggression in Ukraine and Syria.

Read more here.

Briefly in Russian:

С 23 августа по 1 сенбября 2017 США временно приостановили выдачу гостевых и других неиммиграционных виз в России.

После 1 сентября 2017 только консульство США в Москве будет выдавать визы. Три оставшиеся консульства прекратят выдачу виз на неопределенное время.

Ожидается, что сроки выдачи виз затянулся до 6 месяцев. Эта мера - последствие августовских санкций и выдворения 755 сотрудников американского посольства из России.

MAVNI: Foreign Nationals Soldiers Sue Pentagon and DHS

8/3/2017

Soldiers in the U.S. Army Reserve are suing the Pentagon and the Department of Homeland Security for stalling their citizenship applications after they joined the military through MAVNI, a program that promised them fast-track naturalization for their service.

“Each plaintiff-soldier has kept his/her end of the bargain,” their lawsuit states. The immigrant recruits did their part by enlisting, training in drills with their unit, and subjecting themselves to deployment. The U.S. Army certified their service, and the military is supposed to provide citizenship as soon as they complete basic training or attend drills.

But at the Pentagon’s request, the Homeland Security Department is not processing their applications, as required.

Pentagon and Homeland Security officials now say they are considering going back and changing who is eligible to receive a certification of military service, possibly even revoking the certifications for those soldiers not in active-duty service.

Although the soldiers named in this suit received their certifications, they “could be considered signed in error and may be decertified,” said Director of Military Accession Policy at the Pentagon, citing the program’s guidance.
The delay has put some soldiers at risk of deportation, the lawsuit states. These soldiers are “suffering irreparable harm” and financial strain as they face uncertainty about their status, unable to get a job, a drivers license, or a passport to visit sick family members, their attorneys say.
The 10 reservists who brought the suit were recruited through the Pentagon’s Military Accessions Vital to the National Interest program, known as MAVNI, which gives expedited citizenship to legal immigrants who enlist with critical language skills or medical training.
Nearly 10,000 immigrants are in the MAVNI program, most of them serving in the Army. The popular program was allowed to accept 5,000 recruits in 2016, but was frozen last fall after security concerns about the vetting of recruits.

Now the Pentagon is considering scrapping it altogether, according to an internal memo included in the suit. This would leave roughly 1,000 non-citizen recruits at risk of deportation despite being enlisted in the U.S. military.
Read the full article here.

The 180-Day Rule for Canadian Visitors to USA

8/1/2017

We often get inquiries from Canadian citizens who make frequent or lengthy trips to the United States annually. They have heard about a so-called “180-day rule” that allows a Canadian visitor to visit the U.S. for the maximum period of 180 days.

Although many Canadians citizens do not get a passport stamp or entry document that authorizes entry for a specific term, U.S. Customs and Border Protection (CBP) takes the position that Canadians citizens are deemed to be admitted for a maximum of six months. However, CBP may stamp a passport allowing a much shorter period of admission (only 5 days, two months, etc), in the situation where a Canadian citizen travels often to the U.S. which raises questions that he or she is not merely a visitor.

A person is in violation of the immigration laws if he or she does not depart the United States within the six-month limit (or whatever period is allowed by CBP), thereby becoming deportable and ineligible for other immigration benefits. Longer periods of overstay and unlawful presence of over a year can lead to a ban for 10 years.

But that rule has nothing to do with the person who makes frequent short visits that aggregate 180 days or more during the year. A Canadian citizen could theoretically come across (and depart) as a visitor every day and accumulate 365 days of presence in the United States without raising any concerns about overstay or unlawful presence. Such a pattern could certainly lead to more CBP scrutiny at the border as to the nature of the visits, to rule out the possibility that the person is working or living illegally in the United States.

Immigration rule summary: A Canadian citizen should not remain in the United States continuously for more than six months as a visitor (or longer than the admission period allowed by the CBP, if CBP allowed a shorter period of admission to USA). Aggregate time frames in excess of six months do not violate any immigration law, but they might create more CBP scrutiny at the border, requiring the person to prove how he or she qualifies as visitor, to prove that they do not work in the United States. For the business visitor, this might require some advance planning and the implementation of record-keeping techniques that easily and credibly explain the number, nature, and duration of prior trips.

The second part of the “180-day rule” relates to U.S. tax issues. If you spend too much time in the United States you can be deemed a resident for U.S. federal income tax purposes, requiring to file a U.S. income tax return and report all worldwide income even if there is no earned income in the United States or any other activity that would require a U.S. tax filing.

The IRS uses a “substantial presence” test to determine if someone is a resident for U.S. federal income tax purposes in a given calendar year. The “substantial presence” test is a mechanical formula based solely on the number of days on which an individual is present in the United States. The formula is applied to make a determination each calendar year. To be classified as a U.S. resident under the substantial presence test for a particular year, an individual must be physically present in the United States on at least 31 days of the current calendar year, and the sum of the following must equal 183 or more days: 1) all days in the United States in the current year, plus 2) one-third of the days in the immediately preceding year, plus 3) one-sixth of the days in the second preceding year.

The general rule of thumb is to keep presence in the United States under 120 days each year. (The designation “resident” for federal income tax purposes has nothing to do with immigration status or actual place of domicile; it just means that the person must file a U.S. resident return and report his or her worldwide income.)

Thus, someone who consistently visits the United States for around 180 days a year is going to satisfy the substantial presence test and be deemed a U.S. resident for federal income tax purposes. That isn’t the end of the analysis, however, because there are exceptions, including the “closer connection” and “tie-breaker” rules under the Internal Revenue Code and U.S.-Canada Tax Treaty that may allow the person to avoid being subject to U.S. tax on their worldwide income even if the actual number of days creates substantial presence.

The closer connection exception is only available if the individual is present less than 183 days in the current year. In order to claim the application of one of these exceptions, the individual is required to affirmatively file a tax return or other information statement with the IRS. The closer connection exception is generally preferred because it does not require additional information filings with the IRS as does the treaty exception.

Tax rule summary. A person will not be considered a resident for U.S. federal income tax purposes if he or she keeps the number of days in the United States to under 120 days on a consistent basis. Individuals who do satisfy the substantial presence test may nevertheless still avoid residency status under the closer connection or treaty tie-breaker rules (though they do not avoid U.S. tax filings altogether).

It is a good rule of thumb to keep visits to USA to less than 120 days annually. If that is not possible, the Canadian visitor should keep presence under 183 days so that he or she can elect the closer connection exception if otherwise applicable to the Canadian’s situation. An over-simplistic approach might lead to unintended consequences or lost opportunities.

Please note that this overview is provided for general information purposes only, and should not be considered legal advice. To receive advice regarding your tax liability you should consult a professional who specializes in taxation. Our firm only deals with immigration matters.

Toronto, Ontario, Canada

New Updated Form I-9 Must Be Used After September 17, 2017

8/1/2017

United States Citizenship and Immigration Services (USCIS) recently published a revised Form I-9, Employment Eligibility Verification, that employers must use to verify identity and employment authorization of all new hires, edition date July 17, 2017.

While there are no substantive changes to the current I-9 Form (because it was recently updated in November 2016), employers are urged to use the new Form I-9 as an opportunity to offer I-9, E-Verify and anti-discrimination training and for the purpose of assessing their state of immigration compliance.
The current (previous) I-9 form may be used until September 17 2017. As of September 18, the only acceptable I-9 form is the one with the revision date of 7/17/17.

The new form updates:

Updated name of the Office of Special Counsel for Immigration Related Unfair Employment Practices (OSC) to Immigrant and Employee Rights Section (IER).
Form I-9 clarification regarding the timing by which individuals hired must present a completed I-9 form from "by the end of the first day of employment" to "by the first day of employment." Employers may therefore wish to revisit their own I-9 policies and procedures to ensure that section 1 of the I-9 Form is completed no later than when the employee starts work for pay.
List C acceptable documents have been revised to include Form FS-240, a Consular Report of Birth Abroad, which is issued by the Department of State to certain individuals born abroad to a U.S. citizen parent. Although this form had previously been in use, the revision should assist employers who were previously told it was not an acceptable document to establish employment authorization. Further, USCIS combined all forms issued by the Department of State that report a birth into one section.
USCIS has updated the M-274 I-9 Handbook to reflect the Form I-9 updates. Further, USCIS has issued a handbook in a new online format in addition to their PDF version. The online format also provides a selectable table of contents allowing the reader to select a chapter or subsection, including a 'Table of Changes" section.

See the new revised Form I-9 and instructions here.