Clarke and Associates are the best US immigration lawyers in New York. Call 1-844-GOT-VISA today. Visit our offices in Long Island or Brooklyn for a consultation.

SERVICES

 

GREEN CARD

You may be able to obtain a green card (lawful permanent residence) through your family, employment, asylum status, a self petition, or a number of other special provisions. In general, to meet the requirements for permanent residence in the United States, you must:

• Be eligible for one of the immigrant categories established in the Immigration and Nationality Act (INA);
• Have a qualifying immigrant petition filed and approved for you (with a few exceptions);
• Have an immigrant visa immediately available; and
• Be admissible to the United States.

Eligibility for an Immigrant Category
Individuals who want to become immigrants (lawful permanent residents) through their qualified family member, employment, or a special category will generally be classified in the following categories based on a preference system:

A. Family-Based
Immediate Relatives of U.S. Citizens: do not have to wait for a visa to become available, because there is no limit to the number of visas that can be utilized in this category in any year. Immediate relatives include:

• Parents of a U.S. citizen;
• Spouses of a U.S. citizen; and
• Unmarried children under the age of 21 of a U.S. citizen.

Note: A U.S. citizen must be at least 21 years old to apply for their parent.

Qualified Relatives of a U.S. Citizen or Permanent Resident: in the remaining family-based categories may have to wait for a visa to become available before they can apply for permanent residency, because there is a limit to the number of visas that can be utilized in this category in a particular year. These categories include:

First Preference: Unmarried, adult (21 years of age or older) sons and daughters of U.S. citizens;
Second Preference A: Spouses of permanent residents and the unmarried children(under the age of 21)) of permanent residents;
Second Preference B: Unmarried sons and daughters (21 years or age or older) of permanent residents;
Third Preference: Married sons and daughters of U.S. citizens, their spouses and their minor children; and
Fourth Preference: Brothers and sisters of adult U.S. citizens, their spouses and their minor children.

B. Job or Employment-Based
People who want to become immigrants based on employment or a job offer may obtain a green card, when an immigrant visa number becomes available according to the following employment-based preferences:

First Preference: Priority Workers, including aliens with extraordinary abilities, outstanding professors and researchers, and certain multinational executives and managers;
Second Preference: Members of professions holding an advanced degree or persons of exceptional ability (including individuals seeking a National Interest Waiver);
Third Preference: Skilled Workers, professionals and other qualified workers;
Fourth Preference: Certain special immigrants including those in religious vocations; and
Fifth Preference: Employment creation immigrants (investors or entrepreneurs)

To check the availability of visas in the above family or employment-based preferences, visit: www.travel.state.gov for the most current visa bulletin.

C. Based on Refugee or Asylum Status

If you were admitted to the United States as a refugee or the qualifying spouse or child of a refugee, you are required to apply for permanent residence (a green card) 1 year after your entry into the United States in this status. If you were granted asylum in the United States or are a qualifying spouse or child of an asylee, you may apply for permanent residence 1 year after the grant of your asylum status.

D. Other Ways

There are many other ways to get a green card, including: Amerasian Child of a U.S. Citizen; American Indian Born in Canada; Armed Forces Member; Cuban Native or Citizen; Diversity Immigrant Visa Program; Haitian Refugee; Help HAITI Act of 2010; Indochinese Parole Adjustment Act; Informant (S Nonimmigrant); Lautenberg Parolee; Legal Immigration Family Equity (LIFE) Act; Person Born to Foreign Diplomat in United States; Registry; Section 13 (Diplomat); Victim of Criminal Activity (U Nonimmigrant); Victim of Trafficking (T Nonimmigrant); Nicaraguan and Central American Relief Act (NACARA); Afghan/Iraqi Translator; Broadcaster; International Organization Employee; Iraqi Who Assisted the U.S. Government; NATO-6 Nonimmigrant; Panama Canal Employee; Physician National Interest Waiver; Religious Worker; Battered Spouse or Child (VAWA); K Nonimmigrant (includes fiancé(e)); V Nonimmigrant; Widow(er), etc.

 

Immigrant Petition

Immigrants in most categories will need an immigrant petition (Form I-130, Petition for Alien Relative, Form I-140, Immigrant Petition for Alien Worker, or Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, or another petition) filed on their behalf.
A petition forms the basis for your ability to immigrate and determines your immigrant category. Some categories of immigrants may be able to self-petition. Most people immigrating based on humanitarian programs are exempt from the petition requirement.
Some immigrant petitions can be filed at the same time as the adjustment application (Form I-485, Application to Register Permanent Residence or Adjust Status), known as “concurrent filing” (or “simultaneous filing”), while other categories of immigrants will be required to wait until they have an approved petition before being allowed to apply for adjustment of status or an immigrant visa.

Visa Availability

A visa is always available for immediate relatives of U.S. citizens. If you are in a family-based or employment-based preference category, visa availability is determined by, your priority date, the preference category under which you are immigrating, and the country the visa will be charged to (usually your country of citizenship).

Admissibility to the United States

All persons applying for an immigrant visa or adjustment of status must prove to the satisfaction of immigration or consular officials that they are eligible for admission to the United States. There are many grounds of inadmissibility, including health-related, criminal, security-related, and other grounds. If you are inadmissible, you may nevertheless be eligible for a waiver of your inadmissibility.

ADJUSTMENT OF STATUS

When a visa is available, you may file Form I-485, Application to Register Permanent Residence or Adjust Status or apply for an immigrant visa. Adjustment of Status is an application to obtain Lawful Permanent Residence in the United States without having to return to your home country to complete processing at a U.S. Embassy. If you are present in the United States, you may be eligible to adjust your status to that of a Lawful Permanent Resident provided that:

1. You are legally here in the United States in a Non-Immigrant Visa Category, and the priority date on a Family or Employment Immigrant Visa Petition filed on your behalf, is current; or

2. You have not overstayed your authorized stay as stamped on your I-94 arrival/departure record by 180 days or more and the priority date on a Family or Employment Immigrant Visa Petition filed on your behalf, is current; or

3. You have a priority date on a Family-based or Employment-based Immigrant Visa Petition which is on or before January 14, 1998 and that priority date is now current OR You have a priority date on a Family based or Employment based Immigrant Visa Petition which is on or before April 30, 2001 (up to May 3 2001 if you have proof your application was mailed on or before April 30, 2001), and you were physically present in the United States on December 21, 2000, and your priority date is now current; or

4. You are an immediate relative of a U.S. Citizen (spouse; child under the age of 21; or parent of a U.S. Citizen who is 21 years or older); and, you entered the United States legally on a Non-Immigrant Visa (except certain seamen visas - D Visas), regardless of how long you have overstayed as stamped on your I-94 arrival/departure record; or

5. You are a Battered Spouse of a U.S. Citizen or Permanent Resident; or

6. You are a Widow or Widower of a U.S. Citizen and you entered the United States legally on a Non-Immigrant Visa; or

7. One year after your application for asylum was approved; or

8. You have resided continuously in the United States from 1972 to the present; or

9. You are the beneficiary of an Amnesty application or you fall into some "other" miscellaneous group, mentioned above.

CONSULAR PROCESSING

If you are the beneficiary of an approved immigrant visa petition and you have an immigrant visa number immediately available, you may apply to a U.S. Department of State consulate abroad for an immigrant visa in order to come to the United States and be admitted as a permanent resident. This path is called “consular processing.” If you are consular processing, USCIS will forward your approved petition to the Department of State’s National Visa Center which will contact you when your priority date is about to become current, and advise of your next steps and when you may apply for an immigrant visa abroad.

 

WORK AUTHORIZATION

If you are not a United States Citizen or a Lawful Permanent Resident, you may need to apply for an Employment Authorization Document (EAD) to prove that you are authorized to work in the United States. The three categories of persons who are eligible for employment authorization in the United States are:
        - Authorization to work in the United States as a result of your nonimmigrant status.
        - Authorization to work for a specific employer as a result of your nonimmigrant status
        - Authorization due to being in a category which requires you to file for permission to work

USCIS issues Employment Authorization Documents (EAD) in the following categories:

- EAD: This document proves you are allowed to work in the United States
- Renewal EAD: You cannot file for a renewal EAD more than 120 days before your original EAD expires.
- Replacement EAD: This document replaces a lost, stolen, or mutilated EAD. A replacement EAD also replaces an EAD that was issued with incorrect information, such as a misspelled name.

Some of those who fall into the first and third categories, including individuals who have a pending Form I-485, Application to Register Permanent Residence or Adjust Status, are required to apply for work authorization and an Employment Authorization Document (EAD) with the Form I-765, Application for Employment Authorization prior to seeking work in the United States. The EAD is the proof that you will show to your employer that you are allowed to work in the United States. In most cases, Employment Authorization Documents are granted for a 1 year period.

When filling out the application for Employment Authorization one of the questions asked of the applicant is their eligibility category. Because there are many different ways in which a person may apply for and be granted permission to work, it is important that you write the correct eligibility category on your application. For a list of all the eligibility categories please visit the USCIS website at http://www.uscis.gov

 

TEMPORARY (NON-IMMIGRANT) WORKERS (H-1B)

The H1B visa enables US employers to hire foreign professionals for a specified period of time. The H1B program allows workers in “specialty occupations” to work in the U.S. for an initial three (3) years, and may be extended in increments of up to a total of six (6) years. The offer of employment must be to perform services within a “specialty occupation” which requires theoretical and practical application of a body of highly specialized knowledge and a bachelor’s or higher degree in the specific specialty as a minimum for entry into the occupation. Professionals where generally a license is required, such as lawyers, doctors, accountants and others, must be licensed to practice in the state of intended employment before an H1B can be filed for them. An example of “specialty occupations” includes:

• IT / Computer professionals
• University professors and teachers
• Engineers
• Healthcare workers
• Accountants
• Financial analysts
• Management consultants
• Lawyers
• Architects
• Nurses
• Physicians
• Surgeons
• Dentists
• Scientists
• Systems analysts
• Journalists and editors
• Foreign Law advisors
• Psychologists
• Technical publications writers
• Market research analysts
• Fashion Merchandisers
• Teachers in elementary or secondary schools, colleges

The offer of employment may be full or part time employment. The employer may begin applying for the H1B visa six months before the actual start date of the visa.

The H-1B visa (specialty occupation) is subject to an annual numerical quota. The current H1B cap is set at 65,000 plus an additional 20,000 for professionals with a Master’s or higher degree. The cap does not apply to the new applications for an H1B with: non-profit organizations, Government Research organizations, and institution of higher education.

New H1B legislation requires certain employers, called “H1B dependent employers” to advertise positions in the United States before petitioning to employ H1B workers for those positions. H1B dependent employers are defined as those having more than 15% of their employees in H1B status for firms with over 50 employees. Firms with fewer than 50 empoyees are allowed a higher percentage of H1B employees before becoming “H1B dependent.”

Spouses and unmarried children under 21, may accompany the foreign worker to live in the United States on the H4 visa, but they are not allowed to work in the United States (unless they obtain their own H4 visa).

H1B visa permits “dual intent,” which means that a foreign worker may be sponsored for a permanent employment, or obtain lawful permanent residence (LPR) by any other means.

 

PERMANENT LABOR CERTIFICATION PROGRAM (PERM) FOR PERMANENT WORKERS

A permanent labor certification issued by the U.S. Department of Labor (DOL) allows an employer to hire a foreign worker to work permanently in the United States. Permanent labor certification program (PERM) came into effect on March 28, 2005, and applies to labor certification applications for the permanent employment of aliens filed on or after that date. In most instances, before the U.S. employer can submit an immigration petition to the Department of Homeland Security's U.S. Citizenship and Immigration Services (USCIS), the employer must obtain a certified labor certification application from the DOL's Employment and Training Administration (ETA). The DOL must certify to USCIS that there are not sufficient U.S. workers able, willing, qualified and available to accept the job opportunity in the area of intended employment and that employment of the foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers.
Even before the PERM Application is submitted to the DOL, there are several steps that the employer must satisfy:

Registration:
The employer must register to use the Permanent Online System for electronic filing of labor certification applications (ETA 9089). Only an employee or owner of the employer entity (not its lawyer or agent) may register. To register the employer must go to www.plc.doleta.gov. The registration must be submitted by an individual with actual hiring authority for the employer. During the registration process, the employer may create subaccounts for attorneys or agents to permit them to file applications in their name. The recruitment process must occur prior to filing the PERM Application, but it may begin before receiving the prevailing wage determination from the SWA.

Prevailing Wage:
The employer (through its agent or representative) must obtain a prevailing wage determination from the State Workforce Agency (SWA) having jurisdiction over the proposed are of intended employment. Determination of the prevailing wage is established by analyzing similarly employed persons in the area of intended employment.

Recruitment:
Recruitment under the PERM system is also performed before the Application is submitted electronically to the DOL. There here are two basic recruitment requirements:

1. Placing of a 30-day job order with the State Workforce Agency (SWA).

2. Placing an advertisement on two different Sundays in a newspaper of major circulation in the area of intended employment.

Recruitment must be conducted within the 6-month period prior to filing the PERM Application. The job order and two print advertisements must be placed at least 30 days but no more than 180 days before filing.

Professional occupations require specialized recruitment, in the form of three
additional recruitment steps, which must be chosen from the following: (1) Job fairs; (2) Employer's website; (3) Job search website other than the employer's; (4) On-campus recruiting; (5) Trade or professional organizations; (6) Private employment firms ; (7) Employee referral program with incentives; (8) Campus placement offices; (9) Local and ethnic newspapers; and (10) Radio and television advertisements.

After the recruitment is completed, the employer must prepare a recruitment report in which it categorizes the lawful job-related reasons for rejection of U.S. applicants and provides the number of U.S. applicants rejected in each category.

Audits:
Supporting documentation may not be filed with the PERM Application, but the employer must provide the required supporting documentation if the employer's application is selected for audit

Retention of Documents:
The employer is required to retain copies of applications for permanent employment certification and all supporting documentation for five years from the date of filing the PERM Application.

After the PERM Application is certified by the DOL, the employer has 180 days in which to file Immigrant Petition for Alien Worker (Form I-140) with USCIS. If a visa is current, Form I-140 may be filed together with the Adjustment of Status Application (Form I-485).

Spouses and unmarried children under 21, may derive status through the principal employee.

  

INVESTMENT VISA (EB-5)

 

This visa is open to all nationalities. There is an annual quota of 10,000 of such visas available, 3,000 of which are reserved to applicants who invest in "targeted employment areas" which are areas with above average unemployment and/or rural areas. Petition processing time in this category is current because the number of applicants has never reached the yearly quota.

To begin the immigration process, entrepreneur must file a petition with USCIS. If the entrepreneur is outside the United States, he or she goes through  visa processing. If inside the United States, entrepreneur applies for Adjustment of Status with USCIS. After the petition is approved, entrepreneur is granted a two-year (2) conditional lawful resident status (i.e. conditional “green card”). Within a 90-day period immediately preceding the expiration of the conditional lawful resident status, entrepreneur must apply for removal of conditions, and is granted a permanent lawful resident status (i.e. permanent “green card”). After four years (4) and nine (9) months of obtaining the conditional lawful resident status (i.e. conditional “green card”), the entrepreneur is eligible to apply for U.S. citizenship.

Under the EB-5 category, entrepreneur’s (“principal”) spouse and unmarried children under 21 years of age (“derivatives”) may obtain the same status as the entrepreneur.

BASIC REQUIREMENTS:
1. Investment amount:

    1. Either $1 million in a New Enterprise; or
    2. $500,000 in a Targeted Employment Area (TEA) or Rural Area;
      •  TEA - means an area which, at the time of investment, is a rural area or an area which has experienced unemployment of at least 150 per cent of the national average rate.
      •  Rural Area - means any area not within either a metropolitan statistical area (as designated by the Office of Management and Budget) or the outer boundary of any city or town having a population of 20,000 or more. 
    3. Investment may be done individually or through a Designated Regional Center.

2. Create at least 10 full-time employment positions:

    1. Investment must create at least 10 full-time positions for U.S. citizens, lawful permanent residents, or other immigrant lawfully authorized to be employed in the United States;
    2. This excludes entrepreneur, entrepreneur’s spouse, son or daughter or nonimmigrant alien.
    3. “Full-time” means employment in a position that requires at least 35 hours of service per week at any time, regardless of who fills the position.

 

3. Lawful source of funds:

    1. Entrepreneur must clearly document evidence of the source of the funds invested;
    2. This means that entrepreneur must show that the funds were obtained through lawful means;
    3. Such evidence may include:

Foreign business transaction records
Corporate, Partnership or other Tax Returns for the past 5 years
Personal Tax Returns for the past 5 years
Property Sales
Other sources of capital
Certified copies of any judgments
Gift
Inheritance

4. “At risk” investment

    1. USCIS requires that the entrepreneur’s investment be “at risk;”
    2. This means that entrepreneur’s mere intent to invest, or of prospective investment arrangements entailing no present commitment, will not suffice to show that the petitioner is actively in the process of investing.

    3. Entrepreneur must show actual commitment of the required amount of capital, and that he or she faces actual risk of loss of his personal capital.

5. Management

    1. If the investment is done through an individual new enterprise, entrepreneur must show that he or she will be engaged in the management of the enterprise (either day-to-day managerial control or through policy formulation);
    2. Investment through a Designated Regional Center allows for entrepreneur’s “passive” management.

 

 

NATURALIZATION/CITIZENSHIP

Naturalization is the process by which U.S. citizenship is granted to a foreign citizen or national after fulfilling the requirements established by Congress in the Immigration and Nationality Act (INA).
You May Qualify for Naturalization if:

• You have been a lawful permanent resident for at least 5 years and meet all other eligibility requirements, including:

- Be 18 years or older
- Have lived within the state, or USCIS district with jurisdiction over the applicant’s place of residence, for at least 3 months prior to the date of filing the application
- Have continuous residence in the United States as a green card holder for at least 5 years immediately preceding the date of the filing the application
- Be physically present in the United States for at least 30 months out of the 5 years immediately preceding the date of filing the application
- Reside continuously within the United States from the date of application for naturalization up to the time of naturalization
- Be able to read, write, and speak English and have knowledge and an understanding of U.S. history and government.
- Be a person of good moral character

• You have been a permanent resident for 3 years or more and meet all eligibility requirements to file as a spouse of a U.S. citizen.
• You have qualifying service in the U.S. armed forces and meet all other eligibility requirements.
• Your child may qualify for naturalization if you are a U.S. citizen, the child was born outside the U.S., the child is currently residing outside the U.S., and all other eligibility requirements are met.
• You may already be a U.S. citizen and not need to apply for naturalization if your biological or adoptive parent(s) became a U.S. citizen before you reached the age of 18.

 

NON-IMMIGRANT VISAS

Nonimmigrant visas are issued to citizens of foreign countries coming to the U.S. temporarily. The visa allows you to travel to a U.S. port-of-entry, e.g. airport, and request permission of the Department of Homeland Security, Customs and Border Protection officer to enter the U.S.

Nonimmigrant visas are divided into several main categories which are identified by letter designations. They are: A, career diplomats; B, temporary visitors for business and pleasure; C, aliens in transit; D, crewmembers; E, treaty traders and investors; F, students entering the U.S. to pursue a full course of study; G, international organization representatives; H, temporary workers; I, foreign media representatives; J, exchange visitors such as students, scholars, trainees, teachers, professors, research assistants, and leaders in a specialized knowledge or skill; M, students in non-academic institutions; N parents and children of special immigrants; O, aliens with extraordinary abilities; P, entertainers; Q, cultural exchange program participants; R, religious workers; and TN, for NAFTA professionals

Issuance of a visa does not guarantee entry to the United States. A visa simply indicates that a U.S. consular officer at an American embassy or consulate has reviewed the application and that officer has determined that the individual is eligible to enter the country for a specific purpose. The Customs and Border Protection officer at the port-of-entry will conduct an inspection to determine if the individual is eligible for admission under U.S. immigration law.

 

TEMPORARY PROTECTED STATUS (TPS)

Certain countries are designated for Temporary Protected Status (TPS) due to conditions in the country that temporarily prevent the country's nationals from returning safely, or in certain circumstances, where the country is unable to handle the return of its nationals adequately. The most common reasons are:

        • Ongoing armed conflict (such as civil war), e.g. Sudan, South Sudan
        • An environmental disaster (such as earthquake or hurricane), or an epidemic, e.g. Haiti
        • Other extraordinary and temporary conditions

USCIS may grant TPS to eligible nationals of certain countries who are already in the United States. Individuals who are stateless and who last resided in the designated country may also be granted TPS.

To be eligible for TPS, you must:

• Be a national of a country designated for TPS, or a person without nationality who last habitually resided in the designated country
• File during the open initial registration or re-registration period, or you meet the requirements for late initial filing during any extension of your country’s TPS designation
• Have been continuously physically present in the United States since the effective date of the most recent designation date of your country
• Have been continuously residing in the United States since the date specified for your country. The law allows an exception to the continuous physical presence and continuous residence requirements for brief, casual and innocent departures from the United States.

During a period designated by USCIS, individuals who are TPS beneficiaries or who are found preliminarily eligible for TPS upon initial review of their cases are not removable from the United States, can obtain an employment authorization document, and may be granted travel authorization. Once granted TPS, an individual cannot be detained by DHS on the basis of his or her immigration status in the United States.

TPS is a temporary benefit that does not necessarily lead to lawful permanent resident status in the U.S. Registration for TPS does not prevent you from:

        • Applying for nonimmigrant status
        • Filing for adjustment of status based on an immigrant petition
        • Applying for any other immigration benefit or protection for which you may be eligible

Countries currently eligible for TPS are: - El Salvador, Haiti, Honduras, Nicaragua, Somalia, Sudan, and South Sudan.

 

REMOVAL DEFENSE

Ice Detention and Bond

When an alien is arrested by the Immigration and Customs Enforcement (ICE), he or she may be detained during the course of removal proceedings. Transfers from one detention facility to another are common. When someone is taken into immigration detention, he or she may be eligible for a bond. Your bond eligibility depends on a number of factors, most important of which is crime history, and any other negative factor, including immigration violation. Our expert immigration attorneys can determine your bond eligibility and, when appropriate, apply for a bond or a bond reduction, if the one set by the Service is unreasonably high.

DEFENSES AGAINST DEPORTATION:
A person may have various defenses from immigration removal, and our expert attorneys have extensive knowledge of the complex issues of removal.

Some of the more common types of relief in removal include:

Adjustment of Status: This is the process of applying for a lawful permanent residence (LPR or a "green card") on the basis of a qualifying family or employment relationship. Even if your adjustment application was denied by USCIS, you may renew your application for adjustment before an immigration judge (IJ). The IJ has the power to approve or deny it.

Some adjustment of status cases may require Section 245(i) of the Immigration and Nationality Act (the Act) eligibility, which means that a person must have had a previous visa petition or a labor certification filed on or before April 30, 2001, before he or she can adjust status in the United States.

Victims of domestic violence, spouses, children or parents, may be eligible to apply for Adjustment of Status under the Violence Against Women Act (VAWA), if they were abused by a U.S. citizens or lawful permanent residents (LPR). To be eligible, one must prove relationship to abuser, good faith marriage, if applicable, battery or extreme cruelty by the U.S. citizen or lawful permanent resident spouse, child or parent, and good moral character. The provisions of VAWA apply equally to women and men. Your abuser will not be notified that you have filed for immigration benefits under VAWA.

Challenging the Department of Homeland Security's Charges: When placed in removal proceedings, the Department of Homeland Security (DHS) must give proper notice, called Notice to Appear (NTA), charging alien with specific grounds of "inadmissibility" or "deportability." Sometimes a lawyer can argue that DHS' immigration charges are wrong, or that DHS cannot prove the charges, and the case must be terminated.

Cancellation of Removal: There are three different kinds of Cancellation of Removal:

• Seven-year Cancellation of Removal. To be eligible, one must prove that he or she has been a lawful permanent resident (LPR) for at least five years, has resided in the United States continuously for seven years after being admitted in any status and before the stop-time rule is triggered, and has not been convicted of an aggravated felony. Certain offenses, including offenses relating to controlled substances, and crimes involving moral turpitude (CIMT), trigger the stop-time rule, which prohibits the accrual of the necessary seven-year continuous residence.
• Ten-year Cancellation of Removal. To be eligible, a person must prove that he or she was continuously present in the U.S. for at least 10 years before removal proceedings started, has been a person of "good moral character" during the ten years, and has not been convicted of certain crimes. A person must also show that removal would result in “exceptional and extremely unusual” hardship to a spouse, parent or child who is a U.S. citizen or lawful permanent resident.
• VAWA Cancellation of Removal. A special form of Cancellation of Removal for battered immigrants was created as part of the Violence Against Women Act (“VAWA”) called VAWA Cancellation of Removal. It is a special form of cancellation for victims of battering or extreme cruelty, who were abused by U.S. citizen or lawful permanent resident spouse or parent. To be eligible for VAWA Cancellation of Removal a person must prove relationship to abuser, residence in the United States for three years immediately preceding the filing of the application, battery or extreme cruelty by the U.S. citizen or lawful permanent resident spouse, child or parent, good moral character and “extreme hardship” if deported.

Waivers: Waivers are available for various grounds of inadmissibility and deportability. A waiver may be available for certain types of criminal convictions, fraud and/or misrepresentation, unlawful presence in the United States, and other immigration violations that make a person deportable from the United States. If granted a waiver, a person will be allowed to remain in the United States legally.

Asylum/Withholding of Removal/Protection Under the Convention Against Torture (CAT): These are all forms of protection for people who have suffered persecution or have a fear of persecution in their home country based on:

        • Race
        • Religion
        • Nationality
        • Membership in a particular social group
        • Political opinion

To be eligible for asylum, a person must file an application within 1 year of arrival to the United States. You may include your spouse and unmarried children who are under 21 in your asylum application.

Even if one does not meet eligibility for an asylum, he or she may still be eligible for Withholding of Removal or CAT deferral, if one fears harm in his or her home country.

T and U Visas: T visas are for victims of human trafficking (sex and labor trafficking), while U visas are for victims or certain qualifying crimes, including but not limited to, rape, torture, trafficking, incest, domestic violence, sexual assault, abusive sexual contact, prostitution, sexual exploitation, female genital mutilation, being held hostage, peonage, involuntary servitude, slave trade, kidnapping, abduction, unlawful criminal restraint, false imprisonment, blackmail, extortion, manslaughter, murder, felonious assault, witness tampering, obstruction of justice, perjury; attempt to commit any of the above crimes; or any “substantially similar” crime.

A person may apply for a T or a U visa while in removal proceedings, and if granted, may remain in the United States legally. Both, T and U visa holders may apply for adjustment of status within a proscribed period of time.

Temporary Protected Status (TPS): Temporary protected status (TPS) is an immigration status for foreign nationals residing in the United States whose home countries are temporarily unsafe or overly dangerous. Situations that can make a country unsafe and lead to temporary protected status include: wars, political turmoil, earthquakes and floods, or other natural disasters. Once granted TPS, an individual cannot be detained or deported by DHS on the basis of his or her immigration status in the United States. While TPS is a temporary benefit that does not lead to lawful permanent resident status or give any other immigration status in itself, an individual is permitted to apply for non-immigrant status or adjustment of status, if eligible on another basis.

Voluntary Departure: If a person does not have any possible relief from removal, voluntary departure is an alternative to removal by the DHS. To be eligible, a person cannot have been convicted of an aggravated felony or been engaged in a terrorist activity. If granted voluntary departure, the person must pay the cost for his or her trip home and must depart the United States within a period of time allotted by the IJ, usually within 120 days.

Contact our expert immigration attorneys, who will help you determine any available relief from removal.

 

WAIVERS

Waivers can help you overcome grounds of inadmissibility and deportability, which can prevent you from adjusting status or obtaining relief in removal proceedings. Waivers can be difficult to obtain, so the assistance of an attorney, although not mandatory, is imperative to increase your chances of success. In order to prove that you qualify for a waiver you must usually show that your removal from the United States will cause, you or a qualifying relative, (depending on the waiver being sought), to suffer exceptional and extremely unusual hardship. It is not enough that your qualifying relative will feel uncomfortable or suffer emotional strain from your absence. Therefore, it is paramount that any waiver application be supported in substantial part by objective documentary evidence demonstrating that your particular hardship, warrants relief.

I-212 Permission to Reapply for Admission

Persons who have departed or have been removed from the United States subsequent to a deportation or removal order are inadmissible to the United States for a specified number of years, and will first need to seek permission to reapply for admission into the United States. This is done by filing a Form I-212, Application to Reapply for Admission into the United States After Deportation or Removal. Frequently, this is done in conjunction with an I-601 waiver application (discussed below). Depending on the facts of the applicant’s case, the I-212 application must be made either at the same consulate which will be issuing the visa or at the U.S. Citizenship and Immigration Services office having jurisdiction over the place of the original deportation. The government will consider certain factors in adjudicating a Form I-212 application, such as, the applicant’s moral character, need for the applicant’s services in the United States, the length of time the applicant had been in the United States, the reason the applicant was deported, hardships resulting from deportation, recency of the deportation or removal, evidence of reformation and rehabilitation, the applicant’s family ties to the United States, etc.

Waivers of Inadmissibility
Some common waivers of inadmissibility grounds are:

1. The 212(g) waiver for certain health-related grounds – Aliens who carry communicable diseases of significant public interest are inadmissible. However, this ground may be waived if the alien is the spouse or unmarried child of a United States citizen or LPR or if the alien has a child who is a United States citizen or LRP. Aliens who have no record of certain vaccinations may also be deemed inadmissible. There is a waiver of this ground if the alien receives the vaccine, it is certified by a proper official that the vaccine is not medically appropriate or if the vaccination would violate the alien’s religious beliefs or moral convictions. If an alien is inadmissible on mental health related grounds, there may be a waiver granted as the Secretary of Health and Human Services may provide.

2. The 212(h) waiver for criminal conduct - This waiver is authorized for crimes of moral turpitude, a one-time violation involving the possession of 30 grams or less of marijuana for personal use, multiple convictions, prostitution and serious crimes committed by an alien who has asserted immunity. The alien may be eligible for a waiver if the crime in issue was committed more than fifteen years prior to the date of application for admission, the admission would not be contrary to the national welfare and the alien can demonstration his rehabilitation, OR, if the alien is a spouse, parent or child of a United States citizen (USC) or Lawful Permanent Resident (LPR) and denial of admission would cause an extreme hardship to the USC or LPR. It is very important to note that non-LPRs convicted of aggravated felonies are eligible for a 212(h) waiver whereas LPRs convicted of aggravated felonies are not.

3. The 212(i) waiver for fraud or misrepresentation - A 212(i) waiver may be obtained in the case of an alien who fraudulently procured a visa, if the alien is the spouse or child of a U.S. citizen or an LPR and the Attorney General is satisfied that the refusal of the alien’s admission to the United States would result in extreme hardship to the U.S. citizen or LPR spouse or parent of such alien. Additionally, for those claiming U.S. citizenship falsely, there is only one exception to the finding of inadmissibility, i.e., if each natural parent of the alien is or was a citizen, the alien permanently resided in the US prior to attaining the age of 16 and the alien reasonably believed at the time of making such representation that he or she was a citizen. Otherwise, there is no waiver for those claiming U.S. citizenship falsely.

All of the above waivers of inadmissibility may be applied for using a Form I-601, Application for Waiver of Ground of Inadmissibility.

Waivers of Deportability
Some common waivers for grounds of deportability are:

1. Waiver under Section 245(k) of the INA - This waiver forgives immigration violations such as acceptance of unauthorized employment, failure to continuously maintain a lawful status, failure to be in lawful nonimmigrant status when applying for permanent residence or violation of the terms of a nonimmigrant visa.
2. Waiver under Section 237(a)(1)(H) for fraud or misrepresentation – This is a special waiver for an alien charged with being removable on the basis of being inadmissible at the time of entry or adjustment of status, because of fraud or misrepresentation.
3. Waiver under Section 237(a)(7)for crimes of Domestic Violence, Stalking, or Violation of a Protection Order – The requirements for this waiver include, among other things, that the applicant must have been battered or subject to extreme cruelty and he/she ; the is not the primary perpetrator of violence in the relationship.
4. Waiver related to Removal of condition for Conditional Permanent Residents (CPRs) - a CPR can become removable if he/she violates the condition of maintaining his marriage to a USC prior to the passage of two year’s time. There is a hardship waiver for this situation. In order to qualify for this waiver, the CPR must show that there would be a hardship if he/she were removed, that the marriage was a good faith marriage and the condition of maintaining the marriage was violated through no fault of the CPR. There is also an exception made in the case of a battered spouse who entered into a good faith marriage.

Relief Under Former Section 212(c) of the INA

Commonly called a 212(c) waiver, this relief only applies to those LPRs whose criminal convictions were obtained through plea agreements entered into prior to April 1, 1997, if they would have been eligible for this relief at the time of their plea under the law then in effect. To qualify for this relief, the LPR must show that he/she has at least seven consecutive years of lawful unrelinquished domicile in the United States. Additionally, the LPR must have served five years or less in prison to remain eligible. If the conviction occurred before November 29, 1990, the respondent remains eligible for INA 212(c) relief even if he/she served more than five years in prison. In 212(c) cases, the court will weigh negative factors, such as the severity of the crime, against positive factors, such as the individual’s rehabilitation and ties to the community.

 

MOTIONS TO REOPEN OR RECONSIDER, APPEALS TO ADMINISTRATIVE APPEALS OFFICE (AAO)

If you have applied for an immigration benefit from USCIS and it was denied, you have 30 days from the date of the decision to file a motion to reopen or reconsider the denial. There are exceptions to the 30 day rule, if justified.

Motions to Reopen

A motion to reopen may be filed with the District Director to reopen petitions and applications based on new facts or evidence, or change in the law or policy that makes the requested relief/benefit, available, (or, in an asylum or withholding application, based on changed circumstances in the country of nationality).

Motions to Reconsider

A motion to reconsider is based on legal grounds alone. In such cases, well reasoned arguments must be submitted with supporting precedent, to establish that the denial was based on an incorrect application of law or service policy.

Appeals to the Administrative Appeals Office (AAO)

You can also request that a motion to reopen or reconsider be taken up to the AAO for review. The AAO reviews decisions rendered by the USCIS on a variety of petitions and applications.

 

APPEALS

APPEALS TO THE BOARD OF IMMIGATION APPEALS (BIA)

The Board of Immigration Appeals (BIA) is the highest administrative body for interpreting and applying immigration laws. The BIA has been given nationwide jurisdiction to hear appeals from certain decisions rendered by immigration judges (IJ) and by district directors of the Department of Homeland Security (DHS) in a wide variety of proceedings. BIA decisions are binding on all DHS officers and immigration judges unless modified or overruled by the Attorney General or a federal court. Most BIA decisions are subject to judicial review in the federal courts.

Majority of appeals before the BIA involve orders of removal from an IJ, and applications for relief from removal. Other cases filed with the BIA involve motions for reopening and reconsideration of the BIA’s decisions previously rendered.

It is critical that an appeal is filed timely, as there are no exceptions for the late filing. An appeal to the BIA must be filed no later than 30 calendar days after the IJ renders an oral decision or mails a written decision. With very limited exceptions, a motion to reopen/reconsider must be filed within 90 days of the Board’s final administrative decision.

Our firm has had great success representing clients on appeal to the BIA. Recently Clarke & Associates won a number of BIA appeal cases. Among them, the BIA remanded the case to the IJ to determine whether the crime the client was convicted for was in fact a crime involving moral turpitude (CIMT). The IJ decided that it was, and our client was eligible for the 212(c) waiver. In another matter, the BIA sustained our appeal and agreed with Clarke & Associates that it would cause a lawful permanent resident (LPR) father “exceptional and extremely unusual hardship” if his daughter was to be removed from the United States, where it was established that she was a “surrogate” mother to her 3-year-old sister. Additionally, the BIA sustained our appeal and remanded the case to the IJ, where Clarke & Associates established that the client was not a recidivist, but rather suffered from kleptomania and has shown rehabilitation, and that due to her botched surgery, and severely injured United States citizen mother due to a car accident, her removal from the United States would cause “exceptional and extremely unusual hardship” to her United States citizen children. She was granted Cancellation of Removal.

 

APPEALS TO THE UNITED STATES COURT OF APPEALS

A court of appeals hears appeals from the district courts located within its circuit, as well as appeals from decisions of federal administrative agencies. In May 2005, Congress enacted the REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231 (2005), which made a Petition for Review filed with an appropriate court of appeals the sole and exclusive means for judicial review of such orders.

An alien subject to a final order of removal must first exhaust all available administrative remedies before going to the court of appeals. That means that an alien must first appeal to the Board of Immigration Appeals (BIA), before filing Petition for Review with the court of appeals. A Petition for Review must be filed no later than 30 days after the date that an administrative decision becomes final.
A challenge to a BIA or ICE decision may involve legal, constitutional, factual, and/or discretionary claims. In general, (1) legal claims assert that BIA/ICE erroneously applied or interpreted the law; (2) constitutional challenges assert that BIA/ICE violated a constitutional right; (3) factual claims assert that certain findings of fact made by BIA/ICE were erroneous; and (4) discretionary claims assert BIA/ICE reached the wrong conclusion when exercising discretion.
Whether a particular claim is reviewable in the court of appeals often requires a complicated legal analysis and is informed by evolving case law. Even where a statutory bar applies, court of appeals still have jurisdiction to review questions of law or constitutional claims. See INA § 242(a)(2)(D), 8 U.S.C. § 1252(a)(2)(D) (added by REAL ID Act.) Following the REAL ID Act amendments, few, if any, issues remain reviewable via habeas corpus. Thus, it is advisable to timely file a Petition for Review to preserve petitioner’s right to seek review in the court of appeals.
Clarke & Associates represents clients in federal courts, nationwide. Through the years, we have successfully petitioned and won a number of significant cases before the United States Court of Appeals for the Second Circuit. We have won a case where the Court of Appeals agreed that the intervening case law, Blake v. Holder, was controlling in our client’s situation, and the case was sent back to the Board of Immigration Appeals, which in turn, remanded the case to the IJ, where the client was able to apply for Adjustment of Status. In another successful case, the Court of Appeals sustained our appeal where Clarke & Associates was able to establish that the crime the client was convicted for did not necessarily constitute an aggravated felony for immigration purposes. The matter was remanded to the IJ, who granted the client Cancellation of Removal

PROSECUTORIAL DISCRETION

Prosecutorial discretion (PD) allows a person to remain in the United States with the consent of the Immigration and Customs Enforcement/Department of Homeland Security (ICE/DHS). PD may take different forms, including Deferred Action Status, Order of Supervision, Termination or Administrative Closure of the removal proceedings, Staying Final Order of Removal, and others. Some forms of prosecutorial discretion permit employment authorization.

Whether to exercise prosecutorial discretion is made on a case-by-case basis, and it may be exercised at any stage of the immigration proceedings. Recently, John Morton, Director of Immigration and Customs Enforcement (ICE), issued new memoranda encouraging the expanded use of prosecutorial discretion by ICE officers, agents, and attorneys in all phases of civil immigration enforcement. Among the factors considered for prosecutorial discretion are:

• the agency's civil immigration enforcement priorities;
• the person's length of presence in the United States, with particular consideration given
to presence while in lawful status;
• the circumstances of the person's arrival in the United States and the manner of his or her
entry, particularly if the alien came to the United States as a young child;
• the person's pursuit of education in the United States, with particular consideration given
to those who have graduated from a U.S. high school or have successfully pursued or are
pursuing a college or advanced degrees at a legitimate institution of higher education in
the United States;
• whether the person, or the person's immediate relative, has served in the U.S. military,
reserves, or national guard, with particular consideration given to those who served in
combat;
• the person's criminal history, including arrests, prior convictions, or outstanding arrest
warrants;
• the person's immigration history, including any prior removal, outstanding order of
removal, prior denial of status, or evidence of fraud;
• whether the person poses a national security or public safety concern;
• the person's ties and contributions to the community, including family relationships;
• the person's ties to the home country and conditions in the country;
• the person's age, with particular consideration given to minors and the elderly;
• whether the person has a U.S. citizen or permanent resident spouse, child, or parent;
• whether the person is the primary caretaker of a person with a mental or physical
disability, minor, or seriously ill relative;
• whether the person or the person's spouse is pregnant or nursing;
• whether the person or the person's spouse suffers from severe mental or physical illness;
• whether the person's nationality renders removal unlikely;
• whether the person is likely to be granted temporary or permanent status or other relief
from removal, including as a relative of a U.S. citizen or permanent resident;
• whether the person is likely to be granted temporary or permanent status or other relief
from removal, including as an asylum seeker, or a victim of domestic violence, human
trafficking, or other crime; and
• whether the person is currently cooperating or has cooperated with federal, state or local
law enforcement authorities, such as ICE, the U.S Attorneys or Department of Justice, the Department of Labor, or National Labor Relations Board.

Consult with one of our expert immigration attorneys to determine whether you may be eligible for prosecutorial discretion.

Call for a Consultation Today! (516) 536-2680

Our CMS makes it easy to have a great looking website that you can manage yourself. We've added some examples of content just to show you how things might look, but you'll want to dig in and make this your own.

To add your own content here, just click Add Element once you are logged in. When you do, this sample content will disappear.

Admin Login

NOW OPEN ON SATURDAYS 

Call Us Toll Free At:
1-844-GOT-VISA

Clarke & Associates Compels ICE To Release US Citizen After 5 ½ Months Of Unlawful Detention

M. Clarke & Associates, LLC BBB Business Review

LOCATIONS

NEW: Manhattan Office
112 W 34th Street
18th Floor, New York, NY 10120
By Appointment Only

 Brooklyn Office
 4919 Church Avenue
 Brooklyn, NY 11203
 By Appointment Only

Main Office
 
11 W. Sunrise Highway
 Suite 1
 Freeport, NY 11520
 P: (516) 536-2680
 F:
(516) 536-2618

Hours: M-F, 9:00am - 5:00pm, 

Saturday 12:00pm - 3:00pm     (By Appointment Only)

Free Available Parking:
Unlimited free parking on Pine St. opposite JW Dodd Middle School.
4 hrs. free parking at Municipal Lot on Church St. 2 blocks south of Sunrise Hwy & across from fire station.
Paid Parking: On Sunrise Hwy in front of building and along Church St. south of Sunrise Hwy.

Southampton Office
 
53 Hill Street
 Southampton, NY 11968
 By Appointment Only

 

         
Member Logo_3x3_Decal2016

Upcoming Events

You can create a calendar on your website and easily show your upcoming events right on your home page, like you see below. Of course, this is just sample content. To replace it with your own content, just click Add Element once you are logged in.

View All Events