Leading immigration attorney
Carl Shusterman recently hosted a chat on our site on:
How To Turn A Losing
Case Into A Winner -- Waivers, Appeals & Litigation
Jennifer Wipf:
Welcome to our chat on appeals, waivers and litigation with immigration attorney Carl
Shusterman. Mr. Shusterman is with us now. Please remember that these questions must be
taken as general in nature, and the answers are general in nature, and should not be
construed as legal advice.
Carl Shusterman: Good evening everyone. Welcome to the
chat. Let's get started.
Question #1: As a teenager, I entered the
USA from Iceland, to be a nanny. I didn't know I needed a work permit, so I told the
border control the truth. I was deported and banned. Now I am engaged to be married to a
US citizen. Is there anything I, or a lawyer can do now, 7 years later?
Carl Shusterman: Normally someone who is ordered deported by an
immigration judge, is unable to return to the United States for at least 10 years, unless
they obtain special permission from the Attorney General. You should file an
"Application for Permission to Reapply for Admission into the United States after
Deportation or Removal" (form I-212) . To download a copy of form I-212, see:
It is very important that form I-212 be well-documented before filing your application. Be
sure to read the major decisions pertaining to this relief from the Immigration Board of
Appeals, including "Matter of Tin" and "Matter of Carbajal."
Question #2: If INS denies my case because
they don't believe my marriage, because I am 12 years older than my husband, how difficult
is it to appeal, and what are my steps to go about that?
Carl Shusterman: First, it's important to mention that the INS must
approve a spousal visa petition where the marriage was bona fide at the time that it
occurred. The fact that there is a 12-year age difference is only one of many
factors that will be considered by the INS in determining whether the marriage was entered
into for love, or simply for the beneficiary to obtain a green card.
Second, we have received approvals of spousal petition despite age differences between the
spouses of 20-30 years. It is important to show that the marriage was known about by
friends and family, that you and your husband reside together and that your finances (i.e.
income tax returns, insurance policies, checking and bank accounts) are intermingled.
However, in the event that a marriage petition is denied by the INS, the petitioner (the
US citizen or permanent resident spouse) may submit an administrative appeal of the INS'
determination.
If the result of the administrative appeal is also adverse to the petitioner, he or she
may challenge the agency's action in Federal Court.
Question #3: My question to Carl
Shusterman: if INS turned down my request for asylum while I am in status, is it
worth applying for a waiver of the two-year home residency requirement on the basis of
persecution, or is it a waste of time?
Carl Shusterman: It's a waste of time.
Question #4: My situation is that I am
recently married to my illegal alien boyfriend. What EXACTLY do we need to do next? I am a
US citizen. Will he be banned? Husband been here illegally since Feb.1997.
Carl Shusterman: Good question. If your husband entered the U.S. on a
visa and overstayed or violated his status, he can adjust his status to permanent resident
without leaving the U.S.
However, if he entered the U.S. without inspection, he is ineligible to adjust his status
within the U.S. After your visa petition (form I-130) for him is approved by the INS, he
will need to go abroad to apply for permanent residence. However, he will be subject to
the ten-year bar of inadmissibility (See http://shusterman.com/toc-nwlw.html ). You
will need to submit a waiver of the ten-year bar on his behalf. You should complete and
thoroughly document the "extreme hardship" that you will suffer if your husband
is forced to live outside the United States for 10 years. Submit an "Application for
Waiver of Grounds of Excludability" (form I-601) when requested by the Consul.
Fortunately the vast majority of such waivers are approved. Unfortunately, the State
Department must forward the waiver application to the INS, where backlogs of 9-12 months
are common. During this time, your husband must remain abroad.
Question #5: Our college filed an I-140
application for me last September as an outstanding professor, which was rejected. We
filed our appeal in July, asking for the motion to reopen. Two weeks ago, we
received an Notice of Action from the Nebraska Center, indicating that the case usually
takes 45 to 120 days to process. My question is this: first, who will make final
decision AAU or the Nebraska Center? Second, will the decision be final? Third, I heard
that it is very difficult to appeal.
Carl Shusterman: First, it is important to distinguish between an appeal,
and a motion to reopen. An appeal of the denial of an I-140 must be filed by the
petitioner (i.e. the employer, in this case) within 30 days of the denial. Alternately,
the petitioner can file a motion to reopen the case within 90 days of the denial if there
are new facts which could not have been discovered before the original petition was filed,
and which would change the outcome of the case.
Assuming that an appeal was filed here, it would be forwarded to the Administrative
Appeals Office (AAO) for a decision. However, if the Northern Service Center reads the
appeal and decides that its previous decision was in error, it may elect to treat the
appeal as a motion to reopen or reconsider, and approve the petition.
If the decision is denied by the AAO, you may challenge the determination by asking for a
Declaratory Judgement in Federal District Court. We did just this last year in a case
which I described in a back issue of Shusterman's Immigration Update.
The case never actually was decided by a Federal Judge because the Assistant US Attorney,
apparently after conferring with the INS, determined that the visa petition (which was
submitted by another law firm) was, in fact, approvable. Interestingly enough, a man with
a virtually identical case came to our office earlier this month, and we are preparing a
complaint in a Declaratory Judgment Action, challenging the AAO's denial of his I-140 in
federal court.
Question #6: Carl, what are my options if
the INS denies my H-1B application?
Carl Shusterman: You can appeal the denial to the AAO and ultimately to
Federal Court.
Question #7: I was on a J-1 visa and was
planning to go home, but now I am getting married. How can I get a waiver?
Carl Shusterman: There are four methods of obtaining a J waiver. They are
as follows:
1) A No Objection Letter (cannot be used by physicians seeking waivers);
Jennifer Wipf: Ok,
those were the questions related to litigation, appeals and waivers. Mr. Shusterman will
be leaving in a moment, and I will turn moderation off. You can speak freely and casually
about your concerns amongst each other.
Carl Shusterman: Thank you for all your question on waivers, appeals and
litigation. Have a good evening.
Jennifer Wipf: You too Carl, thank you!
Remember to follow-up with
these popular and informative articles:
| 