Saturday, April 9, 2011

How a Government Shutdown Might Affect Your Immigration Case

Because the U.S. federal government may shut down, it's important to know how your immigration case may be affected.  

If you have a case pending before the U.S. Citizenship and Immigration Services (USCIS) your adjustment or naturalization interview will most likely take place as scheduled.  The same would apply for naturalization ceremonies.  Because USCIS is funded primarily through application fees, it is expected that most of its services and centers will operate normally.  However, because USCIS works with other agencies to adjudicate pending cases, temporary delays should be expected. 

If you have a removal or deportation case pending before the Executive Office for Immigration Review, most likely only detained cases will go on as scheduled.  The immigration courts in Arlington, Virginia and Baltimore, Maryland have stated that, in case of a government shutdown, only detained cases would be heard and that non-detained master or individual hearings would be rescheduled. Also, the front window of the immigration court would be closed and the immigration court phones would not be answered. 

If you have a case pending before the U.S. Department of State, DOS is expected to cease non-emergency visa services and non-US citizen services at U.S. Consular Posts abroad. As a result, no new visas are expected to be issued and visa application interviews would be rescheduled. Also, no passport applications will be accepted during a government shutdown.  

If you have a case pending before the U.S. Department of Labor, their offices will be closed.  This will delay the processing of PERM cases, as well as the processing of Labor Condition Applications for nonimmigrant visas such as H-1Bs, E-3s, etc.  Also affected would be requests for Prevailing Wage Determinations with the U.S. Department of Labor.

Hopefully the government will not shut down as expected and the processing of all immigration-related cases will not be affected. Should you have any questions please feel free to contact our office.

Thursday, April 7, 2011

Matter of Vo: CIMT for Attempt Offenses

In Matter of Vo, 25 I&N Dec. 426 (BIA 2011), the Board of Immigration Appeals (BIA) held that where the substantive offense underlying a foreign national's conviction for an attempt offense is a crime involving moral turpitude, the foreign national is considered to have been convicted of a crime involving moral turpitude for purposes of section 237(a)(2)(A) of the Immigration and Nationality Act (INA).

The respondent is a native and citizen of Vietnam who was admitted to the U.S. as a lawful permanent resident in 1989. He was convicted in California of grand theft and receipt of stolen property. He was also convicted, at a later date, of attempted grand theft. The Department of Homeland Security (DHS) initiated removal proceedings against the respondent, charging that he was deportable under INA § 237(a)(2)(A)(ii) as an alien convicted of two or more CIMTs that did not arise out of a single scheme of misconduct.

The Immigration Judge found that because section 237(a)(2)(A) does not expressly reference “attempts,” as does section 212(a)(2)(A)(i)(I), the respondent’s crime did not qualify as a deportable offense, so he terminated the proceedings. The Department of Homeland Security appealed. The BIA reasoned that, with respect to moral turpitude, there is no distinction between the commission of a substantive crime and the attempt to commit it. Noting that Congress added the “attempt” language to various sections of the Act at different times, the Board determined that it could not reasonably conclude that the inclusion of attempts in those other sections represented a unified design to effectuate a single intent or that Congress’ express inclusion of attempt offenses in some sections indicated its intentional exclusion of them from other sections.

Since grand theft is a CIMT, the respondent's attempted grand theft was also a CIMT, rendering him deportable based on his convictions. Therefore, the BIA concluded, the respondent is deportable as charged for a crime involving moral turpitude within the meaning of the statute.

Matter of Sesay: K-1 Adjustment Possible Even After Divorce (In Some Cases)

In Matter of Sesay, 25 I&N Dec. 431 (BIA 2011), the Board of Immigration Appeals (BIA) held that a K-1 fiance can adjust status even if the marriage to the U.S. petitioner does not exist at the time that the adjustment application is adjudicated, if the applicant can demonstrate that the marriage was bonafide and done within the required 90-day period.  The BIA also held that: 
  1. A K-1 visa holder can only adjust status based on the marriage to the K-1 petitioner.
  2. A K-1 visa holder whose bonafide marriage to the K-1 petitioner is more than 2 years old at the time the adjustment application is adjudicated is not subject to the provisions for conditional resident status.
The respondent in this case, a native and citizen of Sierra Leone, was admitted to the United States in April 2000 as a K-1 non-immigrant.  He married and filed an application for adjustment of status which was later denied. The couple divorced on June 5, 2003 and later that year the respondent was placed in removal proceedings. In 2004, the respondent married his second wife, who filed an immediate relative visa petition (I-130) on his behalf.

In removal proceedings, the respondent renewed his adjustment application based on his I-129F fiancé petition. He also filed an adjustment application premised on the I-130 petition filed by his current wife. The Immigration Judge denied both adjustment applications, finding that he had no jurisdiction to adjudicate the adjustment application based on the respondent’s first marriage because it was no longer in existence. The Immigration Judge denied the I-130 adjustment application because the respondent had been admitted on a fiancé visa and therefore could only adjust based on the I-129F petition.

The BIA concluded that the respondent had completed the required steps in the fiancé adjustment process and that he was not subject to the provisions of section 216 of the Immigration and Nationality Act (INA) because his marriage was more than 2 years old when his adjustment application was adjudicated. Accordingly, the Board found that his divorce did not render him ineligible for adjustment of status and remanded the record for consideration of his application as a matter of discretion.