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Results 1 to 2 of 2

Thread: How To Turn A Losing Case Into A Winner

  1. #1
    Guest
    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:

    http://shusterman.com/immforms.html

    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 rounds 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 istinguish 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);
    2.) An Asylum Waiver;
    3) An Exceptional Hardship Waiver;
    4) An Interested Government Agency Waiver
    For more details regarding these waivers, see:
    http://shusterman.com/j-vsa.html

    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!

  2. #2
    Guest
    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:

    http://shusterman.com/immforms.html

    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 rounds 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 istinguish 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);
    2.) An Asylum Waiver;
    3) An Exceptional Hardship Waiver;
    4) An Interested Government Agency Waiver
    For more details regarding these waivers, see:
    http://shusterman.com/j-vsa.html

    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!

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