Month: March 2017

U-VISA

OUT OF STATUS? 

    This article was originally researched and written by attorney at law, Raquel M. Gayle, Esq., during her association with BLACKMAN & MELVILLE, P.C.  The article is being edited and republished for reprint by Nigel E. Blackman, Esq.

 

YOU MAY QUALIFY FOR A U-VISA

 

An often unfamiliar but perfectly legitimate way in which to adjust the status of an immigrant seeking to obtain legal status in the United Sates — or even facing possible deportation— is the U-Visa.

 

WHAT IS THE U-VISA?

 

The U-Visa was created as part of the Victims of Trafficking and Violence Protection Act of 2000, became a valid Visa on October 17th, 2007, and is available only to immigrants who have been victims of serious crimes.

 

The government’s interest in providing U-Visas to out of status immigrants is two-fold: (i) to provide for the protection of victims of serious crimes (given that many immigrants who fall victim to a crime are reluctant to involve or otherwise cooperate with police for fear of revealing their unlawful status); and (ii) to assist in the prosecution of criminal perpetrators.

 

If a victim is successfully granted a U-Visa he or she may become a legal permanent resident in just three years after receipt of the visa benefit. See Lee v. Holder, 599 F.3d 973, 975-76 (9th Cir. 2010) (noting that a U-Visa may be extended by certification of a law enforcement agency that the victim is needed in connection with further investigation and/or prosecution of the crime, and also that U-Visa applicants may apply for legal permanent residence after three years of receipt of the U-Visa and for naturalization at the end of five years). Moreover, immediately upon approval of a U-Visa, an immigrant is authorized to accept employment in the United States.

 

ARE U ELIGIBLE?

 

To qualify for a U-Visa you must meet certain statutory requirements, including being a victim or a victim of an attempt of one of the following crimes:

 

  • Domestic violence
  • Incest
  • Abusive sexual contact
  • Obstructing Justice
  • Felonious Assault
  • Blackmail
  • Abduction
  • Torture
  • Female Genital Mutilation
  • Extortion
  • Kidnapping and
  • Peonage (the practice of holding a person in servitude or partial slavery, as to work off a debt or serve a penal sentence).

 

The crimes listed above are considered “qualifying crimes” for eligibility for the U-Visa and you must have suffered physical or mental abuse in connection with one of the applicable crimes to be eligible.  Furthermore, the crime must have taken place in the United States, violate U.S. law, and your information about the crime must advance the prosecution or at least possibly lead to prosecution of the crime.  Finally, certification by a law enforcement agency that you qualify for a U-visa is at the discretion of the law enforcement agency where the request is made and no more than 10,000 U-visa applicants may be awarded a U-Visa per fiscal year. Spouse, children and other qualifying relatives who apply under the primary U-Visa’s application are not subject to the 10,000 person limitation. See 8 CFR 1101(a)(15)(U)(iii).

 

HOW IS THE U-VISA APPLICATION PROCESSED?

 

Processing of the U-Visa application involves first having a law enforcement agency certify that the crime as eligible under the U-Visa requirements and second that the applicant has been cooperative and helpful in the investigation and prosecution of the crime.

 

Next, the applicant must petition for certification by completing Form I 918.  The application should include the requisite legal forms, evidence of the crime and all other outstanding but required documents. There is no filing fee for the U-Visa application regardless of your income. The submission should include, among other documentary evidence, the petitioner’s own statement regarding the criminal activity, describing the particulars of the applicant’s criminal victimization.

 

Filing the U-Visa application does not give the applicant any immigrant benefits unless the actual petition is approved; and USCIS processing can take up to six months.

 

If you are in removal proceedings, there exists strong case law discouraging removal of U-Visa applicants pending the processing of their application.  See Ramirez Sanches v. Mukasey, 508 F3d 1254 (9th Cir. 2007) (directing the Board of Immigration Appeals to reopen the case of an immigrant in removal proceedings because of his outstanding U-Visa application—despite the fact that the offense listed on the U Visa application was not charged in the underlying complaint).

 

USCIS permits consular processing of U-Visa applicants for individuals residing outside of the United States.

 

The U-Visa is a great tool for assisting undocumented immigrants in their adjustment of status process.

 

HOW DO I GET MORE INFORMATION?

 

If you think you or someone you know may qualify for the U-Visa, contact the Immigration Law Department of Blackman and Melville, P.C. at inquiry@bmlawonline.com or call 718-576-1646.

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Understanding Inter-Country Adoptions

 

As an attorney that has handled my share of immigration related adoptions it becomes clear to me, even with detailed explanation, that most adopting parents are completely confused about the process, especially when adopting a child who already or previously resides in the foreign country.   This specific issue can be quite confusing, somewhat tricky and extremely frustrating at times.

When an adopted parent(s) is seeking to bring that adopted child from another country to the United States, one should be aware of (1) exactly what type of permanent resident / green card filing is necessary; and furthermore, (2) what sort of supporting evidence will be required and (3) whether the country is a signatory to the Hague Convention.

Many involved in the adoption process have asked: “What exactly is this Hague Convention” and “why is it necessary to know which countries are signatories to the Hague Convention”? The answer, The Hague Convention on Protection of Children and Co-operation in Respect of Inter-country Adoption (Hague Adoption Convention) is an international treaty that provides important safeguards to protect the best interests of children, birth parents, and adoptive parents who are involved in inter-country adoptions. If the country your adopted child resides is a non-convention country, then different requirements and forms will be required, i.e. I-800A/I-800 versus I-600A/I-600 forms, etc. Especially with regard to Orphan forms how and when the latter forms are required should be discussed with your attorney, should you choose to utilize the services of an immigration adoption attorney.

The adoption process, pursuant to the INA (Immigration and Naturalization Act)combined with the Hague Convention; provides three different processes whereby an alien child may immigrate on the basis of an inter-country adoption. The first two processes apply only to children adopted by U.S. citizens. Respectively, the child may (a)immigrate immediately after the adoption or (b) may immigrate to the U.S. to be adopted in the United StatesThe third process is an immediate relative.

  • The Hague Process: if the child resides in a country that is a party to the Hague Inter-country Adoption Convention.
  • The Orphan Process: (non-Hague): if the Hague Inter-country Adoption Convention does not apply;
  • The third process is the immediate relative process. This process requires the adopted parent to have completed a “full and final” adoption along with having satisfied the necessary residency requirements with the subject child. Under the latter process, an adopted child is considered, for immigration purposes, to be the child (or adult son or daughter) of the adopting parent if:
  1. The parent adopted the child before his or her 16th birthday (or before the 18th birthday under certain circumstances that will be described below). You submit evidence of a full and final adoption AND
  2. The parent had legal and physical custody of the child for at least two years while the child was a minor

If you, as an adopted parent, are having issues understanding what terms like “legal custody” “residency” or “domicile” are referring to please ensure that you speak with an immigration attorney specializing in adoptions so that your time, efforts and money are not wasted pursuing a particular route. I stress the importance of a proper consultation with an immigration attorney specializing in adoptions because there are also a few circumstances and exceptions to the rules whereby a child may still be able to qualify (a) for the adoption and (b) to migrate as a permanent resident under one of the processes, even if the prospective parent initially is of the belief that all is lost as it pertains to her ability to adopt the child she may have erred.  One example is the piggy-backing of one child upon another sibling that was adopted under the age of sixteen (16) by the same adopting parent. In this instance, a child that would otherwise be deemed ineligible for purposes of immigration laws because he/she was adopted after their 16th birthday can have the benefit of the tolling provision extending the adoptive age and; therefore, can receive the benefits of the immigration adoption by virtue of the sibling relationship to his/her younger siblings, despite being over the normal qualifying age.

Honestly, I can probably go on and on; but I am sure our readers would surely become bored with my rantings about the adoption process which must take place locally in the United States or in the foreign country. However, I can’t stress with enough importance how critical it is for adopting parent(s) to understand how to navigate through this document intensive process.

Although, I have given the “nutshell explanation” regarding the foreign adoption, a process that could be viewed as a nightmare of paperwork and procedure, it is being aware of exactly where to begin and what is required.  These two items are the keys to successfully obtaining your desired goal.

If there are any further questions or inquiries concerning inter-country adoptions feel free to call us at BLACKMAN & MELVILLE, P.C., where achieving your desired objective is our main goal.

 

Denise A. Melville-Blackman, Esq.

 

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