Statutes of Liberty: TPS for El Salvador is Over. Can I Apply for a Green Card?

This sponsored column is by James Montana, Esq., the principal of Steelyard LLC, an immigration-focused law firm located in Arlington, Virginia. The legal information given here is general in nature. If you want legal advice, contact him for an appointment.

By James Montana, Esq.

Ending Temporary Protected Status for El Salvador, I think, was the most serious practical blow dealt by the Trump administration to Virginians. There are about 200,000 Salvadoran TPS-holders in the United States, of whom roughly 30,000 live in the D.C. metro region.

U.S. immigration officials are committed to maintaining TPS for current TPS recipients until September 9, 2019. The application window to reapply for TPS status until that date has not yet opened. Expect it to open by March 2018 at the latest.

Going back to El Salvador is neither practical nor desirable for most Salvadoran families in our community. For that reason, many of my clients have approached me for advice on how to move from TPS to lawful permanent residency – a green card, to you and me. Some TPS-holders do actually have a path to a green card.

Explaining the mechanics will require a bit of background. (For more, read this nifty guide.) For family-based cases, a foreigner must have a family member in the United States who can file a petition. United States citizen children over the age of 21 can, under some circumstances, file such petitions for their parents.

That means that Salvadoran TPS holders who have U.S. citizen children – and many do, because TPS has been the law of the land since Taylor Swift was eleven years old – may be able to file for a green card. United States citizens can also file similar petitions for their spouses.

New family petitions require proof of the family relationship. For parental relationships, you’ll need a birth certificate, and sometimes a DNA test if the government demands it. Marital relationships require a boatload of evidence of bona fide marriage. In addition, family petitioners can expect to pay about $2,000 in fees to the U.S. government, as well as fees to an attorney.

Employment authorization and travel permission are available while an application for a green card is pending, so applying for adjustment of status is an extremely attractive prospect for Salvadorans facing the end of TPS. But there are traps for the unwary attorney. Here are a few tips to help you avoid them.

  1. Verify the method of the TPS-holder’s last entry into the United States. Many TPS-holders entered “without inspection,” as immigration lawyers say, by crossing the border. Such applicants are treated quite differently from TPS-holders who came to the United States with a visa, or who later re-entered the United States with advance parole.
  2. Do not accept a late-filed birth certificate as conclusive evidence of parentage, or a marriage certificate as conclusive evidence of a bona fide marriage. The government will demand more evidence than that. It pays to prepare it in advance.
  3. Expect that your client’s work authorization may expire before your client is eligible to file for adjustment of status. A Salvadoran father whose U.S. citizen daughter turns 21 in December 2019 is going to have to live without work authorization for a few months.

Both applications for adjustment of status and asylum petitions are live options for Salvadorans, and a good immigration attorney may be able to combine the two applications in beneficial ways. Asylum applications, if successful, lead to permanent residency in the United States, and employment authorization is available while the application is pending.

I have no doubt that many Salvadorans will consider filing asylum applications now that TPS has expired. Whether it is wise to file an asylum application requires a careful analysis of the individual case, so I do not recommend applying blind.

Remember that TPS-holders are unlikely to be placed in removal proceedings en masse, so applying for asylum can hurt the applicant by saddling him with a deportation order which he otherwise would never have had.


Swan songs should be short: This will be my last column for ArlNow. It has been a pleasure writing for all of you, reading the comments, and rewatching Spaceballs. I would like to thank Neil Kelly particularly for his wit in coming up with the column name, Statutes of Liberty. Neil is an Arlingtonian and a brilliant, low-key real estate agent, so if you need an agent who doesn’t shout at you, use the word “bungalow” unadvisedly, or try to trick you with tiny furniture, here’s how to reach him.


Statutes of Liberty: Asylum — Let’s Get Political

This sponsored column is by James Montana, Esq., the principal of Steelyard LLC, an immigration-focused law firm located in Arlington, Virginia. The legal information given here is general in nature. If you want legal advice, contact him for an appointment.

By James Montana, Esq.

The law of asylum is one of the most complex and misunderstood areas of our laws. What follows here is a basic overview, intended to answer the following question: Why do some people get asylum, but not others?

To apply for asylum, a foreigner must be physically present in the United States, and must complete an application for asylum. (Read it if you like, here.) The application is twelve pages long. The instructions are fourteen pages long and are written in fragrant legalese.

Applicants for asylum do not have the right to counsel. If you can’t afford a lawyer, one will not be appointed for you. This is a generally true fact about our immigration system, but it is especially significant for asylum applicants, most of whom are recent arrivals who do not speak English well. And they’re on the clock. If you don’t apply for asylum within one year of your arrival in the United States, your asylum application is blocked by a rule called the One Year Deadline. (The government is not subject to any penalties to delay; one of my clients recently had his asylum hearing delayed by two years, just a month before the trial.)

Let’s say that you manage to get through the entire Form I-589, complete it properly, send it to the right address (there are five possible addresses) and go to your asylum interview. Will you win?

You should win, so long as the following statement is true: You either demonstrate past persecution on account of a protected ground, or you demonstrate a subjectively genuine, objectively reasonable fear of persecution on account of a protected ground, and you must demonstrate that you merit a grant of asylum as a matter of discretion. I have highlighted the terms of art here. I will unpack the most important ones briefly.

Persecution means more than harassment or legal prosecution. It means, typically, beatings, imprisonment without trial and death threats.

On account of a protected ground means: Race, religion, political opinion, nationality or membership in a particular social group. Brevity precludes a full description of what each of those terms of art means, but let me just tell you what isn’t included: poverty, starvation, civil war, endemic crime, social chaos or endemic disease. Our asylum system is good at protecting people from particular species of harm of harm (Nelson Mandela) and bad at protecting people from other species of harm (gang violence, plague, anything that happens in Haiti).

The chances of winning an asylum case vary enormously both by location and by individual judge. Here are the denial rates by judge for every judge in the country; as a quick scan will show you, some judges grant almost all applications and other judges grant almost none. This is true even within individual courthouses. In San Antonio, Judge Miles grants 97.7% of asylum applications, and Judge Burkhart grants 24.9%. You are assigned randomly to Judge Miles or Judge Burkhart, or to one of the others in the middle.

Thoughtful people disagree on what sort of immigration policy we ought to have. It may be that our national interest demands that we be less generous. Perhaps we should be more generous. All sides should understand, though, the facts about our asylum system. Our asylum system is slow, bureaucratic, unpredictable and legalistic. It is not an open door.


Statutes of Liberty: Home for the Holidays, Traveling for Non-Citizens

This sponsored column is by James Montana, Esq., the principal of Steelyard LLC, an immigration-focused law firm located in Arlington, Virginia. The legal information given here is general in nature. If you want legal advice, contact him for an appointment.

By James Montana, Esq.

Nothing in the world gives immigration lawyers more heartburn than travel does. Even legal immigrants to the U.S. often can’t just hop on a plane and go home.

Meet Jane. Jane, a citizen of the U.K., is getting her Ph.D. in economics from MIT. Jane is in the U.S. legally, on an F-1 student visa. Jane meets Ringo, a citizen of the U.S., who is also getting his Ph.D. in economics from MIT. Jane and Ringo decide to get hitched. Ringo and Jane fly together to London, so Ringo can ask her father for permission to marry her; they then fly back to the U.S., get married at the courthouse and apply for a green card. Will that work?

Nah! Thanks to some romantic-but-inadvisable travel, Jane and Ringo have stepped directly into the 90-day rule, which says that if you enter the U.S. on a temporary status and then do something that indicates intent to remain permanently, then you are presumed to have made a willful misrepresentation on a prior visa application. You don’t want to have the government making presumptions about you. All for a little travel.

What if Jane stays in the U.S.? Say she marries Ringo and applies for a green card. Can she travel while her green card application is pending?

Probably not! Unless she has a clever immigration lawyer who can pre-arrange something called “advance parole” for her, Jane’s little jaunt home will fricassee her pending green card application. Uncle Sam will keep her $1,760 application fee, and she may be in deeper trouble yet.

How about an asylum applicant? Can an asylum applicant travel home? Nope: never, never, never. Can an asylum applicant travel to a third country while the asylum application is pending? Almost never, and you can kiss the asylum application goodbye if you do.

I know a nice Salvadoran man — married, a couple of kids, great moustache. He was here with Temporary Protected Status, and so he was fully authorized to work. Thanks to some bad immigration advice from a notario, this gentleman left the United States and remained in El Salvador for one week longer than he was supposed to be away. It cost him, his employer and his family eighteen months and many hundreds of dollars to get him back into the United States. All for a little travel.

Even lawful permanent residents can get crushed by the Travel Monster. Permanent residents who stay outside the country for more than a few months can be placed into removal proceedings based on an allegation of abandonment. Removal proceedings will keep you in court for a half-decade, and you will make many thousands of dollars in contributions to the Impecunious Attorney Fund.

Travel is a wonderful thing — for U.S. citizens. Foreigners of any stripe should be extremely careful about it. Talk to a lawyer first. I know a few.


Statutes of Liberty: Temporary Protected Status is Ending. What to Do?

This sponsored column is by James Montana, Esq., the principal of Steelyard LLC, an immigration-focused law firm located in Arlington, Virginia. The legal information given here is general in nature. If you want legal advice, contact him for an appointment.

By James Montana, Esq.

Temporary Protected Status (“TPS,” in legal argot) is one of the zaniest creatures in the Seussian paper-palace of immigration law. If disaster or civil war strikes Country X, the TPS system enables various actors in the Executive Branch to declare that Country X is temporarily unable to receive a wave of deportees from the United States, and, therefore, that the United States will allow potential deportees to Country X to remain here on sufferance. Through that procedure, TPS-holders can receive work permits and temporary safe harbor from deportation.

On the terms of the program, TPS is temporary. In practice, for most people most of the time, TPS has been permanent. TPS-El Salvador was designated during the George Bush presidency — George H.W. Bush, kids! — but has been renewed repeatedly since then by Republican and Democratic administrations alike.

The renewals appear to be over. The Trump Administration recently announced that it will terminate TPS protections for Nicaragua, Honduras and Haiti. Salvadorans, however, are the most numerous beneficiaries of TPS in the United States, and are disproportionately concentrated in our area — and TPS-El Salvador remains intact for now. A decision will be made by January 8, 2018.

So, what happens if TPS-El Salvador is shut down?

The simple answer is that Salvadorans with TPS will revert to the formal immigration status that they had before TPS was granted.

The more complex answer is that Salvadorans will face a list of interesting options. Of those, asylum and family petitions will be the most helpful for most people.

  1. Asylum

Under ordinary circumstances, you must apply for asylum within one year of entry into the United States. These are not ordinary circumstances. Under current law, the termination of TPS is an “extraordinary circumstance” which may excuse late filing. That “may” is going to blast tens of thousands of Salvadoran families into asylum offices across the United States — in particular, to the Arlington Asylum Office, where wait times are measured in years.

  1. Family petitions

TPS-holders aren’t all the same. Some of them entered the United States without inspection, by walking across the border. Some of them entered the United States with visas which have long since expired. Some of them entered without inspection and then later entered with inspection via a program called Advance Parole. TPS-holders who entered with inspection, either initially or subsequent to their initial entry, may be eligible for family petitions, through relationships (chiefly, marriage and children) which have sprung up in the decades since TPS was announced.

The important thing is to not act too hastily, and — above all — not to rely on the services of an “immigration consultant” or a notary. If you can’t afford a lawyer, my former colleagues at Catholic Charities of the Archdiocese of Washington, or our sister organization in Arlington, will be delighted to help you at a low-bono rate. Please be careful out there.


Statutes of Liberty: Immigration Court is Dystopian

This sponsored column is by James Montana, Esq., the principal of Steelyard LLC, an immigration-focused law firm located in Arlington, Virginia. The legal information given here is general in nature. If you want legal advice, contact him for an appointment.

By James Montana, Esq.

In Cool Hand Luke, there’s a delightful scene in which new prisoners are introduced to prison discipline. The punishment for every infraction is the same: you spend a night in the box. There’s a laconic poetry to it.

Our immigration courts are very similar. The punishment for every infraction is an order of removal. An order of removal gives federal authorities the right to arrest, detain, and deport you, typically without further legal process.

If you don’t show up to immigration court, you get an order of removal.

If you get evicted and forget to notify the immigration court about your change of address, you get an order of removal.

If you can’t make your case persuasively in a foreign language without any legal education, you get an order of removal.

If you somehow manage to prepare an application for relief but forget to send a copy to the prosecutor as required by regulation, your application for relief will be rejected, and you’ll get an order of removal.

If you ask to leave the country voluntarily and don’t, for whatever reason — say, because you were hit by a truck — you get an order of removal.

And, sometimes, even if you do everything right, you’ll get an order of removal. Our immigration laws are harsh.

The Immigration Courts work this way for the same reason that the prison starvation in Cool Hand Luke does: poverty. There are roughly 300 Immigration Judges for the entire country. There are roughly 500,000 cases pending in immigration court, which equates to about 1600 cases per judge. If each judge ruled on one case per workday, and no new immigration cases were filed, it would take eight years to clear the docket. And that’s a utopian fantasy.

Increased enforcement means that more cases will be filed, and the backlog will grow. There is no right to counsel in immigration court, so most immigrants have to try to paste together their own applications. That slows things down.

At my first appearance in immigration court, the judge gave me a four-year delay before trial. I thought I must have misheard, so I squeaked, “Excuse me, your honor? You mean there are no trial dates available for four years?” A rumble of chuckling erupted from the other lawyers in the gallery.

The judges aren’t at fault for this, and neither are the prosecutors. Congress has starved the Immigration Courts of resources for years, under both Republican and Democratic administrations.

There’s no good news here, folks, except this: Having a lawyer more than doubles your chance of winning in immigration court. If you’re in immigration court, you need a lawyer right now. It might take you a half-decade to get out of immigration court, but at least you’ll get out without an order of removal stamped to your forehead. Maybe.


Statutes of Liberty: Love, Marriage and Immigration

This sponsored column is by James Montana, Esq., the principal of Steelyard LLC, an immigration-focused law firm located in Arlington, Virginia. The legal information given here is general in nature. If you want legal advice, contact him for an appointment.

By James Montana, Esq.

Just married! There’s just one hitch: no proper immigration papers. What should you do now? Everyone says that your new bride (or groom) should get a green card without any difficulty. But you’re worried. You’ve looked at the forms and they look… difficult. You’re worried about making a mistake. What should you do now?

The sensible answer is to call a lawyer, but I’m going to point you in the direction of the appropriate forms so you can DIY if you want to. Please call a lawyer, though. It’s in your own financial interest. Lawyers get paid by the hour, and it takes many delightfully lucrative hours to get you out of trouble after you finish your Belushi impression.

  1. I enjoy crushing beer cans against my forehead, so obviously I don’t want a lawyer. What should I do now?

Assuming you are eligible, you file a long ton of paperwork and supporting documentation. The foreign spouse will be fingerprinted. Three to four months later, the foreign spouse should receive a work permit. Six to twelve months later, you will both be interviewed by a government official. If that interview goes well, you’ll get a green card. If it doesn’t… well, you’re headed to Immigration Court, which is worse than Double Secret Probation and a heck of lot more expensive. More information about that to come in a subsequent column.

If you make a paperwork mistake or forget to enclose a supporting document, the government will helpfully remind you of this with a written Request for Evidence. Even if you respond instantly, a Request for Evidence will delay adjudication of your case by two to three months.

If you mess up your response to a Request for Evidence, the government may (or may not) send you another Request for Evidence. Uncle Sam is fully within his rights to keep your application fee — a cool $1,760 — and tell you to try again. You should have hired a lawyer the first time.

  1. I don’t care! I think this situation absolutely requires a really futile and stupid gesture on somebody’s part.

If you’re going to do this yourself, you should read these forms (and their accompanying instructions) carefully. Any immigration lawyer you speak to should be able to tell you what these forms are, in coma-inducing detail, without opening his laptop. If he can’t, enjoy the free coffee and walk away.

  • Form I-130: Petition for Alien Relative
  • Form I-130A: Supplemental Information for Spouse Beneficiary
  • Form I-131: Application for Travel Document
  • Form I-485: Application for Adjustment of Status
  • Form I-693: Report of Medical Examination and Vaccination Record
  • Form I-765: Application for Employment Authorization
  • Form I-864: Affidavit of Support under Section 213A of the INA

  1. I gave my love a cherry that had no stone. Does that prove that we’re married?

The government knows that cherries have stones and chickens have bones. So, how are you going to convince the government that your love story has no end?

Amateurs think that the answer is photographs. It isn’t. Rank amateurs think the answer is boudoir photographs. That really, really isn’t. (You think I’m kidding? Once a year, like clockwork… )

Professionals know that the answer is commingling of finances. Joint monthly bank account statements, joint leases, joint tax returns, life insurance policies, health insurance policies, wills, utility bills, a family cell phone plan. Get it all together. Make a table of contents. Use tabs. Government adjudicators really appreciate tabs.

  1. There were blanks in that gun. I didn’t do anything!

Has your spouse ever committed any crime at all, even one that was not prosecuted, even one where the record was later expunged? Stop and call a lawyer. You can be put into deportation proceedings for stealing a candy bar. (Not my client, but I have seen it with my own eyes.)

How did your spouse get here? We treat people who crossed the border very, very differently from people who overstayed visas. If your spouse walked across the border, stop and call a lawyer.

Did your spouse do any side work while on a visitor visa? Did your spouse ever use questionable documents? Ever apply for asylum? Ever have a driver’s license issued under questionable circumstances? You know what to do. Let’s do it.


Statutes of Liberty: What is Happening to DACA?

This sponsored column is by James Montana, Esq., the principal of Steelyard LLC, an immigration-focused law firm located in Arlington, Virginia. The legal information given here is general in nature. If you want legal advice, contact him for an appointment.

By James Montana, Esq.

My clients and my friends want to know: What on earth is happening to Deferred Action for Childhood Arrivals (DACA)?

Here’s the state of play.

In 2012, President Obama promulgated DACA which, in effect, granted work permits and security to people who were brought to the United States as minors and met a laundry list of qualifications.

These young men and women came from all walks of life. I’ve won DACA relief for skilled carpenters, salesmen, a few graduates of very ritzy private schools and one especially memorable young man who overcame homelessness after winning DACA relief. Getting work permits was a big deal for all of them, and helping them out has been one of the most rewarding elements of my practice.

DACA was granted to individual applicants in two-year increments, beginning on whatever date United States Citizen and Immigration Services (USCIS) happened to approve the initial application. For this reason, approval dates (and renewal dates) were spread all over the calendar.

On September 5, 2017, President Trump issued a memorandum rescinding DACA. This memorandum had the following effects:

  1. USCIS is no longer accepting new applications for DACA.
  2. USCIS set a deadline of October 5, 2017 for renewal requests for DACA recipients whose status was expected to expire between September 2017 and March 5, 2018. That deadline has now passed.
  3. Current DACA recipients can no longer apply for travel permits.
  4. USCIS continues to re-issue requests to replace lost DACA work permits.

As of now, the unlucky folks who run out of DACA status will not be able to renew. That means that work permits can’t be renewed, and old deportation orders can, in theory, be put into effect.

The news isn’t all bad for DACA recipients. There are four major ongoing lawsuits challenging President Trump’s rescission of DACA in federal court. One or more of them might succeed, in one way or another: by halting the rescission of DACA, by overturning it completely or by preventing Department of Homeland Security (DHS) from using biographical data garnered through DACA in enforcement actions. I’m tracking these lawsuits closely.

Despite these setbacks, some DACA recipients are eligible to apply for green cards. DACA recipients who are married to U.S. Citizens (or lawful permanent residents) should contact an immigration attorney to learn more.

A more general solution remains elusive. Congress may act to formalize DACA through legislation; but, in my view, the chance of that happening is low. The more likely outcome is that President Trump will lift the rescission of DACA. We know he wants to. How do we know?


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