Noelia Rodríguez-Quiñones

Illinois Couple Sues USCIS For Denying Application for Permanent Residence

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APRIL 30, 2018

CHICAGO – US citizen Thomas Valdivia Jr. and Radu C. Cheslerean, a citizen of Romania, today filed a lawsuit against United States Citizenship and Immigration Services (USCIS) for improperly denying Valdivia’s petition to sponsor his husband for permanent residence. Filed by Nancy M. Vizer PC, the complaint alleges that USCIS abused its discretion in denying this same-sex couple’s application.

Shortly after same-sex marriage was legalized, Valdivia and Cheslerean were married in Las Vegas. The couple then applied for Cheslerean’s permanent residence, but the petition was denied because ten years after the fact, USCIS alleged for the first time that Cheslerean’s previous marriage was fraudulent.

In 2006, Cheslerean’s then wife attempted to sponsor him for permanent residence. USCIS denied the petition, finding that the couple did not submit sufficient evidence to demonstrate that the marriage was “bona fide.” The couple eventually divorced, Mr. Cheslerean overcame his strict religious upbringing, acknowledged that he was gay and moved in with Valdivia.

USCIS has now denied Mr. Valdivia’s petition on behalf of his husband on an improper basis. The denial alleged a previous fraudulent application. “This is simply not true. Mr. Cheslerean’s 2005 application was denied on the basis that the couple provided insufficient evidence. Under USCIS’ own regulations and case law, this did not provide a foundation for the current denial. Congress’ stated intent in promulgating immigration laws is to promote family unity. Arbitrary and capricious denials, such as the one in this case, frustrate that intent. Mr. Valdivia and Mr. Cheslerean have chosen to come forward and demand that USCIS act in accordance with the law, but many applicants with similar cases do not have the resources, and/or do not wish to waive confidentiality in order to do so,” said Noelia Rodriguez, lead counsel for the plaintiffs.

The lawsuit was filed against Attorney General Jefferson Sessions; Secretary of Homeland Security Kirstjen Nielsen; Director of USCIS L. Francis Cissna; Director Chicago District Office, USCIS John Furlong; and Field Office Director, Chicago District Office, USCIS Martha Medina-Maltes.

For more information contact Noelia Rodríguez Quiñones at nrodriguez@vizerlaw.com  or 312-957-1755

 

5 Signs You Have the Wrong Immigration Lawyer

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In these uncertain political times, it is especially important that you hire an immigration lawyer that you can trust to do her job correctly. Many prospective clients focus solely on a firm’s record of success on similar cases. However, clients should also consider whether an attorney’s business practices restrict the client’s ability to hold their attorney accountable in the event that she fails to perform her contractual or ethical obligations to the client. If you are not adequately informed of your rights as a client, or sign an agreement that effectively prevents you from ensuring that your attorney complies with her ethical obligations, then you have probably hired an attorney that is more interested in protecting herself than you. Below are some signs that your attorney may be playing fast and loose with her ethical obligations.

1. You had a brief and uninformative legal consultation before signing an engagement agreement for substantive services.

An attorney has an ethical obligation to “reasonably consult with the client about the means by which the client’s objectives are to be accomplished” and to “explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.” Model Rule of Professional Conduct 1.4; Illinois Rule of Professional Conduct 1.4.

Attorneys also have a duty to “provide competent representation to a client.” Model Rule of Professional Conduct 1.1Comment 5 to Illinois Rule of Professional Conduct 1.1 explains that the “[c]ompetent handling of a particular matter includes inquiry into and analysis of the factual and legal elements of the problem, and use of methods and procedures meeting the standards of competent practitioners.”

At an initial legal consultation, an attorney is supposed to gather sufficient facts from you in order to determine if she is able to help you. Sometimes this determination requires a preliminary factual investigation. For example, many immigration firms perform FOIA requests and/or FBI background checks as a preliminary step in a variety of cases. However, the decision to engage the firm to perform these records searches requires your informed consent. To this end, the attorney should explain to you why the proposed records search is a necessary step in accomplishing your objectives, and whether there are any possible risks associated with it. The attorney should also discuss with you how certain search results could affect strategic recommendations and service offerings in your case. Lastly, the attorney should also explain her fees and clearly define the scope of representation for any offered service.

If you are looking to obtain an employment-based green card through an EB-1A (extraordinary ability) or EB-2 (NIW) petition, it is important that you first discuss with your attorney the logistics of your case after your I-140 petition is approved, as well as the possible consequences of a denial. Why pay an attorney to assist you in filing your I-140 if you will ultimately be unable to obtain your green card on the basis of the approved I-140? Below are some important strategic considerations that may affect your decision to pursue an I-140 petition in the first place:

  • estimated processing times for each step of the process
  • whether concurrent filing of the I-485 is possible and desirable in light of the financial risks
  • whether there are any inadmissibility issues that could potentially frustrate your ability to immigrate to the U.S.
  • whether you and/or your family members will be able to maintain legal status while your I-140 is pending
  • whether there are family members that will be applying for permanent residence on the basis of your approved I-140
  • whether you and/or your family members plan on applying for adjustment of status or undergoing consular processing

Many practitioners, including our firm, offer free CV evaluations for the above employment-based petitions. Do keep in mind, however, that CV evaluations are limited to determining eligibility for a given category of employment-based immigration. This is just one part of the immigration process. You should not have to wait until after your I-140 is approved to consider the other steps. If your attorney only discussed your I-140 eligibility with you and you are now deciding whether to sign an agreement for representation in connection with the I-140 petition, then you need to get answers to these questions firstRemember: you are the one that needs to make an informed decision!

 Also keep in mind that some attorneys limit the consultation time to one hour or less, while others don’t limit the consultation time at all. Make sure you ask about this before scheduling an initial consultation with an immigration attorney.

At Nancy M. Vizer, P.C., we take the necessary time to work through the facts of your case and make strategic recommendations based on your short- and long-term goals. Because we take our ethical obligations seriously, your consultation for EB-1 and NIW cases includes a discussion of the above listed preliminary considerations.

2. Your representation agreement says that every communication initiated by you and not requested by your attorney is excessive.

Attorneys have an ethical obligation to keep you “reasonably informed about the status of [your case.]” Model Rule of Professional Conduct 1.4; Illinois Rule of Professional Conduct 1.4.

Comment 4 to Illinois Rule of Professional Conduct 1.4 provides that “[a] lawyer’s regular communication with clients will minimize the occasions on which a client will need to request information concerning the representation. When a client makes a reasonable request for information, however, paragraph (a)(4) requires prompt compliance with the request, or if a prompt response is not feasible, that the lawyer, or a member of the lawyer’s staff, acknowledge receipt of the request and advise the client when a response may be expected. A lawyer should promptly respond to or acknowledge client communications.”

At Nancy M. Vizer, P.C., we do not discourage clients from making reasonable requests for information. We do not deem all communication initiated by you and not requested by us as excessive. We do not charge our clients hourly fees to touch base with them and discuss the status of their case if they happen to contact us before we contact them. We also make an effort to take clients’ calls during business hours rather than automatically forward all our calls to a voicemail.

3. You don’t have a specific attorney assigned to your case.

All attorneys have a personal duty to abide by the Rules of Professional Conduct. See Illinois Rule of Professional Conduct Rule 5.2(a).

When no specific attorney is assigned to your case, it makes it easier for attorneys who work on your case to escape liability for failing to fulfill their ethical obligations to you. A firm’s assurances that the quality of service will not suffer because you have no specific attorney assigned to your case means nothing if your attorney has undermined your ability to enforce that assurance. Even if no attorney is assigned to your case, make sure that you keep a record of your communications with your firm, and that you get a name for the person behind every single interaction. In any event, Rule 5.1(c) lists two ways in which a lawyer can be held responsible for another lawyer’s violation of the Rules of Professional Conduct:

(1) the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved; or

(2) the lawyer is a partner or has comparable managerial authority in the law firm in which the other lawyer practices, or has direct supervisory authority over the other lawyer, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.

At Nancy M. Vizer, P.C. you will always have at least one attorney as a point of contact on your case.

4. Your representation agreement contains a mediation or arbitration clause.  

If your contract limits dispute resolution in this manner, you should make sure that (1) the attorney fully apprises you of the advantages and disadvantages of binding arbitration and gives you enough information so that you can make an informed decision about this issue, and (2) the arbitration provision does not limit the liability to which the lawyer would otherwise be exposed under common or statutory law unless you are independently represented in making the agreement.

While arbitration clauses related to attorney malpractice claims are generally enforceable in Illinois, the Illinois Rule of Professional Conduct 1.8(h)(1) states that a lawyer shall not “make an agreement prospectively limiting the lawyer’s liability to a client for malpractice unless the client is independently represented in making the agreement.” Comment 14 to the rule provides the reasoning for this, noting that such an agreement is “likely to undermine competent and diligent representation.” Further, this comment notes that “many clients are unable to evaluate the desirability of making such an agreement before a dispute has arisen.” The comment also notes that the rule does not “prohibit a lawyer from entering into an agreement with the client to arbitrate legal malpractice claims, provided such agreements are enforceable and the client is fully informed of the scope and effect of the agreement.”

At Nancy M. Vizer, P.C., we do not use mediation or arbitration clauses in our engagement agreements.

5. Your representation agreement prohibits you from disclosing any information relating to the representation.

The concepts of attorney work product and intellectual property have sometimes been employed to prohibit clients from disclosing any and all information relating to their representation, in what amounts to confidentiality clauses. Some practitioners have gone as far as defining attorney communications and legal advice as attorney work product. This is an unethical practice that may render the agreement unconscionable and therefore unenforceable. The practical effect of such an expansive confidentiality clause is that clients will be terrified to share any information about their representation with anyone, including other counsel, should a dispute arise. In fact, you should be wary of entering a representation agreement with an attorney who discourages  you from seeking independent legal advice before entering said agreement. As a client, you have the right to seek a second professional opinion, to terminate representation, to sue for malpractice, etc. Attorneys obviously dislike these situations and good attorneys will try their hardest to avoid them. But they still have an obligation to apprise you of your rights as a client!

The doctrine of attorney work product, like that of attorney-client privilege, was created to protect the client, not the attorneyComment 3 of Illinois Rule of Professional Conduct 1.6 discusses attorney work product as follows:

The principle of client-lawyer confidentiality is given effect by related bodies of law: the attorney-client privilege, the work product doctrine and the rule of confidentiality established in professional ethics. The attorney-client privilege and work product doctrine apply in judicial and other proceedings in which a lawyer may be called as a witness or otherwise required to produce evidence concerning a client. The rule of client-lawyer confidentiality applies in situations other than those where evidence is sought from the lawyer through compulsion of law. The confidentiality rule, for example, applies not only to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source. A lawyer may not disclose such information except as authorized or required by the Rules of Professional Conduct or other law.

Generally, a client has the ability to disclose or authorize disclosure of confidential information concerning his or her representation. The latter is normally accomplished by signing a release authorizing disclosure to a specified individual. Unfortunately, some practitioners employ clauses prohibiting clients from making or authorizing such disclosures in order to silence clients and discourage them from seeking representation of other counsel should a dispute arise. If you signed a representation agreement containing this type of clause, and are now in a dispute with your attorney, do seek the advice of a contract or malpractice attorney. Remember that all legal consultations are confidential.

At Nancy M. Vizer, P.C. we believe that the quality of our services and their value to our clients depends on the personalized approach we give to each individual case. We don’t use cookie-cutter approaches because we refuse to neglect our ethical duties as legal advisors to our clients. Successful attorney-client relationships are not predicated on mass-produced applications or DIY kits sold to consumers on the condition that they waive their most important rights, the very rights that the legal profession was designed to protect.

 

Antonio Banderas’s inspiring acceptance speech at the 2015 PLATINO Awards of Iberoamerican Cinema

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“Since you are not experienced in things of the world, all things that are a bit difficult seem impossible to you. Trust time; it usually provides a sweet way out of many bitter challenges.”
-Miguel de Cervantes Saavedra, Don Quixote

Antonio Banderas was the winner of the Honorary Award at the prestigious PLATINO Awards of Iberoamerican Cinema this year. The Spanish actor repudiated Donald Trump’s comments in which he characterized Mexicans as delinquents. Banderas defended Latin and Iberoamerican culture in his inspiring acceptance speech, which we have translated for your reading pleasure:

Thank you. Receiving this PLATINO award is obviously an honor, especially since I’m receiving it from the hands of a legend, Rita Moreno; indeed it is a great privilege.

From my Phoenician, Muslim, Roman, and Picassian Málaga, on my father’s side, and Zambrinian, on my mother’s side, I send my regards to all the Latin communities with which I unite not just in the same tongue, but also in our shared desire to dream, and of doing it through the big screen in movement, that is what we call cinema.

Whether I want to or not, I must acknowledge that receiving an award comes with a mountain of vain temptations against which one must fight as Don Quixote fought against the windmills, or giants, of his Manchegan land. And although I was born in Andalusian lands, in Málaga, which, for me, is a dream come true, I have always believed myself to share with that gentleman of sad figure, the foolish insanity, the irrepressible yearnings, and the eager vocation for adventure.

Today I am so happy and excited to receive this recognition, for which I am grateful from the bottom of my heart, as I am of receiving so many friends, so much talent, to whom I hope my Malagan land will open the door and treat with the same affection with which I have been treated in each of the Latin countries in which I have had the good fortune of working.

Seven movies in Mexico, three in Argentina, one in Venezuela, one in Chile, one in Colombia and one in Puerto Rico, in which I was able to share with large teams of professionals a way to make cinema, and a way of understanding life.

But the great change has not been produced yet. The great leap has not been taken. It was really the United States, it must be acknowledged, which little by little has given possibilities to Hispanic talent, and some of us who are present here have benefited from this fact—give to Caesar what is Caesar’s, and to Hispanics what is ours. It is there, I repeat, where I begin to comprehend the real dimension, the universal character, the indubitable potential, and the uncontainable strength of what is Latin.

That place where, despite Mr. Donald Trump’s noxious and absolutely reproachable interest in kicking our behinds, a crucible of communities that speak the Cervantean tongue reunite, not only enriching the cultural life of the country, but also contributing values supported in their own dignity, hard work, sacrifice, and the powerful aftertaste of feeling united against no one.

Indeed, without confrontations, with an open heart, with curiosity as our flag, and with the clear idea that, although we all love our respective countries of origin, we can, without a doubt, embrace the idea of the Latin and the pride of feeling Hispanic.

I think that these PLATINO Awards are a platform to begin a journey that helps us consolidate the respect that Latin cinematography has acquired, that allows us to reclaim our tongue in productions, and that makes us strong so that we are able to compete in equality of circumstances. No more and no less.

No one will value us if we don’t do it ourselves.

I will end with Cervantes and his Don Quixote who, from his dreaming and at times lucid mind, would say:

“Since you are not experienced in things of the world, all things that are a bit difficult seem impossible to you. Trust time; it usually provides a sweet way out of many bitter challenges.”

New USCIS Case Status & E-Requests Rife with Inefficiencies

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You have been diligently checking your USCIS case status online for the past few months. For a while now, the case status has reflected that USCIS is “ready to schedule your Form I-485, Application to Register Permanent Residence or Adjust Status, Receipt Number ABC1234567891, for an interview.” On November 11, 2014, you go online once again, and are surprised by the website’s new look, which now includes an “upgraded” Case Status tool. To your dismay, your case status now states “If you do not receive your interview notice by September 5, 2014, please go to www.uscis.gov/e-request (https://egov.uscis.gov/e-Request/Intro.do) to request a copy of the notice”!!! Now you are really freaking out. Since when have I had the option to file an E-Request and inquire about my interview notice? Do I have to file an e-request? What if USCIS did send out a notice and I didn’t receive it? It sounds like they did, otherwise why would they be telling me to request a copy of the notice? At this point you either call your attorney and ask them to file the E-Request on your behalf or you go ahead and file one on your own.

As soon as the E-Request is submitted through the website, you are sent to a confirmation page with the following message:

Thank you for your request

USCIS will review and process the request.

Expect a reply by December 3, 2014

Your request ID number is AB12345678912ABC

Your attorney or you receives an email from USCIS-CaseStatus@dhs.gov with the same information.

You have been frenetically checking your inbox in the days leading up to December 3rd, but to no avail–USCIS failed to respond to your request by their self-imposed deadline. Today is December 17, and you have still not received any reply from USCIS. Back to square one.

If you had me as an attorney, I would have told you not to hold your breath. We had a few clients call with the above questions right after USCIS unveiled a new look to its website and additional  features, including the upgraded Cases Status and E-Request tools discussed above. While sleek-looking and user-friendly, these tools are completely useless if they don’t do what they promise to do.

User-friendly, yes. Efficient, not so much.

User-friendly, yes. Efficient, not so much.

I wouldn’t worry too much about the “deadlines” for filing E-Requests. These seem to have been automatically computed from the date of last action on the case. I would especially not worry if you have an attorney on the case, and he/she has also not received an interview notice.

Looks fabulous, but can be highly misleading.

Looks fabulous, but can be highly misleading.

Shortly after the USCIS website unveiled its new look, it went down for nearly a full day. They have significantly improved the speed of the website, but it’s clearly still a work in progress. In light of these ever-changing circumstances, take what you see online with a grain of salt. You might be better off just speaking to a USCIS customer service representative.

Your electronic I-94, Travel History could be full of errors

By | CBP, Clients, Visas | No Comments
Screenshot of Online I-94 Retrieval Form

Screenshot of Online I-94 Retrieval Form

 

While you no longer have to worry about replacing a lost or damaged paper I-94, you still have to make sure CBP is doing its job. And you need to worry about more than just your I-94; you also need to make sure that your travel history log is complete and correct!

Recently I had a client go through what I will call ‘the CBP Nightmare.’ Multiple lessons were learned in the process but they all boil down to this: don’t assume CBP is doing their job right.

The CBP Nightmare

It all began with the officer who stamped my client’s passport at the port of entry. According to the stamp, he was approved for a 7-month stay on a B2 visa. The client, having flown multiple times on a B2 since he was a child, concluded this was just a discretionary grant and left it at that.

When my client had a little less than a month of authorized stay (based on the passport stamp), he went online and checked his I-94. The first mistake he saw was the ‘Most Recent Date of Entry.’ The date shown was from 5 trips ago; that is, my client had flown in and out of the U.S. on his B2 five times after the date that was shown! After looking at the Travel History, it was confirmed that CBP had failed to enter my client’s last five entries. This lead to the next mistake: according to the ‘Admit Until Date,’ my client was out of status!

And now, the next episode of the CBP Nightmare: Deferred Inspection.

I have now shown up with my client at the CBP Deferred Inspection Office in Chicago, a small and empty waiting room with a service window. The officer shows up–you have to ring a bell so that an officer will show up at the window–and, without giving us an opportunity to explain why we are there, she immediately tells us that they are no longer giving out paper I-94s and that we need to go online to print them out. Ok, good to know. I handed the officer a full set of copies of my client’s passport, as well as the passport, and printouts of the I-94 and Travel History. I offered the itineraries for all five trips after the one shown in the record, and explained that the last trip that was booked was changed and that my client did not leave the country as scheduled. The officer refused to even look at the itineraries, then she disappeared with passport and copies. We were eventually given back our documents and an updated printout of just the I-94. To our horror, the I-94 indicated that my client was authorized for the standard 6-month period and that he had fallen out of status just a few of days before, which was inconsistent with the information on the passport stamp. We pointed this out to the officer. The officer called her supervisor, and the supervisor instructed the officer to manually correct the stamp on the passport, writing in the previous month, and placing the mark “CWOP” (cancelled without prejudice). They shrugged their shoulders and told us to talk out the rest with CIS. Without prejudice indeed…

But it gets worse. When we get back to the office and check the Travel History, the record shows that my client left the country when he actually didn’t. Apparently, CBP taps only into airlines’ booking records, rather than their boarding records. Then I look through the passport copies that were handed back to me. They kept the page with the original passport stamp! Thankfully, I had made another copy for my records.

Based on the above experience, I have come up with the following:

Tips for the Travelling Nonimmigrant

  1. Check your I-94 and Travel History as soon as possible after your last entry and make sure it’s correct;
  2. Don’t rely on the information on your passport stamp–always check it against the information in your electronic record;
  3. CBP can change official travel documents on the spot with no record of the change–keep good copies of every original document you give them;
  4. Also make sure to keep copies/printouts of the I-94 and Travel History versions you are trying to correct;
  5. Hire an immigration attorney to help you navigate the Deferred Inspection process and help you file a complaint against CBP if necessary.

H-1B cap and denials have prevented job creation and wage growth for US-born tech workers

By | Employment-Sponsored Immigration, Politics, Tech Workers, USCIS, Visas | No Comments

it office

The Partnership for a New American Economy’s new report, Closing Economic Windows: How H-1B Visa Denials Cost U.S.-Born Tech Workers Jobs and Wages During the Great Recession, shows how existing H-1B visa lottery caps disproportionately hurt American-born tech workers by slowing job and wage growth in more than 200 metropolitan areas across the United States. H-1B visa denials in 2007 and 2008 caused these areas to miss out on creating as many as 231,224 tech jobs for American-born workers in the years that followed and cost U.S.-born, college-educated workers in computer-related fields as much as $3 billion in aggregate annual earnings.

Key report findings include:

  • The high number of H-1B visa applications that were eliminated in the 2007-2008 visa lotteries represented a major lost opportunity for U.S.-born workers and the American economy overall. The rejection of 178,000 H1-B visa applications in computer related fields in the 2007 and 2008 H-1B visa lotteries caused U.S metropolitan areas to miss out on creating as many as 231,224 often highly-sought after tech jobs for U.S.-born workers in the two years that followed. The total number of U.S.-born workers with computer-related jobs would have exceeded 2 million by 2010 with that additional employment.
  • The U.S. tech industry would have grown substantially faster in the years immediately after the recession if not for the large number of visas that didn’t make it through the 2007 and 2008 H-1B visa lotteries. The number of jobs for U.S.-born workers in computer-related industries would have grown at least 55 percent faster between 2005-2006 and 2009-2010, if not for the applications eliminated in the recent H-1B visa lotteries. Computer firms could have added as many as three times more jobs for U.S.-born workers than they actually did during that period without all the unsuccessful H-1B visa applications.
  • U.S.-born workers without bachelor’s degrees were disproportionately hurt by the H-1B visa lotteries in 2007-2008. Because less-educated tech workers often play valuable roles supporting the work of high-skilled engineers, programmers, and others, they were particularly impacted by recent H-1B trends. By 2009-2010, U.S. metropolitan areas lacked as many as 188,582 computer-related jobs for U.S.-born workers without a college degree as a direct result of the large number of applications that were eliminated in the 2007 and 2008 H-1B visa lotteries. The number of positions missing from the economy for U.S.-born, college-educated tech workers, in contrast, was between 24,280 and 42,642.
  • The H-1B visa lotteries in 2007 and 2008—and the denials resulting from them—greatly slowed wage growth for workers in computer-related industries. In 2009, the 1.1 million U.S.-born, college-educated workers in computer-related fields missed out on as much as $3 billion in aggregate annual earnings as a direct result of the large number of applications that were unsuccessful in the H-1B visa lotteries in the 2007-2008 period. From 2005-2006 to 2009-2010, wages for college-educated, U.S.-born workers with computer-related jobs grew by 1.7 percent. Without the earlier visa lotteries, their wages could have grown by as much as 4.9 percent during that period.
  • For some cities, the H-1B visa lotteries in 2007 and 2008 had a particularly large impact.  In New York City and Northeast New Jersey, the large number of H-1B visas that didn’t make it through the lottery for workers in computer-related fields caused the local economy to miss out on creating as many as 28,005 jobs for native-born workers in those industries by 2009-2010. The Washington, DC metropolitan area, including parts of Virginia and Maryland, lost the opportunity to create as many as 30,222 computer-related jobs for U.S.-born workers during that period; Chicago and Dallas Forth Worth passed up the opportunity to create as many as 27,329 such positions together.

This report was prepared for the Partnership for a New American Economy by Giovanni Peri, University of California, Davis and the National Bureau of Economic Research; Kevin Shih, University of California, Davis; and Chad Sparber, Colgate University.

Divorce does not eliminate your obligations under Affidavit of Support (Form I-864) even if you have a prenup waiving alimony

By | Family-Sponsored Immigration | 15 Comments
Photograph: Mike Kemp/Getty Images

Photograph: Mike Kemp/Getty Images

Back in July 2012, the 7th Circuit held that even if an immigrant spouse is sitting at home without seeking work, a sponsoring spouse who signed the Affidavit of Support (Form I-864) still has a duty to support the immigrant spouse at 125% of the Federal poverty level. In other words, there is no duty of mitigation with respect to obligations under the affidavit. The court reasoned that the required level of support is meager, so the sponsored immigrant has a strong incentive to seek employment, apart from any legal duty. The court also clarified that Form I-864 presently makes explicit that “divorce does not terminate your obligations under this Form I-864,” a fact which was merely implicit back in 1999. See Wenfang Liu v. Mund, 686 F.3d 418 (7th Cir. 2012).

Most recently, the U.S. District Court of Maryland held that Form I-864 is enforceable even if a couple had previously signed a prenup waiving their right to alimony. Specifically, the Court found that Form I-864, imposed by federal law, is separate from any obligation of support imposed under Maryland law or right to support waived by the parties via an ante-nuptial agreement. The Court quoted a few decisions holding that “the parties by their conduct may waive the requirements of a written contract’,” and explained that, “[b]ecause Defendant signed the ante-nuptial agreement before he signed the Form I-864, the sequence of Defendant’s actions leads to the conclusion that the Form I-864 waived that portion of the ante-nuptial agreement concerning spousal support.” See Toure-Davis v. Davis, Dist. Court, D. Maryland 2014. 

So to summarize the lessons learned from the above decisions:

  1. divorce does not end a sponsoring spouse’s obligations under Form I-864
  2. the sponsoring spouse is still obligated to support the immigrant spouse, even if the  immigrant spouse is not seeking work
  3. the sponsoring spouse is still obligated to support the immigrant spouse, despite a prenup waiving alimony rights

The bottom line is that, although Form I-864 is a necessary document in the adjustment of status process, it can have very real legal consequences and should not be signed without a full understanding of the obligations it creates in the sponsor, whether it be the immigrant’s spouse or someone else. The federal regulations provide that “[e]xecution of an affidavit of support . . . creates a contract between the sponsor and the U.S. Government for the benefit of the sponsored immigrant, and of any Federal, State, or local government agency or private entity that administers any means-tested public benefits program.” 8 C.F.R. § 213a.2(d) (2013). This means that federal, state, local, and even private agencies can go after the sponsor for reimbursement in the event that they provide means-tested public benefits to the immigrant spouse.

There are only 5 circumstances under the law whereby the sponsor’s financial obligation terminates:

  1.  the sponsored immigrant becomes a citizen of the United States;
  2. the sponsored immigrant has obtained 40 quarters of coverage under Title II of the Social Security Act;
  3. the sponsored immigrant ceases to hold LPR status and departs the United States;
  4. the sponsored immigrant becomes subject to removal but applies for and obtains a new grant of adjustment of status; OR
  5. the sponsored immigrant dies. 8 C.F.R. § 213a.2(e)(2)(i)(A)-(E).

Proposed USCIS rule will allow some H-4 dependent spouses to work

By | Employment-Sponsored Immigration | No Comments

On May 12, 2014, USCIS published a proposed rule that would extend employment authorization to certain H-4 dependent spouses. The extension would be limited to H-4 dependent spouses of H-1B nonimmigrants who are either the beneficiaries of an approved Immigrant Petition for Alien Worker (Form I–140) or who have been granted an extension of their authorized period of admission in the United States under the American Competitiveness in the Twenty-first Century Act of 2000 (AC21).

As explained in the Federal Register,

The lack of employment authorization for H–4 dependent spouses often gives rise to personal and economic hardship for the families of H–1B nonimmigrants the longer they remain in the United States. In many cases, for those H–1B nonimmigrants and their families who wish to remain permanently in the United States, the timeframe required for an H–1B nonimmigrant to acquire lawful permanent residence through his or her employment may be many years. As a result, retention of highly educated and highly skilled nonimmigrant workers in the United States can become problematic for employers.

So although not all H-4 dependent spouses will get employment authorization, the proposed rule will still have a positive impact on both immigrants and their U.S. employers. This is especially true considering that many I-140 beneficiaries face huge backlogs in visa availability dates and will therefore be unable to adjust their status for several years.

Here’s the link to the proposed rule: http://www.gpo.gov/fdsys/pkg/FR-2014-05-12/pdf/2014-10734.pdf

No more FOIAs to get your I-94 history for last 5 years

By | CBP, USCIS, Visas | No Comments

 

I-94AOn April 30, 2014, CBP announced that you will no longer need to file a Freedom of Information Act (FOIA) Request to obtain your arrival/departure history and records for the last five years from the date the request is made. Through the I-94 website, you will be able to retrieve your most recent I-94 information. Specifically, the website will show you the following:

  • I-94 number
  • most recent date of entry
  • class of admission
  • admit-until date

All you need to get access to your I-94 records is:

  • your name
  • your date of birth
  • your passport information

Those who entered the U.S. in the last 5 years and had their I-94 lost or destroyed can now save big bucks thanks to the I-94 website. The filing fee for an I-102, Application for Replacement/Initial Nonimmigrant Arrival-Departure Document is $330! With the recent transition to electronic I-94s, the I-102 will  eventually become completely obsolete.