Our client, a woman from St. Lucia, was a victim of spousal abuse at the hands of her United States citizen husband, to whom she remains married to this day (but does not live with him).  When she came to us in 2007, her case did not appear very strong in terms of filing a battered spouse petition, Form I-360, which allows a battered spouse of a United States citizen to self-petition for permanent residency (as opposed to the traditional method of the U.S. citizen spouse sponsoring the foreign national spouse for permanent residency).

The requirements to self-petition as a battered spouse are not easy, and the U.S. Citizenship and Immigration Services closely reviews the claim and the evidence to determine whether the claim of abuse by a U.S. citizen spouse is a legitimate claim, such that it warrants allowing the foreign national spouse to pursue permanent residency on his or her own.

The difficulty presented by our client’s case was not unique.  She did not have a lot of evidence of her married life with her U.S. citizen husband.  She had blocked out of her mind numerous incidents of abuse, so she could not clearly recall or explain each instance of abuse she had suffered.  She did not make police reports against her husband out of fear that he would hurt her.  She did not tell her friends or family about the abuse she suffered at home.  So we had to begin with very little evidence in support of her claim of abuse.

But working with her for a few hours a day for a few weeks, we were able to learn from her many things she had never discussed with anyone else (and that she didn’t want to discuss, but it is, afterall, our job to get relevant information from our clients, no matter how difficult the subject matter!).  We worked with her to draft a detailed statement discussing her life, marriage, abuse, and what she hoped to achieve in the future.

However, the USCIS was not convinced and asked her to submit evidence – basically, evidence that did not exist.  Our client was frustrated and was ready to give up, throw in the towel, leave the country, and pretty much forget that her life in the United States ever existed!  Again, we worked with her to creatively address the USCIS’ concerns about her claim, pointing the USCIS to the reality of domestic abuse situations and explaining why she did not have the evidence USCIS wanted her to produce.

Our client was not optimistic that her visa petition would be approved.  But it was!  We received an approval notice late last year, and with that approval notice, we were able to pursue her adjustment of status application, as well as file a petition for her two children overseas to join her here after she became a permanent resident!

Today, we accompanied our client to her adjustment of status interview, where the interviewing officer gave her the best news of her life: “Welcome to the United States!  Your application for permanent residency will be approved.”  She could not believe this was really happening.  She was going to get to stay in the United States lawfully.  She will have a chance to reunite with her children in a few months.  She will have a chance to become a citizen of the United States.  When she realized all of the doors that have now opened up for her, it was overwhelming for her and she burst out in tears.  Tears of joy.

She thanked us for not letting HER give up in pursuing her case.  She knew she had to go through with this for herself and for her children.  We knew we couldn’t let her give up.  She inspired us more than she realizes!  We cannot wait to meet her children in the coming months!

© 2010, Thaker Berowitz LLP. All rights reserved.

Our client was placed in exclusion proceedings in 1989 by the former Immigration and Naturalization Service (“INS”).  “Exclusion” proceedings no longer exist, but prior to 1996, an alien seeking entry into the United States who was deemed inadmissible was placed in exclusion proceedings (as opposed to “deportation” proceedings, which were meant for a person already present in the United States who the INS wanted to deport).  Our client failed to appear for her exclusion proceedings before an immigration judge, so the immigration judge administratively closed the case.  Back in the days, judges often did this instead of ordering someone “excluded” (or “deported”) for failing to show up.  Nowadays, in “removal” proceedings (which in 1996 replaced the “exclusion” and “deportation” proceedings), an alien may be ordered removed in his or her absence for failing to appear for a scheduled hearing.

Our client went on to live her life in America – she married a United States citizen, had children, and even started her own business.  Her husband was a beneficiary of a petitioner HIS mother had filed for him prior to April 30, 2001, so our client was a derivative beneficiary of that petition.  Unfortunately, our client and her United States citizen husband divorced before she had an opportunity to apply for permanent residency.

She later married another United States citizen.  She came to us, wondering if she would ever be able to become a permanent resident.  After we discussed her case in detail with her, we were able to strategize her case to pursue adjustment of status under section 245(i).

An immigration judge granted permanent residency to our client, who, after more than twenty years in the United States, is now finally in legal status!

In her own words, our client sent us this email today:

Good Morning Miss Thaker and Mr. Berowitz

[Client name]

All we did was our job.  But it’s such a reward to know that we made a huge difference in someone’s life; we helped a husband and wife stay together; we helped a mother stay with her children; our work allowed a contributing member of the society continue to grow her business.

We couldn’t ask for anything more!

© 2010, Thaker Berowitz LLP. All rights reserved.

This is, of course, the ideal outcome.

But what happens when things do not go as well as expected?

What happens when a marriage ends in a divorce within the two years?

What happens if a marriage falls apart within the two years, but the couple has not yet divorced?

The answers to these important questions are not easy and certainly impact the CR’s eligibility to remain lawfully in the United States.

When a marriage ends in a divorce within two years, the conditional resident may file Form I-751 without the U.S. citizen spouse.  In this scenario, the conditional resident has two options.  The first is for the conditional resident to claim that he or she entered into the marriage in good faith, but that the marriage ended in a divorce (or an annulment).  The second option is for the conditional resident to claim that the termination of his or her status and removal from the United States would result in extreme hardship to him or her.

When a marriage falls apart within the two year period, but the couple has not yet divorced, the conditional permanent resident may file Form I-751 without the U.S. citizen spouse.  In this scenario the conditional resident has at least two options.  The first is for the conditional resident to claim that he or she entered into the marriage in good faith but during the marriage the U.S. citizen spouse either battered him or her or subjected him or her to extreme cruelty.  The second option is for the conditional resident to claim that the termination of his or her status and removal from the United States would result in extreme hardship to him or her.

In our office, we have seen many people who have ignored the requirement of filing the I-751 petition.  A majority of these people simply did not want to deal with filing the I-751 petition once the marriage ended or fell apart.  Others thought that because the marriage was over, they did not have to file the I-751 if it could not be filed jointly.  No matter what the circumstances, if you are a conditional resident, it is a bad idea either to ignore the I-751 filing requirement or assume that the filing of the petition is not required!

Most everyone enters into a marriage hoping that it will last forever.  But circumstances change and sometimes people change.  For those who obtained lawful conditional residency based upon a marriage that has since ended or gone bad, there is still hope to have the condition removed.

© 2010, Thaker Berowitz LLP. All rights reserved.

© 2010, Thaker Berowitz LLP. All rights reserved.

On November 13, 2009, the CDC announced its revisions to the vaccination process for immigration purposes.

© 2009, Thaker Berowitz LLP. All rights reserved.

Exclusion proceedings are a thing of the past, but there are many foreign nationals out there in the United States who are subject to “exclusion” orders.

Prior to 1996, when the immigration laws changed under the Anti-terrorism and Effective Death Penalty Act (“AEDPA”) and the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”), immigration proceedings were divided into “exclusion” and “deportation” proceedings.  In 1996, both “exclusion” and “deportation” proceedings were replaced with what we now know as “removal” proceedings.  While no post-1996 proceedings can be called “exclusion” or “deportation,” many pre-1996 “exclusion” and “deportation” cases still linger in our immigration system.

Did you know that while a foreign national with a final order of “deportation” or “removal” cannot seek administrative adjustment of status (with the U.S. Citizenship and Immigration Services), a foreign national with a final order of “exclusion” CAN seek such adjustment of status?

Seeking adjustment of status with an exclusion order is a unique benefit.  However, the USCIS officers adjudicating such adjustment of status applications often do not understand this legal concept.  All-too-often, as soon as a district adjudications officer (“DAO”) sees that a foreign national had an “exclusion” order, the DAO winds up denying the adjustment for lack of jurisdiction with the USCIS.  Contrary to such a decision, jurisdiction for adjustment of status lies ONLY with the USCIS when a foreign national is subject to an exclusion order.

While all this sounds pretty simple, it is anything but.  Recently, we filed an adjustment of status application for a client who was subject to an exclusion order.  With our knowledge and experience with immigration laws, we had no doubt about our client’s eligibility to adjust status with an exclusion order.  With the adjustment application, we also filed an application for employment authorization, since a pending adjustment application would entitle our client to  work authorization.

The USCIS sent us a notice (called a Request for Further Evidence), asking us to provide proof that our client’s adjustment application had been filed with the Immigration Court and that it was pending with the court.  Because we had indicated that our client was at one point in exclusion proceedings, the USCIS is under the impression that our client is still under immigration proceedings.  The USCIS refuses to adjudicate our client’s application for employment authorization until we provide them with proof of a pending adjustment application with the immigration court — proof that does not exist.  We are now attempting to explain to the USCIS why our client does not have proof that the adjustment application is not pending in court (because she is NOT in proceedings anymore — she already has a final order of exclusion), and why she is eligible to adjust her status despite the exclusion order (as opposed to someone with a “deportation” or a “removal” order).

Lesson: know the differences between an “exclusion,” “deportation,” and “removal” orders!  USCIS may not always recognize them (although its officers are supposed to know the “law” under which they are to perform their jobs!).

© 2009, Thaker Berowitz LLP. All rights reserved.