Articles Posted in I-601 Extreme hardship Waiver

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In this video and blog post, we discuss a recent Supreme Court decision finding that U.S. Citizens do not have a fundamental right in having their noncitizen spouses admitted to the United States.

What is this ruling all about?

Department of State v. Muñoz

On June 21, 2024, the Supreme Court ruled in a 6-3 decision in Department of State v. Muñoz that U.S. citizens petitioning for their foreign spouses do not have a constitutional liberty interest in their spouses being admitted to the country.

What’s worse, the court upheld the doctrine of consular nonreviewability, which says that there can be no judicial review of a consular officer’s decision finding a visa applicant inadmissible, except in a very limited class of constitutional cases.

About the Case

The plaintiff in the case, Sandra Muñoz, married her husband, a Salvadoran citizen in 2010, and shared a U.S. Citizen child with him. Thereafter, her husband applied for an immigrant visa at the U.S. Consulate in El Salvador so that they could live together in the United States and sought a waiver of inadmissibility. He denied having any gang affiliations despite being heavily tattooed.

After undergoing several interviews, the consular officer denied his application, citing §1182(a)(3)(A)(ii), a provision that renders inadmissible a noncitizen whom the officer “knows, or has reasonable ground to believe, seeks to enter the United States to engage solely, principally, or incidentally in” certain specified offenses or “any other unlawful activity.”

The plaintiff’s husband assumed that he had been denied a visa based upon the erroneous finding that he was a member of the gang MS-13. He denied being a member and requested the Consulate to reconsider its findings.

After the consulate refused, they appealed to the Department of State, which ultimately agreed with the consulate’s determination.

The couple then sought Congressional intervention and sued the State Department, claiming that they violated the plaintiff’s constitutional liberty interest in her husband’s visa application by failing to give a sufficient reason why he was inadmissible under the “unlawful activity” bar.

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In this video, attorney Jacob Sapochnick answers one of your frequently asked questions: Can undocumented immigrants open their own business in the United States?

If you would like to know more about this topic, please keep on watching!

Overview

This is one of the most widely misunderstood topics of discussion in immigration. The answer is yes, any person whether documented or undocumented can start a business in the United States.

Individuals can form a Limited Liability Company (LLC) or any other corporate structure irrespective of their legal status in the United States. This is because the LLC or corporate entity is a separate entity from the individual. The LLC can obtain an Employer Identification Number, also known as an EIN from the Internal Revenue Service (IRS) for the purpose of tax administration. To obtain an EIN, the principal business must be located in the United States or U.S. territories, and the member applying for the EIN must have a valid Taxpayer Identification Number, such as a Social Security Number (SSN), Individual Taxpayer Identification Number (ITIN), or EIN.

However, if you are employed by the LLC or corporate entity without lawful authorization to work in the United States, you will be in violation of the law, however the business registration in and of itself is legal.

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Are you applying for a green card or immigrant visa? Want to know whether the COVID-19 vaccine is required to immigrate to the United States?

Then this is just the right video for you. In this video you will learn all about the COVID-19 vaccination requirement from the U.S. Citizenship and Immigration Services (USCIS), as well as other useful information regarding the Form I-693, Medical Examination and religious exemptions to the vaccination requirement. This information is being provided to help you understand the medical examination requirements and prevent the issuance of a Request for Evidence.

Did You know? Last year, USCIS announced the COVID-19 vaccination requirement which impacted all adjustment of status applications and medical examinations, filed on or after October 1, 2021.

If you want to know more just keep on watching.

Overview

What are the COVID-19 vaccination requirements?

Effective October 1, 2021, USCIS announced that applicants for adjustment of status subject to the immigration medical examination must complete the COVID-19 vaccination series before their civil surgeon can complete and sign the Form I-693, Report of Medical Examination and Vaccination Record.

This means that if you submit your Form I-693 medical examination on or after October 1, 2021, you are required to complete the entire COVID-19 vaccine series (1 or 2 doses depending on formulation) and submit evidence of vaccination to your civil surgeon. During your medical examination appointment, your civil surgeon will inspect your vaccination record to make sure you have all of the necessary vaccinations, and discuss your vaccination history with you before signing the I-693 medical examination.

If you submitted your Form I-693 before October 1, 2021, then are not required to complete the COVID-19 vaccine series in order to obtain your adjustment of status.

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Have you ever wondered whether you can obtain a green card once you have overstayed your visa? In this video, attorney Jacob Sapochnick, answers precisely this question, along with related topics that might interest you. For instance, what should a person do once they have overstayed? What are the options to cure an overstay to obtain lawful status in the United States?

To understand more about this complicated topic, please keep on watching.

Overview

In most cases, a foreign national will come to the United States lawfully, meaning that they arrived on a valid visa type such as a student, visitor, or work visa and were inspected and admitted to the United States. Unfortunately, in some situations individuals fall out of status and overstay their period of authorized stay. Whether it is because they lost their job, failed to attend school, or could not leave the United States in time before the expiration of their I-94 arrival/departure record, there are many situations that can cause an overstay to happen.

By contrast, some individuals enter the United States unlawfully, meaning that they entered the United States without being inspected and without a valid visa. The issue of whether the foreign national entered lawfully or unlawfully is crucial when it comes to the options that may be available once an overstay has occurred.

How do I know if I overstayed my U.S. visa?

First, let’s discuss the threshold question of how one can know whether they have overstayed their visa.

This may seem like a complicated question, but in fact is very easy to resolve. A person overstays their visa if they have remained in the United States past the authorized period of stay stamped in their passport. When a person is admitted to the United States, they receive a stamp issued by a Customs and Border Protection official which provides the exact date when the individual’s period of stay expires, and consequently when they must leave the United States.

In addition to the passport stamp, foreign nationals can retrieve their I-94 arrival/departure record on the Customs and Border Protection (CBP) website which includes their most recent date of entry, and the date their period of authorized stay expires. The date of expiration is the date at which the foreign national must depart the United States. Failure to depart by the date indicated means that the applicant has overstayed their period of authorized stay.

In some cases, the I-94 stamp, or I-94 record will include the notation “D/S” most commonly for individuals on student visas. This notation means that the applicant is expected to leave the United States, when their program of study has ended. The end date of the program of study can be found on the Form I-20 Certificate of Eligibility for Nonimmigrant Student Status. Students should contact their Designated School Official for this information.

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Welcome back to Immigration Lawyer Blog, where we discuss all things immigration. In this video, we cover a very important topic: can people who overstayed their visa or entered illegally, get a work visa or employee sponsorship?

Recently our office met with a client who was in this very predicament. He had the perfect job opportunity from his dream employer and was now interested in knowing how he could obtain a work visa with his employer’s sponsorship. The problem: he entered the country illegally and since entering had no lawful status in the United States.

Here is where we had to deliver the bad news.

The bottom line

A person who has entered illegally or overstayed the duration of their visa, is not eligible to adjust their status to permanent residence. During the employment sponsorship process, the visa applicant must provide information regarding their entry to the United States. Under current immigration law, a person who has entered without inspection cannot adjust their status in the United States, based on employment sponsorship except under one limited exception called 245(i).

What is 245(i)

245(i) is a provision in the law passed under the Legal Immigration Family Equity (LIFE) Act in the year 2000, enabling certain individuals who are unlawfully present in the United States to apply for adjustment of status, despite their unlawful entry.

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What’s the difference between someone who is undocumented in the United States and someone who is here illegally?

What does it mean to be “undocumented”?

When someone is in the United States “undocumented,” that means that the person entered the United States without inspection (without the proper documentation), and as a result are currently living in the United States without the proper documentation, hence the term “undocumented.”

What does it mean to be in the U.S. “illegally”?

On the other hand, someone who came to the United States on a valid visa (such as a student visa, tourist visa, etc.) and then lost their status, either because they did not renew their visa, or their visa expired, or for some other reason, are in the United States “illegally.” These individuals were legally in the United States at some point but are now in the United States “illegally” because they are now out of status. This is also referred to as a visa overstay.  That is because the individual has now stayed in the United States past the time authorized by their initial visa.

In both cases, the individual is in the United States without authorization because they do not have the proper visa.

Path to Residency

A person who is “undocumented” meaning that they entered the United States without proper inspection, cannot adjust their status to permanent residency so easily even where married to a U.S. Citizen. Undocumented parties married to U.S. Citizens must file a waiver of inadmissibility and in some cases will have to leave the United States before applying for residency.

By contrast, a person who entered the United States with proper inspection, but who is now in the United States illegally because of an overstay, can apply for permanent residency more easily, where married to a U.S. Citizen. These individuals do not have to leave the United States before applying for residency.

The key difference between the two is in whether the person entered the country with inspection. If you entered without inspection, you would be undocumented. If you entered with inspection, but have overstayed your visa, you are in the country illegally.

If you have questions about relating to your status and legalization, please contact us.

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Overview:

What is the I-601 Waiver?

The I-601 waiver is an application that is filed by individuals who are ineligible to gain admission to the United States as an immigrant, or who cannot adjust their status in the United States to become a permanent resident, because they are barred from the United States. The I-601 waiver is essentially a form that is filed to gain permission to apply for permanent residence in the United States or gain admission through an immigrant visa. This form will allow individuals to obtain relief from the following grounds:

  1. Health-related grounds of inadmissibility (INA section 212(a)(1))
  2. Certain criminal grounds of inadmissibility (INA section 212(a)(2))
  3. Immigration fraud and misrepresentation (INA section 212(a)(6)(c))
  4. Immigrant membership in totalitarian party (INA section 212(a)(3))
  5. Alien smuggler (INA section 212(a)(6)(E))
  6. Being subject to civil penalty (INA section 212(a)(6)(F))
  7. The 3-year or 10-year bar due to previous unlawful presence in the United States (INA section 212(a)(9)(B))

Who is Eligible?

Not everyone is eligible. To qualify, you must have what is called a “qualifying” relative who will be the focus of the petition. A qualifying relative includes a U.S. Citizen or legal permanent resident spouse or parent. In cases where a waiver is filed for certain criminal grounds of inadmissibility a qualifying relative may also include a child who is a U.S. citizen.

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In this segment, attorney Jacob Sapochnick Esq., discusses an example of an I-601 Waiver. For more information about waivers of inadmissibility please click here.

Overview:

An I-601 Application for Waiver of Grounds of Inadmissibility allows a non-citizen alien to immigrate to the United States, adjust their status to permanent residence, or seek admission to the United States in a nonimmigrant status, if certain grounds of inadmissibility, circumstances, or conduct prevent them from being otherwise admissible. The I-601 application applies to certain aliens who believe they are ineligible for admission to the United States based on certain grounds of inadmissibility.

I-601 Success Story 

Maria, a Mexican citizen, was brought to the United States unlawfully at only 3 years of age. She lived here in the United States all of her life. She attended high school and college in the United States. She and her US Citizen husband came to our office and told us that they wanted to legalize her status in the United States. We analyzed her case and told the couple that in order to legalize her status, they would need to file the I-601 waiver. We also discussed the risks associated with the I-601 waiver. When filing the I-601 waiver, the applicant (Maria) is required to leave the country. When an undocumented immigrant leaves the country, they run the risk of being barred from re-entering the United States. Maria and her husband decided to file the application despite these risks. Maria was able to file a waiver based on her marriage to a US Citizen, and the fact that she had no immigration violations other than the accrual of unlawful presence. Our office filed the I-130 petition. Once approved the petition was sent to the National Visa Center and Maria was assigned an interview in Ciudad Juarez. She attended the interview and as expected she was denied, because she entered the US unlawfully. After this, our office submitted the waiver one week later. The waiver submitted for this case was based on the extreme hardship Maria’s U.S. Citizen husband would suffer if she were removed from the United States or denied entry. This type of waiver involves collection of documents proving that the US Citizen husband has a legitimate claim of extreme hardship. In this case, we collected medical, academic, occupational, and financial documents to prove that if Maria were removed from the United States, he would suffer an extreme hardship since his life would be uprooted, and he would not be able to find similar employment abroad. The waiver also involves collection of documents proving that the undocumented immigrant is an exemplary individual such as academic transcripts, awards, honors, etc. It also consisted of medical and psychological evaluations proving that the US Citizen suffered from anxiety and depression. Affidavits and letters from family and friends were also included in support of the extreme hardship. Within one week of submitting the waiver package to the US Consulate in Juarez, the immigration officer reviewed the case and granted the waiver. When she returned to the embassy she was given her immigrant visa in her passport and was able to re-enter the United States. This is an example of a successful I-601 waiver case that was achieved with careful preparation and planning so that our client could achieve favorable results.

For more questions about the I-601 waiver please contact our office. 

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In this segment, attorney Jacob Sapochnick Esq., explains why we do what we do at the Law Offices of Jacob J. Sapochnick. For more information about our office and the services we provide please click here.

Overview: 

Since 2004, we have efficiently and conveniently served our clients located across the United States and around the world through the use of cutting-edge technology and other innovations, always maintaining the personal connection you have come to expect from us.

You can express your interest, or schedule an appointment by emailing us at info@h1b.biz. We are excited to expand our ability to help many more of you, as you seek to achieve your American dream of living and working in this great country, a nation of immigrants.

Looking back, it is hard to narrow the reasons for our firm’s success. So much goes into that, but the main three ingredients have to be the lawyers, staff and clients. I am amazed at the enduring relationships we have with our clients.

Our office has been blessed with a staff that is motivated, efficient and very capable. I also think it important that they are compassionate for our clients’ issues – this is more than a job for us all – it is a calling.

To learn more about our dedicated staff members please click here.

Connect with us on Facebook, Youtube, Twitter, and Instagram.

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Entered the country illegally and now married to a US Citizen? Watch the video below for more information on the possibility of applying for a green card.

– There is a big difference in having entered the United States illegally and entering the country legally but remaining in the United States past your authorized stay as indicated on your visa

– The process outlined in this video outlines information to be followed if you entered the US without inspection after April 2001; before this date section 245 of the law can be used to adjust status in US

– In 2013 a new waiver was introduced allowing aliens to seek a pardon if the only offence is an overstay

If you are ready to get started please call our office.

Remember to follow us on Facebook, Youtube, Twitter, and Instagram. For more information please visit our website.

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