Moderation starts.

Laurel(P) Good morning everyone.

Laurel(P) My former associate, Katherine, had her baby: Eleanor.

Laurel(P) At Scott and Associates, we are getting settled in to our new office and adjusting to some of the recent staff changes. All this in what is normally our busiest month of the year. Thanks to everyone for their patience. Things are starting to quiet down and get back to normal.

angela79(Q) Good morning Laurel!!

Laurel(A) Good morning. Let's start with the questions.

lokita69(Q) My brother in law(US citizen) petioned my sister back on 2001 under the 245i. Her case was closed cause she didnt send pictures of him as well. Is there a way that she can reopen her case without having to leave the country

Laurel(A) It depends on whether her I-130 was rejected or denied. If it was rejected, then it is considered to have never been filed. If it was denied, then it was considered filed. I would have to review the case. Her ability to adjust now will also depend on whether she is still married to the petitioner or has another petitioner, etc. I would have to review the case. Ultimately the answer to your question is: probably.

TX(Q) I know new Obama care does not make any difference on waiver, do u think the field officer think about it when he process the application if the applicant does not have any criminal record( because if he was in US this time he would not have been deported)

Laurel(A) The health care policy in the US has little to do with immigration cases. I'm not sure what your concern is or what your question is.

Jane(Q) Hi. I have two brief questions: 1) Can you provide any insight into the percentage of successfull waiver cases that involve a criminal record for people(K1 or C1) that have never lived together. It seems that the hardship is more difficult to prove becaus e you have never lived together or been in the same country 2) Do you do referrals to other attorneys that have waiver experience. I am searching and the few I have talked to are inexperienced with waivers or very vague about their waiver experience.

Laurel(A) I usually only refer waiver cases to other attorneys when I decline to take the case either because (a) the chances of success are too low, (b) the potential client is not computer savvy enough to do the case long-distance and needs someone local, or (c) the potential client is too difficult to work with [you'd be surprised how often this becomes evident during the consultation]. While chances of success on a waiver may be reduced if the couple has never lived together, the bigger issue is the aggravating factor(s). In the situation you describe, the criminal record will be paramount.

TX(Q) I mean New Obama immigration policy

Laurel(A) There is no new Obama immigration policy. The President re-iterated a long-standing policy - exercize of Prosecutorial Discretion - and urged his administration to back over removal cases to see how the existing policy could be better used. Prosecutorial Discretion has been around for decades. Both ICE and its predecessor - INS - prioritized aliens for removal. This is not new. What's happened lately is the government is doubling their efforts to prioritize. This will change NOTHING for the vast majority of illegal immigrants and the vast majority of potential waiver applicants.

xas32(Q) We are about to file for AOS with my IR spouse. She was a nonimmigrant student and was working illegally for most of her time here. A few years ago, she went home and returned and then continued to work after she came back. However, she completed her studies and is currently in status on OPT. Could the fact that she continued to work so soon after her last entry be construed as material misrepresentation at entry despite the fact that she continued to fulfill her I-20 and then graduated?

Laurel(A) Yes, it may be misrep under the 30/60 day rule if she violated the terms of her student visa within 60 days of entering.

tropical(Q) from svillareal: I don't know if my lawyer turned in an I-130 for my husbands daughters along with his or just his. I have been trying to call and email and nothing. How can I find out? If she is under 18 and we put her on his petition, do I need to send in a seperate I-130 and is that another fee? My case has been transferred to Lee Summit MI on July 21st, what is in MI? Sorry many questions: What if I can't get my bails bonds man to give me my bails bond back? It has been 3 months since it has been released by immigration.

Laurel(A) If you are a US citizen applying for your husband, then you must file separate I-130s for his children as the 'spouse of a citizen' is a category that does not allow derivatives. If you are a permanent resident applying for your husband, then the kids can simply be listed on his I-130 as long as the marriage occurred before they turned 18. 'Spouse of an LPR' is a category that DOES allow derivatives. You should have received separate receipt notices for each I-130. You can ask your attorney for the receipt notices, but the government should've sent those to both you AND the attorney. In regard to the bail bonds, that's going to be a question for a local attorney as the procedures can vary by location.

tropical(Q) from Slopez: Hey Laurel, my husband EWI in 93 he was 15 at the time was caught by ICE sent to his sister in FL, was sent a court date he never received was ordered deportation absentia, which we just found out about the past year. In 96 when he was 19 he left to Guatemala returned EWI in 00. We married in 03 started the process in 04 and we had a problem were our attorney didn't disclose in our I-130 his prior run in with ICE. Our I-130 was approved. We now have 2 children, and me and my children have medical problems and my husband was diagnosed with Cohrns and has had seizures as a result with his condition I fear him going to Guatemala were there is no proper medical care for him. What is our best option at this point, can the Obama policy though not new help us. Thank you so much!

Laurel(A) You are not subject to 6B (five year bar for missing a removal hearing) because the NTA (notice to appear) was issued before April 1, 1997. However, you are subject to 9Cii because your husband was removed and returned without inspection after April 1, 1997. I know the removal was before that date, but the entry was after, so 9Cii does apply. You are not eligible to apply for a waiver. And you are not eligible for Cancellation of Removal because he was previously placed in removal proceedings, which stops the '10-year clock' for Cancellation purposes. There's a remote chance that ICE can be convinced not to reinstate the removal order and to start counting a new 10-year period from the date of his most recent entry, but it's a long shot even with medical problems. Talk to a removal defense attorney in your jursidiction about Cancellation of Removal. But do not go forward with the foreign-filed waiver as you are 9Cii inadmissible.

tropical(Q) from mistiful2001: i was wondering if you could give us a percentage of how likely a waiver will be approved in lima for a brazilan who has been in usa 5 yrs ewi and two duithe last one in 2009. Married to us citizen almost two years and have one us citizen child one yr old and step son. I know this would only be your opinion just trying to base it on something. thank you

Laurel(A) It is not good to have two DUIs. That is going to lower your chances of approval. And the last one was relatively recent. I'd have to review all the facts of the case to guess the chances of success, but those negative factors are going to bring your chances down at least 25% if not more.

tropical(Q) from ktmnep: Does the field officer look at the previous denied HSL when you reapply waiver?

Laurel(A) He may review the entire waiver packet, not just the letter, and in fact may review the entire immigration record. One of the things they look for when they review a prior waiver packet is inconsistency.

nrod(Q) Hi Laurel. A question concerning VAWA and derivatives living abroad. If a person adjusts status under VAWA, would minor children residing abroad be able to apply for a visa as derivatives of her VAWA case? I know they can adjust if they were in the US, but I can't seem to find anything about relatives living abroad. Thank you.

Laurel(A) I'm really not a VAWA expert. You should speak to a non-profit attorney.

tropical(Q) from efrorecords: I am USC and in the Military. Can I help my mother get a GC?, she EWI in 1988 with me(desert), in April 1993 immigration caught her and kicked her out, she did sign her name in order for them to release her, she EWI again in 1993. That's the only bad thing that has happened, she has been paying her taxes and has not gotten in trouble with the law. No one has ever petitioned for her, she is unmarried no parents. Does she have a better chance if I make it seem like she has never been in the US? any help would really be appreciated, thank you.

Laurel(A) She is not subject to 9Ci as her most recent entry was before April 1, 1997. But she cannot adjust status here (unless she is 245i eligible, but from your fact pattern it sounds like she is not) as her most recent entry was without inspection and she will not be eligible for a waiver abroad as her USC child is not a qualifying relative for the waiver. There may be a Cancellation of Removal case, but that has to be done in removal proceedings. This is where the increased use of Prosecutorial Discretion will work AGAINST you. Since they are focusing on criminals and terminating proceedings for non-criminals, it will be even harder for you to get your mother in removal proceedings so she can apply for Cancellation. As for your question "does she have a better chance if I make it seem like she has never been in the US?" - what you are basically asking me is, "is it ok if we lie?" and my answer is 'no'.

angela79(Q) My husband got a DUI in 06 was not able to do his court ordered classes because of work. He was subsequently picked up at his house by the police and while in jail ICE took him.We are starting the process to get him home but he still has the warrant that was issued after deportation. Is this going to affect our process?

Laurel(A) Yes it is going to affect your process. If the court orders you to do something, but you will lose your job if you comply, then you lose your job. The court can put you in prison and then you'll really lose your job. For the immigration case, now you are in a catch 22 where you have an outstanding criminal case but you cannot resolve it because you are outside the US. USCIS and the consulate will be extremely unlikely to issue a visa until the matter is resolved and it is extremely difficult to resolve a criminal case from outside the country as most criminal courts want the accused to appear in person. Catch 22.

tropical(Q) rmstafford: Good Afternoon, Laurel. My question is this. My daughter-in-law EWI'd in November of 2006 from ES at the age of 16, was granted VD by the Judge to leave May of 2007, but then granted an Order of Supervision and an EAD number, by her assigned case worker in December of 2006, allowing her to stay until May of 2008 to finish High School. She met my son, they got married in 2008 and they spoke to the case worker asking for permission that she would be allowed to stay until October, instead of May, of that year. He told her "NO PROBLEM". He asked her to see her before she left (3 days before her 19th Birthday), present an airline ticket , which she did, he gave her her passport and a letter to be presented to the Embassy in ES to confirm her arrival. We followed all the steps outlined but now we were informed that since she did not leave when ordered for her VD it automatically turned into an order of removal/deportation and she accrued the 10 yr ban. Does the Order of Supervision not override the VD? We are confused and angry at the system because nobody tells you the correct info. Thank you for your input on this.

Laurel(A) I would have to double-check but I believe only the judge can extend VD and he's limited in how long he can extend it. So indeed when she did not depart per the judge's orders it automatically converted into a removal order and she was accumulating unlawful presence. The removal is a 10-year bar, but her unlawful presence is only 3 year because she left before she turned 19. Her deportation officer screwed up. See if you can get a letter from the deportation officer and include that with your I-601/I-212 packet. You will still need to prove extreme hardship, but it will help to show that she had a bona fide belief that she was complying with VD.

tropical(Q) from ccox12: Hi Laurel, we are applying to remove the conditions next month, long story short, question on 751 asks about arrests or jail time, and the ONLY thing my husband has on his record is the day ICE came to pick him up and detained him until he was deported. He was never arrested, or any criminal history other than overstaying his VISA. Do we answer yes for does he have a criminal history, and what kind of evidence do we provide? Or do we answer no?

Laurel(A) Immigration law is almost always enfoced civilly and very rarely enforced criminally. Your husband was almost certainly detained civilly and not criminally and does not have any criminal arrests. You will need to reveal your husband's entire immigration history, but the apprehension and detainment by ICE is not a criminal arrest (unless he was charged criminally in which case he would've been given an attorney at the government's expense and would've had the right to a trial by jury).

tropical(Q) from denirest: my husband is from Colombia and EWI and stayed 17 years in the USA and has no criminal record. After he was granted voluntary departure by a judge we filed the I-601 waiver and were recently denied due to insufficient evidence and they stated i didn't send a copy of W2 or tax forms (although i dont' think it necessarily means the deciding factor) even though i sent a few paystubs and in my existing file was tax returns. Is this a valid reason for an appeal?

Laurel(A) I'm confused about where you are in the process. When you go through NVC processing there are very strict rules about filing W2s and tax returns. But that is well before you file the I-601. What you need to file with the I-601 will depend on the arguments you are making.

tropical(Q) from cakelette: Hi Laurel, my husband (AC) can't remember where his divorce decree from his first marriage was issued (he has been divorced twice) but we do have the divorce decree from his second marriage, is there a way to go around that because he only remembers getting it from Maine however we have tried getting it from different counties and they keep requesting more info to be able to track it down, also his first wife has passed so there is no way to find out anything about it. Please help!

Laurel(A) If his first wife has died, he can try getting her death certificate. But absolutely must obtain one of the two: either her death certificate or the divorce decree. And no, there is no way around this requirement.

Laurel(P) The only time you can get out of it is when the divorce occurred in a foreign country where it is known that such records are difficult to obtain (e.g. North Korea, but not Germany). If the divorce occurred in the US, it will be presumed that the documents are obtainable and you just have to track them down and don't stop looking for them until you find them.

tropical(Q) from sunshine: y husband is a USC born at home, midwife is still in business (30years), he is a USAF Veteran, Caucasian, US born parents. He applied for a passport and they asked for more evidence to establish his identity. Does this mean they are questioning his citizenship because he was born at home or did the people at the library where he applied forget to send a copy of his Driver's License? What can we do to prepare for a possible questioning of his citizenship at the US Consulate in CDJ when we go for my Visa Interview? thank you

Laurel(A) Yes, they are questioning his citizenship and he will need to supply for documentation regarding the circumstances of his birth and/or proof of his parents' citizenship at the time of his birth.

tropical(Q) from aldiak: It is been over 7 months now since we have our 485 interview. It was a family base, my wife is a us citizen. The officer said we should get a letter in 2 weeks, wich we never did. We did 3 times infos pass nothing.Now we want to contact congressman. Wich one should we contact: Senator or or congressman?? And can we contact 2 differents congressman at the same time for the same problem??thank you

Laurel(A) Technically both the members of the Senate and the House are Congressmen though most people refer to the members of the House as Congressmen because it's easier to say than Representative. Both Senators represent the whole state. Your House Representative only covers your portion of the state. So each person in the state is represented by two Senators and one House Representative. You can contact any one of those three or all three if you like.

Laurel(P) It doesn't matter whom you choose. USCIS ignores them all the same.

tropical(Q) from kitaka: I'm married to a us citizen we been married for 3 years now. I was in removal cause i married before but never go to the interview. We pass the 130 interview wich we were separate for about an hour. Then the judge terminated the removal. 2months we had interview the officer said he didn't have our file in the system to give about 2 weeks for him to get the file and approve the case. A month later i did infos pass they said, the receive my file from the court. And i should get something in 30 days, that come did another infos pass samething. now it been over 6 months. I called 1800 numbers more than 100 times nothing. My lawyer said he going to do status inquiry, and i want to contact a congressman too. Can i do both at the same time??? if yes how many congressman can i contact at the time. thank you

Laurel(A) Is this the one I just answered? If not, my response is the same.

Laurel(P) There is no easy answer to the problem you are experiencing. Your case is 'stuck' and 'stuck' cases are extremely difficult to get 'unstuck'. I've had cases 'stuck' for years at a time. My record is four years. And that's with Congressional assistance.

tropical(Q) from pamelap80: My husband took VD after being picked up at work by ICE. My concern is the reason he was picked up is because ICE was looking for the person of the SS# he was working under. When ICE took him in they asked him questions about the person and asked if he knew the guy. Of course no he didnt. He explained to the IO that he had purchased the ss# years ago to work. He was not charged with this, nor did he spend any time in jail; no bond. They released him the same day on his own recognice. Being that he wasnt charged and it never came up in court for the VD, will this become a problem later on? On his NTA for the court hearing it only states that he was illegally in the US.

Laurel(A) I'm sorry, but I have to chuckle a little. If you're going to buy someone's social, don't buy the social of someone wanted by ICE.

Laurel(P) Will it be a problem? Well, usually the consulate and USCIS look the other way on the issue of using someone else's social or using a fake social, but when the issue is really 'in their face' as it is with your case - it's the reason he was taken into custody - it may be difficult for them to ignore. When he was taken into custody and admitted to the purchase of a social, he admitted to the essential elements of a crime. That may or may not make him inadmissible on criminal grounds, BUT even if it doesn't, he's inadmissible for other reasons, so this becomes part of the totality of the circumstances for the adjudication of the waiver.

tropical(Q) From Excluded: I am trying to determine which circuit court would have jurisdiction over my case, if it came to that. I live in England. Since I live in Europe, is there an “international” circuit, or would jurisdiction fall to the circuit with jurisdiction over the place I previously lived and filed papers from in the USA?

Laurel(A) If there is a question of criminal inadmissibility and the crime occurred in the US, then the opinion of the federal circuit where the conviction occurred would prevail. But for most issues, they will use the opinion of the majority of the circuit courts.

Jane(Q) I believe i had read somewhere that K1 petitioners are legally eligible for 601 waiver. I have gotten conflicting information. Some say yes you are eligible as K1 ...some say you have to be married or it strengthens your case. Is this true...regarding eligibility as well as strength of your case.

Laurel(A) The statute says you have to be married. The foreign affairs manual, adjudicator's field manual, waiver manual and 8 CFR all say that a K1 can file the I-601 and get it 'conditionally' approved. Basically when you get the I-601 approved for a K1, the visa is issued with a nonimmigrant waiver and the immigrant waiver takes effect when the alien adjust status through marriage to the citizen. As for whether being married strengthens the case - maybe, but it seems to have more to do with the length and intensity of the relationship. If you've lived together three years and have a child together, it doesn't seem to matter much whether you're married or doing a K1. If you met online and have been corresponding over the internet for a year and maybe met in person once or twice, your chances are lower.

xas32(Q) But my understanding is that USCIS does not apply the 30/60 rule. We are planning to do AOS within the US. Does that change your answer at all?

Laurel(A) This is currently a grey area of law and a matter of debate among legal scholars. USCIS is applying the 30/60 day rule with greater frequency.

Laurel(P) But they are currently not bound by it. Look at Matter of Cavazos.

Laurel(P) Noon already? That was a fast 60 minutes. There are questions pending, but I need to return to work. I will see you all next week.