Moderation starts.

Laurel(P) Good morning, everyone.

Laurel(P) Just a few more days until Christmas.

Laurel(P) I would like to take this opportunity to remind everyone that the office will be closed all of next week between Christmas and New Years. I've also learned that the building where my office is located will be closed this Friday and there will be no heat. I did not know in advance that this would occur. Obviously we cannot be open when there is no heat, so unfortunately we will unexpectedly be closed this Friday as well. I apologize for the short notice. In preparing to be gone all next week we are finishing up a number of tasks. Our schedule between now and Christmas is 'officially' FULL and we are unable to accomodate any requests from clients for additional work that was not already scheduled for this week. Please keep in mind that communications with the client are considered 'work', and in fact usually represents half the number of hours performed on a case.

Laurel(P) I do anticipate that we will be able to complete all of the scheduled client tasks on time before close of business tomorrow and that no case will be significantly inconvenienced by the holiday. We are right on schedule.

Laurel(P) When we return from the break our new associate Stacy Spain will be starting.

Laurel(P) On to the questions. I don't see very many question in the queue. After I respond to those, I have a few statements about the status of the Pilot Program in Mexico.

melissa(Q) Hmmm..not sure if truncated means that my message didn't go though

Laurel(A) It means it was too long to post?

tropical(Q) From Bluw: My husband entered with tourist visa in 2002, applied for asylum, denied, appealed and finally withdrawn on Feb 2007. We got married on 5/2/2010. Our I-130 is now pending at local USCIS office (CSC - priority date is 5/19/11). My husband was detained for 2 months and deported last week (12/12/11). What will happen to our I-130? Should we wait for the decision on the I-130 before applying for I-212 & I-601?

Laurel(A) You will be brought in for a local interview in the US by yourself where you will have to prove real marriage. You will be required to do this as the marriage occurred after the alien was placed in proceedings. The I-130 will most likely be approved and then the process will continue. It's not a question of whether you 'should' wait on the I-130 before filing I-601 and I-212; you MUST wait. The I-212/I-601 packet can only be filed in conjunction with an immigration visa or K visa application, which must be based on an approved petition, in this case an I-130. You have to wait until the consular interview takes place before you can file. Be warned that your husband will be considered a deportation absconder and this will significantly lower his chances of approval. His original asylum application will also be carefully scrutinized as part of the waiver process.

tropical(Q) from ktmnep: First Wish You & Your Family "Merry Christmas" &"Happy Holidays" It's been almost a year since i had my interview. My waiver is still pending. I was wondering what will happen if my waiver is approved after my visa date from NVC is expired, my wife is LPR and does she has to do the same process from NVC like she did before or we won't have to wait for priority date for visa. As you know it take long time for LPR (F2A).

Laurel(A) If you are in a preference category, my understanding is that you have to commence the immigrant visa application (file a DS-230 and pay the immigrant visa bill) within one year of your date becoming current and that satsifies your deadline. And that it is not an issue for your waiver process to extend beyond that year.

tropical(Q) Kpontes: Happy Holidays! So we had our visa/waiver interview in Rio on Dec. 15 and came prepared with a waiver packet covering illegal presence and a CIMT. To our surprise, the officer only found him with illegal presence. Now, he has a conviction that is 3rd degree assault amplified by Domestic Violence (moved his gf out of the way during an argument with a man hitting on her and was removed from the bar... he called the police to help him get his stuff from the bar, and when they came out they arrested him, his gf did not press charges the state did) It was also under Misdemeanor 1. He basically was lead to pleading guilty because his translator told him it would be the easiest way out of the situation. Anyhow. I think the interviewing officer looked at the law wrong and said she was only hitting him with a petty offense and he is allowed one of those. She and her supervisor both looked over his court dispositions. We turned the waiver covering both in, anyway, because she said Lima makes the final decision anyway. What kind of headaches could arise from this? Do you think Lima will find it? What if they don't? Thanks!

Laurel(A) Just be sure your I-601 says you want to apply for both waivers using that form. If the consulate won't allow you to do that, the USCIS would allow you to amend your I-601 before they render a decision.

Laurel(P) Also note that it normally will not help your case to assert that the alien was actually innocent of the crime for which he was convicted. I would estimate that 90% of my clients with criminal convictions insist that they were wrongly convicted or somehow tricked into pleading guilty. After you've heard that enough times, you stop believing it and you start getting annoyed with the story. If this is going through my mind, it's going through the adjudicator's as well. I feel sorry for those who really are innocent because it's really hard to believe them when their true story of injustice is indistinguishable from all the untrue stories of injustice. If you are going to insist on your innocence, be prepared to PROVE it. Otherwise, playing the victim will only piss the adjudicator off.

Laurel(P) I do believe that our system is not 100% mistake-proof. Some people are wrongly convicted. Some people are tricked into pleading guilty when they are not guilty. It's just hard to tell fabrications from truth.

tropical(Q) from santasHelper: I recently received a visitor's visa to enter the USA legally, i was given it for 10 years. I am from Mexico and for the past 2 years i had been seeing a US citizen from the USA whom now we would like to get married and adjust my status. Since we have not gotten married neither in Mexico nor the USA yet we are worried as to what is the proper steps do so since i have been here legally in the USA. Do you reccommend applying for the K-1 visa even though i have a visitor's visa currently in legal status? or should we get married in the USA and go thru the I-130 petition route? What is the proper way to get me residence to be with my future husband? thank you and merry christmas.

Laurel(A) You left out a key piece of information in your set of facts: are you currently present in the US or are you in Mexico? If you are present in the US and at the time of your entry you were not engaged, but later - sometime after entering on a B visa - subsequently became engaged, then you can lawfully get married and adjust status within the US without too much trouble. HOWEVER, if you are in Mexico at the time you become engaged, then attempting to enter the US on a B visa when you are already engaged to a US citizen with the intent to adjust status, then the entry would be considered fraudulent. It's all about what your plans are at the time you enter the US with the B visa. So, if you are here now and just got engaged, then get married and adjust. If you are in Mexico now and just got engaged, apply for a K1 fiance(e) visa and enter the US on the K1 and not the B visa. The K1 will take about four to eight months to acquire, depending on processing times.

tropical(Q) from USAproud: Just recently i received my approval for my I-601 (my wife petitioned for me) and have my passport and visa in hand and now the next step for me is applying for citizenship. After how many years can i apply for citizenship is it 3 or 5 years? and after precisely what official date is considered is it when i-601 was approved, when visa was issued? when social arrived? thanks.

Laurel(A) Normally, a permanent resident is required to show five years of continuous residence in the US before he/she can naturalized. One common exception is the spouse of a citizen. The spouse of a citizen needs only show three years of continuous residence AND must show that (a) the spouse was a US citizen for those three years, (b) the couple was married for those three years, and (c) the alien continues to reside with the US citizen at the time the N-400 is adjudicated and approved. What is continous residence? That's time present in the US without a period of absence of more than six conitnous months in one trip. And the alien must show that he/she was not gone more than half the time in the aggregate (e.g. you can't come to the US for a month, go home for three, come back for one, go home for three, etc.). Permanent residence commences on the date on the green card. It will say "permanent resident since". For someone who acquires an immigrant visa abroad and enters with an immigrant visa, that date is the date of entry with the immigrant visa.

tropical(Q) from jloves: After how long does the medical exam expire when waiting to receive your passport and visa?

Laurel(A) TB test expires after six months. The rest of the test expires after a year. If the alien has a serious medical condition, such as one that requires a medical waiver, the exam may expire sooner.

tropical(Q) from tigger11: This year I naturalized and became a US citizen, i now want to petition to help my younger brother become a resident of the US, he is not married, never has left Mexico, no criminal background of any sort, currently he goes to school and is 22 years. Can i do something for him or is there an age limit to when i can petition for my brother?

Laurel(A) You can file the I-130 now, but it may be 10 to 20 years before his priority date becomes current.

tropical(Q) FromIm: What is the most effective way to check the status of I-212 through a local field office? It's a lone I-212 and it's in San Diego.

Laurel(A) If you find out, let me know.

melissa(Q) Hi Laurel! I am a former client of yours whose husband was given a permanent bar CDJ for an oral false claim (which he never made!) after the I601 was approved. I feel like I need to work on this again. Any new options available or suggestions for those facing a permanent bar? Thanks!

Laurel(A) There are murmers of things happening in DC behind the scenes. Watch for an announcement.

Laurel(P) No, I don't know what the announcement will be or when it will happen. But in your case there's no much else that can be done, except to take the case to federal court, which is unlikely to be successful.

tropical(Q) from 3tepas: our case was approved in Oct in El Salvador. Husband was sent back to medical psychologist, gastroentrologist, and some other doctor....now all tests have been done and completed. The embassy cannot proceed until the doctor reviews some documents and returns them, but it seems the doctor is just sitting on the file. Is there anything we can do? Are we just at his mercy?

Laurel(A) What you're describing is unusual. I'd have to look at the facts of the case. But you may want to get your Congressman involved.

tropical(Q) from sapurula: Parents are petioning me and 3 sisters. The processing date on the El Salvador website just updated from Oct 2010 to April 2011....our case is an Oct 2010 case. Before the website updated we were told we were one of five cases outstanding from that month. Its been two weeks since the update but we havent received a decision on our cases....what can we do? Where can we find out if a decision has been made?

Laurel(A) Essentially you have to wait for the decision to arrive in the mail and/or send off a written inquiry to the USCIS office in question.

tscott(Q) My husband EWI 5/08 (on 6 month visa), in 11/08 he was convicted of a felony possession of tools to commit a crime and received 5 yrs to be served on probation (just recently had sentence clarified for immigration purposes to take out "confinement") in 2009 he got a DUI in NY then he got a DUI in GA in September which triggered an ICE hold. He has now been in dentention in Ga sinceSept w/o a bond. He has an ind hearing next month and judge will adjudicate our 485. We are also filing a 601 waiver. My question is what are the chances 485 and 601 will be approved due to his past convictions? Our main hardship is that i will suffer anxiety and depression, all family in US including most of his family, and the living conditions in his country are not suitable for our daughter and unborn child. He is from Cameroon.

Laurel(A) One does not EWI on a visa. EWI = entered without inspection, meaning the person evaded a point of inspection, usually walking accross the desert. From the context of your description, I'm going to presume he entered with a visitor's visa. What are the chances of the waiver being approved? Probably low considering he's a convicted felon who has also been driving under the influence on multiple occasions as recently as within the past six months, implying he has an alcohol problem not in remission. Whereas approval rates for unlawful presence waivers filed abroad is about 85%, the approval rate for criminal waivers filed abroad is about 25% to 35%. This isn't being adjudicated abroad, but I think those rates have a similar predictive value for in-country waivers.

tropical(Q) from ristenk: 5 year ban for failure to appear to immi court. Eligible to refile in 2014. What are our chances of filing a Motion to Reopen (now that my husband has left the country) To have the order vacated? Woudl a Motion to Reconsider be an option...anything now that he has left the country?

Laurel(A) While some recent court cases have said that it is not impossible to have a prior removal case re-opened after an alien departs the US, it is extremely difficult and very unlikely to happen.

Laurel(P) The immigration court system is just too overwhelmed. Aliens who have already departed are considered the lowest priority for the immigration court system.

shar22(Q) My husband, who is a Mexican and was deported in July 2010, recently received a 212a9c ban from Ciudad Juarez due to a double illegal entry in 2000. Would he be eligible to apply for a 212d3 waiver?

Laurel(A) He's eligible, but they are unlikely to grant a nonimmigrant waiver to someone who was unlawfully present for ten years as they will presume the person intends to stay permanently, not temporarily.

Laurel(P) Usually we are unable to even file such waiver applications as the alien has to show he is otherwise eligible for a nonimmigrant visa, and we usually can't get past the nonimmigrant intent requirement associated with nearly all nonimmigrant visas.

r(Q) Hi Laurel - I got interviewed recently at the local US Embassy and submitted my DS230. I was in the USA between 2000 and 2005 and went out of status around the end of 2003 due to being reported working off campus. I continued going through my Univ till 2004 when I got apprehended and put into repmoval proceedings. The following year I recieved voluntary departure and left the country as instructed. I have returned since! Me and my wife who is an LPR eventually filed for my immigrant visa and I was interviewed recently where I submitted all paperwork honestly. I am confused about a particular question on the DS-230 40(h) and am wondering if this should be a NO. I answered it as a YES and am scared I may have shot myself in the foot. I tend to over analyze and took the safe route considering myself as someone who falls in that category. Advice?

Laurel(A) Hmmm. Interesting question. You've left out a few key facts, but I'm going to make the following assumptions: (a) your most recent return to the US was without inspection, (b) your entry in 2000 was with an F1 in duration of status, (c) you were not informed by an immigration judge or USCIS that you were out of status until 2005 when the judge granted you voluntary departure, and (d) you departed within 3 months of being informed by an immigration judge that you were out of status. Ok, so I will provide a response based on those presumptions. Consider my response void if those presumptions are incorrect. Even though you went out of status when you violated the terms of your visa, you were not accumulating time toward the 3/10 year bars under 9B [INA 212a9B] until the immigration judge told you that you were out of status, as you had been in 'duration of status'. Since you left within 90 days of being told that, you were not inadmissible under 9B at the time of your departure. HOWEVER, you subsequently re-entered without inspection so a question arrises as to whether the 'duration of status' exception applies to 9C as it does to 9B. See you were actually unlawfully present from the time you violated status, but because of a quirk in the 9B rules you weren't accumulating time toward the 9B bar. But you may have been accumulating it toward 9C. I don't know. I'm not sure that's been litigated. Interesting question.

Laurel(P) Generally speaking, if the law and memos are not crystal clear that a type of unlawful presence does NOT count toward 9C, then it does. I think there's a real possibility that you are 9C inadmissible even though you were not 9B inadmissible at the time of your departure. But it's probably a grey area and if I were your attorney, I would argue that you are not 9C inadmissible. I'd do some serious legal research before sending you out of the US.

Laurel(P) It is noon. Time slipped away from me this week.

Laurel(P) Just very quickly - there are reports that officials in Ciudad Juarez are no longer keeping the applicant's passport while the I-601 is being adjudicated, which strongly implies that USCIS has already internally killed the Pilot Program and we are just waiting on an official announcement. We are also still waiting on an announcement regarding Lockbox filing. I now believe the delays are due to some changes behind the scenes and that Lockbox filing will be handled differently than what was previously described in the official notice regarding the stakeholders' meeting that was scheduled for October 4 and then cancelled. I do not know what these changes will be, but I'm expecting the program to be somewhat different from prior pre-announcements.

Laurel(P) We will not have a chat next week. I will see you in two weeks.