Criminal Past? How to handle it when sponsoring someone for immigration benefits.

What happens when you have a criminal past, but want to bring your family into the United States? That of course, depends on the crime. Conviction of a crime against minors is a particularly serious form of criminal past that present a serious bar to immigration in the US. I recently answered a question about this on one of our legal boards:

I have an AWA case. The Director denied it, of course, after we responded to an NOID (notice of intent to deny). The denial stated that the only option was an appeal to BIA. Help! Is that right? So happens that the only grounds/reason that they gave for denial is now moot and we have conclusive proof to rebut those grounds that was obtained after filing/deadline. I would like to submit a motion to reopen and reconsider. Can I do that?

In my experience Adam Walsh immigration cases are only every appealable to the BIA, and then only win when the alleged crimes do not constitutes crimes against minors. I have never seen the BIA reverse based on equities or the fact the petitioner is no threat to the intending immigrants. As you also pointed out – after acquired evidence is not reviewed by BIA if it was not submitted timely.

In this case, I would not pay the filing fees for an appeal, given the likelihood of failure. I would re-file with the new information and get approved ab initio. There is nothing barring a new application. Will also most likely be faster.

No harm in an appeal – you can always re-file thereafter. Just not likely to be successful (in my experience).

No, as to your question for a motion to re-open…I don’t believe such a thing exists for Adam Walsh act cases. There is only an appeal to BIA on whether the law was properly applied, as the decision of the Director on the matter of facts/equities is final.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com
2751 Prosperity Ave, Ste 150 Fairfax, VA 22031	Sean R. Hanover, Esq. Stephen Salwierak, Esq.
1-800-579-9864 admin@hanoverlawpc.com

Overstaying Your VISA: duration-of-stay (D/S) stamp on the I-94 offers a way out

Just a quick footnote. I was speaking with a client today about her son who was out-of-status and had been since 2013. She was an LPR, but he was bum out of luck. Or was he? He arrived in the US with his parents in 1997 under the J2 category. Duration was "D/S". Everyone else adjusted, however, he did not. What relief does he have?

Turns out, he has quite a bit. Because he never received any notice from USCIS, or a judge, that the duration was expired, he is out-of-status, but has not accrued unlawful presence. What, you say!? The actual USCIS memo dealing with this is entitled: "Period of stay authorized by the Attorney General after 120-day tolling period for purposes of section 212(a)(9)(B) of the Immigration and Nationality Act (the Act)" written by then Executive Associate Commissioner for the Office of Field Operations, Michael A. Pearson (2000). In pertinent part, it reads:

(2) Counting of Unlawful Presence for Nonimmigrants. An alien who remains in the United States beyond the period of stay authorized by the Attorney General is unlawfully present and becomes subject to the 3- or 10-year bars to admission under section 212(a)(9)(B)(i)(I) and (II) of the Act. Under current Service policy, unlawful presence is counted in the following manner for nonimmigrants. (A) Nonimmigrants Admitted until a Specific Date. Nonimmigrants admitted until a specific date begin accruing unlawful presence on the date the period of admission authorized by the Service expires, as noted on the arrival document issued at the port-of-entry. (B) Nonimmigrants Admitted Duration of Status (D/S). Nonimmignants admitted to the United States for D/S begin accruing unlawful presence on the date the Service finds a status violation while adjudicating a request for another immigration benefit, or on the date an immigration judge finds a status violation in the course of proceedings. If, however, the immigration judge concurrently issues voluntary departure and the alien complies with the order by making a timely departure, no unlawful presence accrues. See sections (d)(2) and (d)(5) of this chapter regarding voluntary departure as a period of stay authorized by the Attorney General.

Use this information to jam unlawful presence arguments when applying for various USCIS status changes for D/S candidates.

Note that D/S is valid even if served an NTA, as only an immigration judge can stop the duration of the stay - i.e. a mere notice of filing does not trigger a break in lawful presence. Remember, though, that lawful presence is not the same as legal status.

Do you have a question about immigration law? Contact us at 703-402-2723 or 1-800-579-9864. We are here to help!

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com
2751 Prosperity Ave, Ste 150 Fairfax, VA 22031	Sean R. Hanover, Esq. Stephen Salwierak, Esq.	Lili O'connell, Esq. Charles Hatley, Esq.
1-800-579-9864	admin@hanoverlawpc.com