TPS for late filers -- Asylum and a new approach that might work...

We were recently approached by a charming fellow from El Salvador. He had been here illegally from 2008, and was not eligible for most forms of relief under standard INA outside-of-court options. Although, he did not have a phenomenal claim for asylum, he had been badly abused in El Salvador, which gave rise to his "escape" to America. I do believe we have some traction with a late asylum filing, but it will be tough. However, I wanted to see if there was some way to get him Temporary Protected Status -- or TPS. TPS is the golden grail for El Salvadorians without other means of adjusting.

The problem with TPS is this: it requires you were here initially when El Salvador (or whatever country in question) was designated TPS eligible, and you did indeed apply at that time (ye olde "initial registration period" as defined by 8 CFR 244.2(f)(1)). Uh oh. The initial period was quite some time ago for El Salvador. But a glimmer of oddly reflected hope gave pause to our despondent state -- namely, El Salvador has been continuously re-designated, and the current extension of TPS status has been pushed to September of 2013.

Turns out, this "push" of extension to September is key. Taking the extension in mind, and reading about "late filing" we came up with an idea -- (and NOTE! This is just an idea...this is not by any means settled law -- we are experimenting with an otherwise stagnant case). 8 CFR 244.2(f)(2) states:

(2) During any subsequent extension of such designation if at the time of the initial registration period:
(i) The applicant is a nonimmigrant or has been granted voluntary departure status or any relief from removal;
(ii) The applicant has an application for change of status, adjustment of status, asylum, voluntary departure, or any relief from removal which is pending or subject to further review or appeal;

Of special interest to us was the provision at 8 CFR 244.2(f)(2)(ii) which seems to suggest that a late filed TPS will be accepted if there is a pending asylum application in the works.

To be clear, our test case is not in removal proceedings -- this is an affirmative asylum application filed with a request to waive the 1 year filing requirement due to extreme hardship.

We plan to file the initial asylum case within a month or so, then take said filing receipt and immediately apply for TPS.

The question is -- will USCIS accept the notice of filing of the asylum case as proof of "in asylum application status" for TPS purposes? We are prepared to argue, "yes" -- as the regulations do not clearly stipulate otherwise.

Do you have a tricky immigration problem? Hanover Law specializes in working with tough cases and clients with special immigration needs. We approach your immigration issue from all angles, and seek to explore every avenue of relief.

Give us a call or visit our website today!

http://www.hanoverlawpc.com
703-402-2723

Sean R. Hanover, Esq.
Principal Attorney
The Hanover Law Firm is located in Washington, DC and Fairfax, VA. We practice
in both state and federal courts in VA, MD, and DC.

DACA (deferred action) and crime -- what happens when you have a conviction?

We recently completed a DACA (Deferred Action for Childhood Arrivals) case for a client who was convicted of simple possession of marijuana (less than 30 grams). What is involved with resolving criminal convictions for DACA applicants? You may have heard that criminal convictions are a complete bar to deferred action -- and this is largely true, unfortunately. But like every good rule, there are...exceptions. It is often worth speaking to a qualified immigration attorney (that would be us!) to determine if you meet one of the exceptions and are in fact eligible for I-821D (deferred action) relief.

To begin an analysis of whether you can apply for DACA, we will review the level of criminal activity. What is a "significant" misdemeanor as barred by the deferred actions rules?

Any offense that has a term of imprisonment less than one year but more than five days and is an offense of:
1. Domestic violence
2. Sexual abuse/exploitation
3. Firearm violations
4. Drug sales (distribution or trafficking)
5. Burglary
6. DUI/DWI

Or

any other misdemeanor where the guilty party is sentenced to 90 days or more.

When there is a criminal conviction, and the charge/sentence is not listed above, then we would write a letter to the USCIS directory recommending that your request for deferred action should be granted (called a "narrative"). To help offset any "bad" acts, we would submit proof that you attended rehabilitation classes (anger management, drug addiction, etc.) and that you have "good acts" to offset your criminal activities.

A conviction is a serious matter, and it can have terrible consequences for your immigration case. Contact us immediately for assistance if you have been arrested or have convictions on your record. We can help!

S Sean R. Hanover, Esq HanoverLawPC.com Contact Us 703-402-2723 Visit the Hanover Law firm at www.hanoverlawpc.com

GALs (Guardian Ad Litem) -- when and why

Guardian Ad Litem (GALs)

By Shara Herr

Today I had the chance to speak with our Family Law attorney, Stephen Salweirak, discussing the topic of GALs and their importance in difficult Divorce/Child Custody cases involving neglect or abuse of children.

What is the role of a GAL?

In some cases, especially those involving abuse or neglect, the children involved have rights and interests they are unable to protect on their own. The GAL provides the voice for these children, protecting their safety and needs and finding the best options specific to the case. Good GALs will not only interview the child in their home environment, but also take them out of their typical environment so the child is able to speak freely about any neglect/abuse in the home. They may also interview teachers, other child care providers, family members and anyone else that would have relevant information about the child’s best interests.

These attorneys are appointed by the court, and are required to have training specific to GAL advocacy. Your attorney may make recommendations to the court as to who is best qualified to represent the child. This is important because the expense of the GAL is often court ordered to be split between the two parents and may be very costly. In such a case, your attorney would review with you the options and rates of qualified GALs.

Preparing for GAL investigations

The Guardian Ad Litem is vital to the case. He or She investigate extensively, and then report back to the court, recommending where and with whom the child is going to be placed. It is important to speak with your attorney and create a checklist of things to be discussed with the GAL prior to any home visits to ensure they get the most important information about the child’s needs. Maintaining a good relationship with your GAL is very important.

“The GAL is charged by the court with the task of representing the best interests of the child, and it is important to demonstrate that you put the same interests above all else, even if it means tolerating the GAL’s occasional incursion into your home,” –Stephen Salwierak, Esq.

So you are a witness...

For some people, there is great anxiety in appearing in court. This is especially true if the case in question revolves around you personally. Always a challenge! However, as trial attorneys, we have learned a few tricks that make appearing in court easier. Specifically, what the heck happens when you "go on the stand" -- this article will talk about immigration court, and state court specifically (criminal law, and family law), but it applies to any hearing where you are in adversarial proceedings.

The key thing to remember about testifying is -- everything you say can and will be used against you. It is the job of opposing counsel (or the state, in criminal cases) to try to learn everything he/she can about you, and then use that information against you, or against some individual in the trial.

Remember, you are speaking under oath. That means, if you lie, bad things can happen to you. Perjury is the act of lying under oath (to perjurer one's self).

What do attorneys ask of their clients? We want you to do the following when answering opposing counsel:

• Answer only the question asked.
• Keep your answer simple. Provide as little depth as possible to what is asked.
• Be polite, and always respectful.
• DO NOT be evasive or argumentative.
• Stick to the story! Remember, prior to trial you will have already chatted with your attorney and described what happened. Don't change things!
• If you get confused or don't know what to say, look at your attorney so he/she can object to buy you time.

Whenever possible, site (mention) supporting documents. Use outside evidence to bolster your story.

The VirginiaCLE website has a useful summary:

Witnesses must come to understand that there is no "truth" unless it is proved in court by persuasive evidence. An online definition of "finding of fact" reads, "the determination of a factual question vital (contributing) to a decision in a case by the trier of (jury or judge sitting without a jury) after a trial of a lawsuit, often referred to as findings of fact." And yet, the definition of a "fact" is variously "the quality of being actual," "an actual occurrence," or "a piece of information presented as having objective reality." A person limiting herself to presenting Sergeant Friday's "Just the facts, ma'am" will be presenting subjective observations as perceived by her, not unassailable truths.

Remember, work with your attorney to practice and test your statements. Tell the truth, but be ready to be thorough and be questioned. You can do this!

Do you need trial help? Call us now to get prepared for your hearing. It can make the difference between success and failure.

S

Sean R. Hanover, Esq
HanoverLawPC.com
Contact Us
703-402-2723

New Provisional Waiver -- I-601A. Key for EWI I-30 Processing

The long awaited issuance of the state-side 601A waiver is over! The new regulations go into effect 04 March 2013. This is great news to many individuals waiting for 601 waivers in order to proceed with their I-130/I-485 processing packages.

History

Perhaps a brief explanation is order for the rest of us! Many immigrant family members find themselves with a serious problem. They realize that, although they qualify for sponsorship by an LPR spouse, because they entered the country illegally, they are no allowed to convert from non-immigrant status to LPR status without first obtaining a waiver (called an I-601) allowing them to be forgiven for entering, and remaining in, the country illegally.

Living in the US illegally triggers a 3 or 10 year bar, depending on how long you remained here illegally (<1 year = 3 year bar; >1 year = 10 year bar). You cannot be sponsored until you have spent that time outside of the country. In order to avoid the "bar", and immigrant must file an I-601 "waiver" form with the consulate in their home country. Note the location of filing -- the consulate in his/her home country (although this recently changed to allow stateside filing of the forms, the process for the immigrant was still the same). Under a standard 601, An immigrant with a 3 or 10 year bar is required to leave the country after filing an I-601. The term for this is "consular processing." If the immigrant can show extreme hardship, the bar is lifted, and the immigrant may re-enter the country legally. It can take anywhere from 6 to 8 months for a determination to be made on an I-601 application -- and the entire time, the immigrant must wait in their home country.

For many years, there has been a great cry to have the I-601 process modified. Family members (specifically, spouses of US Citizens, children, and parents)have been sent home waiting for 601 waivers that have taken years -- effectively destroying the family or causing terrible problems. The USCIS has studied the problem for some time, and determined that allowing the illegal immigrant to remain in the country during the 601 waiver adjudication period would not unduly burden the USCIS system.

Therefore, beginning in March, illegal immigrants whose only problem is their status in the country at the time they filed their I-130/I-485 package are elligible for expidited, in situe processing of their I-601. The new form allowing this is called an I-601A. The immigrant does not have to leave the country until the waiver is approved -- and then he/she travels to his/her home country, retrieves the I-130/I-601A visa and returns home the next day. No (or minimal) delay!

This is a tremendous breakthrough for our clients, and for millions of undocumented, but otherwise eligible immigrants to become legal LPR and eventually citizens.

Do you need an immigration help? Are you here illegally and would like to convert?Call us immediately and let us stop the clock and review the case before your loved one is shipped out-of-country! With the new I-601A provisisons, you may qualify for preferred processing and get a work visa or legal documents much more quickly that you imagined!

S

Sean R. Hanover, Esq
HanoverLawPC.com
Contact Us
703-402-2723

IRS -- Stopping Collections and the awesome 433A (or 433F) form

Ho Ho Ho! It's getting right around the end of the year now, and that means the dreaded specter of taxes! Everyone is ready, right!? Well, perhaps. But if you are like many of our clients, you're more worried about the past than the future. Past IRS tax debt can be a monster. In this article, I'll discuss one tool in the arsenal of tax attorneys -- the 433! IRS form 433 is a collections information form, and completing it, along with substantiating documentation, is the first step to getting things "right" with the IRS. So..what exactly is this IRS 433 form? Glad you asked!

In the days of yore, the IRS was little interested in whether you had money or not. If you did not pay your taxes, the Service would just "swoop" in and take everything. Furniture, cats, small children -- all your money, bank accounts, etc. There was extremely little they would not touch, and absolutely no mercy. If you did not pay your taxes, you were considered a fraud, and very little effort was given to relieving any of that outstanding tax burden.

Then beginning in the 1980's, and through recent times, the IRS began taking a different tactic. The idea was that if the IRS helped the taxpayer meet his/her obligations the Service would (a) look a lot nicer, (b) get a lot more money, (c) encourage folks to tell the truth. From this nascent set of ideas, came the wonderful form 433.

IRS Form 433 (see http://www.irs.gov/pub/irs-pdf/f433a.pdf) gives the IRS all the information about your income and assets, as well as your debts and obligations. Finding directions for completing this form is almost impossible. In point of fact, there are several different versions of the 433 abounding. Two of the most common for individual taxpayers are:

1. 433A -- the full enchilada. This unabridged document contains every conceivable income/asset/debt/obligation category the IRS can imagine. It is detailed, cumbersome, and rather depressing.

2. 433F -- this is the summary form of the 433A. Much easier to complete -- only two pages. Completing the 433F first makes completing the 433A much easier. In our firm, we have clients complete the summary form and then we complete the 433A, asking additional clarifying questions as needed.

The 433B is for businesses and is rarely used.

Once completed, the 433 is submitted to the auditor handling the case. If there is no auditor assigned, the attorney on the case contacts the local field office and arranges for an appointment. The taxpayer does NOT need to be there for this meeting.

It is critically important that you provide all substantiating documentation for income and expenses.

Typically, substantiating documentation includes copies of W-2 forms, pay stubs, bank records, lease agreements, titles to vehicles and property, copies of loans and investments paperwork, and any other entry on the 433 income/expense summary page.

THERE IS NO EXCEPTION TO THIS. IF YOU DO NOT HAVE THE DOCUMENTATION -- EITHER GET IT, OR YOU WILL NOT BE PERMITTED TO CLAIM THE EXPENSE, ETC.

At the meeting with the auditor, your attorney will review all the numbers and provide all supporting documentation. The idea is to figure out how much you will be able to afford to pay -- negotiate on monthly payment amounts. Note -- the withholding amount you claim on your paycheck is important here. The IRS WILL review this number when working with you at this auditor meeting. If the number is whacky wrong (i.e. you are withholding 10 and you are actually single without any reason to have anything more than 1), it will hurt you badly. Do NOT go to this meeting with a bogus withholding number.

If your income does not support paying any past taxes, you will be entitled to be placed in "uncollectable" status. This means that while liens may be placed against your property, the IRS will not garnish your wages or take anything from you. Note -- this is a two edged sword. It does not relieve you of tax liability. It does not remove your previous tax debt. It merely means the IRS will not seek to collect from you. Interest will continue to accrue. For some folks, however, the 433 and the audit represent the best method for not losing over 60% of their income to tax garnishments

Two points to remember here: 1. This is complicated form that has to be completed properly -- an attorney is best for this, and 2. The taxpayer meeting with the IRS is never a good thing (handling the audit him/herself) -- the IRS auditor cannot make the same negotiated deals he/she could with your attorney. You need a representative for this purpose.

If you have questions or need help addressing a tax law question, please do not hesitate to contact us! We are experienced immigration, tax, and bankruptcy attorneys who can help with questions from any state in the US. S

Sean R. Hanover, Esq
HanoverLawPC.com
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A Primer on Divorce -- the three key areas and samples

Folks -- we get a lot of phone calls on divorce. Most people come very angry and often confused as to what steps are required to get a divorce. That is not altogether a bad thing -- divorce should only be undertaken if there is no chance of reconciliation or there is danger to one or both parties. That having been said, I wanted to provide a brief overview on divorce, what you can expect to discuss with your attorney, and provide a sample separation agreement (this is from VA, but it is very similar for DC and MD, too).

There are three areas to divorce, and one special cavaet. The three areas are:

1. Separation Agreement: Covers property and marital assets obtained during the course of the marriage. This includes things purchased separately, but during the marriage (i.e. the car is only in husband's name, but it was purchased during the marriage -- it is still joint property in a joint property state (MD, VA, DC). Ditto on the house only in the wife's name...still joint). Things to remember here are retirement plans, stocks, and insurance plans. Be careful here...you only get one bite at the apple to get it right! Once entered, this cannot be easily changed. The separation agreement also covers spousal support. Spousal support is not automatic and is controlled by two factors: the length of the marriage, and the income of the respective spouses.

2. Custody: When there are children involved, an arrangement for where the child(-ren) will reside must be made. This includes primary custody, and physical custody. "Primary Custody" is called different things in different jurisdictions, but mainly applies to who is repsonsible for the child on an ongoing basis. Where does the child live for purposes of school determination, state care etc. Physical custody deals with the actual division of the which days are spent with which parent. The courts in all three VA, MD, DC jurisdictions seek a 50/50 split by default. The burden of modifying that custody arrangement rests with the party seeking the change, and is often the number one cause of litigation. Custody issues also determine payment of child support. Determination of child support is a matter of state posted payment schedules, and is based on (a) amount of custody each parent has, (b) the income of each parent, and (c) the best interest of the child.

3. Divorce Decree: The decree is actually the end of a multi-step process that begins with a motion for...you got it! Divorce. It is called a motion for divorce "mensa et thoro" -- this is the type of divorce that is predicated on a separation starting once the court filing is made. This divorce pleading prevents the spouse who is "leaving" the marital home from being blamed for abandonment. It also starts the "clock" on the divorce proceeding. If the "time apart" requirement is complete before this filing (i.e. filing after the separation period), or after the separation the filing is amended to a complaint for divorce "vinculo matrimonii" - or the final divorce. You can only file for this once the separation period is complete. Without children, the separation period is typically six months. With children, the separation period is one year.

I mentioned a cavaet -- where there is danger to one spouse or to children, the threatened spouse may file for a "protective order" -- this is often a hotly constested area of divorce litgation, as a protective order gives rise to a claim of bad acting on the part of one spouse, which in turn causes significant problems in the determination of separation, spousal support, custody and child support.

Most divorces these days are due to irreconcilable differences. When this form of divorce is pursued, both spouses are considered neutral, and neither is given any particular preference in the handling of property, support, etc. Each is equal. However, if one spouse is a bad actor -- for example, committed adultery, or stole money, had a gambling problem, was a habitual drunkard, etc. -- then the court will skew the property, support, and custody issues more in favor of the innocent spouse. This is another area of hotly contested divorce litigation (see last paragraph).

As you consider divorce and the steps involved, give consideration to the sample below. The sample is a separation agreement. There are plenty of self-help clinics and forms. But remember...one mistake here can really screw up your future for a very long time. The cost of an attorney at the early stages can save you untold thousands in years to come.

----------------------

SEPARATION AGREEMENT SAMPLE

Before continuing with this document, please read and acknowledge the following: _____/_____ (initial) This is an important legal document. By signing below, you agree that you have thoroughly and carefully reviewed the contents of this Agreement. Each party expressly acknowledges that he/she has had the opportunity to consult with consul of his/her choice. _____/_____(initial) Each party has three days from the time the document is signed to withdraw consent to this Agreement without penalty. If so withdrawn, the Separation Agreement becomes void and negotiations between the parties will begin anew.

This AGREEMENT is made between XXXXX and XXXXX, Husband and Wife, to determine all property rights, including property and debt distribution, between them.

The parties to this Agreement represent the following:

1. They were married on XXXX in Fairfax, Virginia.
2. Irreconcilable differences have arisen between the parties and they are now living separate and apart.
3. There are no minor children of the marriage, either by birth or adoption, and the Wife is not pregnant.
 
4. The parties intend this agreement to be a full and complete settlement of their rights, one to another, as to the duty of support to one another now or in the future, any rights of inheritance from one another, and any rights to any interest in or to any property of the other, whether acquired before, during, or after marriage, or other rights or benefits that may arise from the marital relationship.

The parties therefore agree as follows:

ARTICLE ONE
Separation

Each party shall hereafter live separate and apart from the other, and neither shall annoy, molest, interfere with or harass the other in any way or manner, either directly or indirectly.

ARTICLE TWO
Spousal Support

/_____(initial) Neither party shall pay to the other any amount, either in installments or in a lump-sum, for spousal support. This provision may not be modified.

ARTICLE THREE
Division of Property and Debts

  A. Real Estate
The parties own one rental property located at XXXXX , Herndon, VA 20170. The property was purchased during the course of the marriage. The deed and the mortgage are in the name of the Wife. Husband renounces any and all claims, for himself, his heirs, his estate, and his agents, now and forever, on said property. He relinquishes any rights or entitlements to said property now and forever, agreeing to sole and complete possession by the wife of the same. This includes but is not limited to any right to ownership, lease, rents, or any form of utilization, control or direction. Husband shall not be entitled to any payments from said properties, nor any debts accrued thereon, either in the past, the present, or the future. Wife agrees to assume any and all outstanding liabilities and indemnify Husband from any future costs associated with the property.

B. Household Goods, Furnishings and Personal Property
Each party shall keep any households goods, furnishings, and personal property now in that party's possession, free of any claim of the other.
C. Motor Vehicles
Each party shall retain title to and possession of all motor vehicles, boats, campers and other titled or registered conveyances, now titled or registered in that party's name. The party retaining the vehicle shall be solely responsible for any debt on or expenses regarding that vehicle and indemnify and hold harmless the other party from any and all liability associated with the motor craft.
D. Bank Accounts and Employee Benefits
Each party shall retain any bank or investment accounts in that party's name as well as any employee benefits, including pension, retirement, stock ownership, 401(k) or other employer plans, free and clear of any claim of the other. There are no joint accounts to be closed and/or divided.
E. Life Insurance Policies
Each party shall retain any life insurance policies owned by that party, and the parties give up any interest in being named beneficiaries of the other policies.
F. Debts
Each party shall pay those debts in the parties name, and neither party shall incur any debts in the name of or on the credit of the other party. There are no joint debts.

ARTICLE 4
Court Costs

The Court costs will be paid by Husband. Any legal fees will be paid by the party incurring the fees without recourse to the other spouse.

ARTICLE 5
Complete Settlement<

______/______ (initial) This agreement is a full and complete settlement of all spousal rights and property claims, inheritance, descent and distribution, allowance for support and maintenance, exemption from administration, all rights as surviving spouse, heir, legatee, and next-of-kin in the estate of the other, and all rights to administer estate of the other, and in all property rights that each now has, or may acquire in the future, except as specifically agreed to in this Separation Agreement. This Agreement shall be binding on other parties heirs, administrators, executors, and assigns.

ARTICLE 6
Incorporation Into Decree

It is agreed and understood that this agreement shall not constitute consent by either party to a divorce or dissolution of marriage; however, in this event that either party files for divorce action or dissolution proceeding is begun, the parties agree that this entire Agreement shall be disclosed and presented to the Court in that proceeding or in any such proceeding now pending, with the request that it shall be determined to be fair, just, and proper, and that this Agreement and all its terms and provisions be adopted by that Court, and made part of the order of that Court in its final decree of divorce or dissolution.

ARTICLE 7
Implementation of Agreement

Except as otherwise provided in this Agreement, each party shall upon the signing of this Agreement, deliver to the other party, or permit the other party to take possession of, all items of property to which each is entitled. Within 14 days after the filing of the decree of divorce or dissolution that incorporates this Agreement, whether modified or amended, each party shall execute or sign and shall deliver any and all deeds, titles, certificates, or other documents necessary to carry out execution of this Agreement. Auditor, county record, clerk of courts, and any other public/private officials are hereby authorized and directed to accept this Agreement, or a properly certified copy of it, in lieu of the document regularly required for such conveyance or transfer.

  ARTICLE 8
Full Knowledge and Disclosure

____/____ (initials) Each party acknowledges that he/she has read all the terms and conditions of this Agreement and understands all the terms.
Each party further represents that he/she has made a full and honest disclosure of all assets and liabilities, earnings and beliefs, so that the other party could take such representations into account while negotiating this Agreement. Each party further represents that he/she is satisfied with the disclosure made by the other party.

ARTICLE 9
Modification of Agreement

This Agreement may only be modified in writing. Any modifications must be signed by both parties. No waiver or breach of any one term shall be considered a waiver of any other duty or right under this Agreement, including and subsequent breach or default of a similar nature.

ARTICLE 10
Integration

This document is fully integrated and supersedes any other Agreement on the same topic. Further, there are no other considerations or modifications of this Agreement outside the bounds of this document; the Separation Agreement is fully integrated.

  IN WITNESS WHEREOF, the parties have signed this Agreement before the witnesses and on the date set forth below:

Signed in the presence of:

Signature of witness to Husband Signature of Husband

Signature of witness to Husband Printed Name of Husband

Date Signed

Signature of witness to Wife Signature of Wife

Signature of witness to Wife Printed Name of Wife

Date Signed

------------------- Divorce is a very serious matter. You need an experienced litigation firm to ensure your rights are protected. We always try to work witht he other side -- however, if a vigorous engagement is required, Hanover Law is up to the task. CALL US before you agree to anything.

S

Sean R. Hanover, Esq
HanoverLawPC.com
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