New Jersey Immigration Lawyers Blog

Just yesterday, the House of Representatives moved in an ultra reactionary and restrictionist fashion to pass HR 4970 by a vote of 222 to 205. HR 4970 is a bill that undermines and practically eviscerates the protections of the Violence Against Women Act as we know it today. Among its many proposed changes, the bill seeks to eliminate the confidentiality provisions that encourage victims of domestic violence to speak out in the first place. The language of the new version seems to allow adjudicators to reach out to the abuser(s) to confirm or corroborate information, which practically speaking, endangers the safety of the reporting victim and leaves the door open for further abuse and manipulation. Additionally, the standard of proof governing VAWA applications would change from preponderance of the evidence to "clear and convincing" and potentially involve personal interviews by officers not necessarily trained in VAWA cases (the Vermont Service Center which has been handling these cases would no longer have jurisdiction.) The stability provided by the U visa would also be undercut through provisions narrowing circumstances under which law enforcement certifications necessary for U visas would be given. It will be a sad day indeed if this extremist bill becomes a reality. Let's hope that President Obama has the resolve to veto this legislation if it makes it way to his desk.

Just yesterday, the House of Representatives moved in an ultra reactionary and restrictionist fashion to pass HR 4970 by a vote of 222 to 205. HR 4970 is a bill that undermines and practically eviscerates the protections of the Violence Against Women Act as we know it today. Among its many proposed changes, the bill seeks to eliminate the confidentiality provisions that encourage victims of domestic violence to speak out in the first place. The language of the new version seems to allow adjudicators to reach out to the abuser(s) to confirm or corroborate information, which practically speaking, endangers the safety of the reporting victim and leaves the door open for further abuse and manipulation. Additionally, the standard of proof governing VAWA applications would change from preponderance of the evidence to "clear and convincing" and potentially involve personal interviews by officers not necessarily trained in VAWA cases (the Vermont Service Center which has been handling these cases would no longer have jurisdiction.) The stability provided by the U visa would also be undercut through provisions narrowing circumstances under which law enforcement certifications necessary for U visas would be given. It will be a sad day indeed if this extremist bill becomes a reality. Let's hope that President Obama has the resolve to veto this legislation if it makes it way to his desk.

USCIS recently announced that Somalia has been re-designated for TPS or Temporary Protected Status. TPS for nationals of Somalia will be extended from September 18, 2012 through March 17, 2014. For those who already have TPS status, the re-registration period runs from May 1, 2012 to July 2, 2012. For those Somalis who do not have TPS status currently, individuals may submit applications during the re-designation period which runs from May 1, 2012 through October 29, 2012. More information can be found on the USCIS website. The link is http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=928f3e4d77d73210VgnVCM100000082ca60aRCRD&vgnextchannel=928f3e4d77d73210VgnVCM100000082ca60aRCRD.

In an interesting development, the Supreme Court of the United States has decided to hear arguments and issue the final word on whether the decision in Padilla vs. Kentucky applies retroactively. As we have blogged about earlier, Padilla vs. Kentucky is the 2010 landmark case that holds a criminal defense attorney's failure to advise a defendant of the adverse immigration consequences of a guilty plea can be ineffective assistance of counsel. In New Jersey, the Supreme Court of New Jersey ruled that Padilla does not have retroactive effect. The Supreme Court will now hear arguments in the fall in the case of Chaidez v. United States.

Those with H-1b status might be interested in knowing that the New Jersey Motor Vehicles Commission recently issued new guidance for individuals seeking to extend their driver licenses after having filed for an extension. If an extension for H-1b status is timely filed, an individual is authorized to work up to 240 days while the extension is pending. The New Jersey Motor Vehicle Commission now recognizes this and has implemented instructions that allow H-1B holders under extension to present a specific certificate. The link can be found here: http://www.nj.gov/mvc/Licenses/LicensesNon-Citizens.htm.

Last Saturday, Partner Angie Garasia participated again in Rutgers Citizenship Day over in Newark. For anyone interested in pursuing or learning whether he or she is eligible for naturalization, we encourage you to check these information sessions out. The program provides free assistance to the public. The next session is scheduled for April 29, 2012 over at the Rutgers-New Brunswick campus.

There is an excellent Questions and Answers available on the USCIS website regarding the Provisional Unlawful Presence Waivers, which to date, is still not yet in effect. At this stage, USCIS is encouraging the public to submit comments. The comment period runs from April 2, 2012 to June 1, 2012.

Among some of the highlights of the Q and A that might be of some interest to prospective applicants is that USCIS states that there is no appeal or opportunity to file a motion to reopen a denied provisional waiver. The Q & A also addresses the big questions of what happens if the provisional waiver is denied. Will the applicant be placed into Removal Proceedings? USCIS indicates that it will follow its current policy regarding issuance of Notice To Appears and prosecutorial prioritization guidelines. Moreover, USCIS reminds applicants that the provisional waiver is not a cure-all. It only provisionally dispenses with the unlawful presence bar, provided that the requisite hardship is demonstrated. If a consular officer determines that the visa applicant is still subject to another or different ground of inadmissibility, the approved provisional waiver is automatically revoked, and the other ground of inadmissibility would of course have to be addressed through another waiver application. Prospective applicants who will need to file for a provisional waiver in the future--assuming it becomes a final rule--should definitely study the Q&A closely.

According to the Associated Press, more than 100 illegal immigrants were apprehended in New Jersey last week as a result of a recent sweep by ICE, or Immigration and Customs Enforcement. According to Mr. Tsoukaris, the vast majority of those caught had criminal convictions, with 82 individuals guilty of felonies and 14 for sex crimes. Most of the arrests were in Essex County, followed by Hudson and Middlesex Counties. These figures underscore just how important it is for any out of status or undocumented alien who is accused of a crime to vigorously contest those charges and retain both qualified criminal and immigration counsel....

USCIS has just announced the designation of Syria for TPS or Temporary Protected Status. The dates for registration and actual procedures have yet to be announced but it is anticipated to be published very soon in the Federal Register. We will post more information regarding TPS for nationals of Syria once it becomes available.

There is a new Board of Immigration Appeals precedential case regarding adjustment of status under 245(i). The case is Matter of Svetislav, 25 I&N Dec. 717 (BIA 2012). Anyone applying for adjustment of status under section 245(i) certainly needs to read this opinion, as it deals with the subject of grandfathering and more specifically, the issue of derivatives being grandfathered. In this particular case, the respondent was trying to apply under 245(i) as a derivative of his wife, who was the beneficiary of an I-130 filed on December 1, 1999. In a nutshell, the Board remanded the case to the Immigration Judge to determine whether the principal beneficiary--the wife--satisfied the physical presence requirement laid out by INA 245(i), namely, whether she was physically present in the US on December 21, 2000. The holding essentially concludes that in order for a person to adjust status under 245(i) as a derivative grandfathered alien, it must be shown that the principal beneficiary satisfies the grandfathering requirements, which in some cases means demonstrating physical presence as per INA 245(i)(1)(C).

Last year, Georgia passed extremely anti-immigrant legislation in the form of HB87. Under the Georgia Illegal Immigration Reform and Enforcement Act of 2011, it is considered a crime to transport as well as harbor undocumented people. The law, patterned after Arizona's notorious anti-immigrant law, imposes monetary penalties as well as incarceration under certain conditions. Perhaps not surprisingly, The American Educational Research Association recently made a decision to move its 2013 conference from Atlanta to San Francisco, California. After much controversy, AERA 's executive board decided it was best to move the conference to prevent involvement of their members in what might be considered criminal behavior. Furthermore, moving the conference would uphold their values of equity, equality, and transparency. Participants would continue to feel welcome and undocumented students would not be discouraged from attending out of fear. In light of the situation, this appears to be a smart, justifiable decision.

As we informed you last year, there is a new detention facility in New Jersey. The Delaney Hall Detention Facility is located at 451 Doremus Avenue in Newark, New Jersey. For concerned friends and family members, visitation hours are as follows:

Monday, Tuesday, Thursday, and Fridays: 7pm to 10pm
Wed: 2pm to 4pm
Sat and Sundays: 1pm to 5pm.

Visitors are encouraged to call ahead to confirm, as theses policies and times may change. The facility telephone number is 973-622-7157. Visitors should also be aware that they will be subject to pat-down searches and that no electronic devices are permitted in the secure areas of the facility. This includes cell phones.

Just yesterday, The New Jersey Supreme Court just handed down a decision in the consolidated cases of Gaitan and Gouldbourne. In a very simple nutshell, the court decided that Padilla vs. Kentucky announced a new constitutional rule of law that does not apply retroactively. Once the opinion is fully digested by this writer, more information will follow. However, suffice to say, this is not a good development for individuals who were not properly advised to immigration consequences prior to pleading guilty....

Our office recently blogged about the new medical forms I-693. It is extremely important that applicants for adjustment of status remember to remind their doctors to use the new form. USCIS has already in some cases issued a Request for More Evidence because physicians are not completing the new forms. While this is not necessarily fatal to the case, it nevertheless does delay an adjustment of status application, which under normal processing can take three months (at least for a family based case in this district). This is the last thing anyone wants and can be easily avoided if applicants remind their doctors (and/or the staff) to use the new updated forms. Our office cannot necessarily tell because we are provided with the sealed envelopes.

USCIS recently came out with a bulletin warning the public that the "stateside waiver" it proposed as a new regulation last month is not yet in effect. If the provisional waiver regulations do go into effect, they will of course dramatically affect the status of thousands of people and potentially allow families to stay together. Nevertheless, it is not yet reality. In fact, USCIS explicitly instructs the public not to send an application requesting provisional waiver, as it will not process such applications until a final rule is issued and the process change becomes effective. Moreover, the public is reminded to be vigilant and be wary of "consultants" who are going around claiming that they can file the waivers and asking for payment now. Good advice. It is incumbent upon those potentially affected by this proposed regulation to keep abreast of what's going on by going to trusted, reliable sources.