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The term “adjustment of status” is an immigration legal term that refers to anyone who has been “admitted or paroled” into the United States who “adjusts” status to that of a lawful permanent resident.  In other words, if you are inside the United States, you would adjust your status to obtain a greencard.  If you were outside the United States, you would apply at a consult for an immigrant visa and then enter as a lawful permanent resident.   Adjustment of status is different than a “change of status,” where you would change status from one temporary visa, for example an F visa (student visa) to another temporary visa, for example, and H1B visa (employment visa).  Adjustment of status is the fist step towards becoming  a United States Citizen.

Who can adjust status and obtain a green card?

There are several ways to adjust status in the United States.  The most common ways are through marriage to a United States citizen or through asylum.  However, victims of crime and those with certain employment opportunities or investment opportunities may also be able to adjust status.

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Is it better to imprison 9 innocent people and 1 guilty person or to free 9 guilty people and imprison 1 innocent person?

On December 11th, 2017, Akayed Ullah, a Bangladeshi immigrant who became a lawful permanent resident, strapped a pipe bomb to himself and attempted to conduct a terrorist attack in New York City.  Fortunately, the device detonated prematurely and he was the only person who sustained serious injury.  But many are calling for the cessation of constitutional rights in cases like Mr. Ullah’s.  Immigration attorneys and criminal defense attorneys understand the slippery slope of this argument and how dangerous it really would be to pick and choose who the constitution applies to and who it doesn’t apply to on U.S. soil.

What’s the big deal.  Why should “terrorists” be afforded constitutional rights like the right to remain silent and the right to an attorney?

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“…[a] date which will live in infamy…”

Excerpt of a speech given by President Roosevelt after the December 7th, 1941 Japanese attack on Pearl Harbor

A dark stain on our nation’s history resonates profoundly in today’s immigration discussion.  Immigration attorneys throughout the country are passionately trying to hold back a surging tide of anti-immigrant sentiment, specifically toward the Muslim community.  Not only anti-illegal immigration sentiment, but also anti-immigrant sentiment, in general.  The United States has never been a country of “the good of the many outweigh the needs of the few.”  We have always been a nation that values, above all else, individualism.  No matter the cost, we have always held fast to the ideal that we will defend our individual freedoms to the last.  Yet, on December 7th, 1941, that national identity was sacrificed for “the greater good.”  Not only by the president and the legislature.  But by the highest court in the land, the United States Supreme Court.

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President Trump’s administration has recently changed a longstanding rule that has placed immigration lawyers on notice relating to a common occurrence in immigration law.  Many non-U.S. citizens enter the United States on Visitor Visas for many different reasons.  To visit family, to take a vacation, to see what the United States is like.  It is not uncommon for non-citizens find love and decide to get married to a U.S. citizen while in the U.S. on vacation.  While many may call this impetuous, it is not a situation that is confined to citizens and non-citizens.  The difficulty arises when you apply for a green card based on your marriage to a United States citizen when your marriage was within a short period of time after you entered the United States.  You could be denied a green card based on what is called “preconceived intent.”  So, how do you establish that you did not have preconceived intent to get married and stay in the United States when you entered on a temporary visa?  Well, the government has just made it a little harder with the implementation of the 90 day rule.  This rule replaces the old 30/60 day rule.


Temporary visas are just that.  Temporary.  In order to obtain a temporary visa, you must establish that you intend to depart the United States by the time your temporary visa expires.  For example, if you have a visitor visa that is good for six (6) months, when you enter the United States, you must have the intent to depart the United States within six (6) months.  If the government believes that you intended to stay in the United States longer than your temporary visa at the time you entered, this is called preconceived intent.  Prior to entering the United States, you conceived the intent to stay longer than authorized.  If you have preconceived intent, this is a violation of your status.  The key issue for a determination of preconceived intent lies in what your intent was at the time you were admitted into the United States.  It is not preconceived intent if you change your intent after you were admitted.  For example, if you truly entered the United States simply to visit and intended to leave within the six months allotted under your visitor visa, but you fell in love and only decided to stay after you were already admitted, then this would not be preconceived intent.  Regardless of your true intent, however, the problem arises when you apply to adjust your status and obtain a green card based on the marriage to a United States citizen that occurred within a short period of time after your admission to the United States.  Immigration officials will not simply take your word for it.  They will look to outside evidence to establish whether they make a finding that you had preconceived intent.  Let’s take a look at the old rule that USCIS (United States Customs and Immigration Services) used to follow.

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Orlando immigration attorneys and Jacksonville immigration attorneys know the frustration of the Infopass system.  Appointments are few and far between.  When an appointment becomes available, there is a mad rush to reserve your spot.  Clients often get frustrated that an appointment cannot be made more quickly. And once an appointment is finally made, the answers are often not very useful.

There are few agencies that are more tightly wound in red tape than the United States Customs and Immigration Services (USCIS).  You can’t just pick up a phone and give them a call.  You can’t simply drop in and ask a question.  There is a process.  Not a very good process.  But there is a process.  If you have a question about your pending application or petition, you can set what is called an “Infopass appointment.”  An Infopass appointment is the vehicle you can use to get answers to your questions.  Unfortunately, you will often get vague or conflicting answers, but sometimes these appointments can be very helpful.

The most common use of the Infopass appointment is to answer the question, “What is taking so long on my application or petition?”  Customers often ask when a decision will be made.  Sometimes, simply having the Infopass appointment can jog the case the loose and get it back in line for a decision.  The adjudicator who you meet with at the Infopass appointment won’t be the adjudicator that decides your case, but they often can look up the status in the system, see where the file is, determine where in the process the case is, and offer other useful information.

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D33297D9-99FD-4694-B69E-241571194F03A person in deportation proceedings is eligible for a fraud waiver even when they are not specifically charged with a fraud based basis of inadmissibility.  The Seventh Circuit Court of Appeals recently held that the Board of Immigration Appeals erred in finding that Mr. Acquaah was ineligible for a 237(a)(1)(H) fraud waiver because he was charged with having his permanent resident status terminated, rather than being charged with being deportable for committing fraud.   Acquaah v. Sessions, No. 16-3277 (7th Cir. 2017).  

Mr. Acquaah entered the United States on a visitor visa.  He was married to a citizen of Ghana at the time.  He divorced the Ghana citizen and married a U.S. citizen, who filed an petition on his behalf and he was able to obtain a conditional greencard.  Mr. Acquaah and his wife filed a joint petition to remove the conditions of the greencard, but they separated during the pendency of that petition.  INS denied the petition because he had failed to establish that the marriage was bona fide and the agency placed him in deportation proceedings.  While he was separated from his U.S. citizen wife, Mr. Acquaah remarried his Ghana citizen wife, who had received a greencard through the diversity lottery.  Mr. Acquaah, using the name Kofi Obese, applied for a second greencard, which was approved.

Ultimately, throughout decades of litigation, the government found out that Mr. Acquaah had two greencards and the agency charged him with two counts: 1) fraud or willful misrepresentation of a material fact sough to procure an immigration benefit and 2) termination of conditional residency based on marriage fraud.  The Immigration Judge determined that Mr. Acquaah was deportable because his conditional residency terminated.  The Immigration Judge further found that he was ineligible for a 212(h) fraud waiver.  The Board of Immigraiton Appeals affirmed the decision using its own rationale that Mr. Acquaah was not found deportable for fraud or willful misrepresentation count, and therefore he was not eligible for the 212(h) fraud waiver.

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The President recently announced that the DACA (Deferred Action for Childhood Arrivals or “Dreamers”) program is ending as we know it. The government will not accept any new applications for DACA effective September 5, 2017. If you had a new DACA application pending already, the government will not automatically deny it, they will give you a decision. If you currently have DACA and your Work Permit is set to expire before March 5, 2018, you can apply to renew your DACA and work permit, BUT YOU MUST FILE BEFORE OCTOBER 5, 2017 or your application will be rejected.

It is very, very important for everyone with DACA to look at their work permit immediately. If the expiration date is between September 5, 2017 and March 5, 2018, you should go see an experienced immigration attorney as soon as possible for advice on what to do. Do not wait, you must apply to renew your DACA and work permit before October 5, 2017 or you will lose both when the work permit expires.

One important thing to remember about the President’s announcement is that everyone with DACA and a work permit will continue to enjoy the protection of not being deported and being able to work until the documents expire. That is, unless the government terminates your DACA before then for one of many reasons, like you were convicted of a crime or committed some sort of immigration fraud.

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On September 5, 2017, President Trump announced that he was ending DACA . . . sort of.  Its true, DACA, formally known as Deferred Action for Childhood Arrivals, is ending as we have known it since 2012 when President Obama created the program.  However, its important to remember, the program is not ending immediately for people who already have DACA or who have already applied for DACA for the first time.  If you have already applied for DACA, or applied to renew your DACA, or have DACA, today’s announcement does not effect you immediately.  But that doesn’t mean you have nothing to worry about.

Today’s announcement immediately stops anyone who does not already have DACA from applying for it.  It also stops anyone who has DACA from applying for advanced parole, which is a benefit that allows people without a lawful immigration status to leave the U.S. and return without a visa.  Advanced parole is important for DACA recipients for two important reasons, 1) people without status in the U.S. cannot usually travel abroad and return to the country legally without advanced parole and 2) once a DACA recipient travels outside of the country and returns on advanced parole, they may be eligible to apply for adjustment of status through a family member when they were not eligible previously because they had entered the country without inspection and admission or parole.

If you have DACA, or have already applied for DACA for the first time, it is important to know how today’s announcement affects you and what you can do to protect your immigration status.

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Recently, memos have surfaced that the Trump administration is working to expand the use of Expedited Removal in an effort to become tougher on immigration enforcement. This is bad news for anyone in the United States who doesn’t carry around their U.S. birth certificate, passport, or green card at all times. This is really bad news for anyone who entered the country without inspection or valid immigration documents less than three months ago.

What is Expedited Removal?

Expedited Removal is a way that immigration officers can detain and order someone removed from the United States without taking them before an Immigration Judge. This is one of many “alternatives to removal proceedings” that the government can use to obtain an order of removal against a non-citizen while trying to keep them out of court.

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The government is deporting people at a record rate.  The current administration has said that it is focused on “bad hombres,” but people who have been here for many years with no criminal convictions are being targeted as well as those with criminal charges.  There are things that can be done to protect yourself or those you love from deportation.  Here is a list of some of the more common ways:

  1. Become A U.S. Citizen – Proud-American-Citizen-really-small-150x150So many lawful permanent residents (greencard holders) put off becoming a United States citizen for a variety of reasons.  Whether they don’t want to pay the fee or go through the administrative process or study for the test or renounce their loyalty to their country of birth, they put off becoming citizens. This is a mistake.  Once you become a United States citizen, you can disregard the Immigration and Nationality Act.  This means that you can come to and go from the United States as any other U.S. citizen does.  This means that if you are ever convicted of a minor crime, you would not be deportable.  This means that you would not have to deal with the hassle and uncertainty of being inspected by Customs and Border Protection agents in the same way as non-citizens, including random secondary inspections.  If you wanted to reside outside the United States with the option of coming back, you could do this as a United States citizen.  You may be able to apply for your non-citizen relative or help keep that relative from being deported, if you are a U.S. citizen.  The naturalization process takes several months and often times it can be too late for people to apply when they need it.  For example, if you are arrested for battery, minor drug possession, theft, criminal mischief, fraud, or any other criminal charge, it could prevent you from applying for citizenship for 5 years, and sometimes forever.  Or even worse, it could be a basis for deportation, no matter how long you have lived in the United States and been a lawful permanent resident.  The immigration laws are complicated.  Do yourself a favor and become a U.S. citizen as quickly as possible.
  2. File a Petition –AdobeStock_37194399-150x150 In some cases, you may be able to file a Petition on behalf of your non-citizen spouse or other family member, even if they are here without authorization.  For example, a spouse of a person who came into the United States without authorization may be able to file a petition and that person may be able to file a provisional waiver to excuse their unlawful presence in the U.S. An approved petition alone could help if the person is placed in removal proceedings or taken into custody by ICE.  The immigration laws are designed to be more forgiving of certain immigration violations if the person is an immediate relative of a U.S. citizen.  Filing a petition may or may not be beneficial in your case.  Consult with an immigration attorney to see whether it would help or hurt you or your loved one.