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Republicans Counter Immigration DREAM with ACHIEVE Act

by JP Sarmiento on December 5, 2012

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In the wake of President Obama’s reelection, people involved in the immigration field still recall how the DREAM Act fell short of being heard at the House.

Today, Republicans Senators Jon Kyl of Arizona and Kay Hutchinson of Texas are introducing their own version of immigration reform under the Achieve Act. The Republican Senators disclosed that this push for this Act is not a plain reaction to their poor showing among Latinos in the recently concluded election last November. They revealed that this effort to get serious in tackling immigration issues has been in the works for almost a year now and that they have been consulting with Senators John McCain of Arizona and Marco Rubio of Florida.

The ACHIEVE Act proposal would require applicants to have entered the country before the age of 14, and have lived in the U.S. for at least 5 years. The undocumented immigrants are provided with a regular pathway towards permanent residency and a chance for potential citizenship. Compared to the DREAM Act, the ACHIEVE Act offers three different visas: one that is good for 6 years, one that is good for 4, and a permanent non-immigrant visa that is renewable every five years.

Source: Fox News Latino


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Two of the elements that a potential naturalization applicant should meet are the continuous residence and physical presence requirements. If you obtained your permanent residency through marriage, the residency requirement is three years, assuming you are still living with your spouse. If you obtained your permanent residency through other means, such as employment or through a different family member, then the residency requirement is five years. You should then be physically present in the U.S. for at least one-half of the last five years (or one-half of the last three years if you got your green card through marriage) before applying for naturalization.

An absence between six months and one year during those last three or five years raises a rebuttable presumption that continuity of residence has been interrupted. INA § 316(b). Thus, if you’ve had trips abroad which lasted between six months and one year, even though you meet the physical presence requirement, the continuity of residence requirement might have been disrupted.

You should be able to properly document your trips and reasons for such when you apply for naturalization, and explain this at your interview, to rebut the presumption of disruption.

Some factors which may establish continuity of residence as stated in 8 C.F.R. § 316.5(c)(1)(ii) include:

1. Not terminating employment in the U.S.
2. Presence of immediate family in the U.S.
3. Retention of full access to a U.S. home, and
4. Not obtaining employment abroad.

Permanent residents who studied abroad with trips between six months and a year can also rebut this presumption. Li v. Chertoff, 490 F.Supp.2d 130 (D.Mass.2007), holds that study abroad does not result in abandonment of residency. Our firm recently represented an Indian client with this issue, and he was able to naturalize. (Click Here for the Success Story). We also cited this case for another client of ours whose husband was the one who studied abroad (Click Here for the Success Story), in which she, at that time the permanent resident, accompanied her husband.

Feel free to post questions below or call our office.

If you have any questions, please fill out the free consultation form below, and we will respond as soon as possible privately. 



Obama Hosts White House Meeting on Immigration Reform

by JP Sarmiento on April 26, 2011

On April 19, 2011, President Obama hosted a White House Meeting with 70 national leaders—including Mayor Bloomberg, former Governor Arnold Schwarzenegger, among others—to discuss the challenge of fixing our broken immigration system.

According to the press, the President expressed disappointment over Congress’s failure to produce comprehensive immigration reform (CIR), or even components of CIR like the DREAM Act, and enumerated the many problems resulting from our broken system—families torn apart, shipping talent overseas, wage equity and work eligibility issues, etc. In the same meeting, the President also stated that the “Administration continues to improve our legal immigration system, secure our borders, and enhance our immigration enforcement so that it is more effectively and sensibly focusing on criminals.” Many reports, however, argue that administrative reforms thus far have not been ambitious enough, or as effective as the White House claims.

Moreover, the President seems to be pinning all future immigration relief on Congressional action—stating that “the only way to fix what’s broken about our immigration system is through legislative action in Congress.”

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On April 8, 2011, AILA released an update on what would happen to different immigration-related government agencies in case the government shuts down. Please note that if the budgetary issues are not resolved, the government plans to shut down at midnight on April 9. As a consequence, the government claims that all but “essential” government functions are not allowed to work.

USCIS (United States Citizenship and Immigration Service)

The USCIS processes permanent resident, naturalization, and non-immigrant  visa petitions, among others. It is the agency that conducts interviews, reviews applications, and makes decisions on green card and citizenship applications. The USCIS has indicated that in the event of a shutdown, they will continue to operate except for the E-Verify section.

DOS (Department of State)

The DOS deals with most visa and consular processing applications. J-1 waivers and visa petitions for people outside the United States go through them. If a shutdown occurs, only applications related to diplomats and “life or death” situations would continue to function.

CBP (Customs and Border Patrol)

The CBP guards the port of the entries – shipping ports, borders, and airports. They inspect and decide on whether a person gets in the United States, and enforce applicable immigration laws when someone is inadmissible. Inspection and law enforcement personnel are deemed “essential” personnel, but a shutdown will also limit their staff. The ramifications of a shutdown are thus uncertain.

EOIR (Executive Officer for Immigration Review)

The EOIR is the immigration court system. Immigration Courts, judges, clerks, and the Board of Immigration Appeals all fall under this branch. A general warning that “non-essential” personnel would not be allowed to work has been set forth, and that the only aspect of operations that is certain to continue is the detained docket, which is considered an essential function.

DOL (Department of Labor)

The Department of Labor is one of the first agencies involved in employment-based petitions, as they review and make determinations on the Labor Certification process. Personnel would certainly not be available to respond to emails or other inquiries, but it is yet to be determined if the ICERT and PERM functions would shut down.

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People who could not afford to pay the filing fees for certain immigration paperwork can file a fee waiver request. The USCIS developed the new Form I-912, Request for Fee Waiver, in an effort to facilitate the fee-waiver request process. The form has been available to the public since November 23, 2010. Since the use of this form is not mandated by regulations, and was only implemented to actually help potential applicants, the USCIS will continue to consider applicant-generated fee-waiver requests.

Fee-waiver requests are reviewed by considering whether the applicant is receiving a mean-tested benefit, whether the applicant’s household income level renders him or her unable to pay, or whether recent financial hardship otherwise renders him or her unable to pay.

Specific Forms and Conditions

The USCIS may waive fees for the following more popular forms based on an inability to pay

  • Biometrics services fee
  • I-90, Application to Replace Permanent Resident Card
  • I-751, Petition to Remove Conditions on Residence
  • I-765, Application for Employment Authorization
  • I-821, Application for Temporary Protected Status
  • N-400, Application for Naturalization

For I-485 Adjustment of Status applications, the USCIS may waive a fee based on an inability to pay and subject to the conditions specified:

  • An Afghan and Iraqi interpreter who has received a Special Immigrant Visa
  • A “Registry” applicant filing under section 249 of the INA who has maintained continuous residence in the United States since before January 1, 1972; or
  • An applicant who is exempt from the public charge grounds of inadmissibility under section 212(a)(4) of the INA, including but not limited to
    • Applications filed by asylees under section 209(b) of the INA;
    • Applications for Special Immigrant Juveniles
    • Applications under the Cuban Adjustment Act, the Haitian Refugee Immigration Fairness Act (HRIFA), and the Nicaraguan Adjustment and Central American Relief Act (NACARA), or similar provisions; and
    • Applications filed by Lautenberg Parolees

For I-601 Applications for Waiver of Grounds of Inadmissibility for an applicant who is exempt from the public charge grounds of inadmissibility of section 212(a)(4) of the INA.

Based on an inability to pay, the USCIS may waive any fees associated with the filing of any benefit requested by a VAWA self-petitioner or T-Visa applicant, U visa applicant, battered spouses of an A, G, E-3, or H non-immigrant, battered spouse or child of an LPR or USC, and TPS applicants. This would include filings not otherwise eligible for a fee waiver or eligible only for conditional fee waivers such as Forms I-212, I-485, I539, and I-601.

Steps and Criteria

  1. Whether the request is submitted on Form I-912 or in the form of a written statement, the applicant may submit additional documentation to provide proof of his or her inability to pay
  2. Is the individual receiving a means-tested benefit? A means tested benefit is a benefit where a person’s eligibility for the benefit, or the amount of the benefit, or both, are determined on the basis of the person’s income and resources, including those that may lawfully be deemed available to the person by the benefit-granting agency. The applicant should provide proof in the form of a letter, notice, or other official document containing the name of the agency granting the benefit.
  3. Is the individual’s household income at or below 150% of the Federal Poverty Guidelines at the time of filing? Evidence of current employment , W-2 forms, income tax returns, and other documents evidencing income may be submitted.
  4. Is the individual under financial hardship, due to extraordinary expenses or other circumstances that renders the individual unable to pay the fee? Unexpected medical bills is an example of this option.


After review of the fee-waiver request and supporting documentation, the fee-waiver approval or denial would be recorded in the receipt block of the underlying form for which the applicant is requesting a fee waiver. If it is denied, the applicant receives Form G-1054.

If you have any questions, please fill out the free consultation form below, and we will respond as soon as possible privately. 


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USCIS Unveils New Naturalization Certificate

by JP Sarmiento on October 26, 2010

Immigration officials, in an effort to deter fraud, will unveil today a new naturalization certificate for people who become U.S. citizens.  The new certificates, used to obtain passports and other legal documents, come after the U.S. Citizenship and Immigration Services (USCIS) unveiled a new green card with improved security features to prevent forgery and tampering.

The old certificates were filled in manually and the person’s photograph was just attached to it. The new computerized certificates will have all that information embedded in the document and also will have ink patterns that are harder to duplicate.

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GOP State Reps Seek to Redefine Birthright Citizenship

by JP Sarmiento on October 21, 2010

The representative for Texas’ 6th District, along with more than a dozen other Republican state legislators across the country, plans to introduce a bill in the next session calling for his state to discontinue automatic citizenship for U.S.-born children of illegal immigrants. The measure is, of course, a direct violation of the 14th Amendment, which grants citizenship to anyone born in the United States.

Texas state Rep. Leo Berman hopes his state will be sued. The next step in his desired outcome is a legal victory. “That lawsuit will go all the way to the U.S. Supreme Court, where some judge is going to read the background and say there are no Supreme Court rulings affirming the 14th Amendment’s current interpretation,” he said.

Most legal scholars say it can’t be done, especially not at the state level. The 14th Amendment was established in 1868 to overrule the Dred Scott decision that prevented children of slaves from becoming citizens. The language of the amendment specifically refers to birthright citizenship: “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”  But some state lawmakers argue the 14th Amendment has been misinterpreted to include the children of illegal immigrants, who they say should be citizens of their parents’ native countries instead of the United States.

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USCIS Filing Fee Increases Effective November 23, 2010

by JP Sarmiento on October 4, 2010

The US Citizenship and Immigration Services (USCIS) announced on September 23, 2010 the final rule adjusting fees for immigration applications and petitions. The final rule will increase overall fees by a weighted average of about 10 percent but will not increase the fee for the naturalization applications. The rule will also reduce fees for six individual applications and petitions and will expand the availability of fee waivers to new categories. The adjusted fees will go into effect on November 23, 2010.

Below are the increased fee schedule for some commonly used immigration applications and petitions:

  • I-130 Petition for Alien Relative: $355 to $420
  • I-485 Applicant to Register Permanent Residence or Adjust Status: $930 to $985 (Biometrics fee not included). The current I-485 filing fee $1,010 amount includes $930 and biometrics fee $80. The adjusted filing fee will be $985 plus $85 biometrics fee which becomes $1,070.
  • I-140 Immigration Petition for Alien Worker: $475 to $580
  • I-907 premium processing service: $1000 to $1225
  • I-129 Petition for a Non-Immigrant Worker: $320 to $325
  • I-765 Application for Employment Authorization: $340 to $380

USCIS also reduced filing fees for six individual applications and petitions, including:

  • I-129F Petition for Alien Fiance: $455 to $340
  • I-539 Application to Extend/Change Nonimmigrant Status: $300 to $290 and
  • I-698 Application to Adjust Status from Temporary to Permanent Resident: $ $1,370 to $1,020.

The adjusted fees will go into effect on November 23, 2010. Applications or petitions mailed, postmarked, or otherwise filed on or after November 23, 2010 must include the new fee. Applications filed with inappropriate filing on and after such date will not be considered properly filed and may be rejected.

If you have any questions, please fill out the free consultation form below, and we will respond as soon as possible privately. 


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