Newsletter Vol I #4

Our Christmas wish for you:
Peace & Happiness
Have a healthy and prosperous 2013!
Jonathan, Lisa, & Lourdes

pic15It used to be that every person who wanted to immigrate to the US but needed an I-601 “pardon” for previous immigration or criminal violations, had to file their “pardon” at the US Consulate handling their case. Beginning December 5, 2012, individuals who are currently abroad and need such a “pardon” must now file it through a special USCIS office in Phoenix Arizona instead of the US consulate. This new process is separate from the proposed “provisional waiver” announced on March 30, 2012 that would permit people who need pardons for unlawful presence to file it while they are still in the United States. However, this is the strong evidence I was referring to in our previous newsletter that indicates immigration is getting the procedures ready for the “provisional waiver”.

How dare you turn 21! For many years this is what the Department of Homeland Security basically said to thousands of children who were planing on immigrating to the US with their parents, but who turned 21 before they could get their “green card(s). The painful consequence of turning 21 years old was the inability to immigrate with one’s parents because they were no longer considered a “child”. However, that rule recently changed for the better. Let’s look at the Ninth Circuit Court of Appeals case called, De Osorio v Mayorkas, decided September 26, 2012 which made the favorable change.

Rosalina Cuellar de Osorio’s citizen mother filed a petition for an F3 visa (for a married daughter of a citizen) on her behalf in May 1998.

pic16Cuellar de Osorio’s son, who was then thirteen, was listed on the petition as a derivative beneficiary. Cuellar de Osorio’s visa was approved in June 1998, but her priority date did not become current until November 2005. By then, her son was twenty-one and as a result was ineligible for a derivative visa. AILA In-foNet Doc. No. 12092653. 

The court in Osorio’s case eventually decided that the plain language of INA §203(h)(3) unambiguously grants automatic con-version and priority date retention to aged-out derivative beneficiaries, including F3 and F4 derivative beneficiaries. What this means is that children who turn 21 can keep their priority date (their place in line) if the parent once becoming a permanent resident files a new petition (I-130) for them.

WARNING! Anyone who is expecting to adjust status under 245(i) must not have an illegal entry after being previously in the United States for one year or longer. On October 19, 2012, the Ninth Circuit Court of Appeals settled once and for all the 6 year-old question, “What is stronger, the 10 year bar or 245(i)”. The court decided that individuals who are inadmissible under INA §212(a)(9)(C)(i)(I) may not seek adjustment of status under INA §245(i) According to Francisco Javier Garfias-Rodriguez Case.

Garfias is a native and citizen of Mexico. He unlawfully entered the United States in 1996 and briefly departed twice, first to visit his ailing mother in 1999 and then to attend her funeral in 2001. He reentered the United States without permission both times. In April 2001, Garfias’s then-current employer filed an application for labor certification with the Oregon Employment Department on his behalf but later withdrew the application after he ceased working for that employer. Garfias married his wife Nancy, a United States citizen, in April 2002. He applied to adjust his status to that of a lawful permanent resident in June of 2002, paying a total of $1305 in fees. AILA InfoNet Doc. No. 12101947 

pic17The government eventually denied Garfias adjustment of status because his subsequent illegal entries in 1999 and 2001 triggered the incurable 10 year bar; also known as the “permanent 10 year bar”. Simply stated, 245(i) cures only one illegal entry. Because the decision is retroactive, it applies to illegal re-entrants before October 2012 as well. The only solace is that the strict rule should not apply to illegal entries before April 1997 because the incurable 10 year bar became law in April 1996.

2 thoughts on “Newsletter Vol I #4”

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