There was a lawsuit between an organization that protects immigrants, called Northwest Immigrant Rights Project Northwest Immigrant Rights Project, they filed a lawsuit against the immigration service, about the way the agency was enforcing a law.
The law deals with people who had punishments of 3 or 10 years, the law says that when someone has been in the United States for more than six months and leaves, or stays for more than a year and leaves, at the time of their departure that person is going to start a punishment.
If the presence of a permit is for six months, the punishment is for three years and the law says that you cannot adjust your immigration status for three years, that person has to wait three years before adjusting his or her immigration status.
The other punishment is for persons who have been in the United States for more than one year without permission and an illegal departure, at the time of that departure begins a punishment of ten years.
When Does Unpermitted Presence Start Accumulating?
It may be a person who entered without a Visa, and his unlawful presence counts from the day of his entry into the country after his 18th birthday.
It could be a person who entered with a Visa but the days of presence without permission start counting the day their Visa expires.
Let’s say someone has entered on a Tourist Visa, a B1 or B2, and they gave that person six months, that person has completed their 181st day in the United States, that’s the day that their unpermitted presence in the country begins.
If that person stayed six months or one year in total, that person will carry a punishment of three years, those three years starting on the cutoff day of departure to the United States.
Old Application & New Changes
This is important since we are talking about people who were in the U.S. without permission, left, and have now returned with a Visa, are usually people who had a Tourist Visa that has a 10-year validity and they are given 3 months or 6 months entry depending on their permit.
There are a lot of people in that group of people who overstayed for whatever reason, for the pandemic, for a family member, left the United States, and then no one knew they had overstayed.
They used their Visa again to be able to cross, they have two entries or more without legal permission, and let’s say that person is already married to an American citizen or their parents want to petition for that person, or something very common, that their child was born in the United States, has already turned 21 years old and wants to petition for their mother or father.
Previously the application of this law was that the immigration service made the decision that those punishments of 3 or 10 years only counted when the person was outside the United States.
If someone overstayed their Visa by six months, left, and returned with their Visa immediately or months later and the three years of their punishment had not passed, the person needed a waiver for their presence without permission.
Parents of citizens do not qualify for such a waiver; they can only obtain the waiver if they have a citizen spouse or parent.
Example Of How The New Law May Affect You
Currently, the time of punishment can count when a person is within the United States.
The most common example is when a person has a Tourist Visa, has a U.S. citizen child who was born in the U.S., and is of legal age.
Let’s say that ten years ago that person stayed, it was two years after his permit expired, he stayed to live in the United States but decided to leave and come back again without telling anyone that he had overstayed his Visa.
Then he came in with his Visa, no one knew, and he’s been here ever since.
His son is 21 years old and wants to petition his father, previously our advice to a person in this situation was that there was no way to fix it because if we send a case for an adjustment of status to permanent resident to immigration, we will have to show your entries and your times in the United States.
USCIS is going to find that you are carrying this 10-year penalty, but you re-entered and have not spent those 10 years outside the United States, there is no waiver in this type of case, so it is not worthwhile and risky to apply for permanent residence for this person.
We can remember hundreds of people who have received such advice from us over the past 10 years.
Now that same person can adjust his or her permanent resident status without needing the waiver because even though he or she carried the 10-year penalty, those 10 years have already elapsed while the person was here within the United States.
So, the new change that immigration has made, is for people who were affected by having an unlawful presence in the United States after having had a lawful entry, had a desire to adjust their immigration status for a family member, can now do so without waiting for the time of their punishment to pass.
At Lincoln-Goldfinch Law we are giving free case evaluations, and if you have questions give us a call, share our phone number with your friends and family members because everyone involved in this group of people will be positively affected by this change.
How Dreamers Will Be Affected By The New Change
People who are under the DACA program are going to be able to arrange in the future, for example, a person who got DACA after turning 19, that person after turning 18 automatically had an unlawful presence in the United States when they got their DACA, with that program they stopped their unlawful presence but they still carry that year.
That same person obtained Advance Parole, left, and returned with her permit, her son is not yet 21 years old, let’s say he is 15 years old, so it is not time for that mother to adjust her immigration status.
That mother knows that the time of her presence without permission after her 18th birthday is already counting down, so in five, six, or seven years, she will be ready to adjust her immigration status on behalf of her child.
Although she can’t fix it now she has more hope of adjusting her status with her options in the future. She can invest in college, a house, or a career knowing that she now has options she could not count on before.
Policies & Immigration
We are always looking at changes in the immigration world about laws that have passed through Congress (which are the most determinative of changes) and then signed by the president.
We also have executive laws and we saw a lot of those during the last administration.
That is a change in an agency’s interpretation of law based on a lawsuit, so yes it is something that could change, although it is only an interpretation.
It is a rule of a situation that was damaged, we do not believe it is something that is going to change now, but it is something that could change in the future.
When an immigrant is looking at a situation that can benefit him, he has to know that the time to act is now, because, for us, the time to act is now. It is difficult to see clients coming in who had the opportunity for DACA, had the opportunity to arrange for VAWA or apply for a Visa, and did not do so out of fear, lack of money, confusion, or ignorance.
The moment you know you have a choice you must take action at that moment because everything can change in this immigration world.
Can People Who Never Left The U.S. Qualify For The New Law?
No, that person is not going to be affected by this change, because remember that the moment of punishment begins at the moment of the person’s departure from the United States, that is when the punishment begins.
Let’s say someone entered without a Visa, married a U.S. citizen, currently has years and years in the U.S. but wants to fix, cannot adjust their immigration status because they did not enter with a Visa, have not suffered abuse, cannot do VAWA, no one in the family is serving in the military, and no one was petitioned before 2001.
Those are the four ways to be able to adjust your immigration status without leaving the United States, entering on a Visa, being a victim of abuse or cruelty in your relationship or to your family, or being a relative or immediate relative of someone serving in the military, or having been ordered before 2001, otherwise, the way to arrange for a relative is the Consular Processing.
The process for someone who entered without a Visa who wants to adjust their immigration status for a family member is to file the family petition and then leave for their appointment at the Consulate, that is when their punishment begins, on their departure, because that is the moment when the punishment begins, it is strange.
The system or the process of someone doing their Consular Processing is that you have to ask for a pardon for the punishment before your departure, to make sure that everything is already pardoned before you leave, that is called Provisional Waiver, the case number is I-601A.
The steps in such cases are:
- I-130, which is the family petition.
- The Consular Process outside your home country.
Those individuals do not benefit under this new law because the change is about the time of their punishment that they can spend here in the United States or back in their home country.
Pride Month LGBTQ+
For the Lincoln-Goldfinch law team, June, or Pride Month, is a time of year we all celebrate and honor. the month of June, or Pride Month, is a time of year when we all celebrate and honor.
Attorney Kate has decorated her home inside and out with lots of rainbows and pride for her daughter Norie who is part of the community, and as well as Lincoln-Goldfinch Law administrator Fidel Campuzano, they are in compliance in this special and important month for the LGBTQ+ community.
It is a month where we can celebrate and also remember what we have gone through to get to where we have arrived as a community and all that is still to come.
LGBTQ+, Immigration, Risks & Protections
When we are talking about the immigrant community and the gay community, the mix between the two represents a double vulnerability. the two represent a double vulnerability, but there are protections and benefits for people who are part of both groups.
There are ways to be able to seek asylum or protection in the United States based on the harm, persecution, or risk you carry in your home country, if it is not safe to live as a gay, trans, part of the community in your home country, that can be a solid reason for an asylum case in the United States.
We have seen people who have been victims of human trafficking, it can be forced prostitution, but it can also be forced labor in the United States.
They may also be victims of crimes such as assault, for example, they can apply for the U Visa for victims of crime and the T Visa for victims of human trafficking.
In the U.S. there are protections for these groups of people, and sometimes there are ways to use their injury history to there are ways to use the history of their harm to be able to benefit and obtain legal status in the United States.
Asylum & LGBTQ+
In the world of the asylum, there is no processing time that we can be sure of, there is affirmative asylum and defensive asylum.
The difference between these is that affirmative asylum is when someone entered the U.S. with permission, for example with a Tourist Visa, Student Visa, or Work Visa, or entered without permission and was not caught at the border.
That group of people can send an asylum case directly to the immigration service by mail, with their asylum case application and evidence in the package, then just wait for an interview with the immigration service.
In our experience, that process can take anywhere from six weeks to six years, and there is no reason why that happens.
LGBTQ+ asylum applicants normally wait two years, ranging from 13 weeks to 6 years.
The results of that interview may be an approval of your asylum case and then you can apply for permanent residency and U.S. citizenship.
If they deny your application, they transfer your case file to the immigration court so that you have another chance to apply for asylum in immigration court, that is defensive asylum.
That type of asylum applies to people who have been denied at their interview or people who showed up at the border bridge or were caught crossing and are now in the asylum process in front of an immigration judge, that is the process of a defensive asylum case.
The processing time in this type of case depends entirely on the judge’s schedule, the fastest can be six months, although that is not the norm, normally it can take up to ten years to win this type of case.
One very good thing is that people who are already in the asylum process qualify to apply for a work permit when their case is pending.
You must submit your application for asylum with the form I-585After five months you can apply for your work permit and it is possible to renew it during the process.
It is very stressful to be in that process for so long and not be able to travel to visit your family outside of the United States, especially for people who are separated from their spouse or minor children, this can be torture for a person, but it is possible to be here in the country with your work permit during the wait while they make the final decision on your case.
Same Sex Couples & Immigration
Every difference or rule that there was before with same-sex couples changed in 2015 before that only a few states in the United States approved or allowed same-sex marriages, but now all states in the country accept this marriage.
Yes, it is possible for everyone to get married in the United States, heterosexual or not, but people outside the United States may not be able to get married in their own country.
In that type of situation, we might need to do a Fiance Visa, because we can prove to the immigration agency that it is going to be legal and possible for that couple to get married once they have entered the United States. although they cannot marry in the country where they are at the moment.
In case you have additional questions about your asylum case, unlawful stay, or your specific case, you can contact us at (855) 502-0555. After a short 10-minute evaluation of your case over the phone, we will let you know what options you have. You can also follow us on our social networks so you won’t miss our weekly broadcasts via Facebook, YouTube & Twitch.