Miami Immigration Lawyers Blog

During these tough economic times, bankruptcies and foreclosures are a sad reality for many people. Unfortunately, bankruptcies and foreclosures could also seriously affect the adjudication of certain immigration benefits and certain applications for relief from removal. Many Immigration Judges, immigration prosecutors, and immigration officers are increasingly viewing bankruptcies and foreclosures as negative factors which can hurt a person's chances of being granted certain immigration benefits and applications to avoid deportation.

A point of clarification which should always be made to an adjudicating officer or an Immigration Judge is that a bankruptcy or foreclosure does not mean that a finding of lack of good moral character can be made as a matter of law or regulation. However, these financial issues may negatively affect the adjudication of an immigration benefit or application. A bankruptcy or foreclosure is not necessarily by any means fatal to an application or benefit, but many applications before the Department of Homeland Security (DHS) and the Immigration Court are discretionary.

Since a bankruptcy or a foreclosure can be viewed as a negative factor, it may influence an adjudicator or Immigration Judge not to exercise discretion favorably. The main concern of adjudicators, prosecutors, and Immigration Judges is that a bankruptcy or foreclosure may not be legitimate. A person should be prepared to explain all the circumstances surrounding a bankruptcy or foreclosure before applying for any immigration benefit before the DHS or the Immigration Court.

An applicant should establish the legitimacy of the bankruptcy or foreclosure. There may be a need for an applicant or respondent to justify the necessity of the bankruptcy or the reason for the foreclosure. Positive factors should be strongly emphasized in order to outweigh any negative view of a bankruptcy or foreclosure. Much like certain crimes, these financial issues can indeed carry immigration consequences. The immigration consequences should be carefully analyzed so a person is fully prepared when applying for immigration benefits and relief from removal.

For more information about this issue, contact Miami immigration lawyer, Antonio Revilla, at (305) 858-2323 or via email: arevilla@immigrationmiami.com.

About Revilla Law Firm, P.A.
Antonio Revilla is a Former U.S. Immigration Prosecutor and Miami Immigration Lawyer. Mr. Revilla founded his immigration law practice, Revilla Law Firm, when he saw a dire need for aggressive immigration representation and deportation defense in order to keep families united.

If you wish to receive more information about any immigration issue, you can contact Revilla Law Firm at 305-858-2323 to speak with Antonio Revilla.

Reported in New York Times

WASHINGTON -- The federal agency in charge of deportations is conducting a far-reaching training course to push immigration enforcement officers and prosecutors nationwide to focus their efforts on removing immigrants convicted of crimes.

The training course is the clearest sign yet that administration officials want to transform the way immigration officers work, asking them to make nuanced decisions to speed deportations of high-risk offenders while halting those of illegal immigrants with clean records and strong ties to the country. The policy is President Obama's most ambitious immigration initiative before the November elections, senior administration officials said.

But in a new sign of the deep dissension over immigration, the union representing some 7,000 deportation officers of the agency, Immigration and Customs Enforcement, known as ICE, has so far not allowed its members to participate in the training. Without the formal assent of the union, the administration's strategy could be significantly slowed for months in labor negotiations.

Chris Crane, the president of the union, the National ICE Council, has fiercely criticized the strategy, saying it amounts to orders from ICE officials for agents not to enforce the law. In Congressional testimony, Mr. Crane accused the administration of tailoring its enforcement practices to win support from immigrant communities for Mr. Obama's re-election.

"Law enforcement and public safety have taken a back seat to attempts to satisfy immigrant advocacy groups," Mr. Crane told a House Judiciary subcommittee in October.

Department of Homeland Security officials say the training seminar, although only half a day, is central to bringing all ICE officers on board for an effort that they say will significantly raise the numbers of convicted criminals among deportees and is expected to lead in coming months to unprecedented suspensions of deportations of tens of thousands of illegal immigrants.

Virtually all ICE commanding officers and prosecutors have gone through the training course and are working on the new strategy, Homeland Security Department officials said. But because of the silence from the ICE Council, a local of the American Federation of Government Employees, the officials will miss their Jan. 13 goal for completing the nationwide training blitz, which began in November.

Mr. Crane has channeled his criticisms primarily through Republican leaders in Congress, working with Representative Lamar Smith of Texas, the chairman of the House Judiciary Committee. Calling the administration's plan "backdoor amnesty," Mr. Smith said last week that evidence Mr. Crane presented to the committee showed that directives from ICE officials for agents to use discretion in enforcement decisions had "undermined the agency's credibility and mission."

The National ICE Council faces a deadline late this month to say whether it will demand negotiations over the training, the officials said. Mr. Crane did not respond to repeated e-mail requests over several months for comment.

On another side, the administration is facing intense pressure from Latino leaders and immigrant organizations to begin halting deportations.

The cornerstone of the policy is a June 17 memorandum by John Morton, the director of ICE, in which he laid out a list of no fewer than 31 factors that ICE officers should weigh when deciding whether to proceed with a deportation. Peter S. Vincent, ICE's top lawyer, added further guidelines on Nov. 17.

With slide shows and chalk talks on a dozen hypothetical immigration cases, the training seminar challenges officers to decide which foreigners should be deported, using prosecutorial discretion to make more complex decisions than they have in decades. It instructs agents to focus on the worst offenders, including criminal convicts, gang members and foreigners who came back after being expelled. Other groups of immigrants -- elderly people, children, military veterans, college students and parents of young citizens -- are low priorities who can be allowed to stay, even if they are here illegally. A New York Times reporter sat through an abbreviated version of the seminar.

Homeland Security Secretary Janet Napolitano said the policy was based on existing statutes and was intended to make good use of strained resources. With each deportation costing at least $23,000, she said, immigration agencies have money for 400,000 removals each year, a goal that the Obama administration has met in each of the past three years. But an estimated 11 million immigrants live here illegally.

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If you wish to speak to an immigration attorney about the contents of this post, please contact Antonio Revilla at (305) 858-2323.

Reported in Bender's Bulletin

On Jan. 6, 2012, U.S. Citizenship and Immigration Services (USCIS) posted a notice of intent in the Federal Register outlining its plan to reduce the time that U.S. citizens are separated from their spouses and children under certain circumstances while those family members go through the process of becoming legal immigrants to the United States.

Currently, spouses and sons and daughters of U.S. citizens who have accrued a certain period of unlawful presence in the United States, and have to leave the country as part of the legal immigration process, are barred from returning to their families for as long as 3 or 10 years. They can receive a waiver to allow them to return to their families by showing that their U.S. citizen family member would face extreme hardship as a result of the separation.

This proposal would streamline the processing of these individuals' waiver applications based on unlawful presence; USCIS proposes to process their waiver applications in the United States before any American family faces separation. The process would only apply to immigrants who are eligible for a visa.

Under the proposed process, the spouses and children of U.S. citizens who are eligible for a visa to immigrate legally to the United States, but who need a waiver of inadmissibility for unlawful presence in order to obtain that visa expeditiously, would apply for a provisional waiver before leaving the United States to have their immigrant visa application processed at a U.S. embassy or consulate abroad (as they must pursuant to law).

The notice limits the streamlined process to those individuals who are inadmissible based solely on having accrued a period of unlawful presence and - pursuant to statutory requirements - who can demonstrate extreme hardship to their U.S. citizen relative. All individuals affected by this streamlined process would need to meet all legal requirements for admission to the United States, including the requirement that they process their visa application at a U.S. consulate abroad.

With the change outlined in the notice, individuals who currently qualify for a waiver of inadmissibility under the existing eligibility standards, and who can demonstrate that separation from their U.S. citizen spouse or parent would cause extreme hardship to that relative, would be allowed to apply for a waiver while still in the U.S.

By allowing these individuals to apply for waivers in the U.S. and making a provisional determination of waiver eligibility before the individuals must depart the country for visa processing, USCIS would provide a more predictable and transparent process and improved processing times, minimizing the separation of U.S. citizens from their families. The change would also streamline the process for both USCIS and the Department of State (DOS) when handling requests for these waivers. As a result, this change would encourage individuals who may be eligible for a waiver of inadmissibility to seek lawful readmission to the United States by limiting the amount of time they would need to spend away from their U.S. citizen spouse or parent.

Following publication of this notice, USCIS will undertake further analysis and collaborate with the Department of State to develop the streamlined process in greater detail. USCIS plans to publish a notice of proposed rulemaking in the coming months that will provide additional details and allow the opportunity for public comment. A final rule will then be published to implement the streamlined process. The rule will not modify the underlying standard for assessing whether denial of the waiver would result in extreme hardship to the U.S. citizen spouse or parent of such individuals. It would modify only the process by which these applications may be filed and accepted by USCIS for processing.

Questions and Answers

Q. Why is USCIS proposing the change?

A. This proposed change will reduce the time that U.S. citizens are separated from their spouses and children under certain circumstances while those family members are going through the process of obtaining visas to become legal immigrants to the United States. Under current policy, individuals who wish to apply for a waiver of inadmissibility for unlawful presence must leave the U.S. and apply for a waiver at a U.S. consular office outside the United States. This process can be lengthy and discourages individuals who may be eligible for this waiver from applying, which delays their ability to lawfully reenter the U.S. The proposed change would reduce the amount of time that U.S. citizens would be separated from their spouses and children while the process to obtain a visa to immigrate takes place. This reflects the Administration's strong commitment to efficiency in the administration of immigration law and facilitation of legal immigration.

Q. How is the proposed process different from the current process?

A. Currently, U.S. citizens who petition for their spouses and children to become legal immigrants to the United States must petition for a visa, and in some circumstances, if the spouse or child has accrued more than 180 days of unlawful presence in the U.S., that spouse or child must also petition for a waiver of a ground of inadmissibility in order to have his or her visa application processed. The proposed process does not change the requirements for obtaining a visa or the standards for obtaining a waiver. Nor does it change the requirement that the spouse or child of a U.S. citizen ultimately depart the United States to have his or her visa application processed at a consulate abroad. The only change contemplated by this proposal is that the spouse or child would be able to apply for a waiver with USCIS in the U.S. and receive a provisional decision on that waiver before departing the U.S. for consular processing of their immigrant visa applications. Currently, applicants can only file for a waiver after having been determined inadmissible by the U.S. consular officer and must wait abroad for a decision, which significantly adds to the processing time for their case. The proposal limits the extent to which the process forces the lengthy separation of families.

Q. When will this streamlined process be implemented?

A. The process will be implemented only after USCIS issues a final rule. In the coming months, USCIS plans to publish a notice of proposed rulemaking and will consider the comments received as part of that process before publishing a final rule. The current process will remain in place until a final rule goes into effect. No one should file an application with USCIS based on this proposed change in process. Any applications filed with USCIS based on this notice will be rejected and the application package returned to the applicant, including any fees until the final rule is issued and the change becomes effective.

Q. Who would be eligible for a provisional waiver?

A. Spouses and children of a U.S. citizen (1) who are seeking lawful permanent residence through an immigrant visa, (2) who are found inadmissible based on unlawful presence in the United States for more than 180 days, and (3) who meet the existing extreme hardship standard. Children under the age of 18 do not accrue unlawful presence and, as a result, are not required to obtain a waiver.

Q. Why is this proposed streamlined process limited to the spouses and children of U.S. citizens?

A. The policy objective of this proposed process change is to alleviate extreme hardship suffered by U.S. citizens. USCIS has thus identified immediate relatives of U.S. citizens as the class of aliens to consider for this procedural change. In addition, their immigrant visas, which are not subject to annual limitations, are always immediately available. The focus on U.S. citizens and their immediate relatives is consistent with Congress' prioritization in the immigration laws of family unification. This proposal meets the goals of both improving efficiency and reducing the length of time that American families are unnecessarily separated.

Q. How would the proposed process affect existing standards related to unlawful presence and the extreme hardship standard?

A. It would not. The proposed process retains all of the legal standards and policies related to unlawful presence determinations and establishing extreme hardship. It would simply provide for the processing of these waivers in the United States instead of abroad.

Q. Will individuals who recieve the waiver be able to adjust their status without leaving the United States?

A. No. The visa process itself is not changing. Individuals who receive a provisional wavier would still be required to depart the United States to apply for their immigrant visa.

Q. Is everyone who has accrued more than 180 days of unlawful presence subject to a three- or 10-year bar from entering the U.S.?

A. Yes; however, some aliens do not accrue unlawful presence if they fall into certain categories. For example, children under the age of 18 do not accrue unlawful presence for any period of time before their 18th birthday. Similarly, under current law, certain victims of crime and aliens with pending asylum applications do not accrue unlawful presence while their application is pending.

Q. If an individual already filed a Form I-601 from outside the U.S., would the proposed process affect him or her?

A. No. It would only affect individuals who have not yet filed a Form I-601 and who will file a waiver request after a final rule is published.

Q. Would USCIS collect biometrics as part of the streamlined process?

A. Yes. It is contemplated that applicants in the United States would be scheduled for biometrics collection at a USCIS Application Support Center.

Q. Why does USCIS refer to the waiver as "provisional?"

A. In the proposed process, USCIS would grant the provisional waiver before the applicant departs the U.S. for consular processing of their immigrant visa applications. The provisional waiver, however, would not take effect until the individual departs from the United States and triggers the covered ground of inadmissibility. Moreover, the provisional waiver covers only the unlawful presence grounds of inadmissibility. If the consular officer finds during the immigrant visa interview that the individual is subject to another ground of inadmissibility, the individual would need to file another waiver application with USCIS.

Q. What would happen at the consular interview?

A. If DOS found the individual otherwise eligible for the immigrant visa, the consular officer would then issue the visa, allowing the individual to immigrate to the U.S.

Q. What would happen to individuals who are not eligible to file a waiver under the proposed process?

A. They would continue to follow current agency processes for filing waiver requests after a determination of inadmissibility is made by a U.S. consular officer overseas.

Q. What would happen to individuals who are denied waivers under the proposed process?

A. They would be subject to USCIS guidance and law enforcement priorities for issuing Notices to Appear (NTA). For example, convicted criminals, public safety threats, and those suspected of fraud will receive NTAs.

For more information on this immigration proposal, contact Antonio Revilla at (305) 858-2323 or via email at arevilla@immigrationmiami.com.