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Archives: September 2014

Making your Adopted Child into a Permanent Resident in the United States

A permanent resident or a United States citizen can bring a child from a foreign country that he or she has adopted to the United States under a permanent resident status.  The adopted child must be a “child” as defined by the Immigration and Nationality Act (INA).  Under the INA, a child is generally a person that is not married and under the age of 21.  In the adoption context, in particular, he or she should be generally under 16 years old and unmarried.

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Adoption itself is the voluntary act of taking a child of another as one’s own through a prescribed legal process.

There are two general types of immigration related adoption in the United States.  They are what I call “regular” and orphan adoption.  “Regular” adoption is where a child is adopted before he or she is 16 and has been in the legal custody of and resided with one or both adoptive parents for at least two years.  Orphan adoption is where a United States citizen adopts a child whose parents have abandoned or separated from him or have died.  The adoption must be completed before the child is 16.

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This blog will focus on the orphan adoption type.  I will address the “regular” adoption type in a different blog.  The orphan can be adopted in the foreign country, or inthe United States, if he is already in the United States under another visa type.  If the adoption is done outside the United States, it should be under the laws of the foreign country in which the child resides. Whether the adoption is done in the United States or a foreign country, the process generally involves the filing of a petition supported by relevant evidence with an authorized institution or agency in which the adoptive parent requests a transfer of ownership of the child from the present parent to him or her.

In foreign countries, the adoption process varies from one country to another.  In some, the process is administrative, while it is purely judicial in others.  Whether it is administrative or judicial, it is very important that the adoption be carried out under a process for a smooth, fair, non-arbitrary and decisive ownership transfer of the child.

At the completion of the process, the authorized agency or institution grants the adoptive parent an adoption decree.

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Once the process is completed, the immigration of the child as a permanent resident in the United States can start.  But sometimes the immigration may precede the adoption process if the adoptive parent decides to first embark on an advanced immigration process, without a particular adoptive child or country of adoption in mind.  Under this procedure,  he eventually finds and brings the child to the United States, and adopts and applies for residency status for him.

Whether the orphan is adopted in or outside the United States, the adoptive parent can get permanent residency status for him by filing, together with supporting evidence, a Form I-600 application with the CIS.  The CIS will them assess the application based on the relevant law and grant him permanent residency status.

An Adoption practitioner should be conversant with laws that govern adoption, such as the Hague convention, the Universal Accreditation Act (UAA) and specific adoption laws of his country to effectively do adoption work.  These laws constantly change to improve the adption process. Just recently, in July of 2014, the UAA, for example, ruled that prospective adoptive parents pursuing intercountry adoptions, regardless of the child’s country of origin, must now generally work with an accredited or approved adoption service provider.  The exceptions to the rule are if, among others, the agency or person is providing only legal services to the prospective adoptive parent or child.

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This blog is written by an attorney with Swaray Law Office, located in Brooklyn Center in Minnesota in the United States.  Brooklyn Center is close to other northern Twin Cities suburbs, such as Brooklyn Park, Crystal, Robbinsdale and Plymouth.  The blog should not be taken as legal advice.  Those who need legal advice are encouraged to contact the law office at swarayassociates@cs.com or 763-549-0670.

A Valid Wiretap Must Conform With the Law

Wiretapping is the act of listening in on another person’s electronic communication whether by phones, computers and other devices.  In the United States, governments have used it as a law enforcement and espionage tool.  The listening is usually covert, and unknown to the target, and with the purpose of getting information on his criminal, security threat and other suspicious activities.  The use is justified if It is within the limits provided by law, and part of the Government’s effort to protect and maintain the safety and security of its subjects from harm and danger from the suspects.

 

There are many provisions of the United States Constitution that authorize wiretaps.  The most obvious is the Fourth Amendment, which permits reasonable searches and seizures that are supported by warrants, probable cause or reasonable suspicion.  There are other laws — extensions of the Fourth Amendment and other provisions of the Constitution —  that also specifically support wiretapping.  The most notable is 18 U.S.C Section 2518.  This law lays out the procedure and scope for intercepting wire, oral or electronic communication. To wiretap a person’s phone or other device, the government agency must apply to a court for an order, and the application, in order to be granted, must show that the wiretap is necessary.  To be necessary, the application must contain a full and complete statement that the agency has tried normal, traditional investigative procedures that have failed before its decision to wiretap.  The agency could also just show that the traditional procedures are dangerous and unlikely to succeed if tried.  Examples of normal, traditional investigative procedures are standard visual or oral surveillance techniques, questioning and interrogating immunity protected suspects for information on others, the use of regular search warrants to gather necessary evidence, or use of undercover police or informants to infiltrate conspiracy groups, or use of pen registers and trap and track devices to collect information. Deficiencies, such as material misstatements and omission of relevant information from the application, and use of general boilerplate language common to a particular warrant application, just to justify that a surveillance is necessary could convince a judge to deny an application.

An order for the interception of a criminal suspect’s communication must also contain a minimization requirement to conform with Section 2518.  Minimization defines the scope of the surveillance interception order.  Under Section 2518, the interception cannot go beyond the period necessary to achieve the investigation goal, and in most cases, must not be longer than thirty days, which may be extended if requested in an application that conforms with the procedure for obtaining the original warrant order. If the application and the order do not conform with the Constitution and other relevant laws, any evidence obtained from the subsequent wiretap, could be suppressed.  Under Section 2518, in particular, the suppression proceeding is initiated by the affected person via a motion, which will be heard before the main trial of the criminal suspect.

This blog is written by Amadu Edward Swaray, an attorney at Swaray Law Office in Brooklyn Center, Minnesota.  It is not intended to be a legal advice to the reader.  Should the reader need legal advice on electronic surveillance, he or she should please contact Swaray Law Office at 763-549-0670 or email us at swarayassociates@cs.com

China EB-5 “Unavailable” for Remainder of FY2014 – What Does This Mean?

All information on this story taken from ILW.com

by Bernard Wolfsdorf

On Saturday, August 23, 2014, Charles Oppenheim, Chief of the Department of State Immigrant Visa Control and Reporting Division, announced that, effective immediately, the EB-5 preference category had become “unavailable” for Chinese applicants.  This announcement was made at the sold-out AILA EB-5 Conference in Chicago during the “China Issues Panel”. The conference recordings will be available on AILA Agora shortly.

This Practice Alert provides further information and discusses some of the practical implications of this recent announcement.

  • It is important to note that a China EB-5 cut-off date has not been established. Moreover, the Visa Bulletin for September 2015 (which states that China EB-5 is still “Current”) has not been amended. Therefore, this is not a visa retrogression.
  • “Unavailable” simply means that for the first time since the EB-5 program was created almost 25 years ago, the full quota will be used and the maximum number of EB-5 immigrant visas which could be made available for Chinese applicants had been reached, while still leaving sufficient numbers available for use by all other countries to ensure compliance within the annual Fiscal Year 2014 allocation.
  • A new allocation of about 10,000 visas will be available on October 1, 2014, the beginning of the Fiscal Year 2015, so there will be virtually no impact on most China EB-5 Category visa applicants who complete processing within the next 6-8 months.
  • EB-5 visa interviews will proceed as scheduled at the consulates in August and September 2014 since visas have already been allocated for these scheduled interviews and visa issuance will proceed in August and September for qualified applicants. (Technically, an exception is applicants with August or September “comeback” interviews (i.e., after failing to prove themselves documentarily qualified at an earlier interview). If approvable, they will have to wait until at least October 1 to obtain a visa.)
  • Immigrant visas will continue to be valid for 6 months from the date of issuance, and applicants should be sure to enter the US before the expiration date of the issued immigrant visas, as requests for issuance of replacement visas to accommodate travel to the U.S. outside of that 6-month period may not be possible.
  • USCIS does not request immigrant visa numbers from State for I-485 adjustment of status applications until the time of adjudication.  If visa numbers are unavailable at the time of review USCIS will hold the application in abeyance pending availability of visa numbers.
  • EB-5 adjustment of status processing by USCIS will proceed; however, issuance of immigrant visas to China EB-5 category applicants will be authorized effective October 1, 2014, when the new Fiscal Year 2015 allocation is available.
  • Applicants chargeable to China who are cross-chargeable to another “Foreign State” (e.g., Hong Kong, Macau, Canada, France, etc.) based on marriage or other claim[1] may request alternate chargeability for August or September visa issuance, but this is not assured as the annual allocation for all Foreign States is almost depleted.
  • Since the Visa Bulletin has not been amended (i.e., visa numbers are still listed as “available”), eligible China EB-5 category applicants may continue to file for adjustment of status in August and September 2014.
  • Since other employment and family visa numbers already have wait lines, why is this announcement significant? The reason is this is the first time the EB-5 category has reached the annual limit and the State Department appears to be providing a warning that the China EB-5 category will become oversubscribed and require the establishment of a cut-off date, possibly as early as May 2015, near the end of the third quarter of Fiscal Year 2015.
  • The announcement is important because it is clear evidence that the increasing EB-5 demand of 700% since 2007, mentioned by new USCIS Director Leon Rodriguez, will certainly result in the establishment of a China cut-off date in Fiscal Year 2015.
  • It is impossible to determine what the “date gap” will be when it is announced, most likely in May 2015. There are estimates the wait line will be approximately 2 years. Since most I-526 petitions are presently taking 15-16 months (Requests for Evidence are commonplace), the additional wait of about 6 months does not appear unduly worrisome, yet. The concern is that once a China EB-5 cut-off date is established, the Department of State may have to retrogress that cut-off date, depending on the number of petitions approved, and, the cut-off date may not move forward every month. With over 10,000 petitions currently pending with USCIS and about 3,000 filed in the last quarter ending June 30, 2014, this wait line is likely to increase.
  • Consequences may include possible age-out of derivatives, and complex issues regarding the timing of the job creation, the requirement for which is currently set artificially at 30 months from approval of the I-526 petition (at the I-526 stage), and 36 months from the time of acquisition of conditional permanent residence (at the I-829 stage).  There may be necessary material changes in business plans as a result of delays in issuance of immigrant visas to EB-5 applicants chargeable to China.
  • In summary, there is no significant concern for Chinese applicants who are already far enough along in the pipeline this year, but this State Department announcement, along with Mr. Oppenheim’s spoken comments at AILA’s EB-5 Conference in Chicago, appears to be an indication that once established, the cut-off date for the Fiscal Year 2015 may significantly impact EB-5 immigrant applicants chargeable to China from that point forward.

 

At the AILA EB-5 Conference in Chicago and in subsequent informal discussions, Mr. Oppenheim also noted that many references he encounters regarding the visa allocation system use incorrect technical terminology, so he provided the following guidance and examples regarding the difference between “oversubscription” and “retrogression,” not only with respect to EB-5, but also with respect to other categories as well:

Oversubscribed/Oversubscription:  The category had been “Current”, but the level of demand will require the establishment of an initial cut-off date.  This could be on a Worldwide, individual Country/Preference basis.

Retrogress/Retrogression:  There is currently an established cut-off date, but the level of demand will require the next month’s cut-off date to be even earlier than the current one.

Hypothetical Examples:

Oversubscribed/oversubscription:  A particular immigrant visa category was previously  “Current”, but at some point during Fiscal Year 2015 the level of demand will require the establishment of a cut-off date for month X, in an effort to hold number use within the allowable limit which can be made available.

Retrogress/Retrogression:  The current month’s Visa Bulletin shows a cut-off date of January 1, 2012, but  the level of demand within that date will exceed the number of visa slots available for use during the next month, requiring the establishment of a July 1, 2011 cut-off date for the next month.

This post originally appeared on Wolfsdorf Immigration Law Group . Reprinted with permission.


About The Author

Tahmina Watson Bernard Wolfsdorf is a recent past President of AILA and Managing Partner of the top-rated Wolfsdorf Rosenthal LLP with offices in Los Angeles and New York. With 21 lawyers and 60 professionals, the firm is known worldwide for its excellence in providing value and top-quality global immigration representation. Wolfsdorf Rosenthal LLP has been described by Chambers USA as “a force to be reckoned with.”


The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.