Translate website
Thursday, June 21, 2018 - 11:16 am

The J-1 Visa and Waiver of the Two Year Residency Requirement

The J-1 non-immigrant visa is issued by the United States to, among others, scholars, professors and exchange visitors that enter the country to participate in  expanded-provisional-waiverprograms that promote cultural exchange, and to engage in medical and business training.  The visa came into effect under the Fulbright Hays ACT of 1961.  Applicants must meet the eligibility criteria defined by a particular J-1 visa.  These include English language requirements and sponsorship by a university, private sector or government program.  There are at least nine private sector and six government and academic J-1 visa programs.

The J-1 visa duration of stay is specified in the accompanying DS-2019 Certificate of Eligibility for Exchange visitor form, which is produced by the Department of State through the Student and Exchange Visitor Information System (SEVIS).  The duration includes a 30 day grace period after the full duration of stay indicated on the DS-2019.

Many J-1 visa holders are subject to the two year mandatory home residency requirement.  The requirement precludes the J-1 visa beneficiary from moving into a non-immigrant or permanent residency status in the United States unless he returns to his country of last permanent residence for at least two years cumulatively.  The two year residency requirement applies to those under exchange programs funded by either their government or the United States government and involves specialized knowledge or skills deemed necessary by their home country or under graduate medical training.

The two year home residency requirement can, however, be waived in the following ways:  a no-objection statement from the beneficiary’s home country government; a demonstrated exceptional hardship to a United States citizen or legal dependent of the beneficiary if the beneficiary were to depart the United States; a demonstrated persecution in the beneficiary’s home country upon return; a United States Federal Government agency expression of interest in the beneficiary to work on a project in the United States, and detriment to the project by the beneficiary’s departure; or if the beneficiary is a foreign medical graduate with full-time employment offer at a health care facility in a designated professional shortage area in the United States under the Conrad program.

This blog will focus a bit more on the no-objection statement waiver. The waiver is a letter to the Waiver Review Division from the beneficiary’s home government in which the government states that it does not object to the beneficiary’s decision to change his status to non-immigrant or permanent residency status in the United States. All J-1 visa beneficiaries can pursue this waiver type, except physicians that received United States graduate medical training under the J-1 visa program or those that are directly or indirectly funded by the United States government.  If the beneficiary is directly or indirectly funded by the United States government, his government would have to provide the no-objection statement to the funding agency, which would, in turn, issue a no-objection to the beneficiary’s permanent stay or change to a non-immigrant visa status.

The J-1 visa beneficiary requests the no-objection statement from his home embassy in the United States, which, in turn, forwards the request to the specific concerned ministry in the country.  The ministry then executes the statement, and either directly sends it to the Department of State Waiver Review Division through the Chief of Mission in the Consular Section at the US embassy in the country or to its embassy in the US, which then forwards it to the Waiver Review Division.

Obtaining the no-objection statement can be time consuming.  In many cases, it requires the applicant to directly contact and establish a relationship with his embassy or ministry administrative staff charged with executing the statement.  At other times, the issuing ministry may need guidance in executing the document, especially if it has never executed one before.  There are times when it can take as long as six months to process.  The exact processing time depends on the country in question and amount of pressure the beneficiary exerts on the process.

Upon obtaining the no-objection statement, the waiver applicant can then complete and submit the DS-3035 application to the Waiver Review Division in which he asks for a waiver of the residency requirement.  Reviewing and deciding on the waiver request can take a long time as well.  In many cases, it has taken at least six months.

It is imperative that the beneficiary obtain and keep a copy of the no-objection statement.  It may be useful in proving that it was sent to the Waiver Review Division if the Division were ever to dispute whether it was ever sent the original.

This blogger is an attorney at Swaray Law Office in Brooklyn Center, Minnesota.  Brooklyn Center is near Brooklyn Park, Crystal, and north of Minneapolis and St. Paul in Minnesota.  Contacting the office is by email at swarayassociates @cs.com or 763-549-0670.

Sometimes Voluntary Departure is the Best Option

Voluntary Departure is the departure of an alien from the United States because of an immigration offense without an order of removal from the immigrSwaray Law Office, LTDation court.  Once an alien is granted the voluntary departure, he gives up all rights to any other available relief and must depart the United States within the time the immigration court has specified.  Under a voluntary departure grant, the alien can depart the United States on his own, without the ten year bar of a removal order, and can legally re-enter the country.  There are four types of voluntary departure. They are pre-hearing voluntary departure, voluntary departure at the beginning of a removal hearing, voluntary departure from the Department of Homeland Security (DHS) during a removal proceeding and voluntary departure from the court at the end of a removal hearing.

An alien who is arrested and detained by an Immigration and Customs Enforcement (ICE) for an immigration offense may ask ICE to grant him voluntary departure even before he appears before the immigration court to answer to the charges against him.  This option makes sense where the alien’s commission of the offense is not questionable, and he also has no available relief to protect him from deportation.

But the alien can wait until the beginning of his removal proceeding to ask for voluntary departure.  This is usually at his Master Calendar hearing in immigration court.  To qualify, the alien must make the request before his first Master Calendar hearing; request no other form of relief; admit his removability; waive his right to appeal all issues; and prove that he has not been convicted of an aggravated felony; and not deportable for national security or public safety reasons.

Sometimes a DHS attorney may agree with the alien’s attorney to grant voluntary departure to the alien, if the alien does not have an aggravated felony record, at any time in the removal proceedings.  But this rarely happens.

The alien can also request voluntary departure at the end of his removal proceedings.  This happens where the alien is not likely to prevail on the removal claims against him, and he does not have a relief that will save him from deportation, and the removal proceedings is about to come to an end.  But the court’s grant of his request is pegged on the following factors:  the alien has been physically present in the United States for one year immediately before the service of the Notice to Appear (NTA) on him; has money to post a bond within five days of the judge’s order; has good moral character in the most recent five years before his voluntary departure request; not an aggravated felon or terrorist; not granted voluntary departure previously; has a valid passport or travel document for inspection and authentication by the United States Government and establishes that he has the financial means to leave the United States at his own expense and intends to leave within the required time.

Voluntary departure, in all cases, is a discretionary grant either by the DHS or the immigration court.  The conditions become tighter the longer the requester waits in the course of the immigration proceedings.  If the alien is granted voluntary departure, and he does not leave within the departure specified time, he will face severe consequences, including ineligibility for several other forms of relief.  The failure to depart turns into a warrant against the non-departing alien.  The relief does not forgive other immigration violations, such as unlawful presence.

The writer of this blog is an immigration attorney with Swaray Law Office, LTD located in Brooklyn Center in Minnesota.  Brooklyn Center is contiguous to Minneapolis, Brooklyn Park, Crystal, Robbinsdale and Maple Grove.  If you are in removal proceedings, and need the service of an attorney, please visit www.swaraylawoffice.com or contact us at swarayassociates@cs.com or 763-549-0670

A US Permanent Resident Can Reside Outside the United States and Still Qualify for Naturalization

Office building on a bright sunny day.

Swaray Law Office building on a bright sunny day.

Residency and physical presence in the United States are among the centerpiece requirements for naturalization in the country. The applicant must reside in the country for the five year period immediately before he files his naturalization application.  If married to a United States citizen, he must reside continuously in the United States for the three year period immediately before the date of his application.  He must also be physically present in the country for at least 30 months or for two and half years of the five year period immediately before his application.

But if  a permanent resident must live outside the United States because of a job with the US Government, private sector or religious organization, and wants to apply for naturalization, he can avoid the residence and physical presence requirements by applying with the Citizenship and Immigration Services (CIS) for preservation of his residency for naturalization. If the CIS approves his application, he can live outside the country as a permanent resident and the period will not be counted against the residency and physical presence requirements of his naturalization application.

The application is filed on a Form N-470, also known as an Application to Preserve Residence for Naturalization purposes.  To qualify for the relief, the applicant must first have been physically present and resident in the United States continuously, without absences, for at least one year upon admission as a lawful permanent resident.  Religious workers are exempt from this requirement.  Second, the applicant must be employed with the United States Government, a private sector or a United States religious organization.  One is deemed to be physically present in the United States when the person is within the territorial borders of the United States.  One is deemed to be resident in the United States when the person has a principal residence in any part of the country.  Examples of principal residences include the ownership by the person of a house, apartment or other of abode type which the person owns or possesses with no immediate intent to abandon while outside the United States.  Examples of employment with the United States Government are work with the United States Government under a contract or with an American research institution, firm, corporation or the like.  Employment with a public international organization of which the United States is a member by treaty or statute is another example of a job with the United States Government.  But the applicant should not have been employed with the public international organization before becoming a lawful permanent president.

Spouses of United States citizens that are eligible for naturalization are exempt from establishing the naturalization residency and physical presence requirements, and therefore, not required to file for preservation of continuous residence.  Note that the grant of an application to preserve residence for citizenship does not relieve a permanent resident from obtaining a re-entry permit in advance of trips outside the United States for one year or more.  The grant does not also exempt the permanent resident from United States admissibility requirements of his permanent residency status.

This blog is by an attorney at Swaray Law Office in Brooklyn Center, Minnesota.  Brooklyn Center is located in the northern suburbs of the Twin Cities.  It is north of Minneapolis, Minnesota, and contiguous to Brooklyn Park, Crystal, Robbinsdale, Maple Grove and Blaine.  To visit Swaray Law Office, please go to www.swaraylawoffice.com, or call 763-549-0670 or email us at swarayassociates@cs.com.

EB-5 Immigrant Visa — Definition of Material Concepts

Amadu SwarayCongress created the EB-5 immigrant visa in 1990 with the core purpose of attracting new foreign investment capital to the country, and to create new jobs for United States workers.  Since then, the visa program has yielded phenomenal results.  By 2008, the program had pumped over $15.4 billion foreign direct investment into the US economy.  Between 2010 and 2013, it had injected $9.62 billion, and 29,300 jobs and $12.08 billion in tax revenue.

This blog will define material concepts associated with the EB- 5 program.  The goal is to simplify the concepts so as to help the public to more fully understand the program.

 What does the EB-5 Visa Program mean?  It is a program Congress established in 1990 in which a foreign investor who intends to get permanent residency in the United States invests capital in a new commercial enterprise to create jobs for United States employees.

What is Investment of Capital?  Investment of capital is commitment of capital by the foreign investor into a new commercial enterprise to create jobs.

What is Capital?  Capital, among others, includes cash, equipment, inventory, other intangible property, cash equivalents, and all indebtedness secured by assets owned by the foreign investor.  The foreign investor has to be personally and primarily liable for the indebtedness and the assets of the new commercial enterprise, and the investment capital should not be used  to secure any of his indebtedness.  The capital is valued in US dollars at the United States fair market value.  Assets acquired directly or indirectly by unlawful means, such as criminal activity, is not capital for EB-5 purposes.

What is Investment?  The foreign investor’s contribution of capital into the risk stream of the market place for the purpose of generating a return.  It must go beyond a mere interest to invest.  For example, a promise or guarantee to the immigrant investor for a portion of his investment capital is not deemed an investment because the portion was risk protected at the time of investment.  The invested capital has to be at risk, i.e, it must be exposed to a loss possibility in order to be considered an investment.

What is the Amount of Capital that Must be Invested?  The immigrant investor must invest $1 million in a new commercial enterprise that creates no less than 10 jobs; or invest $500,000 in a Targeted Employment Area (TEA).  In the last two years, there has been political efforts to increase the TEA $500,000 investment amount, but the efforts have not yielded any result.

What is TEA?  A rural area or an area with at least 150% of the average national unemployment rate.  The TEA is designated by the controlling state government in conjunction with the investor and the Citizenship and Immigration Services (CIS).

What is a New Commercial Enterprise?  Any for-profit activity formed for the ongoing conduct of lawful business established after 1990.  Some examples are sole proprietorships, partnerships, holding companies, joint ventures, corporations, business trusts, or other privately or publicly owned entities.  New commercial enterprises that existed before 1990 are considered, but must meet the new commercial enterprise definition.  They could meet the definition if they are simultaneously or subsequently restructured into an EB- 5 new commercial business entity.

Is the Foreign Investor Needed to be Engaged in  the Management of the New Commercial Enterprise?  Yes, the investor needs to be engaged in the daily management of the new commercial enterprise, or in the formulation of its policies.

What are EB-5 Regional Centers?  These are centers established within the EB-5 program three years after the program came into effect.  They are referred to as the “Immigrant Investor Pilot Program”.  They are private or public economic units with one or more new commercial enterprises in a geographic area charged with managing, directing and controlling projects and developments of new commercial enterprises.  All the new commercial enterprises in a Regional Center must each meet EB-5 capital investment and job creation goals.

What is Job Creation?  EB-5 jobs must be full time of at least 35 hours per week.  The immigrant investor, his spouse, children and relatives are not counted as “employees” even if they work under the program.  If a particular commercial enterprise is troubled, it could still be deemed to have met the EB-5 job creation requirement if it had met the program’s required number of jobs goal before it adopted the EB-5 program.  But it must also be a business that has been in existence for at least two years with a net accounting loss in the twelve or twenty-four months prior to the foreign investors priority date indicated on his initial investor immigrant visa application.

This blog is written by an immigration attorney at Swaray Law Office, LTD situated in Brooklyn Center, Minnesota.  Brooklyn Center is located in the north of Minneapolis in Minnesota.  The city is close to Brooklyn Park, Robbinsdale, Crystal,and Maple Grove.  To contact Swaray Law Office, call 763-549-0670 or visit us at this website at www.swaraylawoffice.com or at swarayassociates@cs.com.

Deferred Enforcement of Departure Extended for Liberians in the United States

Deferred Enforced Departure Extended for Liberians in U.S.
Release Date:

USCIS Automatically Extends Validity of Employment Authorization Documents

WASHINGTON—President Obama has announced an extension of Deferred Enforced Departure (DED) for certain Liberian nationals through March 31, 2018. U.S. Citizenship and Immigration Services (USCIS) will automatically extend employment authorization documents (EADs) for Liberian nationals covered by this extension of DED. Current DED-based EADs that have an expiration date of Sept. 30, 2016, will now be valid through March 31, 2017. The six-month automatic extension of existing EADs will allow eligible Liberian nationals to continue working while they file their applications for new EADs. The extension also gives USCIS time to process and issue new EADs.

Certain individuals are not eligible for DED, including:

  • Liberians who did not have Temporary Protected Status (TPS) on Sept. 30, 2007, and are therefore not covered under current DED;
  • Certain criminals;
  • People subject to the mandatory bars to TPS; and
  • Those whose removal is in the interest of the United States.

USCIS will publish a notice in the Federal Register with information regarding the extension of EADs for eligible Liberian nationals and instructions on how to obtain employment authorization for the remainder of the DED extension.

For additional information about DED for Liberian nationals, please visit the Deferred Enforced Departure webpage. Liberian nationals or employers may also contact the USCIS National Customer Service Center at 1-800-375-5283 (TDD for the deaf and hard of hearing: 1-800-767-1833).

For more information about USCIS, visit uscis.gov or follow us on Twitter(@uscis), YouTube (/uscis), Facebook(/uscis),Instagram(/uscis) and the USCIS blog The Beacon.

Last Reviewed/Updated:

There is No U-Visa Without a Signed Certification

Without an executed and signed certification, the Citizenship and Immigration Services (CIS) cannot issue a U-Visa.  Certification is where the U-Visa applicant requests and a law enforcement officer confirms that the applicant suffered from a qualifying U-visa crime, and is helpful or likely to be helpful in the prosecution of the crime. The process is also referred to as “Certification of Helpfulness”.

Side view of office building

Side view of Swaray Law Office

Under the U-Visa Act, “Helpfulness” is not specifically defined.  But in several post enactment guidelines, DHS has explained the term, and in general, now means that a victim of a U-visa crime informs law enforcement that she is a victim of the crime, and has specific and detailed knowledge of the crime, and has been, or is being or likely to be helpful to law enforcement in the detection, investigation or prosecution of the crime.  Some of the ways a victim can be helpful to law enforcement is to identify the crime perpetrator, assist in his apprehension, provide evidence useful to finding and apprehending him, and agree to testify against him if the case were to go to trial.

The certification starts with the victim filling out the USCIS Form I-918 and filing it with a particular law enforcement agency, which will, in turn, assess her usefulness to the investigation of the crime, and if satisfied sign the form.  Occasionally, the process is initiated by law enforcement.  Where certification is initiated by a crime victim, it is usually done with advocate or attorney assistance.  The agency head or his delegate signs the certification.  The law enforcement agency is not obligated to certify a U-Visa application since certification is purely discretionary.  Neither the victim, nor her attorney or the DHS or any other agency can compel a certification.  By signing a certification, law enforcement attests that the victim’s crime information is true and correct to the best of his knowledge.

Certification has no statute of limitation, and valid even where the investigation or the prosecution of the case is closed.  Once the certification is completed, the law enforcement official must return it to the victim or her attorney.  It does not need to separately send it to the CIS.  The victim can then send it together with her U-Visa application to the CIS.  The head of a law enforcement agency at the federal, state of local level or prosecutor, judge or other agency with authority to investigate or prosecute a qualifying crime can issue a certification.  This includes, among others, agencies with criminal investigative authority, child and adult protective services, Equal Opportunity Commission, federal and state departments of labor, and even law enforcement officials with a memorandum of understanding with DHS.

A U-Visa certification can be revoked if the victim unreasonably refuses to provide assistance after the U-visa has been granted.  In such a case, the law enforcement agency would inform the USCIS of the victim’s refusal, and after due investigation, the visa will be revoked.  The signing of a certification does not guarantee a U-visa grant.  It is merely a fulfillment of a requirement in the U-visa process.  Other requirements have to be met for the U-visa to be ultimately granted.

A U-visa certification is valid even if the initial crime being investigated is different from the crime that is eventually prosecuted.  For example, a U-visa investigation starts with burglary, which is not a listed qualifying crime, but in the process of investigation, the person is found to be a victim of torture.

This blogger is an attorney at Swaray Law Office, LTD.  About 65% of the attorney’s practice is in immigration law.  Swaray Law Office is located in Brooklyn Center in Minnesota.  Brooklyn Center is north of Minneapolis/St. Paul.  The city is contiguous to Robbinsdale, Crystal, Brooklyn Park, Blaine, Maple Grove and Golden Valley.  Should you be interested in contacting the office, visit www.swaraylawoffice.com or 763-549-0670 or email at swarayassociates@cs.com.

The Ebola Based Temporary Protected Status Extended Again for Sierra Leone, Liberia and Guinea

Temporary Protected Status Benefits Under Designations of Guinea, Liberia and Sierra Leone
Extended Six Months for Orderly Transition Before Termination in May 2017
Release Date:

WASHINGTON—Secretary of Homeland Security Jeh Johnson is extending TPS benefits for beneficiaries of TPS under the designations of Guinea, Liberia, and Sierra Leone for 6 months for the purpose of orderly transition before the designations terminate, effective May 21, 2017. After reviewing country conditions and consulting with the appropriate U.S. government agencies, Secretary of Homeland Security Jeh Johnson has determined that conditions in Guinea, Liberia, and Sierra Leone no longer support their designations for Temporary Protected Status (TPS). The widespread transmission of Ebola virus in the three countries that led to the designations has ended.

To provide for an orderly transition, current TPS beneficiaries will automatically retain their TPS and have the validity of their current Employment Authorization Documents extended through May 20, 2017. Beneficiaries do not need to pay a fee or file any application, including for work authorization, in order to retain their TPS benefits through May 20, 2017.

Although TPS benefits will no longer be in effect starting May 21, 2017, TPS beneficiaries will continue to hold any other immigration status that they have maintained or acquired while registered for TPS. The Department of Homeland Security urges individuals who do not have another immigration status to use the time before the terminations become effective in May to prepare for and arrange their departure from the United States or to apply for other immigration benefits for which they may be eligible.

Additional information about TPS is available at uscis.gov/tps. Federal Register notices posted for public inspection today contain further details about the six-month extension for orderly transition before the termination of the TPS designations of Guinea, Liberia and Sierra Leone.

For more information about USCIS, visit uscis.gov or follow us on Twitter (@uscis), YouTube (/uscis), Facebook(/uscis),Instagram(/uscis) and the USCIS blog The Beacon.

This announcement is culled from the Citizenship and Immigration Services’ website by Amadu Edward Swaray, a lawyer or attorney at Swaray Law Office in Brooklyn Center, Minnesota.  Brooklyn Center is located in the north of Minneapolis in Minnesota.  The city is contiguous to Robbinsdale, Crystal, Brooklyn Park and Maple Grove.  To reach Swaray Law Office, call 763-549-0670 or visit us at this website at www.swaraylawoffice.com

 

 

A Violent Crime Against an Undocumented Immigrant Could Earn Him A U-Visa

Swaray Law Office, LTDCongress enacted the U-visa in October of 2000 under the Victims of Trafficking and Violence Protection Act (VTVPA). It was part of a two category law designed to protect victims of violent crime and human trafficking.  After its enactment, it did not appear that the Department of Homeland Security (DHS) was immediately willing to enforce it.  In fact, the Department granted no U-visa relief to anyone until 2007.  Even then, it did so under pressure of a class action suit, which the Center for Human Rights and Constitutional Law (CHRLW) and other interested parties initiated, to force DHS to enforce the enactment.

Under the enactment, victims of certain violent crimes who have suffered mental or physical abuse, and helpful to law enforcement, including federal or state government officials in the investigation or prosecution of the crimes can be eligible for U-visa classification.  The crimes include the following:  Abduction, Abusive Sexual contact, Blackmail, domestic violence, Extortion, False Imprisonment, Female Genital Mutilation, Felonious Assault, Hostage, Incest, Involuntary Servitude, Kidnapping, Manslaughter, Murder, Obstruction of Justice, Peonage, Perjury, Prostitution, Rape, Sexual Assault, Sexual Exploitation, Slave Trade, Stalking, Torture, Trafficking, and Unlawful Criminal Restraint.  Attempt or conspiracy to or solicitation to commit any of the crimes are also eligible crimes.

The U-visa is among those visas for which the Petitioner files for classification by himself.  But he has the burden to provide evidence to the Citizenship and Immigration Services (CIS) that will demonstrate that he is eligible for the visa.  As part of the supporting evidence, the Petitioner is required to provide a certification signed by a law enforcement agency that confirms that he is or was helpful or likely to be helpful in the investigation of the crime committed against him.

The qualifying crime must be committed in the United States, even though there are instances in which a crime committed outside the United States is deemed a qualifying crime if it violates a law of the United States.

A U-visa applicant can apply for his family members.  But the family member can only be found eligible for the derivative visa if the principal applicant’s visa application is approved.

In June of 2013, several changes were made to the U-visa to expand its family member eligibility scope. Before 2013, an unmarried child derivative beneficiary U-visa application must be filed before the child turned 21, or the child could be deemed ineligible for the visa.  Additionally, the child beneficiary must be unmarried.  U-visa applicants were also subject to the public charge inadmissibility ground of INA 212(a)(4), under which an individual is inadmissible as an immigrant to the United States, except he proves that he is not a public charge.

Under the 2013 changes, an unmarried U-visa derivative beneficiary child remains eligible for the visa even after he turns 21.  The age of the child is established and firmly set when the principal U-visa applicant files the petition with CIS.  In addition, unmarried children filing for their parents and unmarried siblings received the age 21 age-out protection.  The children could now file for their parents and siblings even if they were under 18.  The inadmissibility public charge provision was also removed.   As a result, a U-visa applicant was no longer required to submit an Affidavit of Support (Form I-864) with his application to show that he is not a public charge.

A U-visa is valid for four years after which the classified holder can file for adjustment of status to a Green Card holder. There are situations, however, in which the four year period are extended.  Examples are when the extension is specifically requested by law enforcement, exceptional circumstances, and consular processing delays if the U-visa applicant initiated the application while he was outside the United States.

After three of the four year durational period, the U-visa holder can apply for adjustment of status.  His family members can also adjust, but must do so under a separate application.

Congress authorized that only 10,000 U-visas be granted per year to eligible principal applicants.  But derivative family member U-visas have no cap.  In the event of a cap constriction, CIS is authorized to place eligible applicants on a waiting list, and grant them an interim deferred action status with eligibility to work in the United States.

Amadu Edward Swaray is an immigration lawyer at Swaray Law Office in Brooklyn Center, Minnesota.  Brooklyn Center is one of the contiguous cities in the north of Minneapolis.  Other cities in the area are Brooklyn Park, Crystal, Robbinsdale, and Maple Grove.  Swaray Law Office can be reached at www.swaraylawoffice.com or swarayassociates@cs.com or 763-549-0670.

The Benefits of the Expanded I-601A Provisional Waiver of Unlawful Presence

expanded-provisional-waiverThe expanded I-601A provisional waiver of unlawful presence rule came into effect on August 29, 2016.  The rule expanded the 2013 provisional waiver rule that created a shelter for individuals who had accrued unlawful presence by entering the United States without inspection and admission, and continued to unlawfully reside in the country.  Under the unlawful presence rule of INA Section 212(a) (9) (B) (i), if the individuals lived in the country for a minimum of 180 days but less than one year, or lived in the country for at least a year, they are barred from re-entering for three to ten years.  They were barred for only three years if they had unlawfully resided in the country for 180 days but less than one year.  They are barred for 10 years if they resided in the country for at least one year.

If they are unlawfully resident in the country, and an immigrant visa classification application that was filed for them was approved, they are required to leave the United States to attend the visa interview at an overseas United States embassy.  After the interview, the State Department would require them to get a waiver of the accrued unlawful presence, without which, it will not issue an immigrant visa to them to re-enter the country.

Before the 2013, the waiver application was filed with the Citizenship and Immigration Services (CIS) on a Form I-601.  The process was very long and cumbersome, during which the applicants were required to remain abroad for the many months in which the application was processed.  For some individuals, the process caused lengthy separations from family members that they had left behind in the United States.  The separation, in turn, created significant emotional and financial hardships on both the applicants and the family members.  In fact, there were cases in which many United States citizens and Lawful Permanent Residents relatives refused to travel abroad to seek and obtain the immigrant visas because of the associated problems.  The CIS and Department of State also felt the pain of these processing problems. It made their processing work inefficient and their consular interviews and interagency communications and appointments repetitious, and resulted in overuse of agency manpower and financial resources.

It was to alleviate these problems that Congress authorized the 2013 unlawful presence provisional waiver under INA Section 212(a)(9)(B)(V).  The waiver is to be filed on a form I-601A.  Under this rule, a person that is a spouse or relative of a United States citizen with an approved immigrant classification can apply for a waiver of an accrued unlawful presence while in the United States, and wait for an approval of the application before departing the United States to attend his visa interview at an overseas US Embassy.  But the benefit was limited to approved family based classifications, and even then, it was limited to spouses and parents of United States citizens only.

The expanded provisional waiver rule extended the remain-in-the-US-while-the-waiver-application-is-processed to spouses and parents of Lawful Permanent Residents and the spouses and children accompanying the principal immigrant applicant.  It was also extended to individuals with final orders of removal, deportation or exclusion, and to all statutorily eligible individuals regardless of their immigrant visa classification.  The “statutorily eligible individuals regardless of their immigrant visa classification” included Diversity Visa Lottery winners and employment based immigrants.

The extension of the provisional waiver to individuals with final orders of removal, deportation or exclusion came with well-specified limits.  First, the waiver applicant in this category should, as a first step, obtain an approved Application for Admission to the United States After a Deportation, Removal or Exclusion while still in the country before filing the provisional waiver application.  Second, during the immigrant visa interview, if the consular officer finds that the applicant is inadmissible on other grounds that have not been waived, the approved provisional waiver will be automatically revoked. For example, the waiver will be automatically revoked if the individual had entered the United States without inspection, admission or parole after a prior removal or prior unlawful presence.

The expanded waiver benefit also eliminated the “reason-to-believe” standard that adjudicators had used to deny waiver applications if they had reason to believe that the applicant may be subject to a ground of inadmissibility other than unlawful presence at the time of the visa interview abroad.  The elimination now forces the adjudicators to consider only whether the applicant has established extreme hardship, and whether his application warrants a favorable exercise of discretion.

The expanded provisional waiver rule is projected to be used by at least one hundred thousand applicants in a ten year span.  Of this number, about 44,000 will be family based, while about 56,000 will be from all the other immigrant categories.  It is also projected that within this period, it will cost the CIS and the applicants a total of at least $52 million.  But this cost will be offset by the alleviation of the burdens and hardships to applicants and the CIS inflicted by the pre-2013 unlawful presence waiver.

The writer of this blog, Amadu Edward Swaray, is an attorney at Swaray Law Office in Brooklyn Center, Minnesota.  Brooklyn Center is one of the northern suburbs of Minneapolis.  It is contiguous to Maple Grove, Crystal, Fridley, Brooklyn Park and Robbinsdale. You can reach Swaray Law Office at 763-549-0670 or swarayassociates@cs.com or www.swaraylawoffice.com

The US District Court Grants Defendants’ Motion for Summary Judgment

DAHHANE v. STANTON

Case No. 15-CV-1229 (PJS/BRT).

ADAM DAHHANE, Plaintiff, v. LINDA LORRAINE STANTON, also known as LINDA LORRAINE STANTON-DAHHANE; and BONNIE LYNN STANTON, Defendants.

United States District Court, D. Minnesota.

August 12, 2016.


Attorney(s) appearing for the Case

Adam Dahhane, Plaintiff, Pro Se.

Linda Lorraine Stanton, Defendant, represented by Amadu Edward Swaray, Law Offices of Swaray & Associates, PA.

Bonnie Lynn Stanton, Defendant, represented by Amadu Edward Swaray, Law Offices of Swaray & Associates, PA.


ORDER

PATRICK J. SCHILTZ, District Judge.

This matter is before the Court on the objection of plaintiff Adam Dahhane to the Report and Recommendation (“R&R”) issued by Magistrate Judge Jeffrey J. Keyes on March 16, 2016.1 The R&R recommends denying Dahhane’s motion for partial summary judgment, denying defendant Linda Stanton’s motion for summary judgment, and granting in part defendant Bonnie Stanton’s motion for summary judgment. The Court has conducted a de novo review. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). Based on that review, the Court agrees with most — but not all — of Judge Keyes’s analysis, and adopts the R&R to the extent that it is consistent with this order.

The Court will assume familiarity with the R&R, including its description of the facts.2See R&R 2-7, ECF No. 99. To briefly recap: Dahhane and Linda3 met through an online dating website. Linda traveled to Morocco to meet Dahhane in person — and, after the couple spent two weeks together, Linda returned to the United States and sought a fiancé visa for Dahhane. The visa was issued. Dahhane moved to the United States and began living with Linda and her son from a previous relationship. Dahhane and Linda married in September 2001.

A month later, Dahhane filed an application to change his immigration status to permanent resident. Because Dahhane was deemed likely to become a public charge, he was required to have a sponsor, and that sponsor was required to file a Form I-864 (“Affidavit of Support Under Section 213A of the Act”). In the Form I-864, a sponsor commits “to provide the sponsored immigrant(s) whatever support is necessary to maintain the sponsored immigrant(s) at an income that is at least 125 percent of the Federal poverty guidelines.” ECF No. 114-1 at 9. Linda and Bonnie (Linda’s mother) each signed a Form I-864 agreeing to sponsor Dahhane; Bonnie was required to submit a Form I-864 because Linda did not have sufficient resources of her own to qualify as a sponsor. (Bonnie was employed as a social worker.)

The purpose of requiring a sponsor to submit a Form I-864 before granting permanent residency to an immigrant such as Dahhane is to protect the public — that is, to ensure that the immigrant will not need to be supported by the taxpayers. But courts have been clear that Form I-864 creates an enforceable contract between the sponsor and the immigrant. Thus, if the sponsor fails to support the immigrant at an income that is at least 125 percent of the federal poverty guidelines, the immigrant can sue the sponsor and recover the deficiency — even if the immigrant never has received public assistance.

Dahhane and Linda had a daughter in 2002. Following the birth of his daughter, Dahhane left his job at a grocery store and started an online business selling items on eBay. Dahhane stopped working altogether in 2008. In November of that year, Linda and Dahhane separated, and they divorced in 2013. Following the separation, Linda worked for a time at a grocery store, but after suffering a work-related injury in 2011, she stopped working at the grocery store in 2012. She presently experiences significant financial problems as she struggles to support herself, her son, and her daughter (who has been diagnosed with autism and psychosis). It does not appear that Dahhane provides any financial support to his disabled daughter.

Dahhane brought this lawsuit against Linda and Bonnie claiming that they failed to support him to the extent required by Form I-864. Specifically, Dahhane claims that Bonnie failed to support him sufficiently from 2001 to 2007, and that both Linda and Bonnie failed to support him sufficiently from 2008 to 2011. Dahhane now moves for summary judgment on his claims for 2008 to 2011, while Linda and Bonnie move for summary judgment on all of Dahhane’s claims.

The R&R recommends granting summary judgment to Bonnie for the years 2001 to 2006, but otherwise denying the summary-judgment motions of the parties. Dahhane concedes that Bonnie is entitled to summary judgment for 2005, see Pl. Obj. 15 ¶ 7, but he objects to the R&R insofar as it recommends granting Bonnie’s motion for any other years and insofar as it recommends denying his motion for 2008 to 2011.4 Dahhane also objects to Judge Keyes’s rulings on a number of procedural matters.

I. PROCEDURAL OBJECTIONS

Dahhane makes a number of procedural objections:

First, Dahhane objects — over and over again — to the fact that Judge Keyes considered the affidavits submitted by defendants. Dahhane argues that the affidavits should have been disregarded because they failed to meet the requirements of 28 U.S.C. § 1746. Dahhane is mistaken. Section 1746 imposes certain requirements on unsworn declarations that are submitted in lieu of sworn affidavits; but both Linda and Bonnie submitted sworn affidavits, and thus § 1746 is irrelevant. A sworn affidavit is valid if it is “signed, attested before a notary public, and bearing a notary seal.” Jenkins v. Winter, 540 F.3d 742, 747 (8th Cir. 2008). Linda’s and Bonnie’s affidavits meet these requirements, and thus Judge Keyes did not err in relying on them.

Second, Dahhane appears to argue that, because he disputes some of the facts contained in Linda’s and Bonnie’s summary-judgment brief, no part of their summary-judgment motion can be granted. Pl. Obj. 2 (citing Pl. Br. on Mot. to Strike 10, ECF No. 61). Dahhane cites in support of his argument the rules of procedure of the Office of Hearings and Appeals of the Small Business Administration. Pl. Br. on Mot. to Strike 10 (citing 13 C.F.R. § 134.212(a)(1)). But the rules of that agency do not bind this Court. Rather, whether a summary-judgment motion can be granted by this Court is controlled by Rule 56 of the Federal Rules of Civil Procedure. Under Rule 56, a dispute of fact precludes the granting of summary judgment only if the dispute is “genuine” and the fact is “material.” Fed. R. Civ. P. 56(a).

Third, Dahhane argues that Judge Keyes erred by considering defendants’ motion for summary judgment even though they had not filed a notice of hearing on that motion. Dahhane is correct that defendants committed a technical violation of Local Rule 7.1(c)(1)(A)(ii), but that violation did not prejudice Dahhane in any way. Defendants’ motion, memorandum in support of their motion, and supporting affidavits and exhibits were served on Dahhane almost two months before the January 13, 2016 hearing, and Dahhane was aware of and participated in that hearing. Under the circumstances, Judge Keyes’s decision to allow defendants to argue their motion was not clearly erroneous or contrary to law. See Reyher v. Champion Int’l Corp., 975 F.2d 483, 489 (8th Cir. 1992) (“application of local rules is a matter peculiarly within the district court’s province”); Braxton v. Bi-State Dev. Agency, 728 F.2d 1105, 1107 (8th Cir. 1984) (“It is for the district court to determine what departures from its rules may be overlooked.”).

Fourth, Dahhane objects to Judge Keyes’s denial of his motion for a protective order. Dahhane appears to request two things: first, that the Court enforce Federal Rule of Civil Procedure 5.2(a), which requires parties to redact certain private information from their court filings; and second, that the Court issue a protective order requiring the parties to redact his address (and certain other information). As to Dahhane’s first request, the Court has already ordered the parties to make the necessary redactions, and it appears that the parties are now in compliance with Rule 5.2(a). Dahhane’s motion is therefore moot. As to Dahhane’s second request, Dahhane has not provided any basis on which the Court can find that Judge Keyes’s decision to deny his motion for a protective order was clearly erroneous or contrary to law.

Finally, Dahhane objects to Judge Keyes’s decision to deny Dahhane’s motion to extend the deadline for filing dispositive motions. Dahhane filed the motion to extend time on February 1, 2016, which was the last day for filing dispositive motions. See ECF No. 28 at 3. By the time that Dahhane filed his motion to extend, Judge Keyes had already held a hearing on the parties’ summary-judgment motions and over four months had passed since the close of fact discovery. Because Dahhane had ample time to engage in discovery and file dispositive motions, the Court finds that Judge Keyes’s decision to deny Dahhane’s motion to extend the deadline for filing dispositive motions was neither clearly erroneous nor contrary to law.

II. SUBSTANTIVE OBJECTIONS

To determine whether defendants met their obligation to support Dahhane in a given year, the Court must identify how much was 125 percent of the federal poverty level for that year. That, in turn, requires the Court to determine the size of Dahhane’s household, as the federal poverty level differs depending on the size of the household. After determining how much was 125 percent of the federal poverty level for a given year, the Court must determine how much income was received by Dahhane and members of his household during that year. Dahhane objects to some of Judge Keyes’s conclusions about the size of Dahhane’s household for particular years and about what should and should not be counted as income to Dahhane and members of his household.

A. Household Size

Dahhane objects to Judge Keyes’s finding that his household size was three between 2003 and 2008. For those years, Judge Keyes deemed the household to include Dahhane, Linda, and their daughter; Judge Keyes excluded Linda’s son (even though he lived with Dahhane and Linda), because the son’s father claimed him as a dependent.

Dahhane correctly points out that, in their answers to his complaint, Linda and Bonnie admitted that the household size was four (not three) during the years in question. SeeAnswers ¶ 2, ECF Nos. 9 and 10; Compl. ¶ 23, ECF No. 1. The Eighth Circuit has made clear that such an admission in a pleading is binding, unless the admission is later withdrawn or amended; this is true even when the admitting party later submits evidence contradicting its admission. See Mo. Hous. Dev. Comm’n v. Brice, 919 F.2d 1306, 1314-15 (8th Cir. 1990). The Court therefore agrees with Dahhane that the size of his household must be deemed to be four during the years 2003 to 2008.

B. Income

When calculating the income at which Dahhane’s household was maintained, Judge Keyes included (1) Bonnie’s contributions to pay household bills; (2) $3,000 that Dahhane brought with him when he immigrated from Morocco; (3) child-support payments received from the father of Linda’s son; (4) tax refunds; and (5) earned income. Dahhane argues that only earned income should count. He is incorrect.

1. Bonnie’s contributions

Dahhane makes the absurd argument that, in deciding whether Bonnie met her obligation to support him, the Court should ignore the money that Bonnie gave him because that money was a gift and therefore was not taxable. In other words, Dahhane argues that, if Bonnie had given him a gift of $1 million in 2003, he could still sue her for failing to support him at 125 percent of the federal poverty level during that year.

Form I-864 obligates a sponsor “to provide the sponsored immigrant(s) whatever support is necessary to maintain the sponsored immigrant(s) at an income that is at least 125 percent of the Federal poverty guidelines.” Pl. Ex. 1 at 8 (emphasis added). Dahhane argues that, in deciding what is “income” for purposes of Form I-864, the Court should apply the definition of income in 8 C.F.R. § 213a.1, which is the regulation that implements the affidavit-of-support statute. That regulation defines income the same way that income is defined “for purposes of the individual’s U.S. Federal income tax liability.” Id. For federal income-tax purposes, gifts generally do not count as income, 26 U.S.C. § 102(a), so Dahhane argues that gifts to the immigrant — whether from the sponsor or from someone else — should also not count as income.

The problem for Dahhane is that 8 C.F.R. § 213a.1 provides definitions for use in determining whether someone is eligible to sponsor an immigrant; the regulation has nothing to do with calculating whether an immigrant has been supported at 125 percent of the federal poverty level. See Erler v. Erler, No. 14-15362, 2016 WL 3192651, at *3 (9th Cir. June 8, 2016); Stump v. Stump, No. 1:04-CV-253-TS, 2005 WL 2757329, at *5 (N.D. Ind. Oct. 25, 2005). And it is obvious why, in deciding whether someone is qualified to take on the long-term obligation of sponsoring an immigrant, the government would ignore one-time gifts — while, in deciding how much money an immigrant has to spend on food, shelter, and clothing in a particular year, the government would count gifts that the immigrant received during that year.

Form I-864 merely requires the sponsor to support the immigrant; it does not require the sponsor to pay the immigrant a taxable wage. And if anything counts towards a sponsor’s support obligation, surely it is money that the sponsor gives to the immigrant or pays someone else on the immigrant’s behalf. The Court therefore agrees with Judge Keyes that Bonnie’s contributions to help pay the bills of the Dahhane household count as income to that household.

2. $3,000 from Morocco

The Court also agrees with Judge Keyes that the $3,000 that Dahhane brought with him when he immigrated from Morocco counts towards his 2001 income. Form I-864 makes clear that a “sponsored immigrant’s assets may also be used in support of [sponsors’] ability to maintain income at or above 125 percent of the poverty line if the assets [were] available in the United States for the support of the sponsored immigrant(s) and [could] readily be converted into cash within 1 year.” Pl. Ex. 1 at 8. The $3,000 that Dahhane brought with him from Morocco was cash, and it was available for his support.

3. Child-Support Payments

The Court agrees with Judge Keyes that child-support payments received from the father of Linda’s son count toward household income. Dahhane cannot have it both ways; he cannot argue that the son should count when calculating the size of the household, but that money received because the son is part of the household should not count. The presence of the son increases household expenses, which is why the poverty level for a household of four is higher than the poverty level for a household of three. But child-support payments received from the son’s father offset that increase in household expenses, and thus should be counted as part of the household’s income.

4. Tax Refunds

The Court agrees with Dahhane that tax refunds do not count as income. A tax refund is merely the return of the recipient’s money. To count income once when it is received and a second time when it is refunded (after being paid to the government as taxes) would be double counting. See Skorychenko v. Tompkins, No. 08-CV-626-BBC, 2009 WL 3837340, at *2 (W.D. Wis. Nov. 16, 2009).

C. Calculations

Having identified the household size for each of the relevant years — and having identified what should and should not count as income to the household — the Court now turns to whether, with respect to each of the years in question, the income of the Dahhane household exceeded 125 percent of the federal poverty level.

To begin with, the Court agrees with Judge Keyes as to the years 2001, 2005,5 2008, 2009, 2010, and 2011. The Court therefore adopts the R&R insofar as it recommends that summary judgment be entered for Bonnie with respect to the years 2001 and 2005 and that no party receive summary judgment with respect to the years 2008, 2009, 2010, and 2011.

For the remaining years at issue, the Court’s conclusions are as follows:

1. 2002

In 2002, the household size was four, and 125 percent of the federal poverty level for a family of four was $22,625. Annual Update of the HHS Poverty Guidelines, 67 Fed. Reg. 6931-02 (Feb. 14, 2002). The household income was $22,696.74, consisting of $16,258 in earned income, $3,688.74 in child support, and $2,750 received from Bonnie to pay household bills. Linda Aff. ¶ 18.6 The unrebutted evidence before the Court shows that the household income exceeded 125 percent of the federal poverty level for a family of four, and therefore the Court grants summary judgment to Bonnie as to 2002.

2. 2003

In 2003, the household size was four, and 125 percent of the federal poverty level for a family of four was $23,000. Annual Update of the HHS Poverty Guidelines, 68 Fed. Reg. 6456-03 (Feb. 7, 2003). The household income was $20,323.80, consisting of $15,152 in earned income, $4,737.60 in child support, and $434.207 from Bonnie to pay household bills. Linda Aff. ¶ 19. The evidence before the Court does not show that the household income was at least 125 percent of the federal poverty level, and therefore the Court cannot grant summary judgment to Bonnie as to 2003. (Dahhane has not moved for summary judgment as to 2003.)

3. 2004

In 2004, the household size was four, and 125 percent of the federal poverty level for a family of four was $23,562.50. Annual Update of the HHS Poverty Guidelines, 69 Fed. Reg. 7336 (Feb. 13, 2004). The household income was $32,709.79, consisting of $22,933 in earned income and $9,776.79 in child support. Linda Aff. ¶ 20. The unrebutted evidence before the Court shows that the household income exceeded 125 percent of the federal poverty level for a family of four, and therefore the Court grants summary judgment to Bonnie as to 2004.

4. 2006

In 2006, the household size was four, and 125 percent of the federal poverty level for a family of four was $25,000. Annual Update of the HHS Poverty Guidelines, 71 Fed. Reg. 3848-01 (Jan. 24, 2006). The household income was $68,225.57, consisting of $57,852 in earned income and $10,373.57 in child support. Linda Aff. ¶ 25. The unrebutted evidence before the Court shows that the household income exceeded 125 percent of the federal poverty level for a family of four, and therefore the Court grants summary judgment to Bonnie as to 2006.

5. 2007

In 2007, the household size was four, and 125 percent of the federal poverty level for a family of four was $25,812.50. Annual Update of the HHS Poverty Guidelines, 72 Fed. Reg. 3147-01 (Jan. 24, 2007). The household income was $21,510.39, consisting of $11,792 in earned income, $6,218.39 in child support, and $3,500 received from Bonnie to pay household bills. Linda Aff. ¶ 25. The evidence before the Court does not show that the household income was at least 125 percent of the federal poverty level, and therefore the Court cannot grant summary judgment to Bonnie as to 2007. (Dahhane has not moved for summary judgment as to 2007.)

ORDER

Based on the foregoing, and on all of the files, records, and proceedings herein, the Court SUSTAINS IN PART AND OVERRULES IN PART plaintiff’s objection [ECF No. 105] and ADOPTS IN PART the R&R [ECF No. 99]. IT IS HEREBY ORDERED THAT:

1. Plaintiff’s motion for partial summary judgment [ECF No. 42] is DENIED.2. Defendants’ motion for summary judgment [ECF No. 52] is GRANTED IN PART and DENIED IN PART as follows:a. Defendants’ motion for summary judgment is GRANTED as to plaintiff’s claims for 2001, 2002, 2004, 2005, and 2006.b. Defendants’ motion for summary judgment is DENIED as to plaintiff’s claims for 2003, 2007, 2008, 2009, 2010, and 2011, and in all other respects.3. Defendants’ motion for attorney’s fees [ECF No. 123 at 30-33] is DENIED WITHOUT PREJUDICE.4. Plaintiff’s motion for a protective order [ECF No. 72] is DENIED.5. Plaintiff’s motion to extend the deadline for filing dispositive motions [ECF No. 80] is DENIED.

FootNotes

1. Judge Keyes subsequently retired, and this case was reassigned to Magistrate Judge Becky R. Thorson.

2. Dahhane objects to some of the recitation of facts in the R&R because, he argues, the R&R improperly relies on deficient affidavits. Dahhane is incorrect; as the Court explains below, defendants’ affidavits are not deficient.

3. The Court refers to Linda Stanton and Bonnie Stanton by their first names to avoid confusion.

4. Dahhane objects that Judge Keyes “erred by not ruling on [liability].” Pl. Obj. 2. Dahhane appears to believe that the issue of defendants’ liability is somehow distinct from the issue of whether defendants breached their contracts to support him. But these two issues are identical; if defendants breached the contracts, they are liable, and if they did not breach the contracts, they are not liable.

5. Dahhane does not object to the R&R’s recommendation to grant Bonnie summary judgment as to 2005. Pl. Obj. 15. In any event, the 2005 household income of $57,315.52 far exceeded 125 percent of the federal poverty level, which was $24,187.50. See Linda Aff. ¶ 25, ECF No. 125; Annual Update of the HHS Poverty Guidelines, 70 Fed. Reg. 8373-02 (Feb. 18, 2005).

6. The R&R draws household-income figures from the tax returns that defendants have submitted as evidence. The Court may not consider these tax returns at the summary-judgment stage, though, because they are inadmissible hearsay. See Fed. R. Civ. P. 56(c); Blodgett v. Comm’r, 394 F.3d 1030, 1040 (8th Cir. 2005). Instead, the Court considers Linda’s affidavit, which also provides the household-income information. See Fed. R. Civ. P. 56(c).

7. Linda’s affidavit says that Bonnie paid $434.20 in 2003. Linda Aff. ¶ 19. Bonnie’s affidavit says that Bonnie paid $434.26 in 2003. Bonnie Aff. ¶ 19, ECF No. 124. Viewing the evidence in the light most favorable to Dahhane, the Court uses the lower amount.

Note:  Amadu Edward Swaray is an attorney at Swaray Law Office, LTD. About sixty-five percent of Mr. Swaray’s practice is in the area of immigration law.  Swaray Law Office is located in Brooklyn Center in the State of Minnesota.  Brooklyn Center is one of the northern suburbs of the Twin Cities.  It located in the north of Minneapolis and contiguous to Brooklyn Park, Fridley, Crystal, Robbinsdale and Maple Grove.

Comment

1000 Characters Remaining

Leagle.com reserves the right to edit or remove comments but is under no obligation to do so, or to explain individual moderation decisions.