On March 10, 2010, USCIS granted Chilean nationals present in the United States temporary nonimmigrant status based on the catestphoic earthquake that occurred in Chile.  This allows visitors on visas to legally extend their stay for 6 months.   These benefits also include the possibility to get work authorization and expedited processing of applications for immediate relatives of United States citizens and LPRs (I-130s).

If you are a Chilean National currently in the United States and are unable or unwilling to return home because of the earthquake, please contact our office and we would be happy to discuss your available immigration options.

Every two years, USCIS conducts fee reviews to determine if they are adequately recovering the costs expended to successfully operate.  Most of their budget is derived from collecting fees that accompany petitions and applications from individuals seeking immigration benefits.  USCIS fee revenues have reportedly been lower than projected, so they are proposing fee adjustments to hopefully successfully recover costs of operations.  The other apparent option is to cut staff, which would lengthen already long application processing times.

While most increases are minimal (and they even propose three decreases), there are a few which are more extreme then others; most notably is the increased fee from $545 to $755 for an I-694, a notice of Appeal of Decision.

They have also proposed to new fees for a Civil Surgeon Designation, an I-924 Application for Regional Center under the Immigrant Investor Pilot Program, and a general fee for an Immigrant Visa.

Keeping up with application requirements can be a tricky process, and minor flaws in an application can have dire consequences.  Our office can help ensure your application process goes as smoothly as possible.  Please feel free to contact us with any questions or concerns you may have, and we would be happy to assist you.

On June 2, 2010, President Obama released a statement addressing the extension of employee benefits to same sex partners of federal employees.  Last year, he issued a Presidential Memorandum stating that the Office of Personnel Management and the Secretary of the State were to extend such benefits as long-term care insurance and expanded sick leave to same sex partners of identified gay and lesbian federal employees.  At that time, he also instructed federal agencies to identify other benefits that should be made available to same sex partners.  Based on this identification process, in his recent statement, he has instructed all executive agencies to immediately extend more benefits to same sex partners, such as family assistance services, hardship transfers, and relocation expenses.  It also requires any new benefits that are made available to federal employees’ be automatically extended to their same sex partners, so long as it is permitted by law.

The President also addressed the shortcomings of his ability to extend the full range of available benefits for federal employees and their opposite sex partners.  This ability is limited by Federal law, and, in turn, he urges the legislative branch of the federal government to enact a piece of legislation titled the “Domestic Partnership Benefits and Obligations Act,” which proposes to, among other things, give him such authority.

Maryland’s Attorney General, Doug Gansler issued a similar opinion, which stated that State employees’ same sex partners should be eligible to receive health-care and other benefits that are currently made available to opposite sex partners.  This legal opinion was codified by Governor O’Malley’s administration, allowing members of same-sex unions who work for the State of Maryland to enroll their partners in their state employee benefits program.

Ever since the monumental decision Miranda v. Arizona, the phrase “you have the right to remain silent” has been given epic importance, from judicial decisions to pop culture to the street level interactions between police and criminals.  And up until Berghuis v. Thompkins, that right was fairly accessible, though ephemeral, protection.  Unlike the other protected right under Miranda warnings, the right to have an attorney present during questioning, the right to remain silent did not need to be explicitly raised in order to be invoked.  However, in Berghuis v. Thompkins, the Supreme Court held that the right to remain silent is not invoked until the defendant explicitly says that he wants to remain silent.  And, thus, until those words are uttered, the police are allowed to continue questioning.  The defendant in the Berghuis had been subjected to three hours of interrogation about a murder, but he barely spoke a word.  Besides a few head nods, and answering such questions as “would you like a mint”, he was steadfast in exercising his ability to remain silent.  However, he ultimately had a moment of weakness; after three hours, he answered only one substantive question, and that answer was used against him at trial, where he was found guilty.  The Court held that the right to remain silent was not implicitly raised simply by seemingly exercising it, i.e.  his continuing refusal to answer the many questions asked to him.  They further held that by answering that one substantive question, he adequately waived his right to remain silent, and gave up his protection.

Thus, the holding seems to be that the right to remain silent must be explicitly raised, but the waiver does not.  So, the rule to take from this case is: speak to remain silent, but say one word, any word, and it will be considered a waiver.

Berghuis v. Thompkins, — S.Ct. —-, 2010 WL 2160784 (2010).

A New York trial court judge ordered a six weekend sentence to a woman for civil contempt, based on a finding that she had deliberately alienated her children from their father, her ex-husband, in violation of their separation agreement signed at divorce.  After an extensive hearing and hours of testimony by the father, the Judge found that there were countless instances in which the wife interfered with the father’s ability to exercise his visitation rights, in addition to harsh attempts to manipulate the children into favoring their step-father over their biological father.  The Judge also noted that the mother had made false claims that the father had sexually abused the children.  The Judge noted that not only was this allegation completely false and harmful to the father, but also harmed the child by subjecting the minor to an unnecessary investigation by Child Protective Services, all for the mother’s own malicious motivations.

The case is still pending on appeal by the mother, so the appellate court could overturn or reduce the sentence, which in addition to jail time also included thousands of dollars of attorney’s fees to be paid by the mother.  But, if the judgment isn’t overruled, this could stand as precedent for other jurisdictions to follow, at their own discretion, sending a message that malicious behavior in child custody arrangements will not be tolerated.

Applications to USCIS usually require fees to be included in order to be processed.  However, in certain circumstances, USCIS may allow for fees to be waived.

In order to get a fee waiver for a TPS application, USCIS has provided guidance on what should be included in the written statement requesting the waiver.

The key points that should be included in the written statement are:

• A statement indicating that “under penalty of perjury, the foregoing statements are true and correct.”
• specific reasons why you are unable to pay the fee
• a list of all of your assets, including property owned
• your monthly income for at least 3 months prior to submission of the form
• your monthly bills and other required expenditures
• a list of dependents in the United States, including street addresses and relationship to you, and any income that they earn or receive
• information about any public benefits you receive, such as Medicaid, welfare, or house assistance
• any other information relating to humanitarian considerations, such as age, disability, homelessness

For more information, please click here.

Many immigrants in the United States on Temporary Protective Status may have problems proving their legal status, and thus ability to work, because of expired EAD card.  Typically, when an immigrant has been granted TPS and an accompanying EAD card, the EAD card will indicate that the expiration date is the same as when time period of the designated country has expired.  However, often times, the United States will grant extensions for TPS status, thus allowing immigrant to continue to stay in the country past the date listed on their EAD card.  Employers however, will require proof of legal status and ability to work when filling about a Form I-9.

For the purposes of an I-9, USCIS has issued a report staying that employers must accept expired EAD cards after DHS has announced an auto-extension of TPS.  So long as the card reasonably appears to be genuine and seems to match the person presenting it, it should be deemed acceptable.  However, this will only apply to cards that have been expired due to auto-extension; any non-auto-extension will still require the immigrant to re-register with DHS for TPS status, or else work authorization will expire as well.

For more information about documentation requirements, click here.

For more information about TPS in general, click here.

In 2009, there was a substantial increase in United States citizens living abroad renouncing their United States citizenship.  It is speculated that this increase is due to frustrations dealing with taxes and banking problems, especially those relating to taxes for citizens who work abroad.  Many fall within the category of workers who will have to pay double taxes, both to the United States and to the country where they are working and living.  There also have been problems maintaining bank accounts in the United States when one has a foreign address.  This is because of heightened regulatory requirements that came into fruition after 9/11 and the passing of the Patriot Act.  In light of these burdens, the alternative option of relinquishing citizen is actually typically an easy choice, considering how simple the process is; it simply involves appearing before a U.S. consular or diplomatic official in a foreign country and signing a renunciation oath.

The New York Court of Appeals has held that, under New York law, a same-sex partner who had not legally adopted her partner’s biological child cannot assert visitation rights.  The court determined that only biological or adoptive parents can seek visitation and other rights over a child.  The lesbian couple has received a civil union in Vermont, but New York has no civil union law, and they do not recognize same-sex marriage.  However, the court did recognize the doctrine of comity require New York to defer to the law of Vermont, which recognizes her as a parent.

In Maryland, Attorney General Gansler issued an non-binding opinion stating that Maryland state agencies should recognize same-sex marriages from other states.  This opinion was also based on the principle of comity, i.e. the respect for the laws of other states.  A similar case has been winding its way through the Maryland Court System for the past few years, only the courts have been looking it solely as a de factor parenthood case based on exceptional circumstances.  It is yet to be seen what effect Gansler’s opinion could have on Maryland courts when faced with such issues.

Despite the public opposition by the president and other politicians to the Arizona legislation allowing officers to arrest anyone who fails to provide proof of legal status, Maryland Delegate Pat McDonough has proposed a similar bill in Maryland.   However, Maryland Governor O’Malley is not behind this legislation, and Maryland lawmakers have actually, in the past, been supportive immigrants through their large contributions to the non-profit organization CASA de Maryland, which is dedicated to helping illegal immigrants, both legal and illegal, ensure that their rights are protected.