Immigration INFO: Immigration News For Our Community

Sep 21, 2014 News

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By Attorney Gail S. Seeram,
[email protected]
    

Through this “Question & Answer” column, our goal is to answer your immigration questions.  We appreciate your comments and questions.  If you have a question that you would like answered in this column, please email: [email protected].

Question #1:  My aunt went into the embassy and got a 10-year visa, but due to certain circumstances she would not be able to travel this year until next year. Would the visa expire if she does not travel?

Answer #1:   The visa does have an expiration date – check the visa.  However, there is no policy that if you do not travel on the visa, it will expire automatically.  All non-immigrant visas are subject to revocation by U.S. Immigration officials if the holder becomes ineligible for the visa, such as having immigrant intents through a Form I-130 being filed by a family member or  working with a B-1/B-2 visa or any other grounds specified under the laws.

Question #2: My mom and dad are both permanent residents for four years now. However, my mom applied for myself and sister whom are both over 30 years old and unmarried. My mom completes her fifth year on December 9, 2014. She had applied for us since she went over to the US and petitioned on December 3, 2009.  My sister and I both have 10-year visas. We have gotten a confirmation letter and a document receipt that were paid for our visas. How long do we have to wait for our immigrant visas?

Answer #2:   Right now for unmarried child of a permanent resident (F-2B), visas are being issued for petitions filed on or before September 2007 – so you have about a two-year wait, since your mother filed in 2009.  If your mom becomes a U.S. citizen, the wait is the same time, as visas are being issued for unmarried child of a U.S. citizen (F-1) for petitions filed on or before May 2007.  Visit www.GailLaw.com and select the green button on the right labeled #1, to view the September 2014 visa bulletin.

Question #3:  My grandparents are US citizens; they migrated to Guyana to live. However, when I was six years old, they filed for me, my mother and cousin. We got a 10-year penalty because my mom was taking my cousin as her own child. This Tuesday I’ll be 21. Do we still have a chance to migrate to the US? And what are the procedures?

Answer #3:   Your grandparents would have to re-file sponsorship petition for your mother and when the visa is available (6-8 years) then your mother can try filing a waiver for re-entry.  However, since you are over age 21, you would not benefit from this petition if it is approved.

Question #4:  My mom and dad got visas in 1997, went to New York and overstayed. I’m now married and have four kids. I want to apply for a visitor visa.  Do you think it will jeopardize my chance of getting one?

Answer #4:   Most likely, yes.  The Embassy may have records of your parents overstaying in New York and may feel you will overstay also if granted a visitor visa in an attempt to be reunited with your parents.

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Prosecutorial Discretion in Removal & Detention Case

Prosecutorial discretion is a discretionary relief where Immigration and Custom Enforcement (ICE), the agency that initiates and executes removal/deportation from the United States, can choose to temporarily pause removal/deportation or release an individual from detention, based on certain factors.

In exercising prosecutorial discretion, ICE may administratively close a pending removal case (removal proceedings delayed), grant voluntary departure, grant deferred action (defer a pending removal), reissue or cancel a Notice to Appear, or release a detained individual on bond or an order of supervision.
Note: in exercising prosecutorial discretion, it is unlikely that a pending removal case would be terminated unless there are extenuating factors present.  In order to request prosecutorial discretion in a pending removal case or detention case, an immigration lawyer would submit the request to Immigration Custom and Enforcement.
However, in cases where the immigrant has a criminal history these types of cases are deemed enforcement priorities and prosecutorial discretion will not be exercised.  ICE will consider the following factors in deciding whether to grant or exercise prosecutorial discretion:

1.    the person’s length of presence in the United States, with particular consideration given to presence while in lawful status;
2.    the circumstances of the person’s arrival in the United States and the manner of his or her entry, particularly if the alien came to the United States as a young child;
3.    the person’s pursuit of education in the United States, with particular consideration given to those who have graduated from a U.S. high school or have successfully pursued or are pursuing a college or advanced degrees at a legitimate institution of higher education in the United States;
4.    whether the person, or the person’s immediate relative, has served in the U.S. military, reserves, or national guard, with particular consideration given to those who served in combat;
5.    the person’s criminal history, including arrests, prior convictions, or outstanding arrest warrants;
6.    the person’s immigration history, including any prior removal, outstanding order of removal, prior denial of status, or evidence of fraud;
7.    whether the person poses a national security or public safety concern;
8.    the person’s ties and contributions to the community, including family relationships;
9.    the person’s ties to the home country and condition in the country;
10.    the person’s age, with particular consideration given to minors and the elderly;
11.    whether the person has a U.S. citizen or permanent resident spouse, child, or parent;
12.    whether the person is the primary caretaker of a person with a mental or physical disability, minor, or seriously ill relative; ;
13.    whether the person or the person’s spouse is pregnant or nursing;
14.    whether the person or the person’s spouse suffers from severe mental or physical illness;
15.    whether the person is likely to be granted temporary or permanent status or other relief from removal, including as an asylum seeker, or a victim of domestic violence, human trafficking, or other crime; .and .
16.    whether the person is currently cooperating or has cooperated with federal, state or local law enforcement authorities, such as ICE, the U.S Attorneys or Department of Justice, the Department of Labor, or National Labor Relations Board, among others.

A formal written request for prosecutorial discretion must be submitted to the Immigration and Custom Enforcement office with jurisdiction over the pending case.  The request must also contain supporting evidence of the above favourable factors. A request for prosecutorial discretion is best prepared and presented to ICE by an immigration lawyer.  In most cases, a follow-up phone conversation is needed between the immigration lawyer submitting the request and the ICE official making the decision on whether to grant prosecutorial discretion.

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