Statutes of Liberty

This sponsored column is by James Montana, Esq. and Doran Shemin, Esq., practicing attorneys at Steelyard LLC, an immigration-focused law firm located in Arlington, Virginia. The legal information given here is general in nature. If you want legal advice, contact James for an appointment.

As of Monday, February 24, 2020, most green card applicants will need to clear an entirely new, extraordinarily complex hurdle: the Form I-944, Declaration of Self-Sufficiency.

Our goal, in this brief article, is to provide readers with an overview of what the Trump Administration is demanding of green card applicants going forward. We encourage our U.S. citizen readers to imagine doing this for themselves.

Tax Return Transcripts

Previously, green card applicants were required to provide tax documentation in a form familiar to most Americans — mostly commonly a copy of Form 1040, plus Form W-2. This will no longer suffice. Now, green card applicants must provide tax return transcripts, which are produced by the IRS. Tax return transcripts are, in theory, available online. In practice, obtaining a tax return transcript online can be quite difficult, and so many people will need to file paper applications and wait for the IRS to answer.

If you’re applying for a green card, you’ll need a tax return transcript for yourself, plus a separate tax return transcript for each and every member of your household who filed a separate tax return.

Can’t figure out how to get tax return transcripts? Find an accountant, and get out your checkbook.

Household Assets and Resources

You’ll need to provide the net value of real estate — so, you had better dig up the deed and a recent appraisal by a licensed appraiser. Don’t have a recent appraisal? Get out your checkbook.

You’ll need to provide checking and savings account statements for the past twelve months. Yes, all of them. Enjoy your trip to the bank or, if you switched banks in the past year, to several banks.

If you have investments, you’ll need to provide statements showing their net cash value. This includes retirement investments, which are tallied separately. Can’t figure out the net cash value of liquidating your traditional IRA or 401(k)? Remember, you’ll need to calculate taxes and early withdrawal fees, so don’t leap to conclusions. Probably safest to find an accountant, and get out your checkbook.

Liabilities or Debts

You’ll need to provide documentation for each and every liability in your financial picture, including mortgages, car loans, child support, alimony, credit card debt and tax bills.

Having fun yet?

Credit Report

You’ll need to get a credit report. Did you freeze your credit after the recent Equifax scandal? Too bad, you’ll have to unfreeze it. If there are any errors in your credit report (and there frequently are), provide evidence that you’ve disputed the errors and that the error is under investigation.

If you don’t have a credit score, you’ll need to provide evidence of continued payment of bills. We have no idea what that means in practice.

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This sponsored column is by James Montana, Esq. and Doran Shemin, Esq., practicing attorneys at Steelyard LLC, an immigration-focused law firm located in Arlington, Virginia. The legal information given here is general in nature. If you want legal advice, contact James for an appointment.

First, it, was Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen. Then, Chad, North Korea and  Venezuela. Now, it’s Nigeria, Eritrea, Myanmar, Sudan (again!) Tanzania and Kyrgyzstan.

You may have the impression that the Trump Administration’s attempts to ban travel had failed, failed and failed again. You would be right. However, the Administration (and its indefatigable appellate litigators) have found a formula that has, to date, survived judicial review. That formula is on display in the latest travel ban, which we’ll call Travel Ban 4.0 to distinguish it from the others.

On Friday, January 31, 2020, the President issued a proclamation promulgating Travel Ban 4.0, which suspends the issuance of immigrant visas to nationals from Eritrea, Kyrgyzstan, Myanmar (Burma) and Nigeria. The ban is less harsh for two other countries, Sudan and Tanzania, because it only freezes visa issuance under the Diversity Visa Program.

This new ban goes into effect, for all countries concerned, on February 21, 2020. After that date, U.S. embassies and consulates throughout the world will no longer issue immigrant visas unless the foreign national is granted a special waiver. However, nationals from those countries will still be eligible for nonimmigrant visas, such as student visas and visitor visas, and will still be eligible for green cards if they happen to be in the United States.

Travel Ban 4.0 differs in certain important respects from its previous iterations. In issuing the Proclamation, President Trump cites to these countries’ alleged failure to share important security information and for lacking passports with certain security features. Some nations fail to issue travel documents to their nationals who have been ordered removed from the United States. The President also believes that once nationals from these countries enter as lawful permanent residents, they will therefore be harder to remove.

Every individual matters, but some of the banned countries are more populous than others. North Korea doesn’t send many visa applicants our way, and, although some of our very best clients are from Kyrgyzstan, the really big numbers in Travel Ban 4.0 come from one country: Nigeria. Nigerians — who are some of the best-educated immigrants in the United States — make up a large community in the D.C. area and in many other parts of the United States.

We’re your friendly local immigration lawyers, not foreign policy wonks, but, speaking simply as concerned citizens, we think that Travel Ban 4.0 is going to cause a lot of suffering in exchange for very little security gain. If the Administration were truly worried about security, why would it allow foreign nationals to continue to travel to the United States with nonimmigrant visas?

We’ve already seen that foreign students sometimes spy on the U.S. government. Travel Ban 4.0 won’t stop the next Maria Butina. But it will stop our U.S. citizen clients from being reunited with their spouses and minor children.

If you or someone you know might be impacted by this new travel ban, please contact your trusted immigration attorney. Travel Ban 4.0 includes procedures for applying for a waiver. Those procedures are onerous and opaque, but we’re committed to helping people through it.

If you have questions about Travel Ban 4.0 and related topics, please comment below. We welcome all comments and will reply to as many as we can.

This sponsored column is by James Montana, Esq. and Doran Shemin, Esq., practicing attorneys at Steelyard LLC, an immigration-focused law firm located in Arlington, Virginia. The legal information given here is general in nature. If you want legal advice, contact James for an appointment.

In the past few months, the news outlets have been buzzing with the royal drama surrounding Prince Harry and Meghan Markle, Duke and Duchess of Sussex.

The couple has split from official British royal family duties due to a desire to live a more private life; this may be the biggest royal controversy since Prince Harry’s great-great-uncle Edward abdicated the throne in 1936. For now, it appears that the couple will split their time between North America and the United Kingdom, spending much of their time in Canada.

Given the fact that Meghan Markle is a U.S. citizen, the happy quasi-royals may want to relocate in the United States. A common misconception is that foreign nationals automatically become U.S. citizens if they marry a U.S. citizen. For reasons we have explained elsewhere, using links to Animal House, that simply isn’t so. If Prince Harry wanted to live permanently in the United States, the Duchess would have to go through the formal process of petitioning for the Prince to receive lawful permanent residency (a.k.a. a green card).

After having a green card for at least 3 years, Prince Harry would be eligible to apply for U.S. citizenship. But would he? We think not.

One of the first eligibility questions on the naturalization application is “Do you now have, or did you EVER have, a hereditary title or an order of nobility in any foreign country?” The following question states “If you answered “Yes,” are you willing to give up any inherited titles or orders of nobility that you have in a foreign country at your naturalization ceremony?”

While Prince Harry would obviously have to answer “yes” to the first question, he might not be willing to say “yes” to the second. His business interests, never mind his identity, might be rather well served by remaining the Duke of Sussex.

Then, of course, there is Prince Harry’s military service to consider. Prince Harry (“Lt. Wales,” to the squaddies) served two tours in Afghanistan and, in addition to his admirable work as a soldier, has served as an honorary officer in the Royal Air Force, the Royal Marines and the Royal Navy. He would need detailed discharge paperwork from all of these Services.

Other than that, we think Prince Harry wouldn’t have too many difficulties become a U.S. citizen. But, of course, we’d be glad to help him find out. We offer the same reasonable rates, personal service, and careful work to HRHs (and former HRHs) as we do to everyone else.

This sponsored column is by James Montana, Esq., the principal of Steelyard LLC, an immigration-focused law firm located in Arlington, Virginia. The legal information given here is general in nature. If you want legal advice, contact him for an appointment.

By James Montana, Esq.

Ending Temporary Protected Status for El Salvador, I think, was the most serious practical blow dealt by the Trump administration to Virginians. There are about 200,000 Salvadoran TPS-holders in the United States, of whom roughly 30,000 live in the D.C. metro region.

U.S. immigration officials are committed to maintaining TPS for current TPS recipients until September 9, 2019. The application window to reapply for TPS status until that date has not yet opened. Expect it to open by March 2018 at the latest.

Going back to El Salvador is neither practical nor desirable for most Salvadoran families in our community. For that reason, many of my clients have approached me for advice on how to move from TPS to lawful permanent residency – a green card, to you and me. Some TPS-holders do actually have a path to a green card.

Explaining the mechanics will require a bit of background. (For more, read this nifty guide.) For family-based cases, a foreigner must have a family member in the United States who can file a petition. United States citizen children over the age of 21 can, under some circumstances, file such petitions for their parents.

That means that Salvadoran TPS holders who have U.S. citizen children – and many do, because TPS has been the law of the land since Taylor Swift was eleven years old – may be able to file for a green card. United States citizens can also file similar petitions for their spouses.

New family petitions require proof of the family relationship. For parental relationships, you’ll need a birth certificate, and sometimes a DNA test if the government demands it. Marital relationships require a boatload of evidence of bona fide marriage. In addition, family petitioners can expect to pay about $2,000 in fees to the U.S. government, as well as fees to an attorney. (more…)

This sponsored column is by James Montana, Esq., the principal of Steelyard LLC, an immigration-focused law firm located in Arlington, Virginia. The legal information given here is general in nature. If you want legal advice, contact him for an appointment.

By James Montana, Esq.

The law of asylum is one of the most complex and misunderstood areas of our laws. What follows here is a basic overview, intended to answer the following question: Why do some people get asylum, but not others?

To apply for asylum, a foreigner must be physically present in the United States, and must complete an application for asylum. (Read it if you like, here.) The application is twelve pages long. The instructions are fourteen pages long and are written in fragrant legalese.

Applicants for asylum do not have the right to counsel. If you can’t afford a lawyer, one will not be appointed for you. This is a generally true fact about our immigration system, but it is especially significant for asylum applicants, most of whom are recent arrivals who do not speak English well. And they’re on the clock. If you don’t apply for asylum within one year of your arrival in the United States, your asylum application is blocked by a rule called the One Year Deadline. (The government is not subject to any penalties to delay; one of my clients recently had his asylum hearing delayed by two years, just a month before the trial.)

Let’s say that you manage to get through the entire Form I-589, complete it properly, send it to the right address (there are five possible addresses) and go to your asylum interview. Will you win?

You should win, so long as the following statement is true: You either demonstrate past persecution on account of a protected ground, or you demonstrate a subjectively genuine, objectively reasonable fear of persecution on account of a protected ground, and you must demonstrate that you merit a grant of asylum as a matter of discretion. I have highlighted the terms of art here. I will unpack the most important ones briefly.

Persecution means more than harassment or legal prosecution. It means, typically, beatings, imprisonment without trial and death threats.

On account of a protected ground means: Race, religion, political opinion, nationality or membership in a particular social group. Brevity precludes a full description of what each of those terms of art means, but let me just tell you what isn’t included: poverty, starvation, civil war, endemic crime, social chaos or endemic disease. Our asylum system is good at protecting people from particular species of harm of harm (Nelson Mandela) and bad at protecting people from other species of harm (gang violence, plague, anything that happens in Haiti). (more…)

This sponsored column is by James Montana, Esq., the principal of Steelyard LLC, an immigration-focused law firm located in Arlington, Virginia. The legal information given here is general in nature. If you want legal advice, contact him for an appointment.

By James Montana, Esq.

Nothing in the world gives immigration lawyers more heartburn than travel does. Even legal immigrants to the U.S. often can’t just hop on a plane and go home.

Meet Jane. Jane, a citizen of the U.K., is getting her Ph.D. in economics from MIT. Jane is in the U.S. legally, on an F-1 student visa. Jane meets Ringo, a citizen of the U.S., who is also getting his Ph.D. in economics from MIT. Jane and Ringo decide to get hitched. Ringo and Jane fly together to London, so Ringo can ask her father for permission to marry her; they then fly back to the U.S., get married at the courthouse and apply for a green card. Will that work?

Nah! Thanks to some romantic-but-inadvisable travel, Jane and Ringo have stepped directly into the 90-day rule, which says that if you enter the U.S. on a temporary status and then do something that indicates intent to remain permanently, then you are presumed to have made a willful misrepresentation on a prior visa application. You don’t want to have the government making presumptions about you. All for a little travel.

What if Jane stays in the U.S.? Say she marries Ringo and applies for a green card. Can she travel while her green card application is pending?

Probably not! Unless she has a clever immigration lawyer who can pre-arrange something called “advance parole” for her, Jane’s little jaunt home will fricassee her pending green card application. Uncle Sam will keep her $1,760 application fee, and she may be in deeper trouble yet.

How about an asylum applicant? Can an asylum applicant travel home? Nope: never, never, never. Can an asylum applicant travel to a third country while the asylum application is pending? Almost never, and you can kiss the asylum application goodbye if you do.

I know a nice Salvadoran man — married, a couple of kids, great moustache. He was here with Temporary Protected Status, and so he was fully authorized to work. Thanks to some bad immigration advice from a notario, this gentleman left the United States and remained in El Salvador for one week longer than he was supposed to be away. It cost him, his employer and his family eighteen months and many hundreds of dollars to get him back into the United States. All for a little travel.

Even lawful permanent residents can get crushed by the Travel Monster. Permanent residents who stay outside the country for more than a few months can be placed into removal proceedings based on an allegation of abandonment. Removal proceedings will keep you in court for a half-decade, and you will make many thousands of dollars in contributions to the Impecunious Attorney Fund.

Travel is a wonderful thing — for U.S. citizens. Foreigners of any stripe should be extremely careful about it. Talk to a lawyer first. I know a few.

This sponsored column is by James Montana, Esq., the principal of Steelyard LLC, an immigration-focused law firm located in Arlington, Virginia. The legal information given here is general in nature. If you want legal advice, contact him for an appointment.

By James Montana, Esq.

Temporary Protected Status (“TPS,” in legal argot) is one of the zaniest creatures in the Seussian paper-palace of immigration law. If disaster or civil war strikes Country X, the TPS system enables various actors in the Executive Branch to declare that Country X is temporarily unable to receive a wave of deportees from the United States, and, therefore, that the United States will allow potential deportees to Country X to remain here on sufferance. Through that procedure, TPS-holders can receive work permits and temporary safe harbor from deportation.

On the terms of the program, TPS is temporary. In practice, for most people most of the time, TPS has been permanent. TPS-El Salvador was designated during the George Bush presidency — George H.W. Bush, kids! — but has been renewed repeatedly since then by Republican and Democratic administrations alike.

The renewals appear to be over. The Trump Administration recently announced that it will terminate TPS protections for Nicaragua, Honduras and Haiti. Salvadorans, however, are the most numerous beneficiaries of TPS in the United States, and are disproportionately concentrated in our area — and TPS-El Salvador remains intact for now. A decision will be made by January 8, 2018.

So, what happens if TPS-El Salvador is shut down?

The simple answer is that Salvadorans with TPS will revert to the formal immigration status that they had before TPS was granted.

The more complex answer is that Salvadorans will face a list of interesting options. Of those, asylum and family petitions will be the most helpful for most people.

1. Asylum

Under ordinary circumstances, you must apply for asylum within one year of entry into the United States. These are not ordinary circumstances. Under current law, the termination of TPS is an “extraordinary circumstance” which may excuse late filing. That “may” is going to blast tens of thousands of Salvadoran families into asylum offices across the United States — in particular, to the Arlington Asylum Office, where wait times are measured in years.

2. Family petitions

TPS-holders aren’t all the same. Some of them entered the United States without inspection, by walking across the border. Some of them entered the United States with visas which have long since expired. Some of them entered without inspection and then later entered with inspection via a program called Advance Parole. TPS-holders who entered with inspection, either initially or subsequent to their initial entry, may be eligible for family petitions, through relationships (chiefly, marriage and children) which have sprung up in the decades since TPS was announced.

The important thing is to not act too hastily, and — above all — not to rely on the services of an “immigration consultant” or a notary. If you can’t afford a lawyer, my former colleagues at Catholic Charities of the Archdiocese of Washington, or our sister organization in Arlington, will be delighted to help you at a low-bono rate. Please be careful out there.