California Immigration Lawyer Blog
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It is rare that issues relating to affidavits of support are litigated so it surprising to see a case that made it to the federal court in San Francisco.  In an unpublished decision, a judge from the U.S. District court in San Francisco reaffirmed that divorce does not terminate an obligation pursuant to the affidavit of support (I-864).  Also, in this case, the defendant had met his obligation.

In Erler v. Erler, the plaintiff, Ayla Erler, claimed that her former husband, Yashar Erler, failed to support her as she believed he was required to do so pursuant to the affidavit of support.  The two were married on April 15, 2009.  Prior to their marriage, they signed a premarital agreement in which they agreed that in the event of a divorce, neither party  would be able to seek or obtain any form of alimony or support from each other.  Two weeks later Yashar Erler signed an affidavit of support.  As background, the affidavit of support (Form I-864) is signed by a sponsor when sponsoring an individual who is immigrating to the United States.  The affidavit is between the sponsor and the U.S. government and by signing it, the sponsor promises that he or she has sufficient income to maintain the immigrant at 125% above the poverty guidelines.

The couple separated on March 25, 2011 and divorced on March 22, 2012.  The plaintiff sued her former husband claiming that he has failed to meet his contractual obligation pursuant to the affidavit by maintaining her income at no less than 125% of the poverty guidelines.   Continue reading →

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In a recent San Francisco district court case, Judge Richard Seeborg ruled that  a wait of almost six years was too long to wait for United States Citizenship and Immigration Services (“USCIS”) to adjudicate an application for adjustment of status (“green card.”)  In Islam v. Heinauer, the applicant was a citizen of Pakistan who had previously been granted political asylum.  On May 27, 2008, he applied for permanent residence.  As of the date of the Judge’s decision, the case was still pending.

This was not a case in which the delay was due to security checks.  Rather,  USCIS indicated that his case was going to be denied and so they were holding the application to determine whether he might be granted pursuant to a discretionary exception.  Essentially, Mr. Islam had admitted in his asylum application that he was a member of MQM-A.  This is a considered to be a Tier III terrorist organization.  Apparently the Secretary of Homeland Security has discretion in individual cases to exempt certain terrorist-related grounds as they relate to individuals and to exempt certain Tier III organizations from being considered terrorist organizations.  Mr. Islam’s case was on hold while the Department of Homeland Security was considering whether he was applicable for an exemption.

In 2010, Mr. Islam filed a petition in District Court seeking adjudication of his adjustment application.  The District Court at that time indicated that the delay had not been unreasonable.  Almost two years later, on Mary 21, 2013, Mr. Islam submitted a new petition to the District Court and indicated that his adjustment application was still pending. Continue reading →

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http://www.dreamstime.com/royalty-free-stock-photo-physical-therapist-works-senior-image14858705

This will be the first part of a multi-part blog series on obtaining a green card if you are a physical therapist. In this post, I will discuss the education and licensing requirements. I will discuss nuts and bolts in subsequent blog posts.

To practice as a Physical Therapist in California, you must either:

  1. Obtain a Physical Therapist Degree from a Commission on Accreditation in Physical Therapy Education  (“CAPTE”) physical therapist education program and pass the California state licensing exam.  (As will be discussed in a future blog post, it is not necessary to have the license at the time you apply for a green card but you must be in the process of obtaining one.)    OR
  2. If your education is from abroad, you must obtain a credential evaluation from a credential evaluation service to show that your education is equivalent to that of a degree in the United States and then you must register/take the licensing exam.

In the United States, there are currently three different types of degrees that are offered to become a physical therapist:

  • Doctor of Physical Therapy  (DPT)
  • Master of Physical Therapy (MPT) or
  • Master of Science in Physical Therapy (MSPT

PT education programs are gradually transitioning to the DPT degree and all schools will be compliant by  2017.  For now, possession of any of the three degrees permits an applicant to sit for a state licensing exam.  The typical length of a DPT program is  three years and one generally must have a bachelor’s degree or the equivalent to be admitted into a program.   The education required to become a physical therapist places an applicant for a green card into the Employment Based, 2nd preference category (known as EB-2), a member of the professions holding an advanced degree or equivalent.  This is advantageous for most people applying for a green card because the quota, as of today, is current.  This means that there is no wait (other than for the processing time) to obtain a green card. Continue reading →

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It seems we hear about bipolar disorder more and more these days. Personally, I do not think it is because more people have it; my belief is that we have better diagnostic tools and the stigma against mental illness is fading. Our law, 8 U.S.C. Section 1182(a)(1)(A)(iii), prohibits certain individuals with mental illness from immigrating to the United States. These individuals include persons who:

  • Have a current physical or mental disorder with associated harmful behavior;
  • Have a past physical or mental disorder with associated harmful behavior if the harmful behavior is likely to recur or lead to other harmful behavior in the future.

Not everyone with bipolar disorder is inadmissible. Your illness has to meet the definition such that it makes you inadmissible. The determination of whether or not you have a mental illness is made by a physician at the time you have a medical exam. (A medical exam is necessary for every immigrant who is entering the United States and is performed by a panel physician – a physician authorized by the State Department (abroad) or by USCIS (in the United States) to conduct these examinations.

As part of the medical evaluation, panel physicians are instructed to

  • identify and diagnose any physical or mental disorder;
  • identify any harmful behavior associated with a disorder;
  • determine the remission status of any disorder previously diagnosed;
  • determine the likelihood of recurrence of harmful behaviors associated with a mental disorder.

A harmful disorder is defined as an action with a mental or physical disorder that is or has caused -

  • Serious psychological or physical injury to the applicant or to others (e.g., a suicide attempt or pedophilia);
  • A Serious threat to health or safety (e.g. driving while intoxicated or verbally threatening to kill someone);
  • Major property damage.

The Centers for Disease Control and Prevention recently published technical instructions to assist physicians in evaluating physical and mental disorders.

To determine if a person is engaging in current harmful behavior, the physician is instructed to ask about harmful behavior and determine if it has continuously occurred and seems ongoing. If so, the physician is required to evaluate whether the actions may be indicative of a mental disorder.

To determine if a person is likely to engage in future harmful behavior, the physician has to determine whether the behavior is likely to recur. According to the guidance issued by the CDC, harmful behavior is less likely to recur when a mental disorder has a favorable prognosis and is in remission or under control and if there was harmful behavior, it has been more than 12 months since the harmful behavior occurred.

Remission is defined as a period of 12 months in which no mental disorder-associated behaviors have occurred.

The best way to handle this issue is to argue that your bipolar disorder does not make you inadmissible. If you have not already sought mental health treatment, you must do so. If you have current harmful behavior, I would advise you to wait 12 months before applying. At the time of your medical exam, I would encourage you to obtain a letter from your current mental health professional which you can give to the doctor. Your letter should indicate the diagnosis, what treatment you have received, whether you are compliant with treatment and the medications you are taking. If everything is under control and there have been no harmful episodes within the last 12 months the letter should say so.

If USCIS determines that you are inadmissible despite your doctor’s letter, you may file a waiver (Form I-601). It would be better not to have to go that route so I would advise you to build a good case before you apply so as not to be considered inadmissible at all.

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My job is to help people remain in the United States so I was surprised when someone asked me how she could abandon her lawful permanent residence.

The procedure to follow is to complete an Immigration Form I-407, “Abandonment of Lawful Permanent Resident Status,” and present it at an embassy or consulate abroad. This form is not available on the USCIS website; it is given out at the embassy or consulate (or available on their website). Each embassy or consulate (or USCIS field office abroad) has their own procedure. For instance, at the Mexico City field office, you may file in person during Public walk-in hours (Monday and Thursday from 9:00 am to 1:00 pm). In Toronto, Canada, the form may be filed in person or by mail.

The procedure is permanent. As the Mexico City Field office warns: “The relinquishment of lawful permanent resident status is irrevocable. An individual who relinquishes lawful permanent resident status and who later wants to reclaim such status must again qualify for immigrant status and go through the entire immigration process. Therefore, one should give careful thought to relinquishing lawful permanent resident status.”

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The advocacy group FWD.us, founded by Facebook founder Mark Zuckerberg, has published an app for mobile devices and for web pages in an effort to promote immigration reform.

I tried the app for myself. Upon navigating to their website using my computer, a page appeared showing the pictures and names of all the California legislators. (I guess the website is able to detect that I am in California.) I then decided to download the app on my phone. After downloading it, I navigated to the “push4reform” page. It then gave me a choice to find my representative by logging into Facebook (of course!) or by entering my zip code. I entered my zip code and my Congressional representative’s picture and information appeared. His opinion on immigration reform is listed below his name and picture. The page also gave me ways to connect to my representative either by phone, email, twitter or mail. Apparently if I was to connect with him in one of those ways, I could earn points. I am not sure where the points are redeemed. The app also showed his actions on immigration related topics. Further down the page, tweets are posted from individuals who have contacted my representative.

This app is very clever. It helps people find out who their representative is and makes it easy to find their views on immigration and connect. And it does it all quickly. It is a great tool to have in what appears to be a never ending fight for immigration reform.

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The Consulate of Mexico will be holding a Mobile Consulate on Saturday November 16th in Calistoga, California, where Mexican nationals will be able to obtain passports and Mexican ID cards (matrículas).
The mobile consulate will be set up at:
Calistoga Elementary School
1327 Berry Street Calistoga, CA 94515

It is necessary to schedule an appointment either by phone (1.877.639.4835), or through the internet (sreweb.mexitel.com.mx/mexitel_web/) prior to November 16, in order to receive services on that day.

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I am currently working on an application for political asylum in which I am trying to show that severe economic detriment constitutes persecution sufficient to establish asylum. This is rather difficult because there is no physical persecution. One of the main cases on this issue is Himri v. Ashcroft, 378 F.3d 932 (9th Cir. 2004).

In Himri, the applicants were stateless Palestinians who had been living in Kuwait but fled when Iraq invaded in 1991. They held Jordanian travel documents but these were only used for international travel; they did not convey citizenship. As in my case, they had not been subjected to physical persecution in the past.

After Kuwait was liberated from Iraq, the government took measures to eliminate the Palestinian population by expelling them and by subjecting them to extreme economic discrimination. The question presented in Himri was whether or not economic discrimination was sufficient to constitute persecution. Citing to Hoxha v. Ashcroft, 319 F.3d 1179, 1182-83 (9th Cir. 2003),the Court noted first that when persecution is widespread in a country, an individual may establish an objectively reasonable fear of persecution in that country by showing that as a member of that group, he or she stands a heightened risk of persecution.

In Himri, the Court reviewed the country condition evidence and observed that Kuwait had systematically targeted Palestinians. “Through forced expulsions, extreme persecution and discrimination, Kuwait decreased its Palestinian population from a pre-war total of 350,000 to a current population of about 35,000.” Himri at p. 936. Those that fled Kuwait were not permitted to return. After the war, the Palestinians that remained were not permitted to go to work, go to school or obtain drinking water. Finally, non-Kuwaitis had a heightened risk of abuse by the police.

The Court held that the Himris met their burden in showing that they were members of a persecuted minority. Even if they would be able to return and avoid physical persecution, they “would not be able to avoid the state-sponsored economic discrimination that has been enacted against Palestinians living in Kuwait since the end of the Gulf War.” Id., at p. 937.

What is interesting in this case is that the Court never discussed the specific protected asylum ground that the applicants met. I.e., was the Court deciding this on the basis of a social group or nationality? The closest the Court came was to say that the Himris were members of a “persecuted minority.” This seems to suggest “social group.” If you are filing an application with a similar claim, it would be best to argue all applicable grounds just to be safe.

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Given the current job market, it is often difficult for a petitioner/sponsor to have an annual income that meets 125% of the poverty guidelines, sufficient to file an affidavit of support, Form I-864. It has become increasingly common to use an intending immigrant’s income to supplement the petitioner’s income.

An intending immigrant, if working legally in the United States, may use his or her income on the affidavit of support. Here is an example. Assume the intending immigrant is presently in the United States on a H-1B visa and will be marrying a U.S. Citizen. The intending immigrant is working legally because he or she is working pursuant to a H-1B visa. The H-1B visa holder would indicate his or her income in Part 6 of the I-864. In response to Part 6, Question 10, the sponsor would then total both incomes and list the total household income.

The intending immigrant is not required to sign anything or complete a Form I-864A unless he or she has accompanying children. The intending immigrant, however, does have to provide proof that his or her income will continue from the same source after obtaining permanent residence. At first glance, this appears to be an impossible requirement to meet. No one can predict the future and what will happen with a job. The best way to handle this is to provide a letter from the employer stating that the intending immigrant is currently employed and that the employer anticipates continued employment after permanent residence is obtained. I have attached a sample letter that you can use. The letter should be enough to prove that the intending immigrant’s income will continue.

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According to a recent article in the Vallejo Times Herald, “Vallejo is Tops in the nation in ethnic diversity,” Vallejo is the nation’s most diverse city and Solano County ranks as one of the top most ethnically diverse areas. This diversity was probably due to at least two factors. First, Vallejo was once a Navy town. People from all over the United States came to work here. Second, It was probably also due to waves of immigration as people have moved here over the years from all parts of the world.

It is only fitting therefore, that Vallejo celebrates diversity, with “Unity Day.” According to “Vallejo Together,” the community group organizing Unity Day, the purpose of Unity Day is to “celebrate Vallejo’s rich diversity in culture, faith, orientation, age and abilities. It’s a day where we celebrate who we are and what we are doing in community.” The free event will take place on Sunday, September 15, 2013, from 10:00 a.m. to 5:00 p.m. at Vallejo City Park. There will be musicians, dancing, entertainment, and food for sale. Various community organizations – political, cultural, and religious, are also sponsoring booths where they will be giving out material about their groups. I went to the event last year and was pleasantly surprised at how festive it was. It was a lot of fun and made me proud to be part of the community.

You can find out more information about Unity Day on Vallejo Together’s Facebook page.