One of the easiest ways for someone to lose legal permanent residency status (or a green card) is through abandonment, either intentionally or unintentionally. While the process of becoming a Legal Permanent Resident (LPR) can be a long and tiring process, the process of losing it can be a simple mistake.

One of those mistakes is staying outside of the US for too long. LPRs are allowed travel internationally and return to the US with their green card and passport. However, they must be careful with how much time they are spending outside of the US. If an LPR spends more than a year continuously outside of the US, their green card will automatically become invalid and USCIS will consider that they have abandoned their US residency. If an LPR travels for more than six months but less than a year, US immigration officers may question them on the reason for their trip and ask them to prove ties in the US. One way to avoid unintentionally abandoning their United States residency is by receiving a re-entry permit.

A re-entry permit allows LPR to lawfully travel internationally for up to two years, and eliminates the need to obtain a returning resident visa. While the permit does not stop all suspicion that a person has abandoned their residency, it can be used as proof that they did not intend to do so. The re-entry permit is also recommended for residents that cannot or wish not to get a passport from their home country and need to travel outside of the US. It is recognized by many other countries as a recognized travel document, but one should always check each country’s documentation requirements first before traveling.

To apply for a re-entry permit, an applicant must fill out Form I-131 and must it while in the United States and 60 days before traveling. USCIS does not require individuals to remain in the US while their application is pending, but it is strongly recommended that an individual does. If the USCIS requests the applicant to complete their biometrics (fingerprints and photos), the applicant will have to complete them in the US. Once the biometrics process is complete, the applicant will be allowed to travel outside of the US and request that if their permit is approved to be sent to a US embassy, consulate, or a Department of Homeland Security office in the country they are in. Permits are only valid for 2 years after the date of issue, and cannot be extended or reissued. LPR can apply for a new one. However, if their current permit is still valid, the permit will need to be turned in to USCIS before applying for a new one. LPR that have to leave the US for an extended period of time for employment purpose can fill out Form N-470. This form allows LPR to preserve their status for naturalization purpose, but there are restrictions on the types of employment USCIS will accept.

Obtaining a re-entry permit can lessen the suspicion that LPR have abandoned their residency, yet it does not protect them from the other ways they might lose their status. LPR should follow these six recommendations:

1. First, LPR should avoid becoming legal residents in another country. If they do, USCIS may consider that the immigrant has abandoned their legal status in the US.
2. Second, LPR should try to remain in the US for extended periods of time between each period outside of the US and keep stays in other countries temporary.
3. Third, LPR should develop and maintain ties in the US. This can be done through family, employment, financial, or property. Documentations of ties should be kept, such as: income tax returns, valid US driver’s license, registration and attendance at a US school, and evidence of ownership or lease of a property. Failure to filing income tax can raise a huge red flag to USCIS.
4. Fourth and equally as important, LPR should minimize their ties in other countries. They should avoid owning property internationally, being employed abroad, or getting involved in politics in other countries.
5. Fifth, while returning back to the US, LPR should be prepared to explain the reason for the trip and the length of their trip.
6. Lastly, LPR should never sign Form I-407 - even if they are pressured to do so by border officials. This form is used to abandon one’s lawful permanent resident status, and once signed can be very difficult to prove that someone had no intention to abandon their residency.

If you still have any questions about how not to unintentionally abandon one’s lawful permanent resident status or green card, please consult with an attorney who will be able to evaluate your individual circumstance and provide you with individual answers and recommendations.

​-Sydney Wilson
HMA Legal Intern, Spring 2018

When you apply for a green card (permanent residency) from inside the US, you have to show you are admissible as if you were outside the US trying to come in. It's on Form I-485, which used to be 6 pages long and would ask you all kinds of questions about your criminal record, address and work history, immigration history, and whether you intended to spy on the government.

The new version is 18 pages long. Mostly yes/no questions, but a lot more of them.
The new I-485 asks if you have plans to engage in espionage, torture, genocide, narcotrafficking, and if you've committed a crime for which you weren't arrested. Who actually says yes to these?

Obviously very few people. But the length of the I-485 - which we call the "Mother of All Inadmissibility Lists" at our firm - shows something important. There are a lot of traps. Each one of those questions has law behind it.

• Ever claimed to be a US citizen? No? Are you sure? Do you remember every I-9 you ever filled? Did you ever check the box for "citizen"? Or did you accidentally register to vote when you got your first driver's license?
  
• Ever been associated with a group, party, fund, society, or other organization? No? Well, it doesn't just mean you paying dues to some organization. It's actually nearly impossible to answer this question with 100% accuracy.
  
• Ever violated the terms of your nonimmigrant status? Don't be too sure. It's not just overstaying. Delivering pizzas on an F-1? Violation. Cash payment on a B-2? Violation. H-1B but on the bench? Violation.
  
• Ever benefited from a crime committed by your spouse or parent? Yes, this can cause denial, even if you didn't specifically intend to benefit.
  
• There are open and ill-defined terms like "potential serious adverse foreign policy consequences," or "endangering the safety, welfare, or security of the U.S." - terms which could mean very different things to different people.

So bottom line: all immigration forms are going through a massive expansion, and more and more information is being collected on every form. Each one of these questions has law and purpose behind it.
Don't think of these forms as boilerplate. You have to put some thought into each question and really think, "Could the answer to one of these questions be yes?" because if the immigration agency thinks so, you'll have a very nasty problem.

The chaos from the Muslim ban continues to tear at the fabric of our country. It's but one page in a playbook, but I'm quite content to focus on it because I believe victories gained here will pay forward to other battles against the accumulation of power.

In one week the executive branch has disrupted countless lives. I've been inundated with stories of separated families, mental anguish, and magnified uncertainty. I've witnessed the outright defiance of a Court order shrugged off as the mere words of "an outside judge." I've seen legislators turned away, unable to penetrate the faceless fortress this new administration has built. And I've witnessed an assault on due process of law, the enlightened principle that a right cannot be taken away without both sides being given a fair chance to defend.

When "due process!" becomes a rallying cry as we saw at Dulles Airport on Saturday, something is seriously wrong. Due process is something to be zealously guarded, and the time and resources spent guarding it is the best preventive medicine a society can buy.

This administration started with immigration its first week because it's the low hanging fruit. There's not much process due an alien, and they want to take it away.

Expanding expedited removal (no hearing.) Mass visa revocations (no right of appeal.) No access to counsel (even with a court order.) Arbitrary suspension of immigration benefits for those who otherwise did it legally (no way to challenge.) Bans effectively on a religion (insulated by the plenary power doctrine.) Immediate blacklisting of entire countries (no notice.) It's all easy within our immigration laws, which are hard to follow, but very easy to break.

And then perpetuating the story of the dangerous and untrustworthy immigrant, rallying popular support behind the ban by doing things like reporting alien crime (but only alien crime) *weekly* and calling it "transparency."

We need borders to be crossed in an organized manner. A country is defined not by its borders as Mr. Trump suggests, but by the people inside it. And those people need to move to keep goods, services, and ideas flowing.

Shutting the door, then, as if to a snake oil salesman, inherently means one does not value those other ideas, that one's native ideas are the only ones needed.

They're not. We need fresh ideas and the grit and determination that frequently comes with them.

Be vigilant in ensuring destructive ideas don't make it in. But be equally vigilant to make sure they don't grow inside the house, either.

And assaulting due process is a very, very destructive idea.

Hassan Ahmad spent the weekend at Washington-Dulles International Airport after the Muslim ban executive order was signed last Friday, volunteering with dozens of other lawyers to fight for the rights of affected foreign nationals. Follow him at @HMAesq. 

It has been a fulfilling and eventful 2016 at the HMA Law Firm! In our main office in Northern Virginia:

• We represented approximately 350 people in complex matters ranging from asylum to employment-based immigration, citizenship, and criminal immigration matters.
• We advised nearly one thousand other people, providing them with case-specific advice that helped them navigate the US immigration system and avoid pitfalls
• We provided over 200 hours in pro bono immigration legal services, including a week spent in Dilley, Texas advising women and children asylum seekers from Central America
• We contributed 10 op-eds in papers around the country such as The Hill, Counterpunch, and The Progressive.
• We were quoted 7 times by national media including The Washington Post, CNN, and BBC News.
• We presented at 5 seminars before immigration professionals and the general public, including the Federal Bar Association, the American Immigration Lawyers Association, and the University of Maryland School of Law.
• We counseled community leaders and politicians throughout the year on local and national immigration issues related to driver's licenses, registries, the refugee crisis, and Dreamers.
• We advocated with the legislature (both in our home state of Virginia and federally) to push for common-sense immigration reform and humane policies, visiting elected officials in their offices.
• We achieved 3 remands from the Board of Immigration Appeals, winning "second chances" for clients who had all but given up hope
• We fought for citizenship for over a dozen people with "complex" cases that may have otherwise been denied
• We won asylum or other relief for nearly 30 of people who no longer have to worry about being deported
• We helped investors create dozens of jobs using the US immigration system

2017 will be a year of many changes, and it's hard to know what to expect. But we are ready: with our over 30 years of combined experience, we are ready to protect our clients, persevere through the hard times, and help them prosper.

Citizenship is in many ways the end of the long road of immigration. Besides its obvious civic value, we celebrate grants of citizenship with our clients because it is truly an accomplishment. Even "simple" or "straightforward" cases involve a great deal of patience, time, and uncertainty. But if you've ever had to fight USCIS to win your citizenship, the victory means a lot more.

Earlier this month, we celebrated a most unusual naturalization victory.

Our client was initially one of the "lucky" ones - he won the Diversity Visa lottery. The DV lottery is essentially just that: dropping your name into a large hat in the hopes of being randomly selected for a green card. The regulations state that if you are selected, you must list all members of your entire family - spouse, parents, children, stepchildren. If you don't, the regulation states that the immigrant visa "shall" be denied. There are very good reasons for doing this: if a person announces in their home country that they won the DV lottery, there will be people willing to "marry" them to accompany them as spouses, or others who will give their children to the DV lottery winner.

Thus, the language of the regulation leaves virtually no room for error - if you make a mistake and forget to list someone, it doesn't matter whether you intended to mislead them or not. You lose the visa. But what do you do if you made an honest mistake? Or had a child but didn't know about it?

Our client neglected to mention a stepchild, and further had a son he did not know about.

He got his green card and filed for naturalization. By that time, he truthfully disclosed about his son and stepchild, telling USCIS he only recently became aware of his son, and that he had not listed the stepchild because his wife had no dealings with him. 

USCIS found that because he did not list those two people on his DV lottery application years before, his immigrant visa should have been denied, he never should have gotten his green card, so he was not "lawfully admitted for permanent residence" and therefore could not naturalize.

We filed the case again, but with a new argument:

In other words, because there is an option for the consular post to ask for an advisory opinion, there is a possibility, however remote, that an immigrant visa can be issued even if there were mistakes on the application. If there was a possibility, then the Service cannot say the immigrant visa "should have been denied" which meant he wasn't necessarily "not lawfully admitted for permanent residence." 

USCIS didn't buy it. The case was denied again. This time, we didn't take it lying down. We filed an N-336 petition for a rehearing.

In the rehearing, we repeated the same argument, but took pains to remind USCIS that their decision denying the N-400 was flat out wrong:

USCIS had tried to argue that failure to comply with all substantive legal requirements (ie, completing the DV lottery application accurately) precluded "lawful admission as a permanent resident." But USCIS themselves didn't follow the substantive legal requirements in making that finding! When confronted with this argument, USCIS relented, and our client was scheduled for an oath ceremony.

It is always the tough cases that we remember as lawyers. For the world that has now opened up for our long-suffering client, the continued prosperity, and the end of a long period of uncertainty, we offer our sincere congratulations. To everyone else: make sure you are accurate on all your filings with USCIS!

You've told the truth, the whole truth, and nothing but the truth. You hired a lawyer. You spent countless hours working with your lawyer on collecting evidence, rehearsing your story, making sure everything was correct, and that there were no gaps. You tell yourself that going through this is still better than what you would face it you had to return to your country. But you still lost sleep, couldn't eat, couldn't focus, cried and prayed.

Your lawyer finishes his legal argument, talking about social distinction and imputed political opinion, particular social groups and nexuses. You stand for what seems like an eternity while you wait for the robed figure behind the bench to start speaking.

And in a rushed voice, the robed figure dashes all your hopes into the concrete. Your asylum claim is denied. You are ordered removed. "Best of luck to you," says the robed figure.

Your world has come apart. What about your family? How will you work? What will you do?

Fear not, your lawyer tells you. We can go to the Board of Immigration Appeals; this isn't over. And so you do. The weeks begin to roll by, turning into months. After having waited so long to prove your case, you start wondering, "What if I had not said this?" or "Why didn't I talk about that?" The second-guessing is consuming you as you replay the individual hearing over and over in your head.

One day your lawyer calls you and the ground shakes once again, "The Board has dismissed your appeal. We can go one level up, to the federal Circuit Court, but I'm not too hopeful."

You've been waiting a long time now, and you've set roots in the United States.  What to do now?

This was a dilemma facing one of our clients who came to us with a freshly denied asylum claim that had been dismissed on appeal by the Board. And sometimes, it's the fact that the judges are so pressed for time, and have to render decisions so quickly, that they may overlook something. Maybe they didn't do something in the right way.

So we started combing through the trial testimony. We looked at every exhibit to see if it was given proper consideration. Did the judge mischaracterize anything? Did he say we didn't do something when we did? Did he say we did something when we didn't? Was there something he could have done that would have helped? Did he follow the proper procedures and honor due process? 

Work like this can be maddening. It's not unlike finding a needle in a haystack. Sometimes we might not find a needle, but we find something else that we might be able to use.  And we put everything together, filing not only a motion to reconsider with the Board, but (so that we didn't lose out on the chance) a petition for review with the federal Circuit Court. We first saw how the judge had constructed the denial of our client's asylum case, and noticed that the lynchpin of the denial was a "lack of corroboration" - something he used to find that our client could not demonstrate his eligibility for asylum. As an example, if a high school student can't show that he completed a college entrance exam, it doesn't matter whether he did everything else right: he can't get in. But the evidence the judge was insistent on was itself not viewed as favorable evidence by the Circuit Court. A judge shouldn't be permitted to deny a claim based on not having evidence that the higher courts consider weak to begin with.

Today, we received the decision. The Board of Immigration Appeals conceded that the immigration judge's decision - and the Board's own decision to dismiss the appeal was incorrect, and our client should have been given an opportunity to provide the evidence, even if it was weak. In the alternative, our client should have been given an opportunity to explain why that evidence wasn't available, and if good cause shown, for the case to have been continued so he could obtain it.

Judges need to make sure that people are given a fair chance to submit all evidence that could help them in their cases. Sometimes it can be hard to know whether a piece of evidence is required or should be submitted. Judges may be under immense pressure to adjudicate cases quickly, but this cannot come at the price of prejudice to a person's claim.

Our client has won a second chance to convince a judge that he deserves to stay in the United States. This is due process, and it's what makes our country great.

Hassan M. Ahmad, Esq.

Marriage and divorce is understood differently across various cultures. That leads to different laws regarding marriage and divorce. We last touched on this subject back in 2010 in our Blawg post "A Marriage Is A Marriage, But Is A Divorce A Divorce?" Since then, the interplay of foreign marital law and US immigration law has continued to complicate matters for people who simplistically thought they could just file a petition and bring their new spouse over.

One issue that came up recently is the US law treatment at of "revocable divorces" under shari'ah, or Islamic law. Shari'ah provides a type of divorce called a "revocable divorce" (talaq raj'ee) where a husband may divorce his wife, but if they resume marital relations within a three-month period (known as the iddah) thereafter, the pronouncement of divorce is revoked and the husband and wife remain married. This can only be done twice in the life of a marriage; if it happens a third time, the divorce is final and irrevocable.

The divorce may also become irrevocable (and thereby 'finalized') if the husband and wifes do not resume marital relations during the iddah. Under US law, parties must be legally free to marry each other order to apply for immigration benefits such as a fiancé visa (K-1) or spousal visa. A revocable divorce, because it is not final and may yet permit the marriage to continue, will not be recognized by US law as permitting the parties to remarry. 

The law on irrevocable termination of a marriage (talaq baa'in) is more complex. It is different when the wife initiates her rigth to divorce (khula') and different when the husband pronounces a clear intent to divorce and thereafter does not resume marital relations during the 'iddah. However, for US immigration law purposes, the revocable divorce that becomes final when the parties do not resume marital relations during the iddah will be sufficient to be recognized as a divorce that permits remarriage. 

Practically, then, if the only proof of divorce a person has is a decree of revocable divorce, there must be some additional evidence that the parties did not resume marital relations during the iddah, or else any subsequent immigration petition filed by that person will be denied. Not because the parties are still legally married - but because of a failure of proof that the prior marriage was in fact dissolved.

Ignore this at your own peril. Don't find out the hard way, or you'll have a lot of explaining to do to your new spouse.
​

A lot of our clients frequently use different addresses for different purposes.  This may be because an address used is "more permanent," or another address is less reliable, or someone else lives at that address who cannot be trusted to keep important mail from USCIS or the immigration courts.
Many times, confusion over addresses is caused by a lack of understanding of what "residence" means for immigration purposes.

Here are the ground rules:

1.  For immigration purposes, your address is where you sleep at night.  It doesn't matter whether you intend to move out shortly, or whether it's just a "school" address, etc.  If you sleep there, it's your address.  Intent does not matter.  See INA 101(a)(33).  You cannot use a "care of" address as your own.

2.  If you give an address to immigration at which you do not actually "reside," you are 1) giving false information which could result in denial of your immigration benefit, and 2) you are telling immigration that you do not always tell the truth.  You might not have any intent to mislead immigration, but they will always think the worse of you for it.

3.  If you do not change your address in the proper manner, then anything immigration sends you to the old address is considered valid, even if you don't ever receive it.  Moreover, failure to update your address with USCIS is actually a deportable offense. 

Bottom line: your address is very important.  It builds credibility and it protects you from deportation.  

Everyone's situation is different.  Sometimes people do not have a fixed address.  And there are different procedures for changing your address depending on your situation.  As always, we are here to help you, so please do not hesitate to contact us if you have any questions.

Have you been granted TPS or deferred action (DACA) and eligible for an I-130 petition but stuck and unable to adjust your status (file for a green card from within the United States) because of your past unlawful presence? Then seeking Advance Parole may be your answer.

If you entered the United States without being legally admitted and inspected, then any period of time you have accrued in the United States will be counted as unlawful presence. Unlawful presence is very dangerous and can create a bar to most types of relief from removal as well as a bar to subsequent legal admission into the United States.

Under Section INA §212(a)(9)(B)(i)(II), if an individual has been unlawfully present in the United States for one year or more and the individual subsequently “departs” or is removed from the United States, the individual may not again seek admission into the United States within 10 years of the date of departure. However, the good news is that this bar to admission after a period of unlawful presence can be overcome by a certain category of people.

For those who entered without inspection and were later granted Temporary Protected Status (TPS) or now qualify for TPS, you may be able adjust your status by means of applying for advance parole. Also, Dreamers who qualified for, and received “deferred action” under the Deferred Action for Childhood Arrivals (DACA) program, you may also apply for advance parole.

If you have been granted TPS or deferred action, you are eligible to apply for advance parole. Important: you cannot file for advance parole until you have been approved for TPS or deferred action. But once you receive your advance parole, you may exit and re-enter the United States with your advance parole document. The Board of Immigration Appeals in a recent case, Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012), held that “[a] departure under advance parole does not trigger the inadmissibility ground under 212(a)(9)(B)(i)(II).” Therefore, leaving the United States under advance parole does not trigger inadmissibility and you will be able to re-enter, this time with inspection. Once you have been paroled into the United States with inspection, you may adjust pursuant to INA §245(a), and will not be barred from adjustment because of inadmissibility under §212(a)(9)(B)(i)(II) (the “10-year bar” - or ley del castigo.)

For many people who do not or cannot risk a provisional waiver on Form I-601A, an Arrabally adjustment provides a much easier way to normalize status.

Questions? Want to see if you might qualify? Call or text us at 703.964.0245, or fill out the contact form on this page.  We'll let you know if it makes sense for you to file for advance parole and leave and re-enter.

CAUTION: Leaving the United States when your immigration status is not permanent always has some degree of risk.  Do not leave the United States - even under a grant of advance parole - without talking to a lawyer first. 

Sharifa Abbasi, Esq.

Immigration applications frequently require the applicant to prove that he or she was physically present in the United States on a certain date.

Back in the days of 245(i), it was proving physical presence on December 21, 2000.  For cancellation of removal, you have to show 10 years in the US.  For deferred action, or DACA, you have to show you were under 16 and in the US prior to June 15, 2007.

And so a lot of people run into problems.  If you don't have status, you might not have a paycheck stub or a rental or lease agreement.  Any pictures you might have are probably undated.

That's where creativity comes in.  As lawyers trying to find the best way to help our clients, sometimes it's the small things that can make a huge difference.

A young Dreamer came to see us who entered the US at age 14, but since she didn't start school until 16, she had no proof that she was in the United States when she was under 16.

I told her, bring anything you can from that time period.  All she could find were three pictures.  They were taken when she was 14, and they happened to be from a sightseeing trip in Washington, DC.  That was good: it's easy to tell the pictures were taken in the United States.

But there was no date on the pictures.  I looked on the back; no photo date print, either.  The pictures could have been taken in 1993, 2003, or 2013; there was no way to tell.

I usually look for pictures of cars.  If it's close enough, one good way is to look at the license plates and see the month and year the plates expired.  Yes, it's possible for someone to drive around with expired tags - but remember, the burden of proof is a preponderance of the evidence - you only have to show a 51% likelihood.

There were no cars in any of the pictures, unfortunately.

But then I noticed a construction barrier in one picture around the Washington Monument.  I asked my client if she got to see the Monument that day, and she said no, it was closed.  A quick Google search pulled up articles that the Monument was closed in September 2004 and reopened in April 2005.  During that time, there were indeed "Jersey walls" - movable concrete barriers - to close the Monument to pedestrian, vehicle and tourist traffic.

Now, it's possible that the photograph was "Photoshopped."  It's possible the Monument was closed after my client turned 16.  It's possible that...

But again - it's important to remember the burden of proof.  By using these pictures as documentary evidence supporting an affidavit, that burden was sustained, and USCIS approved the deferred action application.

Years ago we had a 245(i) case wherein we proved physical presence in December 2000 with a picture that showed the applicant at a Home Depot, wearing an orange apron with his name and a logo that said "Proud Sponsor - Sydney Olympic Games" and - what Providence - there happened to be a Christmas tree in the background.  (The Olympics were held in Sydney, Australia in the year 2000).

More frequently, we use tagged photos on Facebook; while individually they might not carry much weight, photos that have been tagged and commented on by multitudes of people are much harder to fake.

The point is, as I've advised my clients many times - it's impossible to live in the United States and not leave a trail.  You just have to know what you're looking for.  And a picture is usually worth a thousand words.

Hassan M. Ahmad, Esq.