Massachusetts Immigration Lawyer Blog

Did you know that a visitor visa doesn't guarantee you the right to enter the U.S. as a visitor?

If you want to come to the U.S. as a visitor (and you are not subject to the visa waiver program), simply go to a U.S. Consulate abroad and apply.  Keep in mind that the Consulate will presume that you, as a visitor visa applicant, are actually planning to immigrate to the U.S.  So, the only way you will be able to persuade the Consulate to grant your visitor visa applicant, is to convince them that you are not going to immigrate to the U.S. and that you have every intention of returning to your home country when your trip ends.

If you're applying for a visitor visa, here are some things you can bring to the Consulate to support your visa application:

• Proof that you have a job in your home country;

• Evidence that you own real estate or assets in your home country;

• Documentation showing that you have a spouse, children or other close family members who live in your home country.

A Visitor Visa Doesn't Guaranty Entry into the U.S.

If the U.S. Consulate grants you a visitor visa, there is no guaranty that you will, in fact, be permitted to enter the U.S.  You must still convince immigration authorities--usually from Customs and Border Patrol-- that the purpose of your trip to the U.S. is purely as a visitor.  Immigration authorities at the airport are not bound by the decision of the Consulate.  So, when you are asked at the airport "what is the purpose of your trip?" answer carefully.

If you would like to discuss this immigration issue further, or if you need help, advice or representation in other areas of immigration law, please call my Boston office today at 617-722-0005 to set up a consultation.

 

Lately, our Boston immigration law office has been inundated by a flood of people who have had their I-751, petition to remove conditions on permanent residency, denied by USCIS because they were not filed on time. As the I-751 denial letter points out, when the I-751 is denied, all the rights and privileges of permanent residency are terminated. In some cases, the I-751 denial letter is accompanied by a Notice to Appear in Immigration Court, which means that deportation or removal proceedings have been initiated.

If you filed your I-751 late and then got one of these denial letters from USCIS, what should you do? First, take a deep breath. Relax. Don't panic. And, by all means, don't pack your bags and leave the U.S.

Before discussing the solution, let me explain the problem. When you are given a conditional green card, you are required to file, together with your spouse, a petition requesting the removal of the conditional basis for your residency within the 90-day period immediately before the second anniversary of the date that you became a permanent resident. If you fail to file the I-751 by this deadline, the immigration regulations say that you will lose your green card status and be placed in deportation proceedings!

USCIS will permit you to file your I-751 late, after the expiration date on your 2-year conditional green card, but only if you include a written explanation of why you failed to file on time and a written request asking USCIS to excuse the late filing of the I-751. If you file your I-751 late and don't include this written request, USCIS will deny your I-751 on the grounds that it was untimely. This is what happens to many I-751 applicants who include the written explanation and request as required. And even if you include the written explanation and request, USCIS will only excuse a late-filed I-751 for "good cause."

So, with this background in mind, here are 3 possible remedies to the denial of an I-751 for failure to file in a timely manner.

1. Refile the I-751 but this time include the written request that USCIS excuse the late filing and explaining why you file the I-751 late. Since you must convince USCIS that your failure to file on time was for "good cause," you should include affidavits, medical records, financial documents--any and all documentation to support your argument.

2. Request that an Immigration Judge review the denial of your I-751. You can't petition Immigration Court to review the denial of your I-751 directly. You can only do ask Immigration Court for review of the I-751 denial if you are placed in deportation proceedings and required to appear before an Immigration Judge. Immigration Court doesn't have jurisdiction over all denied I-751s but this option is available in some instances. At a hearing in Immigration Court, the Immigration Service--not you--would have the burden of showing that basis for why it denied your I-751.

3. File a motion to reopen the decision by USCIS to deny your I-751.

Which of these options is best path to keeping your green card depends on the facts of your immigration case.  This is a decision best made in consultation with an immigration attorney with substantial experience handling family-based immigration cases and with a strong background in deportation defense.

If you need more help or advice on how to remove the conditions on your green card or if you need representation in Immigration Court, please call me at 617-722-005 and schedule a time to meet with me to discuss your immigration case.

As most people in Boston's Haitian community know by now, Haitian nationals who are now in the U.S. may apply for Temporary Protective Status or TPS to avoid deportation from the U.S. and to obtain a work permit, i.e., employment authorization. Applications for TPS are filed on Form I-821 and must be received by the cut-off deadline of July 20, 2010.

TPS is a generous benefit. Consider the following:

• A final order of deportation or removal will not disqualify you for TPS as a Haitian;
• As a Haitian, you may qualify for TPS even if you are out of status or have overstayed your visa; and
• If you entered the U.S. without inspection, you may still apply for TPS as a Haitian.

I'm often asked by people who are out of status or who have been in deportation proceedings, whether it makes sense to apply for TPS.  The risk is clear.  TPS is, of course, temporary; it is not a green card and doesn't lead to permanent residency, i.e., a green card.  TPS merely provides immigration status and work authorization for a temporary, 18-month period. 

So, if someone has been deported or is out of status, TPS provides only a temporary reprieve for 18 months.  What then will become of countless Haitians with TPS who have orders of removal or who are out of status?  In short, the question that is usually put to me:  "Won't Immigration just come and arrest me after the 18 months are over?"

This is a valid concern.  But I still recommend applying and here's why.  Although TPS for Haitians is designated for 18 months, I suspect that TPS will be around for many years to come.  Consider the example of El Salvador, which was granted TPS after an earthquake in 2001 and since then has been extended for a series of 18-month periods.  And it remains in effect today nearly a decade later.  Based on this and other TPS programs, I don't see Congress taking away TPS for Haiti anytime soon.

And Haitian considering TPS should take another lesson from the experience of El Salvador:  apply before the deadline or you will miss out.  For Haitian seeking TPS the deadline is July 20, 2010.  After that date, your application will be late.

In summary, I generally recommend that all eligible Haitians consider apply for TPS.  If you need immigration help or advice on this or other issues, please call my Boston immigration law office at 617-722-0005 and schedule an immigration consultation with one of our attorneys today.

Green Cards, Marriage and Taxes

As an immigration lawyer in Boston, I know next to nothing about accounting and tax law. But I do know a lot about how your tax return may impact your immigration case.

If you are going through any immigration process, you should expect immigration judges and officers to scrutinize your tax returns. For those who are in the process of applying for a green card through marriage to a permanent resident or to a U.S. citizen or who have filed an I-751 petition to remove the condition on permanent residency, I have 3 tips that may help you:

1. File your taxes jointly with your spouse using "married" status, if possible. U.S. Citizenship and Immigration Services will consider a jointly filed, married tax return as evidence that your relationship to your spouse is bona fide or genuine. Of course, if you are seeking a permanent residency but don't yet have a social security number it may be impossible to file your taxes jointly with your spouse.   But it is absolutely imperative that you file a married, joint tax return if possible.  The reason that this is so important is that if you file your taxes separately or as "single" immigration authorities may get suspicious and conclude that you and your spouse have a relationship that was entered into solely for the purposes of getting a green card.  If you file "single" during a time that you are married, I suggest that you consider filing an amended tax return to fix this.  

2. Make sure that the address on your W-2s confirms that you live with your spouse. USCIS will want to see your entire tax return, including all schedules, W-2s, 1099s and other schedules.  And if your paycheck is directly deposited into your bank account, then you might not be paying close attention to the address listed on your paycheck or W-2.  But if you are trying to convince an immigration officer that you live with you spouse, you had better be sure that address on your W-2 or paycheck should reflect that you and your spouse do in fact live together.

3. Provide your IRS tax transcripts to immigration authorities.  Whether you are in Immigration Court or appearing at an interview before a USCIS immigration officer, I recommend that you bring with you your IRS-certified tax transcripts and not a copy of your tax return.  The transcripts prove that your return was actually filed and is on record with the IRS and, therefore, is stronger evidence for immigration purposes.  I've seen plenty of denial letters from USCIS that say something along the lines of "although you provided photocopies of your tax return, you did not submit IRS-certified tax transcripts."  The IRS tax transcripts are available at the IRS office in the JFK Federal Building, next to USCIS Boston District Office or can be obtained by filing Form 4506-T with IRS.

If you have more questions about taxes and immigration or any other immigration topic or if you need representation in Immigration Court or elsewhere, please call my Boston immigration law office at 617-722-005 to schedule an appointment.

As an immigration attorney, my goal is to help people get green cards and U.S. citizenship. One of the most important privileges that you gain with US citizenship is the right to file an immigration petition (Form I-130) for your mother and father. But before helping your parents get green cards, you need to think through this decision and weigh your immigration options carefully.

How to lose your green card status

Before you help your parents get green cards, keep in mind that when someone with a green card stops living in the United States, they lost their green card status. It's called abandonment of residency. Once you've been given lawful permanent residency, you can't definitively lose your status until an immigration judge conducts a formal hearing in Immigration Court and rules that you have abandoned your green card or residency status. To make this decision, the Immigration Judge will look at a variety of factors including whether you have worked in the U.S., filed income tax returns, and whether you have maintained an actual home in the U.S.

The 6-Month Rule--an immigration myth

Many people mistakenly think that someone with a green card can keep their immigration status by simply returning to the U.S. and touching U.S. soil once every 6 months. This persistent myth is not true. Does this mean that someone with a green card is not permitted to travel outside the United States? Of course, not! But when a permanent resident travels abroad frequently or stays outside the U.S. for an extended period of time, the immigration officers at the airport may question whether the green card holder truly lives in the United States, as the immigration laws require.

Maybe a visitor's visa is a better option than the green card

If your mother or father doesn't really plan to move to the U.S. and live here permanently, the green card might not be suitable. In fact, without residency, the green card could turn out to be a source of future immigration trouble. If your parents just want to visit the US, you could spare yourself and them the hassle and expense of the immigration process and instead simply apply for a visitor's visa at a local US consulate. If you need more immigration advice or information, please email me or call my Boston immigration law office at 617-722-0005 and schedule a consultation.

In years past, the problem with H-1B visas was scarcity--too many visa applicants going after too few H-1B visas. Congress capped the annual number of available H-1B visas at 65,000. Although exceptions to the H-1B cap exist, this general restriction had a devastating effect on companies that depend on recruiting talented, educated foreign professionals with advanced degrees.

With the H-1B visa limits in mind, during immigration consultations in my Boston office, I'd typically advise immigration clients that if they didn't submit their H-1B visa petition on the earliest possible moment--April 1--their prospects for success were subject to chance. I described the H-1B visa application as sort of like a lottery. An element of luck existed because even if your H-1B visa application was valid and deserved to be approved, who knew whether your petition would be fortunate enough to be selected? And in years past, H-1B visas were gone within days of becoming available.

But now that the economy has cratered and unemployment has shot up to nearly 10%, something astonishing has happened--H-1B visas are sitting on the shelf, there for the asking! As of May 18, 2009, U.S. Citizenship and Immigration Services (USCIS) reported that 20,000 H-1B visas were still available. And today USCIS continues to accept H-1B visas petitions. USCIS will be posting updates periodically on visa availability. Who know when or even if the H-1B visas cap will be met?

So from these bad economic times comes some good news: H-1B visas appear to be still available. If you need a work visa either as an employer or an employee, give me a call in my Boston office at 617-722-0005. We can evaluate your immigration options and determine if an H-1B visa is appropriate for your case.

These days, it is not easy to get a job or housing benefits. And it is even tougher if you have a criminal record. To make things easier, criminal lawyers often recommend having your criminal record expunged or sealed. This can be great advice for people seeking work or housing benefits as you will effectively have no criminal record once your criminal record is expunged or sealed. Your Massachusetts CORI criminal history report will show "no adult criminal record," and you can honestly say you have no criminal record when applying for jobs and housing benefits.

But sealing or expunging your criminal record does not free you from immigration consequences resulting from a criminal record.  A conviction--even if it's been sealed or expunged--can still trigger your deportation.  And USCIS (U.S. Citizenship and Immigration Services) can deny your green card or citizenship application because of a sealed or expunged criminal record.

And sealing or expunging also doesn't free you from your obligation to disclose your criminal record on immigration forms.  If you apply for adjustment of status, citizenship or a visa at a U.S. consulate abroad, you will have to disclose your criminal record, even if the case was sealed by a Massachusetts state court judge. Failure to disclose a sealed criminal record in an immigration interview could be considered false testimony, which would give USCIS grounds for denying your immigration case.

An even more complicated problem is that USCIS generally will not approve your green card or citizenship application unless you provide court-certified copies of the final disposition for each criminal appearance. But if your case is sealed, no record will exist in the court's file. So it is generally impossible to obtain a certified disposition of your case once it has been sealed. The only solution to this dilemma would be to go back to Massachusetts state court and ask the judge to unseal your case simply so that you can get a copy of the disposition--not a fun task.

If you're considering sealing or expunging your criminal record, and you don't have U.S. citizenship, think through your options carefully and consult with a competent, effective. immigration lawyer. If you have more questions about how a criminal case could affect your immigration options, call my Boston office today at (617) 722-0005 and schedule a consultation. I'd be happy to offer you my advice.

When people visit me in my Boston immigration law office, I encourage anyone who is eligible to apply for the Department of State's Diversity Visa lottery.  Yesterday, the Department of State' announced the winners of the 2010 Diversity Visa lottery. Those who already applied for the DV Lottery can check online here to see whether they were lucky enough to be selected to receive one of the 50,000 visas granted each year.

But being selected does not mean that you will automatically get a green card and become a permanent resident.  What it does mean is that you will be eligible to go through a complex immigration process on the basis of being selected for the DV Lottery. 

To obtain your permanent residency based on the DV Lottery, you must meet the following two conditions:

1.  You must have either a high school diploma or the equivalent.  Alternatively, you can show that within 5 years of applying, you have at least 2 years of work experience in a job requiring at least 2 years' of training or experience.

2.  You must complete the green card or immigration visa process within the fiscal year.  If you are selected after filing for the most recent DV Lottery, the fiscal year runs from October 1, 2009 through September 30, 2010.  After that time period, under no circumstances will you be able to receive an immigrant visa, even if you were selected.

In addition, here are two important consideration for those pursuing a green card through the DV Lottery:

1.  If you've been selected for the Diversity Visa lottery, you may include your spouse and children on your green card or immigrant visa application.  This is true even if your marriage took place after you submitted your DV Lottery entry.

2.  Adjustment of status or consular processing?  If you have been selected to receive a DV Lottery visa and are outside the United States, you must apply for an immigrant visa through the Department of State and a U.S. Consulate abroad.  If you are in the U.S., you  you have 2 options: (1) apply for adjustment of status by filing Form I-485 with U.S. Citizenship and Immigration Services (USCIS), or (2) follow the consular processing steps and obtain your green card at a U.S. Consulate abroad. Choosing the best option invovles juggling many factors.  An effective immigration attorney can help advise you on the best strategy.

If you've been selected to receive DV Lottery and need legal advice to overcome the hurdles that still stand between you and your green card, please call me in my Boston immigration law office at (617) 722-0005.

Since I'm an immigration attorney, I'm often asked for my opinion on the immigration consequences of criminal convictions and activities. Yesterday, a criminal defense attorney in Boston asked me whether, in Massachusetts, a non-citizen youth who breaks the law and who is found delinquent by a juvenile court could end up being deported as a result of the juvenile delinquency finding.

The short answer is no. According to the Board of Immigration Appeals, a juvenile adjudication isn't considered a criminal conviction for immigration purposes. The logic behind this rule is that juvenile proceedings are not criminal. So a delinquency finding on a deportable offense will not cause a juvenile to be deported.

But beware: juvenile adjudications can trigger other adverse immigration consequences. They can be used to bar a finding of "good moral character", which is a requirement for naturalization and other forms of relief from deportation such as cancellation of removal. Also, as a discretionary matter, Immigration Judges can view juvenile activities as a negative factor when considering any application for relief from deportation.

And some immigration provisions don't require the existence of a conviction and can be based on an admission of guilt or merely a perceived "reason to believe" that the person has been involved in criminal activity. For instance, a person can be denied adjustment of status to permanent residency or entry into the United States based on an Immigration Judge's "reason to believe" that the person has been involved in drug trafficking or money laundering. The "reason to believe" could be based on non-criminal juvenile proceedings.

To summarize my advice, a youthful offender conviction or a juvenile delinquency finding is not considered a "conviction" for immigration purposes and, therefore, can't be the basis for deportation. But such adjudications should be avoided because they could affect a person's immigration status in other ways.

Two final points:

1. Massachusetts Youthful Offender Law: This statute permits children between the ages of 14 and 17 to be prosecuted as adults when charged with serious felony crimes. It is possible that at some point, immigration authorities could make a legal argument that youthful offender convictions should carry the same immigration consequences as adult convictions. But from my research, no federal cases, published Board of Immigration Appeals decisions or other legal authority support this position.

2. Juvenile dispositions must be disclosed:  Appearances in juvenile court, although not criminal, must be disclosed on immigration forms such as applications for adjustment of status to permanent residency (I-485), and applications for naturalization (N-400).

If you have further questions about the deportation, juvenile proceedings, or possible immigration consequences, feel free to call me at (617) 722-0005. Schedule an consultation with me in my Boston immigration offices. I'd be happy to help you.

In 2007, Immigration and Customs Enforcement--the agency, which handles immigration bonds and is in charge of deportation--moved its offices from the centrally-located JFK Federal Building in downtown Boston to a remote office park way out in the boonies of Burlington, Massachusetts.

In my years of experience as an immigration lawyer specializing in deportation cases, I've noticed that many of my clients don't have cars and rely on public transportation. My clients need to travel from Boston area to the Burlington, MA immigration office to post immigration bonds or to report in for orders of supervision or orders of recognizance. My immigration clients often ask me how to get to ICE's Burlington office from Boston using public transportation.

The answer is quite simple. Take the MBTA Red Line to Alewife Station. From there, take the 350 Bus to the Burlington Mall, which is located adjacent to the office of Immigration and Customs Enforcement. The schedule for the 350 Bus can be found here.

The address, once again, for ICE in Burlington is:

U.S. Immigration and Customs Enforcement (ICE)
Office of Detention and Removal Operations (DRO)
10 New England Executive Park
Burlington, Massachusetts 01803

I hope this information is helpful to you.  Should you need assistance with an immigration case, please call my office at (617) 722-0005 and schedule an immigration consultation to meet with me.

When I go to Immigration Court in Boston, my goal is to protect my clients from deportation. I work hard to explore all options, to come up with a winning strategy and to prepare my cases in a way that ensures success. Of course, I want my clients to come away with a green card.

But the sad reality is that for some people who must appear in Immigration Court, the facts of their particular cases render them ineligible for any relief from deportation. For such cases, there is simply no way under the current immigration laws to prevent deportation. And, when faced with limited options, many lawyers routinely ask the Immigration Judge for an order of voluntary departure.

Voluntary departure permits a person to leave the United States voluntary and it removes a bar to inadmissibility that would otherwise result from being deported, i.e., receiving an order of removal. The consequences of being deported are indeed severe. If you receive an order of removal, you would be inadmissible for 10 years. And this 10 year bar runs from the date that you are physically removed from the United States, not the date that the Immigration Judge ordered your removal.

Although voluntary departure may help you avoid deportation, the consequences of failing to comply with a voluntary departure order may be worse than deportation itself.  Consider that a person who is granted voluntary departure after 1996 but fails to voluntarily leave the United States may face:

• civil penalties including fines of $3,000; and
  
• a 10-year bar from important immigration options such as cancellation of removal, adjustment of status, and change of status;
  

Also, it is harder to file a motion to reopen or reconsider a voluntary departure order, although this issue has been the subject of extensive litigation and new regulations.

These stiff penalties for those who violate an order of voluntary departure do not apply to people who are given orders of removal or deportation.  And what's worse, once a person fails to voluntarily leave the U.S., the voluntary departure order then becomes an order of removal or deportation.  If such a person decides to leave the U.S. after failing to depart voluntarily as required, this later departure is considered "self-removal," which is the equivalent of deportation.

Sure, voluntary departure may sound better than deportation.  But if an Immigration Judge gives you an order of voluntary departure and you fail to depart, you may end up in a worse position than someone who simply receives an order of removal or deportation.  You should not consider voluntary departure unless you are truly prepared to leave the United States, preferably in consultation with an immigration lawyer and as part of a strategy to return to the US.  The decision becomes complicated because many people who are in deportation proceedings face additional grounds of inadmissibility for being unlawfully present in the U.S.

In short, voluntary departure is relief from deportation.  Yet given the harsh consequences, for most people, I consider voluntary departure to be a cure that is worse than the disease.

Need advice about voluntary departure in Boston Immigration Court or other immigration law issues?  Call me at (617) 722-0005 and set up an immigration consultation in my Boston law office.

I'm proud to announce that I've been re-appointed as a liaison to Boston's Immigration Court for the American Immigration Lawyers Association ("AILA") - New England Chapter. As a member of the Liaison Committee to the Executive Office of Immigration Review, I look forward to assisting my esteemed colleagues. 

In Boston, immigration lawyers and the Immigration Court have a tradition of warm relationship, for which we can thank the leadership of Court's Administrator Robert Halpin.  As a liaison, I'm happy to be able make a small contribution to this on-going comity.

The Immigration Court in Boston, Massachusetts will be closed August 3 - 7, 2009 while the Immigration Judges attend a conference. While the Court is closed, no hearings will be conducted, except emergency bonds, which will be heard telephonically by Immigration Judges who are not Boston Immigration Judges. The Immigration Court is in the process of rescheduling all hearings scheduled for that week.

Although the Immigration Court will be closed, I'll be hard at work. If you need the help of an immigration lawyer, call me at (617) 722-0005 and come see me in my Boston immigration law office.

If you are facing deportation or removal from the United States and have a hearing in Immigration Court in Boston or elsewhere, your fate is in the hands of an Immigration Judge who will weigh the evidence and reach a decision. Immigration lawyers refer to this process as the Court's or the Judge's discretion.

People often underestimate the power of an Immigration Judge's discretion.  So I'd like to give you three specific examples of how Immigration Judges have the discretion to decide deportation cases:

#1:  "Why did the Immigration Judge deny my case?  All of my criminal cases were dismissed!"  Imagine that you are married to a U.S. citizen and are applying for a green card.  You have a hearing before an Immigration Judge for your I-485 application to adjust your status to permanent residency.  You have been arrested several times but all of your criminal cases were dismissed.  Even though your criminal charges didn't result in a conviction, it would be a mistake to assume that the Immigration Judge will automatically approve your I-485 just because your criminal cases did not result in a conviction.  You are not necessarily entitled to a green card.  The Immigration Judge has discretion to approve or deny your green card application.  In making that decision, the Immigration Judge will want to know more about your criminal cases even if you were not convicted.  The Judge will weigh the evidence and reach a decision in their discretion.  And if you don't convince the Immigration Judge that you deserve to become a permanent resident, you are going to lose.

#2:  Immigration Bond.  If Immigration and Customs Enforcement ("ICE") arrests you and puts you in jail, you have a right to a bond hearing where you may ask an Immigration Judge to release you on an immigration bond.  The immigration regulations require the Immigration Judge to make three important discretionary decisions.  First, as a threshold matter, the Judge must decide whether you are a danger to the community.  Unless this decision is in your favor, you will not be released on bond. Second, if the Immigration Judge believes that you are not a danger to the community, the Immigration Judge will then decide whether you are likely to return to court if released.  And, third, if the Immigration Judge decides that you are not a danger to the community and that you are likely to return to Immigration Court for future hearings, the Judge will determine the cost of the bond.  The important point is that these three key decisions--dangerousness, flight-risk, and cost of bond--are all entirely within the Immigration Judge's discretion to determine as he or she sees fit.

#3 Asylum:  If you are applying for asylum in Immigration Court, you must convince an Immigration Judge that you have suffered past persecution or have a well-founded fear of returning to your home country. To prove your claim, you may testify and present evidence.  An Immigration Judge has the discretion to decide whether you are telling the truth and whether your case deserves to be approved or denied.

If you lose in Immigration Court because the Immigration Judge makes a discretionary decision that you dislike or disagree with, you do have the right to appeal to the Board of Immigration Appeals.  But no matter how much you disagree with the outcome of your case, it is extremely difficult to successfully challenge an Immigration Judge's discretionary decision.  Appealing the denial of your bond is particularly difficult because you will be in jail while the appeal is pending.  The likely result of your appeal could merely prolong your time in jail.

In short, winning or losing in Immigration Court usually boils down to an Immigration Judge's discretionary decision. And my job as a deportation defense attorney is to persuade the Immigration Judge to make a discretionary decision in your favor.

If you have questions about Boston Immigration Court, bonds, hearing, trial strategy or other issues; or if you need an attorney to represent you, please call me in my Boston office at (617) 722-0005 to schedule an immigration consultation.

A recent decision by the Board of Immigration Appeals changes the immigration process for Cubans seeking permanent residency in the United States. Pursuant to the Cuban Refugee Adjustment Act of 1966, Cuban nationals who appear at U.S. border posts seeking admission are generally paroled into the United States as "Cuban asylees." After entry into the U.S., Cubans can immediately apply for work permits. Then, one year after living in the U.S., Cuban nationals can file I-485 applications to adjust their status to obtain their green cards.

Although Cubans who are paroled into the U.S. have a clear path to permanent residency (getting a green card), they are placed into the deportation proceedings and, therefore, must appear before an Immigration Judge in Immigration Court.

Until recently, Immigration Judges had jurisdiction over adjustment of status applications (I-485 or green card applications) filed by Cubans, and Cubans would apply for their green cards through Immigration Court and before an Immigration Judge. The Court then could grant their green card and simultaneously take them out of removal proceedings.

But now, according to the Board of immigration Appeals in Matter of Martinez-Montalvo, 24 I&N Dec. 778 (BIA 2009), Immigration Judges have no jurisdiction over adjustment of status applications (I-485 or green card applications) filed by Cubans who have been paroled into the U.S. under the Cuban Refugee Act. Instead, to obtain green cards, Cuban parolees must file their I-485 with U.S. Citizenship and Immigration Services ("USCIS").

This Board of Immigration Appeals decision puts Cuban parolees in an odd situation: they must appear in Immigration Court, yet Immigration Court has no jurisdiction over the adjustment of status applications that they are eligible to file. If you are a Cuban national who is in removal proceedings, your most likely option is that your lawyer will ask the Immigration Judge to continue your case until USCIS adjudicates your I-485. The problem is that it could easily take two years for USCIS to make a decision on the I-485!

To me, this new scenario for Cuban asylees makes no sense. It clogs the docket and wastes the Immigration Court's limited resources. 

If you have questions about the deportation process, Cuban adjustment, other immigration issues, or if you are seeking an attorney to represent you in Boston Immigration Court, call my Boston office at (617) 722-0005 to set up an immigration consultation.