Prosecutorial Discretion, Deferred Action, K-1 Initial Evidence, Consular Administrative Delays, 12/21/00 Physical Presence Not Required for CSPA Derivatives, Timely Retraction of Misrepresentation, Self-Sponsorship Where Law Requires Substitute Financial Sponsor, Etc.

By Alan Lee, Esq.

The below were some of the topics covered at our recent staff meeting of November 1, 2011, which may be of some interest to the readers.  They include prosecutorial discretion, deferred action, K-1 processing, consul processing, and some interesting observations on the CSPA, timely retraction of a misrepresentation, and the possibility of self-financial sponsorship in situations where the law requires a substitute sponsor. 

1. In a recent exchange between Senator Dick Durbin (D.-IL) with Secretary Napolitano, he complained that it had been four months since the Morton memo was issued [on prosecutorial discretion and the factors that DHS would consider in exercising discretionary relief] and two months since she announced the process for implementing it [in the approximate 300,000 pending removal cases nationwide], but that the review of pending deportation cases had not yet begun.  Napolitano replied that DHS would be piloting a full review process within two to three weeks.

2. Deferred action is a term that you will hear much about since everyone is paying more attention to prosecutorial discretion. It is an administrative withholding of enforcement action against an individual and can be requested at any stage of the administrative process.  There is no form for it.  When in removal proceedings, a formal application for a stay of removal of Form I-246 is generally not required when requesting deferred action although some practitioners think it may be easier to obtain a stay of removal than deferred action, and some suggest filing a formal request for stay when seeking deferred action. 

3. Be reminded that a K-1 petition now requires evidence to demonstrate that the couple has met within the preceding two years such as passport stamps, dated photographs, airline tickets, etc. The Vermont Service Center says that a statement alone will not be acceptable proof of meeting. 

4. Department of State (DOS) liaison meeting with the American Immigration Lawyers Association (AILA), 10/18/11

-- Although petitioners are not requested to submit duplicate copies of documents for RFE's (requests for evidence), KCC (Kentucky Consular Center) encourages petitioners to send duplicate copies of all information submitted to U.S.C.I.S. to be uploaded in PIMS (petition information management system) made available to overseas posts. 

-- In answer to a question as to a lawyer's recourse for administrative processing delay that is taking more than 90 days, Visa Office (VO) states that there is no specific recourse available for cases pending more than 90 days.  VO notes that several posts have opted to include an on-line case tracker system and that before making inquiries about the status of administrative processing, applicants or their representatives should wait at least 60 days from the date of interview or submission of supplemental documents, whichever is later. 

-- AILA observed that on E visas, specific procedures for E visa company registration in the visa applications vary widely and an e-mail to the consular post is almost always required to obtain specific information regarding how to submit, what to submit, time frames for adjudication, whether an individual application must be submitted at the same time as the company registration or after registration, whether the DS-156E is available online, and procedures for registering or updating a company. 

-- B-1 in lieu of H-1 visa applications is a subject of discussion as to whether to eliminate this provision, but until a change is noted, it remains in effect. 

5. Phoenix U.S.C.I.S. District Office quarterly meeting minutes- 10/7/11

-- Confirms that a CSPA [Child Status Protection Act] derivative does not need physical presence on 12/21/00. 

-- Presents its thoughts on misrepresentation and timely retraction that the retraction must be voluntary and timely - so that the more the questioning drags on and the more that is said, it would be harder to retract.  Gives the example that if the officer asks if you have been arrested and you say no and the officer then shows you a rap sheet with arrest, your retraction at that point is probably not timely.  The retraction must be before the exposure of the false statement. 

-- Clarifies that for the new law concerning death of the petitioner, INA Section 204(l), even though a person is required have a substitute sponsor, a person who could file an I-864W [intending immigrant’s affidavit of support exemption] because he/she is exempt from the sponsorship requirement, does not need a substitute sponsor.  The best way to support an I-864W is to submit a copy of the social security statement. 

-- If someone files an I-751 [petition to remove the conditions of residence in a marriage case] and has to travel, he/she should use the I-751 receipt notice in conjunction with the expired green card and passport.  If a person does not receive the receipt notice and needs to travel, he/she should make an Infopass appointment and the ISO (Immigration Services Officer) will put a one year I-551 stamp (temporary proof of permanent residence) in the person's passport.



The author is a 30+ year practitioner of immigration law based in New York City holding an AV preeminent rating in the Martindale-Hubbell Law Directory and registered in the Bar Register of Preeminent Lawyers. He was also recently named to the New York Super Lawyers list. He was awarded the Sidney A. Levine prize for best legal writing at the Cleveland-Marshall College of Law in 1977 and has written extensively on immigration over the past years for Interpreter Releases, Immigration Daily, and the ethnic newspapers, World Journal, Sing Tao, Pakistan Calling, Muhasha and OCS. He has testified as an expert on immigration in civil court proceedings and was recognized by the Taiwan government in 1985 for his work protecting human rights. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004, and his victory in the Second Circuit Court of Appeals in a case of first impression nationwide, Firstland International v. INS, successfully challenged INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof. Its value as precedent, however, was short-lived as it was specifically targeted by the Bush Administration in the Intelligence Reform Act of 2004.

Copyright © 2003-2012 Alan Lee, Esq.
The information provided here is of a general nature and may not apply to any particular set of facts or circumstances. It should not be construed as legal advice and does not constitute an engagement of the Law Office of Alan Lee or establish an attorney-client relationship.