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Comment to USCIS regarding USCIS Form I-407 9-19-2013

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  • 1. Comment to USCIS Regarding USCIS-2013-0005, Record of Abandonment of Lawful Permanent Resident Status; Existing Collection in Use without an OMB Control Number: [OMB Control Number 1615-NEW; Form I-407]1 From Joseph P. Whalen September 19, 2013 USCIS Form I-407 previously did exist as an official form and had for many years under Legacy INS. In the wake of the creation of the Department of Homeland Security (DHS) and the three primary Immigration agencies therein, this form fell through the cracks. The State Department altered the old form and continued (perhaps still continues) to use it in its altered form. It is unclear what had been used by any of the DHS agencies: USCIS in perhaps adjustment proceedings; CBP (this form’s primary DHS user)—at POEs whether voluntarily such as when documenting the withdrawal of an application for admission, or as part of expedited removals; or even ICE on a rare occasion in removal proceedings. Although it was/is primarily used at the ports-of-entry (POEs) and abroad at Consulates and Embassies by both INS (then DHS) and Consular Officers to document abandonment of LPR status for a variety of reasons; there is another use that, while longstanding, is somewhat obscure and little known. The Form I-407 may be used in conjunction with the abandonment of conditional LPR status so as to allow for a “re-adjustment” (or “re- immigration”) in a different immigrant or nonimmigrant visa category. There are two types of conditional LPRs. The most widely known and most populous category is that of conditional family-based immigrants who obtained such status through a marriage which had been in existence for less than two-years upon attainment of that conditional immigrant status. This includes spouse and their children of both citizen and LPR petitioners. The other category is for the principal EB-5 immigrant investor or entrepreneur, and the spouse and unmarried minor child(ren) of same. 1 An unpublished Notice by the U.S. Citizenship and Immigration Services on 09/20/2013 found at: https://www.federalregister.gov/articles/2013/09/20/2013-22976/record-of-abandonment-of- lawful-permanent-resident-status-agency-information-collection- activities?utm_campaign=pi+subscription+mailing+list&utm_medium=email&utm_source=federalregister. gov
  • 2. The question of one’s ability to change from one “conditional status” to another immigrant classification by means other than through the filing of the appropriate “petition” for the lifting of said conditions (I-751 OR I-829) is not brand new but it has only been addressed sparingly over the decades. The issue has become more topical lately due to the increased visibility and use of the EB-5 category for immigrant investors or entrepreneurs. At issue for family-based immigrants was how to get around INA § 245(d); 8 USC § 1255(d); which states: (d) Alien admitted for permanent residence on conditional basis; fiancee or fiance of citizen The Attorney General may not adjust, under subsection (a) of this section, the status of an alien lawfully admitted to the United States for permanent residence on a conditional basis under section 1186a of this title [INA § 216]. The Attorney General may not adjust, under subsection (a) of this section, the status of a nonimmigrant alien described in section 1101(a)(15)(K) of this title except to that of an alien lawfully admitted to the United States on a conditional basis under section 1186a of this title as a result of the marriage of the nonimmigrant (or, in the case of a minor child, the parent) to the citizen who filed the petition to accord that alien's nonimmigrant status under section 1101(a)(15)(K) of this title. The EB-5 conditional resident is not quite similarly situated but has a similar hurdle. The entrepreneur is covered under INA§ 216A; 8 USC § 1186b. The EB-5 conditional resident has a statutorily defined path in the event that USCIS refuses to lift conditions or the alien fails to file for the lifting of conditions. That bifurcated path allows him or her to plead their case to an Immigration Judge (IJ). That is something that no IJ is likely to desire. Hence, the statute also allows for an IJ to stay the hearing to allow USCIS additional time to consider the case further (i.e. the filing of a new petition during removal proceedings); or in practical terms for USCIS to request the case back for additional consideration, or simply to delay issuing an NTA. See especially 8 USC § 1186b(d)(2)(C). Even if a new I-526 immigrant petition is granted; there needs to be documentation of the various classes of status in order to sort out what conditional time counts for what purposes (i.e. the filing a future I-829 and even an N-400 for naturalization purposes). When an official termination of status and issuance of an NTA can be avoided through proactive requests by the alien investor, and the granting of such requests, for simultaneous I-407 documentation of abandonment (rather than termination) and acceptance of form I-485 for adjustment of status, it
  • 3. should be made perfectly that that is what happened. This should aid future adjudicators in understanding the history of the processing of the case and the person’s status throughout. The following headings, subheadings and interim decision citations come from the: Index to Precedent Decisions Interim Decisions 2526 to 3494 CONDITIONAL PERMANENT RESIDENT: adjustment of status; #3150 STOCKWELL, 20 I&N Dec. 309 (BIA 1991) ID 3150 (PDF) (1) An alien holding conditional permanent resident status is prohibited by section 245(d)of the Immigration and Nationality Act, 8 U.S.C. § 1255(d) (1988),from adjusting his status under section 245(a). (2) Section 245(d) of the Act does not prohibit an alien whose conditional permanent resident status has been terminated from adjusting his status under section 245(a). Although Stockwell specifically addresses “termination” of, the same effect has been accorded to I-407 “abandonment “of status situations. Lemhammad, below, clearly dumps the issues discussed in this comment in the hands of USCIS. Yes, it spoke to the “regional service center director” but titles and specific assignments have changed along the way since then, we all get the gist of it. BURDEN OF PROOF: conditional permanent resident status, termination of; #3151 LEMHAMMAD, 20 I&N Dec. 316 (BIA 1991) ID 3151 (PDF) (1) In a deportation proceeding where the alien is charged with deportability pursuant to section241(a)(9)(B) of the Immigration and Nationality, 8 U.S.C. § 1251(a)(9)(B)(1988), as an alien whose status as a conditional permanent resident has been terminated under section 216(b) of the Act, 8 U.S.C. § 1186a(b)(1988), the burden is on the Immigration and Naturalization Service to show by a "preponderance of the evidence" that one of the conditions for termination of status described in section 216(b)(1)(A) of the Act has been met. (2) Original jurisdiction to rule on the merits of an Application for Waiver of Requirement to File Joint Petition for Removal of Conditions (Form I-752) rests only with the appropriate regional service center director, and not the immigration judge. In light of this discussion, the Form I-407, which should be assigned a real OMB Number, should also allow for the easy documentation of these various situations as described. Additional oddball scenarios might also exist and if so, they should also be included.