Notes On Hot Topics In Immigration Law
by Alan Lee
Readers should be aware of two recent policy memoranda by U.S.C.I.S. giving enhanced rights to stay to non-traditional family members who would not normally benefit from their relationship to long-term non-immigrants, and to abused parents of U.S. citizens to petition for themselves.
On the former, the U.S.C.I.S. policy memorandum of 8/17/11, "Changes to B-2 Status and Extensions of B-2 Status for Cohabiting Partners and Other Non-Immigrant Household Members" etc., now allows U.S.C.I.S. to grant continued B-2 extensions and changes of status to a "household member" ("an alien who regularly resides in the same dwelling as the principal non-immigrant and with whom the principal non-immigrant maintains the type of relationship and care as one normally would expect between nuclear family members") of a principal non-immigrant. Under these circumstances, and assuming other eligibility requirements are met, "Favorable consideration should be given to the cohabiting partner or other household member of a principal non-immigrant visa holder when the cohabiting partner or household member is applying for a change to B-2 status for the duration of the principal non-immigrant's stay." This applies also to elderly parents and other household members where the principal non-immigrant is in another status like H-1B, F-1, etc. The memo contemplates applicants seeking extensions in six month increments from DHS for the duration of the principal alien's non-immigrant status. It also notes that DOS guidance directs consular officers to notate B-2 visas with the principal non-immigrant's visa type and duration, and to advise the B-2 visa holder to seek admission for one year at the point of entry if the B-2 visa holder plans to stay in the U.S. more than six months.
On the latter, the U.S.C.I.S. policy memorandum of 8/30/11, "Eligibility to Self Petition as a Battered or Abused Parent of a U.S. Citizen", etc., now allows the battered or abused parent of a U.S. citizen son or daughter who is at least 21 years of age to obtain permanent residence through the filing of Form I-360 [Petition for Amerasian, Widow(er), or Special Immigrant] without fee and even obtain an employment authorization document (with fee). Deferred action will continue to be part of the adjudication process. [Deferred action is a discretionary decision, made by DHS, not to prosecute or remove a non-citizen and can be requested at any stage of the administrative process]. The parent must show that the child is a U.S. citizen, that there is a proper parent-child relationship, the parent is of good moral character, and there is evidence of the abuse such as police reports, court records, medical records, reports from social service agencies, or orders of protection.
© 2011 Alan Lee, Esq.
Alan Lee 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 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.
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