Thursday, June 19, 2014

Are You Prepared to File for Your DACA Renewal?

Are You Prepared to File for Your DACA Renewal? By Mitchell C. ZwaikThose who are currently living and working in the United States in DACA (Deferred Action for Childhood Arrivals) status should be aware that they may be required to renew that status well in advance of the expiration of their current status. The United States Citizenship and Immigration Services (USCIS) has announced it is preparing a new dual-use document (Form I-821D) that will replace both the existing initial application and renewal forms. Those who do wish to renew should remember that it is recommended they submit their applications 5 months before their current status expires.

For those who have not signed up for DACA yet, remember that you must meet each of the following criteria to be eligible:
  • You must have arrived in the U.S. before turning 16 years old. 
  • You must have continuously lived in the U.S. for at least 5 years immediately prior to June 15, 2012 and must have been present in the country on that date. 
  • You must currently be in school, have graduated from high school, obtained a general education (GED) certificate, or be an honorably discharged veteran. 
  • You must not have been convicted of a felony offense, significant misdemeanor offense, multiple misdemeanor offenses, or pose a threat to U.S. national security. 
  • You must have been under the age of 31 as of June 15, 2012.
DACA does not grant any actual legal status or give the privilege of permanent residency or citizenship, but those who qualify gain the ability to legally work and reside in the United States as long as their work cards remain active. They also do not have to fear being deported at any moment.

If you are currently a DACA recipient, check your work card’s expiration date and make sure you know when you must submit your renewal application. Allowing your status to lapse can have disastrous consequences for you, possibly including deportation. It is important that you consult with an experienced immigration attorney if you have any questions or concerns about how to file for renewal.

When does your work card expire?

Mitchell C. Zwaik
Long Island, NY
Brooklyn, NY
(631) 588-4040

Tuesday, June 3, 2014

What Can You Do If Your Visa Petition Is Literally Taking Years to Process?

Visa petitioners are not powerless over their languishing applications.

What Can You Do If Your Visa Petition Is Literally Taking Years to Process? By Mitchell C. ZwaikSome foreign nationals experience an unfortunate side of the U.S. immigration process when their visa petitions get held up for seemingly no reason, for months or even years. What can someone do in that situation?

He or she can sue the federal government to compel it to take action. These are the steps we take to remedy such a situation:

1. We determine whether the situation is far enough outside of the normal processing times as to warrant further investigation. There are general guidelines about how long it should take for immigration officials to review your application. If the normal “processing time” for your application is 6 months, and your application is still pending after 2 years, something is wrong.

Usually we will not take a case unless it has reached at least 1 year beyond the normally processing time.
2. Before taking legal action, we will first try to determine the reason the application is so far in excess of the normal processing times. This involves “due diligence” on our part, such as writing letters and sending emails to immigration officials and the State Department to try and pinpoint the problem. Sometimes we also contact members of Congress to see if they can assist us in getting answers.

Often, the reasons for delay can be resolved and the processing sped up, without resorting to a lawsuit. And in some cases, there are legitimate issues, such as marriage certificates that don’t match, fraudulent or lost documents, or criminal background red flags. Any of these can easily delay adjudication of a case.

3. If we are unable to find a reasonable explanation for the delay, a lawsuit against the Department of Homeland Security or U.S. State Department in federal court may be necessary. Such an action is known as a mandamus action, meaning that it is used to compel or mandate the government to take action; in this case, to process the application in question.  

There are a several key reasons why we excel in this situation as opposed to other immigration law firms:

  • Many firms are simply reluctant to sue the federal government. As our record clearly shows, we have no such reluctance.

  • Some people, including attorneys, seem to be under the impression that one cannot sue the State Department for improper delays in adjudicating cases abroad. This is incorrect. The State Department does have a good amount of leeway in terms of the amount of time it needs to process cases, as well as discretionary decisions it makes - but it still has a legal obligation to move forward and not unnecessarily delay the processing of applications. We just brought a case against a consulate that had been pending for over 6 years. Due to our mandamus action, the case was adjudicated within 6 weeks.

Some clients are initially concerned that if they sue the federal government, it will somehow result in retaliation by the government against them, and that their petitions which would otherwise have been approved, will instead be red-flagged for denial. Those who share this worry can put their fears to rest. In the past 5 years, we have brought over 130 cases in federal court to resolve these situations and not once has anything of this nature occurred. Please do not be afraid to come forward and contact us if you think your immigration petition appears to be taking longer than normal to go through the system.

How long have you been waiting for your case to be adjudicated?

Mitchell C. Zwaik
Long Island, NY
Brooklyn, NY
(631) 588-4040