Archive for September, 2009
Friday, September 25th, 2009
The United States Citizenship and Immigration Service (“USCIS”) has advised special immigrant religious workers under the Ruiz-Diaz class action lawsuit to file their adjustment applications before the end of August 2009.
As background, USCIS current regulations prohibit the simultaneous filing of both a special immigrant religious worker immigrant visa petition and the foreign national religious worker’s adjustment of status application. Instead, the special immigrant religious worker visa petition must be filed first, and once approved, the foreign national religious worker may file to adjust status in the United States.
In the Ruiz-Diaz class action litigation, the District Court for the Western District of Washington entered an order on June 11, 2009, finding that the prohibition on concurrent filings was invalid and unenforceable as applied to religious workers. The Court ordered the USCIS to accept properly filed simultaneous filings of both the special immigrant religious worker petition and the foreign national’s application to adjust status. It further ordered USCIS to provide notice to each person or entity who has a pending religious worker immigrant visa petition. The Order permits foreign national religious workers who are either ministers or non-ministers to file for adjustment of status based on a pending or approved special immigrant religious worker petition, or to simultaneously file both a petition and an adjustment application concurrently.
Unfortunately, visa numbers for religious workers become unavailable in September 2009. Those religious workers who do not file before the August 2009 cut-off date must wait until visa numbers become available again on or after October 1, 2009.
To learn more about Rabinowitz & Rabinowitz, P.C., call 1.972.233.6200 or visit http://www.rabinowitzrabinowitz.com.
Tags: Dallas immigration, Dallas Immigration attorney, Dallas Immigration lawyer
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Sunday, September 20th, 2009
Texas Civil Rights Projects filed suit against the state’s Department of Public Safety over restrictive requirements to obtain valid driver’s licenses. Among the plaintiffs in the case was Juana Venada, a Mexican national and single mother of three children, who was victimized under punitive Texan rules when she attempted to obtain a driver’s license.
Juana Venada is a Mexican national residing legally in the United States with her three children, the eldest aged ten. The sole caretaker of her children, she lives in Austin, Texas.
In April and May 2009, the Department of Public Safety (DPS) twice refused Ms. Venada’s application for a driver’s license. DPS first denied her application on the basis that her USCIS Employment Authorization Document and social security number were insufficient to establish her legal presence in the United States, and then denied her on the basis that her documents may have been falsified. Without a valid driver’s license, she has been forced to drive illegally to maintain employment and support her family.
She had been married to a U.S. citizen who subjected her to years of physical and emotional abuse. In February 2009, she filed for U.S. immigrant benefits herself, under the federal Violence Against Women Act, which was approved; thus, granting her legal status in the United States while she awaits the opportunity to become a legal permanent resident.
As the spouse of an American citizen, Ms. Venada was eligible to become a legal permanent resident. But her vindictive spouse used his legal status as a domination tool; having the sole power to submit a petition for her, he refused. He further threatened to have Ms. Venada deported and separated from her children, and in September 2006, he followed through on that threat, leading to Ms. Venada’s arrest, incarceration, and near-deportation.
Following two additional years of emotional turmoil and difficulties engendered by her abuser’s actions, she followed the advice of her attorney, and applied for a valid Texas driver’s license – only to be denied due to restrictive rules established by the Department of Public Safety.
The rules involved for granting licenses to foreign nationals who are in Texas on a temporary, legal basis are stamped on a special vertical small document and assigned a “temporary visitor” classification that appear to be discriminatory without bolstering the document’s validity or protecting against fraud – ostensibly the reasons for the special treatment being meted out.
Ms. Venada, both in the United States legally and authorized to work by USCIS, now faces a new challenge to continue to support her family: getting a state-issued driver’s license. The pending litigation against the Texas Department of Public Safety will one day provide Ms. Venada her day in court, and it is hoped, relief from the state’s restrictive driver’s license rules.
Stewart Rabinowitz is President of Rabinowitz & Rabinowitz, P.C. Mr. Rabinowitz is Board Certified in Immigration and Nationality Law by the Texas Board of Legal Specialization. To contact a Dallas immigration lawyer or Dallas immigration attorney visit Rabinowitzrabinowitz.com
Tags: Dallas immigration, Dallas Immigration attorney, Dallas Immigration lawyer
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In an effort to fashion a remedy for certain widowed foreign national spouses who were not married to U.S. citizens for 2 years at the time that the U.S. citizen died, U.S. Attorney General Janet Napolitano announced a new policy to assist such persons to remain in the United States, despite the loss of their citizen partner.
As background, currently if a foreign national marries a United States citizen and the citizen partner dies, the widowed foreign national spouse can still remain eligible to gain permanent resident status, provided he or she was the spouse of a United States citizen for at least 2 years at the time of the citizen’s death, and was not legally separated from the citizen at the time the citizen spouse died. Such a person must file with USCIS within 2 years after the citizen spouse’s death to remain eligible to gain an immigration benefit from the marriage, provided the widowed foreign national spouse has not re-married. For a widowed foreign national spouse whose marriage was not yet two years old at the time of the citizen spouse’s death, USCIS takes the position that a petition based on that marriage and a corresponding adjustment application must be denied. This circumstance as been labeled the “widow penalty.”
To alleviate the dual impact of the death of the U.S. citizen spouse, and imminent loss of legal status in the U.S. for this group of widowed foreign national spouses, the new policy permits a widowed foreign national spouse to file for “deferred action status.” Deferred Action status is a form of prosecutorial discretion whereby the Department of Homeland Security agrees not to remove the widowed foreign national spouse for a 2 year period, and permits the widowed foreign national spouse and unmarried children under 21 and currently residing in the United States to also remain here. Foreign national spouses granted deferred action status can also apply for employment authorization and travel permission.
To benefit from deferred action status, the widowed foreign national spouse must have been married to but not legally separated or divorced from the U.S. citizen spouse, must not have not subsequently married anyone else, and must be currently living in the U.S.
The widow penalty issue has been the subject of ongoing litigation and several U.S. Courts of Appeal have interpreted the underling federal statute far differently than USCIS. For a widowed foreign national spouse residing in the 1st or 6th or 9th Circuits, under the law of those circuits, such a person remains eligible to gain permanent residence based on marriage to the deceased U.S. citizen, despite the death of the citizen spouse within 2 years of marriage.
Deferred action status is an interim, administrative remedy. Only a legislative change can provide long term relief for this group of widowed foreign national spouses.
*Stewart Rabinowitz is President of Rabinowitz & Rabinowitz, P.C., a Dallas based immigration law Firm (http://www.rabinowitzrabinowitz.com). He is Board Certified in Immigration and Nationality Law by the Texas Board of Legal Specialization.
