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David H. Stoller

David Stoller’s Answers

186 total

  • Travel overseas with RTD

    Can I travel to Europe (but not to country from which I got asylum) with RTD? I plan to stay one month there. Can I still apply for GC one year after I granted asylum?

    David’s Answer

    Thanks for your inquiry. The answer is that you can travel anywhere that you would like to go. The refugee travel document does not specifically restrict you from travel. Someone who is granted refugee status or asylum status in the US has told the US government that she cannot return to the country from which asylum was granted because if she returns she will face harm. So it stands to reason that the moment that an individual is granted status in the US that protects that individual from having to return the target country that there will be no reason to return unless there is no longer a fear of harm.

    And that is the key to all of this. If an asylee or a refugee travels to the target country, it is something of a statement that there is no longer a fear of returning. So if a Customs and Border Protection (CBP) officer encounters an individual with such status having returned to the target country, issues regarding whether the protections which were previously accorded are no longer needed.

    Now concept of drawing concern to a CBP officer when an individual granted protection travels to the target country is not a problem that goes away once the individual become a resident. The only time this issue disappears is when the individual becomes a US citizen because at that point, the CBP officers rarely have reason to have any concern about traveling to the target country.

    I know that this response may be somewhat off the track of what most individuals asking the question expect. But having been asked this question with frequency, it always makes me wonder why the applicant who just successfully completed an application for asylum is so concerned about traveling right back to the target country as the first order of business after completion of their cases. Traveling to a country other than the target country is perfectly acceptable and not likely to create a problem.

    with that said, keep in mind that CBP officers are aware of the less than stellar border control in different countries and if a CBP officer sees that you have traveled to a country contiguous with the target country, questions could be asked about why you traveled there and whether you did travel to the target country. My recommendation would be that you do not travel by any means other than by using your passport and to present it at every border checkpoint that you encounter.

    Although rare, I have seen CBP attempt to terminate a grant of asylum where the client traveled back and forth with some frequency to the target country. And while it may sound very harsh that the US government would be so concerned about an individual traveling for reasons like a funeral or a close family member being ill, the reality is that this same individual earlier informed an immigration services officer or an Immigration Judge that any return to the target country would lead to a very bad problem.

    Another important consideration is that most CBP officers have little in the way of an understanding of the process of applying for asylum and the procedures that occur before an Immigration Court. So often times I find that dealing with CBP officers looking at the issue of travel back to that target country can be made more difficult by the fact that the CBP officer does not have a firm understanding of the ins and outs of US asylum law.

    My recommendation would be to speak with a licensed, competent and experienced US immigration attorney if you have any doubt about anything. Travel outside of the US should not affect your eligibility to apply for residency one year after having been granted asylum. But if there are any concerns it is far better to ask someone who knows that to assume that you know the answer and have to deal with adverse consequences later on. Good luck.

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  • How to request for a duplicate I-797 from USCIS? How long does it takes? And will USCIS send a duplicate I-797 of mywife as well

    I am on H1 B Visa and I need duplicate I-797 for me and my wife, who is on H4 Visa. We need to travel overseas shortly and I am concerned on the process to obtain it and the time frame. Can you please guide. Thanks a ton.

    David’s Answer

    Thanks for your inquiry. The document that you are requesting is obtained by filing an I-824. As to the issue of timing, that may depend on the US Consulate (USCON) through which are attempting to obtain the visa. So the question is a rather difficult one to answer without knowing the USCON that you are going to be visiting.

    If you are on an H-1B, you may want to discuss this with the company's attorney. And if you do not have a company's attorney who handles immigration matters you may want to discuss the matter with an experience immigration attorney in the matter. I would also recommend a review of the USCON's website for helpful information on how to proceed.

    While the I-824's are often processed rather quickly, there is always a wait for everything relating to any application filed with CIS. I would recommend that you read through the instructions on the I-824 to know where to file and the look for the processing reports from the USCIS Service Center which will handle your application and that should provide you with somewhat of an idea of how long you may be waiting.

    The best thing to do is to figure out the requirements of the USCON that you will be visiting and to obtain assistance if necessary on complying with those instructions. Like anything else, time frames are always approximations and we never know when things are not going to work out the way that we initially planned so always work the unknown into your planning. Good luck.

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  • I am a us citizen applied for my husband in 2011, he had an interview this Oct 2012.he is in admin proc. how long should it take

    I wasn't citizen I was green card holder, he had a interview in oct 2012 the consulate asked for some paper work that they never mentioned before .. We submitted the papers in same week how long should it take them to process this case and return ...

    David’s Answer

    Thanks for your inquiry. This is a tough one to answer. Sounds like the only question is how long you should wait for the US Consulate (USCON) to make a decision. That can really depend. Without being told what the nature of the issue was before the USCON it is rather difficult to provide an idea of how long it may take to get an answer back to you. If the additional paperwork which was requested was general in nature (i.e. an original certificate of birth, marriage, divorce, evidence relating to the affidavit of support (Form I-864)), then I would render a guess that it will not take all that long. But if the paperwork which was requested has something to do with a background issue (i.e. membership in a particular organization, military service, criminal history, medical issues), then perhaps it is something that might take longer.

    As with anything, you have to provide some time to the USCON to process whatever it is that has been requested. There is an internal process of making sure that mail which is received is routed to the right place and that the officer or the office with control over making the decision on your file is notified that the request which was made for additional information has been received.

    If there is some reason that the USCON believes that you may be potentially subject to a ground of inadmissibility which may have the tendency to make a difference with whether a visa may be issued that is another concern altogether.

    Either way I would probably give the USCON some time (for example here in Orlando we are not supposed to bother the officers until at least 60 days have passed following an interview). They need the time to get to your file. If there is an inquiry, never be too shy about asking. But keep in mind that the time that is required to get to your inquiry is time not spent working your file. So use an inquiry system sparingly and reasonably.

    Good luck.

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  • Second I-130 sent back to uscis for further review !!!!

    i had the interview ( CR-1 case spouse ) in 2010 in the consulate and the case was sent back from USCIS for further review and after some months my wife received Notice of Intent to revoke we sent them a lot of evidence with notice but uscis says ...

    David’s Answer

    Thanks for your inquiry. Sounds like a similar inquiry that I just answered. I will not do more than to suggest you find a qualified attorney who can handle this matter and resolve what you have thus far not been able to resolve. Good luck.

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  • Is there an I-601 will be required at next interview after our case gets reaffirmed.

    i had the interview ( CR-1 case spouse ) in 2010 in the consulate and the case was sent back from the consulate toUSCIS for further review and after some months my wife received Notice of Intent to revoke we sent them a lot of evidence with notice...

    David’s Answer

    Thanks for your inquiry. Sounds like your case is stuck in the middle of a rock and a hard place and I would highly recommend a consultation with an attorney to find a solution to this case.

    The answer to your question is that you would only be required to file a Form I-601 if you were somehow deemed "inadmissible" to the US for some reason. The revocation of the prior approved immigrant visa petition is not in and of itself going to raise a ground of inadmissibility unless of course the revocation was on account of a determination be the government that you attempted to engage in some type of fraud.

    Please understand that an I-601 WOULD NOT overcome a determination by USCIS that you entered the marriage to gain an immigration benefit. In this case the I-130 would simply be denied and then there would be no reason for an I-601 as the underlying immigrant visa petition would have been denied.

    More importantly, the issue is why the government still sticks with its thought that your marriage is not a bona fide marital relationship. Sounds to me like USCIS and the consulate are stuck somewhere between you not being able t establish that the marriage is a bona fide relationship and a determination that the marriage was entered for the sole purpose of evading the immigration laws. Truth is that you sound stuck in a circle which is never going to resolve itself.

    If the government has derogatory information which would go to the issue of whether you have entered this marriage for the wrong reasons it has an affirmative obligation to disclose this information to you. So if CIS approved the application and then the consulate returned the visa after an interview for reaffirmation, you should have been provided with a description of the evidence which was relief upon to send the notice of intent to revoke to you. And my guess is that you were never provided with much in the way of that crucial information.

    Often times I have seen reaffirmation cases get sent back to USCIS and sit there for months if not years. Then when someone at CIS finally gets around to doing something, they disclose that there was some problem at the consulate with believing the validity of the relationship and ask for additional evidence. But they hardly ever provide any detail to you which would explain the issue that arose at the consulate.

    My office has successfully handled these cases and more often than not we have been able to obtain the reaffirmation of the visa, have it returned to the consulate and then get our clients here to the US. But we have gone to federal court at time to make this happen and we are not concerned about reminding CIS of its obligation to provide you with the information which is required to respond to the notice of intent to revoke.

    If you continue to let the consulate and CIS play this game, the visa is never going to be issued. Something is wrong here and CIS is not providing the information that you need to figure out what the problem may be. Instead you are going back and forth and back and forth and that means your case is unlikely to move in the right direction.

    I think that a consultation with someone who can review your paperwork and provide an assessment of the case is in order. Leaving things to the whim of the consulate or USCIS to move things along will take forever and you have waited far to long already. This attorney is not in a position to promise that he can resolve what has thus far been difficult to do. But I have been down this pathway long enough to know that if you do not take a stand, the government will likely continue to jerk the case around. Good luck.

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  • Apply for a visa spouse while in the states as a tourist

    i am spanish ang i got married with an american citizen. i am going to spend two months on vacation in san diego and we have thought about starting all the process for getting the spouse visa while i am there. he is military and isliving in germa...

    David’s Answer

    Thanks for your inquiry. The answer is that yes, you can start the process here. However, I would highly recommend sitting with an experienced attorney to figure out whether choosing to start the process here is the best for you. Let me explain.

    In a situation like yours, you can apply for adjustment of status through Citizenship and Immigration Services in the US OR you can submit an application for an immigrant visa petition (Form I-130) in the US to get started on the processing of an application for an immigrant visa which will be processed through the US Consulate (USCON) on your home country. Because there are two options which are available to you, figuring out which one is best is a question that can best be determined through speaking with a qualified and experience attorney.

    In terms of comparing the two processes, the end result is the same, if approved you would receive an alien registration card (ARC) and be admitted to the US as a lawful permanent resident (LPR). Now average processing time of an application through the USCON is about 6-12 months. Average processing time in the US through a CIS Field Office is probably less than 6 months. Questions about whether travel is needed during the process and whether you will need to work during the process should guide how you decide to process the paperwork.

    On a forum like this we can certainly explain the different manners of obtaining the same goal, but making that decision on which way to proceed is a question which a lawyer cannot decide for you. It would appear that your spouse is on active duty and that his duty station is outside of the US. That too could influence the decision. Additionally, the military may offer services to assist you with the processing of the application.

    Another thing to keep in mind is that there are some special rules relating to the processing of applications where the petitioner is an active duty US citizen deployed abroad. There also could be some special rules regarding applying for naturalization if you are stationed with your spouse abroad while he is on active duty. I know, a lot of information to consider.

    My suggestion would be to contact an experienced and competent attorney who can assist you with the decisions that you may need to make. And think through everything to make sure that you and your spouse are making the decision which is right for the both of you. There are answers out there and there are attorneys who can help you with everything. Good luck and please thank your spouse for his service to the US.

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  • Do I need to renew my green card?

    I have a green card without an expiration date issued to me in 1980. I was less than 14 years old that time and now am 30. I pay my taxes annually and am verified by the EVerify system through my employer. Do I need to to renew my card? Thank you

    David’s Answer

    Thanks for your inquiry. The answer is that you should absolutely renew your alien registration card (ARC). While it is very true that your current ARC has no expiration date, these cards that were issued at the time that yours was issued did not have expiration dates. That changed in the early 1990's. Unfortunately, the federal government has done a horrible job about communicating that to foreign nationals who have the older versions of the cards and someone in your situation would be wise to file for a new card.

    Another suggestion would be to consider applying for naturalization. While there are circumstances where an application for naturalization is not the best idea because you would be required to choose between the US or the country from which you currently have citizenship, the US has long recognized dual nationality and many countries likewise recognize the same. If you are going to live here in the US and remain here, I would very much suggest that you consider applying for naturalization.

    In the meantime, a current version of the card is what is best for you. Here in Florida, I can tell you that presentation of an older version of the card may result in you not being issued a drivers license. Now this can certainly depend on the state in which you reside, but I mention this as an example of how circumstances can occur where you suddenly need to obtain something and cannot do it because you have an older version of the ARC.

    Truth is that even the expiration of your ARC does not create a situation where you would lose your status as a resident. Rather, the card is used as evidence of that status but not having the card (or having an expired card or older version of the card) does not mean that you lose the status that the card evidences. Completing the application is relatively easy to do and it can be done either online or through the old fashioned paper filing system.

    Although your inquiry does not mention any problems that you have had in the past, I would recommend that a consultation with an experienced attorney would serve to ease your mind and to provide you the pathway forward. Sounds like it is something relatively easy to resolve and in the right hands this should be somewhat simple to get done. Good luck.

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  • Husbands citizenship is delayed because someone wrote a letter to INS with lies about our marriage. Should we hire a lawyer?

    We believe the letter was written to INS approximately two years ago. All we know is someone blames us for bad events in his life, and wrote lies to INS about us. Just learned of it recently during citizenship interview.

    David’s Answer

    Thanks for your inquiry. The answer is that you should at a minimum consult with an attorney to determine whether the assistance of an attorney will help you. From experience, situations like yours typically lead to the run around from the government when it comes to providing you a determination on your pending applications. Let me explain.

    Truth is that anyone can contact the government and make allegations of wrongdoing. There is nothing that you can do about it and there is nothing that an attorney can do to stop it. At the end of the day, the government must take the information that it has before it and make a decision based on the evidence that it has attained as to whether the petitions and applications pending before the agency should be approved or denied.

    Anonymous calls received from folks who do not offer much more than an allegation of foul play add difficulty to any application. Keep in mind that it is not only your marriage which is at issue with regards to the petition which is pending, it can also be what others think about your marriage. So any joker can do just about anything to sand bag your application and you need to be prepared to respond to that information if it is brought out during the course of the adjudication of your petition.

    The burden in immigration proceedings is always on the applicant/petitioner to establish qualification for the benefit sought. And if there is some derogatory information which comes the government's way, it can consider that information in making its decision. This does not mean that perceived derogatory information will result in the outright denial of the application, but it may mean that you are provided with this information and required to respond to it. The government has an affirmative obligation to provide any such derogatory information to you and to provide you with an opportunity to respond to the same.

    The way that such information is released is generally though a Notice of Intent to Deny. The regulations applicable to such cases mandate that if the government has information before it which would suggest the possibility of a denial it must tell you of that and provide you with an opportunity to explain and rebut this information. Being represented by a competent attorney who is familiar with the law is very helpful in making sure that you have the tools at your disposal to make sure that you have every chance available to obtain a fair and just decision made on your application.

    Of course you want to be careful out there as there are a lot of attorneys who say a lot of things. Some states certify attorneys as specialists in areas like Immigration and Nationality Law. I am Board Certified by the Florida Bar in this area of the law and this means that I have concentrated on this area of law enough that I have taken a separate examination to establish my qualifications as a specialist and having passed those requirements I can call myself an expert in the area. Not every state has this or a similar designation but the attorneys who are out there and know what they are doing should be easy to find.

    Be careful with attorneys who handle ten different types of law with immigration matters being only one of them. Although there are many good and hard working general practitioners out there, it is rather difficult to keep up on the law and all of the changes in it if you are handling numerous types of cases. Of course if you ever have any doubt about whether the advice that you have received is the right guidance, you are always free to obtain a second opinion.

    I think that it would be wise for you to speak with someone in whom you have confidence to adequately represent you and your spouse. A good attorney can make the process that much easier to understand and to complete in a timely and successful manner. Good luck.

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  • I received my husbands approval notice on octuber 31,2012 here in the us, he is currently is in Guatemala.

    I want to know what is the next step. we have called the Guatemala embassy, and all they say is we will call you. apprx what is the waiting time before he can come home? what should we do? should he take the approval letter to the Guatemala embassy?

    David’s Answer

    Thanks for your inquiry. The answer to how long things will take will depend on whether your spouse's case is complicated by virtue of prior immigration status violations in the US. But for argument's sake let's start with an explanation of the "normal" processing of an application like this.

    You have submitted the Form I-130 to Citizenship and Immigration Services (CIS) and it has been approved. If the beneficiary of the I-130 is outside of the US, the National Visa Center (NVC) is forwarded notice of the approval of the immigrant petition. The NVC is a "go between" assisting CIS send approved petitions to the US Consular Office (USCON) outside of the US.

    If the beneficiary of the I-130 is outside of the US, this should be indicated on page two of the I-130. Assuming that this was properly designated on the application form, CIS will send the approval to the NVC and the NVC should in turn contact you here in the US. The NVC will assign a new case number to the file based on the Department of State's processing system and will send instructions to you on how the approved petition is processed.

    Generally, the NVC will request payment of filing fees for the Affidavit of Support (Form I-864) and the Immigrant Visa (DS-230). Once payment has been made, the NVC will request completion of the I-864 and the DS-230 and accompanying paperwork. The completed applications and the supporting documentation is sent to the NVC and the NVC will review it for completion. If the NVC is happy, it will generally schedule an interview and provide notice of that to you. If the NVC believes that additional work needs to be done, it will inform you of what needs to happen before the case can be sent down to the USCON.

    Once the USCON receives the case it will do its part and will send instructions to the beneficiary on how to obtain police clearance letters and how to complete the medical examination both of which are requirements of the USCON's processing of the approved petition. The visa beneficiary will be scheduled for an interview and at that point will speak with a US Consular Officer about the case. Now here is where things can get complex if there are immigration status violations which occurred in the past (or if there are other issues which can effect the visa beneficiary's eligibility for the issuance of a visa).

    If there are problems with qualifying for a visa the process of handling these issues is currently going through a transition to a more centralized system. In the old days the visa beneficiary would appear for the interview at the USCON and would be told that he was ineligible for the visa. If the applicant was eligible for "waivers" which would permit the visa beneficiary to come to the US despite their issues, those applications could be provided to the USCON officer and the USCON would in turn forward those applications to the foreign CIS office with jurisdiction over the USCON.

    Now the process is moving to one where the applications for the waivers are made in the US with the idea that centralization of the application process will decrease waiting times and make more uniform the consideration of the applications. Either way, the visa beneficiary cannot come to the US until and unless the waiver applications are approved. Remember that the reason for the waiver application is that the applicant is ineligible for issuance of a visa. With no waiver being granted no visa is issued.

    What I would recommend is that you consult with an attorney who can explain the process and make sure that you are on the right path. Again there is not enough information to precisely respond to your inquiry and it is indeed very important that you and your spouse both understand how the case will be processed. So find someone who can help you and who can answer your concerns about the processing of your husband's case. Good luck.

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