Expunged Records and Immigration Cases

For most people with a minor criminal record that conviction becomes not only a personal embarrassment, but frequently also an employment problem. Having a criminal record can make finding and keeping a job much more difficult. Having a record that shows that you broke the law, were accused of breaking the law, or were convicted of breaking the law, may also derail your plans to travel as border agents are very interested in anyone with a record.

That is why most people want to eliminate their criminal activities from their official background, if they can. That usually means requesting that the information be expunged, or record be sealed.  Expungement means that the record is destroyed, and anyone looking up your name in the jurisdiction in which the record was generated should not be able to find any information regarding the expunged incident. Once an expungement petition is granted, in theory the court administrator where the record was originally generated should notify any other agencies to which the criminal record was sent, requesting that this information be removed from those databases as well.  But in reality, such requests may or may not be made by the original keeper of the records, and the other agencies that received the criminal record information may or may not update their files, so information about the conviction(s) may still show up in other databases.

As to immigration consequences, before seeking to expunge a criminal record you should know this:  USCIS and the federal immigration courts often require that you disclose whether you have ever been arrested or detained by a law enforcement officer, charged with a criminal offense, convicted, what the sentence was if convicted, and the sentence actually served.  Immigration agencies require this information regardless of whether the record has been expunged. And they demand certified records of these events, or a statement from the relevant agency stating that no record is available. This especially comes up in applications for citizenship benefits, and in deportation proceedings, where the respondent usually must prove “good moral character.”

Once the record has been expunged there is no way for the record-keeping agency to issue a certified copy of that record. If you request a written statement that the record is no longer available due to expungement, the record-keeping agency may refuse this request… and then you have a big problem. Immigration authorities have already received some sort of notice, whether through required self-disclosure or background checks, of you having a criminal record, however you cannot prove what actually happened. If you find yourself in that position, you may have no choice but to seek to have your criminal record reopened, and that is a tedious and unpleasant process, best avoided if possible. That is why you should at least delay having your criminal record expunged until after you have obtained certified copies of the arrest, conviction, and sentence, as well as the sentence actually served.

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Making Your Divorce Easier On the Children

 

baby-teddy-bear-cute-39369.jpegAs you find yourself getting consumed by your divorce, whether coping with anger, sadness, stress, or financial problems; keep your eyes open for signs that your children may be negatively affected by your divorce too.

Keep in mind that unless it’s very apparent to kids that their parents are better off without each other, most children do not want their parents to separate. As such, it is only natural that the children will be affected by your divorce. However, there are certain steps that you can take to make the process easier on them.

  1. Don’t get so caught up in your own grief, anger or stress that you end up neglecting your children.
  2. To the best of your ability, explain to your children the reasons why you and your spouse are separating. Consider gathering the whole family and telling them the news together. Note that younger children generally cope easier with the divorce as they frequently do not yet understand the upcoming changes and are easier to distract.
  3. Make sure that your children understand that the reason you are divorcing is not because they did anything wrong.
  4. Don’t have your child serve as a go-between and deliver messages from one parent to the other.
  5. Try not to argue in front of your children. The less negative communication the children see between their parents, the better. Kids are really sensitive to things like voice tone, and it’s very upsetting for them to see their mom and dad fighting.
  6. Stick to a routine, if possible. Keeping children’s schedules, school, and activities the same will help them adjust to your divorce easier.
  7. If possible, ensure similar rules at both households.Having the same bedtime and chores at mom and dad’s house makes the transition easier.
  8. Never use your child to punish your spouse. It’s hurtful to the children to restrict their access to the other parent. Children love both their parents and want to see them both.
  9. Don’t interrogate your child about what they did while spending time with the other parent.
  10. Don’t’ make your child feel guilty about wanting to spend time with the other parent, and most definitively don’t ask them to choose sides. Children love both their parents and it’s not fair to ask them to favor one parent over the other.
  11. Try not to put down your ex-spouse while the children are around.When you make negative comments about the other parent, it indirectly hurts the children too.
  12. Don’t make your child be your therapist. Do not burden your children with your problems and anxieties, as your children are hurting too and might be trying to handle their own fears.
  13. Keep ties with family and friends strong. The more the children can stay connected to their support group the better they will feel.
  14. Don’t forget to take care of yourself. Get enough rest. Try to eat healthy. Let friends and family be there for you in your time of need. You will not be able to effectively parent your children, if you get sick or are too exhausted to care for them.
  15. Let your children know that you are there for them no matter what. Kids are fairly resilient and if they know that they are loved and can count on you, they will eventually adjust to the changes.
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The End of DACA

President Trump has ended the Deferred Action for Childhood Arrivals known as DACA program, which granted work permits to undocumented immigrants who arrived in the country as children.

The White House plans to delay the enforcement of the president’s decision for six months giving Congress time to pass a replacement, possibly allowing “Dreamers” (DACA recipients) to adjust, or so some now hope.

Thus, effective September 5, 2017, Department of Homeland Security (DHS):

  • Will adjudicate—on an individual, case-by-case basis—properly filed pending DACA initial requests and associated applications for Employment Authorization Documents (EADs) that have been accepted as of September 5, 2017.
  • Will reject all DACA initial requests and associated applications for Employment Authorization Documents filed after September 5, 2017.
  • Will adjudicate—on an individual, case-by-case basis—properly filed pending DACA renewal requests and associated applications for Employment Authorization Documents from current beneficiaries that have been accepted as of September 5, 2017, and from current beneficiaries whose benefits will expire between September 5, 2017 and March 5, 2018 that have been accepted as of October 5, 2017.
  • Will reject all DACA renewal requests and associated applications for Employment Authorization Documents filed outside of the parameters specified above.
  • Will not terminate the grants of previously issued deferred action or revoke Employment Authorization Documents solely based on the directives in this memorandum for the remaining duration of their validity periods.
  • Will not approve any new Form I-131 applications for advance parole under standards associated with the DACA program, although it will generally honor the stated validity period for previously approved applications for advance parole. Notwithstanding the continued validity of advance parole approvals previously granted, U.S. Customs and Border Protection will—of course—retain the authority it has always had and exercised in determining the admissibility of any person presenting at the border and the eligibility of such persons for parole. Further, U.S. Citizenship and Immigration Services will—of course—retain the authority to revoke or terminate an advance parole document at any time.
  • Will administratively close all pending Form I-131 applications for advance parole filed under standards associated with the DACA program, and will refund all associated fees.
  • Will continue to exercise its discretionary authority to terminate or deny deferred action for any reason, at any time, with or without notice.

In summary, all existing EADs will remain valid until their expiration, DACA recipients can apply to renew up until October 5, 2017, DHS will not terminate the grants of previously issued deferred action or revoke EAD’s solely based on the new directive for the remaining duration of their validity periods.

DHS stated online that its data files “will not be proactively provided” to U.S. Immigration and Customs Enforcement (ICE) or to U.S. Customs and Border Protection. The two immigration enforcement agencies will remain able, however, as they are now, to access this data in criminal cases.

But DHS said that its policy of confidentiality “may be modified, superseded, or rescinded at any time without notice,” and that even the temporary promise of confidentiality “may not be relied upon to create any right or benefit, substantive or procedural, enforceable by law.”

No formal guarantee was offered that former DACA recipients are not eligible for deportation, and ICE officers in the field who encounter them will be making a case-by-case judgment as to whether to arrest that individual and process them for deportation.

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What to Do If You Receive the RFE (Request for Evidence)?

Supposedly about one in every ten immigration applications/petitions receive an RFE.  The first step to answering an RFE is to understand what USCIS is asking, was this information already provided, and if not – then why not, and who can provide that missing information. Sometimes it’s the applicant’s/petitioner’s fault.  Sometimes, USCIS is at fault.  Sometimes the RFE is the result of a computer/system glitch and makes no sense.

You should read the RFE carefully and determine what kind of evidence or document is requested. Some RFE’s are more complicated than the others; if you receive a complex RFE and do not think you understand what is needed or how to respond, you should at least consult with a competent immigration attorney to address the issues raised in the RFE. Note that only petitioner and/or attorney on the case receive RFEs for employment-based petitions.

In any case, the first step to effectively answering your RFE is to discover why it was issued in the first place.  Remain calm and focus on finding a solution.

What if it’s your fault?

This happens quite often.  Some applicants/petitioners will make a mistake, others will provide erroneous information, send in poorly or even fraudulently translated documents, or just fail to obtain or attach supporting documentation. If it’s a minor mistake, like failing to attach documentation, you now have an opportunity to correct this omission and you can send in the missing documents. Remember to do it within the specified time frame, and to put the RFE letter on top of the mailing.

What if it’s preparer’s fault?

Was the application/petition filed incorrectly?  Sometimes this happens.  If you retained a respectable lawyer, someone who stands behind her/his work product, your preparer should be able to find out what went wrong and what to do to fix it. Oftentimes, when the preparer is at fault, it’s for the same reason that you are at fault: inaccurate or incomplete documents were submitted.

What if USCIS is at fault?

Sometimes an RFE may be factually incorrect or issued in error. Your application/petition could be absolutely flawless, put together perfectly, and filed on time, and USCIS will still issue an RFE.  While these RFEs are frustrating, they are also easy to address because you already have all of the documents and information you need.

What if your application/petition is not approvable based on ineligibility or the evidence does not fully establish eligibility?

Sometimes, an RFE will expose an underlying ineligibility or you simply cannot gather in time all requested documents/proofs. In such a case you may want to consult with an attorney to see if another solution can be found to your problem.

An RFE cannot be ignored. Depending on the complexity of the RFE, you may be given 30 to 84 days to respond, whatever the USCIS officer indicates on the letter. It is crucial that you file the response by that deadline. Late response will not be accepted. If you ignore the RFE, USCIS will make a decision based on the previously submitted evidence, which generally will be unfavorable or insufficient, and the ending decision is likely to be a denial.

You should not see an RFE as being in danger of denial; rather look at it as a chance to strengthen your case.  When there is a particular piece or pieces of necessary evidence missing, or there are questions regarding the evidence submitted, you now have an option to send in additional documents that can bolster your petition/application so that eligibility determination can be made in your favor.

There is a big difference between an RFE and NOID (Notice of Intent to Deny). In an RFE, USCIS is simply seeking clarification on submitted evidence or requesting missing documents in order to make a decision; whereas in a NOID, initial evidence is predominantly present, but the immigration officer is not convinced the evidence establishes eligibility, and so your application/petition is at risk .

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Trump’s Executive Orders on Immigration – as of 1/26/2017

Yesterday President Trump signed two executive orders that are intended to follow through on his campaign promises to build a wall along the Mexican border and deport millions of so called “illegal immigrants.” These orders address a wide range of border and interior enforcement activities, including protecting the southern US border, increasing detention space, expanding enforcement priorities and expedited removal, engaging state and local law enforcement officers in immigration enforcement (and punishing localities that refuse to engage), and increasing the number of Border Patrol and ICE officers. Over the next few weeks and months, we expect the President’s cabinet and agency staff to begin implementing the directives in the orders as well as issuing additional orders.

Here are some of the main goals of these orders:

  • Building a large physical barrier on southern border
  • Providing DHS with the tools and resources needed to stop “illegal immigration”
  • Creating more detention centers along southern border, and making it “easier and       cheaper” to detain and return individuals
  • Ending of “Catch and Release” (Catch-and-release is applied to illegal immigrants who fear persecution from the country they left. In these cases, the immigrants are allowed to apply for a work permit.)
  • Prioritizing prosecution and deportation of “illegal immigrants” who have violated U.S. laws. This is supposedly number one priority – to remove people from the U.S. who were determined to intend to do harm or who have committed crimes.
  •  ICE will “unapologetically” enforce the law
  • Withholding visas from certain countries and using other means to make sure home   countries accept their people back
  • Suspending the refugee admissions for 120 days
  • Syrian refugee processing is suspended indefinitely
  • Visa interview waiver program is also suspended indefinitely, all visa applicants must attend an interview unless not required by statute
  • Federal grants to be stripped from sanctuary cities that harbor “illegal immigrants”

These two orders do not address DACA – but additional executive orders addressing immigration are expected soon. Allegedly some documents have leaked from the White House showing that Presidential advisers urge President Trump to rescind the DAPA program entirely (DAPA is currently subject to a federal court injunction), and to ceased the processing of new DACA applications, and allowing current recipients to retain their work permits until they expire.

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Child Support Termination in New Jersey – New Law Becomes Effective February 1, 2017

New Jersey’s new emancipation statute is taking effect on February 1, 2017 and it will impact when and how child support orders come to an end. The new law will apply to all child support orders issued prior to or after its effective date.

This law establishes 19 as the age when a child support and/or medical support obligation ends. The new law allows, however, for child and/or medical support to continue up to age 23 for cases in which the dependent is still in high school; attending full-time college, vocational or graduate school; is disabled; if the parties reached a separate agreement; or, if continued support was granted by the court.

By providing greater certainty as to when child support will end, the law is now more payor-friendly. The statute also alters the rebuttable presumption that child support terminates when a child turns 18.

Termination of Child Support

The new law provides that, unless otherwise indicated in a court order or judgment, the obligation to pay child support shall terminate without order on the date a child marries, dies or enters into military service. Child support shall also terminate automatically when a child reaches 19 years of age unless:

  • another age for such termination is specified in a court order, which shall not extend beyond the date the child reaches 23 years of age;
  • a written request seeking the continuation of child support is submitted to the court by a custodial parent prior to the child reaching the age of 19; or
  • the child receiving support is in an out of home placement through the Division of child Protection and Permanency in the Department of Children and Families.

In response to a notice of proposed termination of child support, a custodial parent, in the following circumstances, may submit a written request with supporting documentation and a projected future date when support will terminate seeking the continuation of child support beyond the date when the child reaches age 19:

  • the child is still enrolled in high school or other secondary program;
  • the child is a student in a post-secondary education program and is enrolled for the number of hours or courses the school considers to be full-time attendance during some part of each of any five calendar months of the year; or
  • the child has a physical or mental disability, as determined by a federal or state agency that existed prior to the child’s reaching the age of 19 and requires continued child support.

Note that all “Request for Continuation of Support” forms must contain a future date in which child support would end and that date must be before the child’s 23rd birthday. The proposed end date must be supported by any documentation provided. For example, if the request for continuation is based on the child remaining a high school student, the proposed future termination date should be the child’s expected high school graduation date.

The “Request for Continuation of Support” form and acceptable supporting documentation must be received no later than 45 days prior to the termination date. The due date will be specified in the notice. Any request form received past that due date may not be considered and the requesting party will have to file a petition with the court to request a continuation of support.

A custodial parent may also file a motion with the court seeking to extend the obligation to pay child support beyond the date the child reaches 19 years of age due to exceptional circumstances as approved by the court.

If a court orders the continuation of child support beyond the date when the child reaches age 19, the order also must also provide “the prospective date of child support termination.” If the payor parent disagrees with the court’s decision to continue child support, he or she may file an application seeking relief from the obligation.

If your Judgment of Divorce (JOD) or support order specifies a termination date other than the dependent’s 19th birthday, that date will stand and you will not be permitted to request an administrative continuation of support. However, you still may receive a termination notice and be asked to send in a copy of the JOD or order containing the termination date.

If you receive an updated order for continued support and wish to oppose it, you may file an application or motion with the court. If there are younger children on the order in addition to the 19-year-old (or older) child(ren), parents may file an application or motion with the court to adjust the child support amount.

Probation Notices of Child Support Termination

Matters involving child support obligations administered through the Probation Division will require that both parents receive written notices of a proposed termination of child support, each of which shall include information and the request form to facilitate the continuation of child support beyond the date when the child turns age 19. The first notice will be sent 180 days prior to the proposed termination date, and if there is no response to the first notice, a second Notice of Proposed Child Support Obligation Termination will be sent out 90 days before the dependent’s 19th birthday. If no continuation is granted after the second notice, the order of support will end as of the child’s 19th birthday. Both parties will receive an updated order reflecting this change

The second notice, however, shall not be required if a custodial parent’s request for continuation is pending or a new date of child support termination has been established.

If the child is already over the age of 23 or approaching his/her 23rd birthday or other court-ordered termination date, both parents will receive a “Notice of Child Support Obligation Termination” 90 days prior to the obligation termination date.

Any current case with a dependent between the ages of 19 and 23 will be sent “Notice of Proposed Child Support Obligation Termination” on February 1, 2017, with a termination date of August 1, 2017, not the child’s 19th birthday. If no response is received to the first notice and a termination date has not been modified by a court order, a “Second Notice of Proposed Child Support Obligation Termination” will be sent on May 1, 2017. If support is not continued, the child support obligation will terminate on August 1, 2017.

Any current case with a dependent age 23 or older will be sent a “Notice of Child Support Obligation Termination” on February 1, 2017. The termination date will be May 1, 2017, and not the child’s 19th birthday, regardless of the dependent’s actual age.

Age 23 as a limit

The new law provides that “the obligation to pay child support shall terminate by operation of law when a child reaches 23 years of age,” except that a child beyond age 23 can still seek an order requiring the payment of other forms of financial maintenance, or reimbursement from a parent, as authorized by law, so long as it is not payable or enforceable as child support.

All court-ordered obligations to pay or provide medical coverage will also end when the child support ends. However, custodial parents may file a motion or application to request that medical coverage be enforced until the child’s 23rd birthday. If not court ordered, either parent may voluntarily provide medical coverage for their child through their employer up until the age of 26 according to federal law and up until 31 under New Jersey law if certain conditions are met.

Unallocated Child Support for Two or More Children

The new law establishes that if there exists an unallocated child support order (one that does not specify the amount of support for each child) for two or more children, and the obligation to pay for one child terminates, the existing support obligation shall continue.  If you have an unallocated order with a remaining child(ren) after an obligation is terminated, you are still responsible for paying the total child support amount plus arrears, if any, unless a different amount is ordered by the court. If you have an allocated order with a remaining child(ren) after termination, your support order will be adjusted automatically to deduct the amount of the terminated obligation.

If, however, the support was allocated — rather than unallocated — and support for one child terminates, the amount of child support for the remaining child(ren) shall be adjusted to reflect only the amount allotted for the remaining child(ren). Parties can also always resolve the issue of child support amongst themselves, rather than wait to see how the court will adjust the remaining amount due, to avoid the time and expense associated with litigation.

Arrears Existing at Termination

If back child support is owed when the child support terminates, the non-custodial parent is still responsible for paying that off and the order will still be enforced for the arrears.

Even though the obligation for current support ends, the case will remain open until the arrears are paid off. The noncustodial parent is still responsible for paying the recurring child support amount that existed prior to termination PLUS the arrears payback amount unless a different amount is ordered by the court.

Example: The non-custodial parent pays $75 per week in current child support and $25 per week toward the arrears. After receiving the “Notice of Child Support Obligation Termination” for his only child, there are remaining unpaid arrears. He now owes $100 per week arrears payback until the arrears are satisfied, unless the court modifies that repayment amount.

Impact on Intergovernmental Cases

The new statute shall not apply to child support provisions contained in orders/judgments entered by a foreign jurisdiction and registered in New Jersey for modification or enforcement under the Uniform Interstate Family Support Act (UIFSA), or any succeeding law that is substantially similar. UIFSA provides that child support ends according to the law of the State in which the order was established and cannot be changed by another state. This new support law applies only to child support orders established by New Jersey.

Support While in College

The law explicitly provides that it does not require nor relieve a parent from paying “support or other costs while a child is enrolled full-time in a post-secondary education program.”

Important Other Points

Any party may still seek to terminate child support for any reason other than those provided in the new law. Importantly, the law also confirms that it does not “prohibit the parties from consenting to a specific termination date for child support that does not exceed the date a child reaches 23 years of age, or to any other financial arrangements for a child that are not designated as child support, subject to the approval of the court.”

If you are paying or receiving child support and you have a child between the ages of 19 and 23, make sure that the Child Support Program has your current mailing address on file so that termination notices are sent to the correct address.

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US Citizenship and Elderly

elderly.couple.snow

We regularly receive calls from the elderly green card holders or their adult children who want to know how someone can become a US citizen if he or she is unable to prepare for the English history test and/or is not fluent in English. Here are the two most common scenarios that we hear quite frequently.

Q:        My dad is eligible for US citizenship because he has had the green card for 5 years, and he does not have extensive travel or any criminal issues. But he does not speak or read English and he has hard time studying for the history test. Can he become a US citizen?

A:        USCIS has specific rules regarding applicant’s age and how long they have had the green card that can exempt them from having to take the US English History test and also exempt them from passing the interview portion of the N-400 as well as the reading and writing exam.

The age qualifications that exempt applicants from the English, reading and writing tests are as follows:

  • 65 years and has resided in US as a green card holder for 20 years or more.
  • 55 years old and has resided in the US as a green card holder for 15 years or more.
  • 50 years old and has resided in the US as a green card holder for 20 years or more.

Applicants that meet one of the above categories must only take the civics test in their language of choice.

However, here the applicant has had the green card for only 5 years and so the only solution is to see whether the applicant is eligible for a medical disability waiver. A medical disability waiver is completed by a US licensed general medical doctor, licensed clinical psychologist or other specific doctor on USCIS form N-648, Medical Certification for Disability Exemptions. The form must be completed a certain way and with specific wording and information in order for USCIS to approve the medical waiver. The doctor, in order to complete the medical disability form, must give the N-400 applicant, a test to determine whether he or she can learn or remember basic things. This test can include having to recite basic information just explained and may also include other basic cognitive exams.

Applicants with dementia or Alzheimer’s, for example, are eligible to file form N-648, Medical Disability Waiver, which states that because of their mental limits, they cannot study for the US history test. A major limitation for eligibility under form N-648 is that the resulting mental disability cannot be a result of drug use.

If the Form N-648 is approved by the US Immigration Officer, then the US citizenship applicant does not have to take any test in order to have their form N-400 approved and be sworn-in.

Q:        I am 65 years old and have been living in the US as a green card holder for over 20 years. My English is not so good. Do I still have to take the English test?

A:        No, but you will still need to take a modified version of the civics test in your language of choice. You do not have to take the reading or writing test. The N-400 interview, which includes reviewing the details of the N-400 and asking whether you have ever been arrested, if you file US taxes, etc. will be completed with the help of the interpreter.

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