IMMIGRATION GUIDE (10)
A number of V visa holders who failed to file an application for adjustment of status or an extension of stay before their authorized period of stay in the U.S. expired face removal (deportation). If the V visa holder files an application for adjustment of status or extension of stay after such period, the USCIS usually denies the application on the ground that the alien is in an unlawful status or has failed to maintain status. The alien also faces removal. In 2000, Congress enacted the Legal Immigration Family Equity Act (LIFE Act), to promote family reunification, particularly among the spouses and minor children of lawful permanent resident aliens, who in many cases had to wait as long as 5 years before an immigrant visa became available. The Act created a new V visa nonimmigrant classification. To be eligible, the alien must be the beneficiary of an immigrant visa petition that has been pending with the then Immigration and Naturalization Service for at least 3 years, or that it has been approved and 3 years have passed since the filing date. Eligible aliens could apply with the U.S. Embassy abroad and if granted a visa, they could enter and work in the U.S. and continue to reside here while they wait for the immigrant visa petition to be approved and their priority date to be reached. At that time they were required to file for adjustment of status to lawful permanent resident. When the V visa holder arrived in the U.S., the immigration officer would grant the alien a 2-year period of authorized stay. The alien could file an extension if the priority date had not been reached and no immigrant visa was available. Many V visa holders did not apply for adjustment of status before their authorized 2-year period of stay expired, nor did they apply for extension of their authorized stay. Some filed after their authorized period of stay expired. The USCIS has generally denied such applications. Such V visa holders now face deportation because immigration authorities consider them as out of status. SUIT FILED TO PREVENT DEPORTATION A number of such V visa holders who face deportation came to us. We drafted a petition for mandamus, declaratory relief and injunction against the Department of Homeland Security and its agency, the Citizenship and Immigration Services: It was filed by the Stanton Law Group (Atty. James A. Stanton) with the U.S. District Court in Honolulu. The petition seeks: (1) to compel the defendants to perform a duty to a V visa holder by adjudicating in accordance with law the alien's application for adjustment of status. (2) to declare that the defendants' decision refusing to grant the V visa holder's application for adjustment of status was arbitrary and violative of the alien's due process rights under the U.S. Constitution and not in accordance with law and regulations and to require the defendants to consider the alien as having remained in V visa status and to not have had any break in the alien's legal status arising from the improper and illegal limitation of the duration of the alien's V visa status. (3) to prevent the defendants from terminating the V visa status of the alien and from initiating removal (deportation) proceedings or taking any other adverse action against the alien. BASIS FOR SUIT The basis for the suit is that the LIFE Act does not provide a time limit for the admission of V visa holders to the U.S. to await their permanent residency petitioning process. Consequently the immigration officer at the airport acted without authority when he wrote on the arrival document of the alien (I-94) that the alien was admitted for 2 years. The suit contends that the appropriate period of admission should have been "Duration of Status." The suit also contends that if there is any immigration regulation providing a period of admission not to exceed two years, that regulation is not authorized by law and contrary to the intention of Congress and frustrates congressional policy in enacting the LIFE Act. NO ANSWER YET The DHS and the USCIS have not yet filed their answer to the case. We will keep you informed on the developments. CAUTION: V visa holders who have not adjusted status should consider checking their arrival document to determine the period of authorized stay. If you are still in status and a priority date for your immigrant visa has been reached, or if you are out of status, consult a competent and honest immigration attorney. (Atty. Tipon is from Laoag City. He holds a Master of Laws degree from Yale Law School and a Bachelor of Laws degree from U.P. He practices law and writes law books. Office: 905 Umi St., Suite 201, Honolulu, HI 96819. Tel. (808) 847-1601. E-mail: filamlaw@yahoo.com. Website: www.ImmigrationServicesUSA.com. This article is for general information only and is not intended as legal advice.) |