Department of State’s Changed Their Processing Procedures For K-3 Marriage Visas

Starting February 1, 2010, the Department of State (DOS) changed its procedures as to how it processes K-3 marriage visas in conjunction with I-130 immigrant petitions. Effectively, the DOS will no longer process K-3 marriage visas if the USCIS approves the K-3 visa application with the I-130 Immigrant Petition alien relative application at the same time. The National Visa Center (NVC), a private company that processes immigrant applications and transfer these applications to the U.S. consular offices abroad, will no longer process the K-3 visa if it receives application transfers from USCIS at the same time. Instead, NVC will process the immigrant visa and will contact the petitioner regarding the IR-1 or CR-1 immigrant visa.

K-3 nonimmigrant visas are marriage visas reserved for U.S. citizen to sponsor for their alien spouses. K-3 visas allow the foreign spouses to come to the U.S. to apply for adjustment of status rather than waiting for an immigrant visa to be processed abroad at the U.S. Consular Office. In most cases, a K-3 would allow the couple to reunite much sooner than if the spouse were to wait for an immigrant visa from the U.S. Consular offices. In processing an immigrant visa, the U.S. Consular officer must wait the FBI background check to clear prior to issuing the immigrant visa. Depending your country of origin and the commonality of your name, the background check usually takes months and sometimes even years.

The Houston immigration attorneys at Pham & Cloves, PLLC suspect that the administrative decision of the DOS will be challenged in federal court. The reason is that the administrative decision frustrates Congressional intent in enacting K-3 marriage visas under the Immigration and Nationality Act. Congress intended to allow alien spouses of U.S. citizens unite in the U.S. while waiting for their spouses’ adjustment of status application (green card application) to be approved by USCIS in the United States. If you or your family is being affected by the Department of State’s decision, please contact our U.S. immigration attorneys and our Houston immigration litigation lawyers at Pham & Cloves a call. We can help and will file suit in U.S. District Courts, if necessary, to protect your rights under the Immigration Nationality Act and reunite you with your family. Contact our Houston immigration litigation attorneys and our U.S. immigration lawyers today at 713-492-0337 or contact us online.

By The Houston Immigration Lawyers and the Houston Immigration Attorneys at

PHAM & CLOVES, PLLC

The Illegal Immigrant Reform And Immigrant Responsibility Act of 1996 (IIRIRA) stipulates crimes that are removable (deportable) for foreign nationals, including U.S. permanent residents. Among these crimes, those that are classified as “aggravated felonies” are most serious and will deprive the foreign national from many applications and waivers, including but not exclusive to Cancellation of Removal and I-601 extreme hardship waivers.

Under immigration law, “conviction” includes an admission of guilt, such as a “guilty” or “nolo contendre” plea. However, certain crimes that are convicted in Texas that are included in IIRIRA, INA §101(a)(43), are aggravated felonies only if a “term of imprisonment” of at least one year is imposed. For example, thefts, burglaries, and or assault offenses are considered a “crimes of violence;” and as such, an imposed imprisonment of at least 1 year or more would make these convictions aggravated felonies. In these instances, a deferred adjudication is considered as no sentencing of imprisonment.

Under the Texas Code of Criminal Procedure, probations include deferred adjudications. However, deferred adjudication is not a pronouncement of sentence; and therefore, is not a “conviction.” The “pronouncement of sentence” comes only after an adjudication of guilt. Additionally, the “term of imprisonment” is not part of the Texas deferred adjudication statues. Conclusively, while a deferred adjudication is a “conviction: under immigration and naturalization law, it is not a conviction for an “aggravated felony” if INA §101(a)(43) required an imposed sentence of 1 year or more. If so, the foreign national may still be eligible for many immigration benefits, such as cancellation of removal or an extreme hardship waiver.

For more information regarding cancellation of removal, waivers, or deportation, or immigration consequences of criminal convictions, please contact our Houston Immigration Attorneys and our Houston Immigration Lawyers at PHAM & CLOVES, PLLC at 713-492-0337.

I usually do not rant and rambling on and on, especially in a blog.  However, I am making an exception today.  It never cease to amaze me as to how our tax money is “well-spent” by our government.  The latest evidence of how wasteful our government spend our tax dollars is a decision by the Board of Immigration Appeals (BIA) on January 25, 2010, In Matter of Rose, 25 I&N Dec. 181 (BIA 2010).  The BIA reversed its own decision a year ago, and remand the case to the immigration judge to make the decision in accordance to their new interpretation of the INA.

Mrs. Rose received her conditional green card through her U.S. citizen husband’s sponsorship in 1995.  Soon thereafter, Mr. Rose died.  After 2 years of her conditional residency, Mrs. Rose timely filed a petition to remove the conditions of residence, Form I-751.   In 1999, the INS (currently U.S.C.I.S) denied her application, stating that (1) she failed to file the application “jointly,” and (2) she was not qualified for a waiver of filing a joint petition.  Mrs. Rose was put in removal proceeding; whereby, she applied again with the immigration judge and was also denied.  Mrs. Rose timely filed her appeal with the BIA.  The BIA, after consideration, denied her appeal in January of 2009 (10 years after her 1999 denial by INS).    Mrs. Rose, through her counsel, timely filed a Motion to Reconsider to the BIA.  After their second evaluation, the BIA finally reversed its previous holding, and remand Mrs. Rose’s case to the immigration court for review accordingly.

INA section 216(d)(1) states that,

IN GENERAL.-In order for the conditional basis established under subsection (a) for an alien spouse or an alien son or daughter to be removed-

(A) the alien spouse and the petitioning spouse (if not deceased) jointly must submit to the Attorney General, during the period described in subsection (d)(2), a petition which requests the removal of such conditional basis and which states, under penalty of perjury, the facts and information described in subsection (d)(1), and

(B) in accordance with subsection (d)(3), the alien spouse and the petitioning spouse (if not deceased) must appear for a personal interview before an officer or employee of the Service respecting the facts and information described in subsection (d)(1).

(Emphasis added)

The INS and the immigration judge interpreted the statutes to say that if there is no joint petition, then the applying spouse must qualify for an “extreme hardship” waiver under the INA.  It does not take a genus to figure that the statute requires a “joint” petition and “joint” interview only if the spouse is NOT deceased.  In case a sponsoring spouse is deceased, how does someone file a “joint” petition?   If Congress did not intend for the surviving spouse to be able to file on her own, they would have not inserted (if not deceased) into the statute.  It is simple as that.  However, it takes our government over 10 years, more likely than not, 100’s of researching and working hours, and thousands of tax dollars, as well as thousands of dollars for Mrs. Rose, to come to a seemingly reasonable, straight-forward decision.

If you or your loved ones needs to file an application and petition to remove your conditions on a conditional green card, contact our Houston green card lawyers and our Houston green card application attorneys.  Our no non-sense attorney will get to the point and properly file for I-751 Petition to remove the  conditions of residence.

On January 8, 2010, Associate Director Donald Neufeld of USCIS issued a memorandum regarding H-1B visas and employer-employee relationship, acts as a guide to field officer. The following is the Houston H-1B visa attorneys and the U.S. H-1B visas lawyers’ at Pham & Cloves, PLLC interpretation of the Memo. For more information, contact our U.S. H-1B attorneys and our Houston Texas H-1B lawyers for more information.

The Memo is intended to provide guidelines as to how officers should interpret employer/employee relationships where the employees work offsite at another location, such as through a third party client. The memo emphasize on whether the employer has “control” over the employee in those placements, or merely act as a contractor to fulfill a vacancy at a client’s site. If it is the later, the USCIS may determine that the employer lacks control over the employee; and therefore, there is a lack of an employer and employee relationship.

The Memo, however, had created unintended results. Over the past few weeks, immigration and border patrol agents have turned away many H-1B visa holders arriving to the U.S. The basis for the denial of entry is because the employer and the employee failed to established the employer/employee relationship as stated in the January 8, 2010 Memo. To avoid denial of entry, employers must work closely with H-1B visa lawyers that have experience in IT staffing and IT projects.

The Houston H-1B visa lawyers and the U.S. H-1B visa attorneys at Pham & Cloves, PLLC have had over 5 years experience in the staffing industry and IT project management. Our U.S. H-1B visas lawyers will assist employers how to prepare H-1B applications that would meet the employer/employee relationship, and prepare proper documentation for the consulate interview, as well as employee’s entry into the U.S. Contact the Houston H-1B attorneys and the U.S. H-1B lawyers at Pham & Cloves, PLLC for an evaluation and consultation regarding H1B visa applications and H-1B admission at the port of entry.

]]> http://blog.veritaslegalgroup.com/2010/01/26/us-h-1b-visa-immigration-attorneys-pham-cloves-pllc/feed/ http://blog.veritaslegalgroup.com/2010/01/21/houston-deportation-attorneys-and-removal-lawyers-pham-cloves-pllc/ http://blog.veritaslegalgroup.com/2010/01/21/houston-deportation-attorneys-and-removal-lawyers-pham-cloves-pllc/#comments Thu, 21 Jan 2010 18:11:20 +0000 spham http://blog.veritaslegalgroup.com/?p=294 U.S. Supreme Court’s Holding, Motion to Reopen May Be Reviewed by Federal Court of Appeals

On January 20, 2010, in a rare unanimous decision by the U.S. Supreme Court, the court held that a “motion to reopen” by the Attorney’s General, i.e. the immigration court and the Board of Immigration Appeals (BIA), may be reviewed by the federal court of appeals, the U.S. Circuit Courts of Appeals.  In Kucana v. Eric Holder, 558 U.S. (2010), the Supreme Court clarified languages of 8 U.S.C. Section 1252(a)(2)(B) of the Immigration & Naturaliztion Act (INA), as amended by the Illegal Immigrant Reform and Immigrant Responsibility Act (IIRIRA 1996).  the Court held that the discretionary power of the Attorney General stated in that section doe NOT include the Motion to Reopen, contradicting the Code pf Federal Regulations, 8 CFR Section 1003.2(a), and allow the U.S. Circuit Court of Appeals jurisdiction to review the BIA’s decisions in Motion to Open under the “Abuse of Discretion” standard.

Please contact the experienced Houston Immigration Lawyers and the Southwest Houston Immigration Attorneys at Pham & Cloves, PLLC if you are in deportation and removal proceedings.  There may be immigration solutions to your cases, such as applying for U.S. asylum applications, withholding of removal and Convention Against Torture, U.S. Immigration extreme hardship waivers (I-601 and Section 212-i), cancellation of removal, Texas Writ of Habeas Corpus to vacate your criminal convictions, and voluntary departure.  Our Houston Immigration Attorneys and our Southwest Houston Immigration Lawyers will work with you directly to assist in resolving your immigration concerns.  Contact our Houston Immigration Lawyers and Attorneys at 713-492-0337.

Over the past few years, foreign nationals find it more difficult to successfully obtain asylum application approvals.  Partially, this is because of the number of fraudulent or frivolous applications that were filed by unqualified applicants and by unscrupulous lawyers.  As in many other immigration applications, this is unfortunate and it hurts all applicants, including those with genuine need for the protection of U.S. asylum law.  Nevertheless, do not be discouraged if you truly feel that you are qualified or that you and your family have a genuine fear of persecution if you were to return to your home country. 

U.S. asylum law is vast and generous, even if you entered the country unlawfully and or by means of fraudulent documents.  Often times, asylee have to use fraudulent documents and passports to escape from the country in which they were persecuted.  For the same reasons, many times the applicants cannot obtain a passport from their home country and cannot obtain a valid visa.  As such, asylum applicants may still be able to file fraud waiver applications in conjunction with their asylum applications.

Applicants who are in the U.S. or at the port of entry may file asylum applications with the USCIS.  This is often referred as “Affirmative Asylum Application.”  At the port of entry, applicants would request applications for asylum.  Applicants would then be interviewed by Asylum Officers at the Port of Entry.  If the foreign nationals present sufficient evidence to show that they may have been persecuted or have credible fear of future persecution, the person will be “paroled” into the U.S. to prepare and file the affirmative asylum application with the USCIS.  If the applications were denied by the USCIS, applicants will be issued “Notice to Appear” (NTA) in immigration court for removal proceedings.  At this time, applicants have another opportunity to file the asylum application with the Executive Office of Immigration Review (EOIR), which would be the Immigration Judge at the removal hearing.  This is often called a Defensive Asylum Application, because the application is being used as a defense to removal from the U.S.  If the immigration court deny the asylum application, the applicant need to timely file an appeal with the U.S. Board of Immigration Appeals (BIA).

The Houston Texas Asylum Lawyers and the U.S. Asylum Attorneys at Veritas Legal Group, P.C. care about our client’s immigration cases and will work had to assist you to achieve your immigration goals. Personally, I especially care about our asylum application clients.  You see, I myself was a refugee and had benefitted from U.S. asylum law. My family and I escaped from Vietnam in 1983 and came to the U.S. in 1984 under refugee status (an application for asylum is exactly the same as a refugee application). I personally experienced the benefits of U.S.’ generous asylum law and would like to assist you in overcoming your immigration difficulties. Please contact our Texas Asylum Attorneys and our U.S. Asylum Lawyers for assistance immediately.  Our Houston Asylum Attorneys can be reached at 713-492-0337.

There are only a few ways to lose your homestead property in Texas. One of those ways is not to pay the contractor that completed the work on your house. The Texas Constitution allows an original contractor (general contractor) to fix a lien on your residential homestead property under certain conditions. By properly fixing a lien on your property, the contractor can seek the property to be sold at auction and recoup the unpaid balance from the proceeds of the sale. However, forcing the sale of a residence is not simple, but requires the contractor to complete several tasks prior to perfecting the lien.

Texas Property Code §53.254 sets forth the requirements for a lien to be fixed on a residential property. First, the residential construction contract must be signed by the relevant parties before the work or labor is furnished. Second, if the homeowner is married, the contract must be signed by both parties. Next, the contract must be filed in the county court records in the county in which the real property lies. This can be done along with filing of the lien affidavit that is necessary for perfecting the lien.

If the person filing the lien affidavit is a subcontractor, special notice must be given to the homeowner. See Tex. Prop. Code §53.254(g).

Subcontractors have different notice requirements than original contractors. In order to perfect a lien on a residential property, a subcontractor must give the homeowner notice of the unpaid balance on or before the 15^th day of the second month after completion of the job. The lien affidavit must be filed on or before the 15^th day of the third month following job completion. The notice by the subcontractor must have the specific language set out in Tex. Prop. Code §53.254(g).

As you can see, fixing a lien on a residential homestead property is complex and exacting. Unless the statute is complied with, a lien can be determined to be invalid and the party fixing the lien can be responsible for the homeowner’s attorney fees and costs to have the lien removed. If you have had a lien placed on your homestead or have been threatened with one, contact a Veritas Legal Group, PC Mechanic’s and Materialman’s Lien Attorney to discuss the facts surrounding your case. You may contact a Houston Mechanic’s lien lawyer by calling 713-492-0337. Or, just simply fill out our online contact form and Houston Materialman’s Lien Attorney will contact you within 24 hours to discuss your case.

Retirements Up For Grabs

A common issue in a divorce is how retirement benefits divided are. Since Texas is a community property state, some or all of a spouse’s retirement account is subject to a one-half community interest. That is, if the spouse with the account began contributing to the account after the marriage, then the entire account is subject to a one-half community interest. If the account was instituted prior to the marriage, then the account is subject to division as to the amount contributed during the marriage only.

Retirement accounts are divided by the agreement of the parties through negotiation or by order of the court. That is the first level of division. The second level of division is with the actual plan administrator through a court order.

If the retirement vehicle (type of account) is a qualified plan” under ERISA (Employee Retirement Income Security Act of 1974) and the Internal Revenue Code Section 401(a) it eligible for favorable tax treatment and the benefits are subject to division by a divorce decree through a Qualified Domestic Relations Order or QDRO (pronounced “quadro”). A QDRO is separate order signed by the divorce court ordering the asset’s division according to the terms of the final decree.  A QDRO can be signed by the court at the same time as the final decree is signed or even thereafter.

QDROs need to contain specific language in order to be enforceable and the plan administrator will need to approve any order submitted. This can take several weeks. Some plan administrators publish their own QDRO for use by family law attorneys. This speeds the process and can reduce the fee for the QDRO. There are companies that specialize in drafting QDROs and the price for this service is comparable to a family law attorney drafting it. Sometimes it is just a matter of choice.

The contents of QDROs are generally the same. They must contain plan identifiers, the action requested, the percentage or amount subject to division, contingencies (if Payee dies before distribution, if Participant dies, etc.). Certain retirement systems have special requirements and require special language in the QDRO. For example, if a participant is an employee of the railroad or a local or state governmental agency or if the particular plan is a private retirement plan with a defined contribution or undefined, there are special QDRO requirements.

If you are unsure if your retirement plan will require a QDRO, simply contact the administrator of the plan for that answer. If you are contemplating a divorce and you have retirement benefits and are unsure how they should be divided, contact a Qualified Domestic Relations Order Lawyer at Veritas Legal Group, PC by calling 713-492-0337 to schedule an appointment for a consultation. Or, simply fill out online contact form and a West Houston Family Law Attorney will contact you within 24 hours. Remember, dividing retirement accounts can be tricky and time consuming. A consultation with an attorney will help remove the mystique of dividing such an asset.

When, during the divorce process, the parties try to divide debt and assets there could be some confusion about just which party is entitled to which debt or asset. Oftentimes, these issues are resolves through negotiations between the Family Law Lawyers through lawyer-level negotiations, or through mediation. In the division of debts and assets, the assets and liabilities must be characterized prior to division to determine with which party the debt or asset will rest. A debt or asset can be characterized as either community or separate. If the debt is one incurred by both parties, then each stands to be liable for the debt. If the debt is separate, then the individual incurring the debt will be liable, except for certain circumstances where one spouse incurred debt for “necessities.” Necessities are things needed every day to survive like food, shelter, medicine, etc. Credit card companies can sue a spouse who did not incur the debt, but who benefited from the purchases by accepting “necessities.”

One way to characterize debt is to determine the time when the debt was incurred. If the debt was incurred prior to the marriage, then the debt is likely to be characterized as separate. Conversely, if the debt was incurred after the marriage, then it will likely be characterized as community. However, if on spouse incurs a debt that is not for necessities and is unknown to the other spouse, that debt will likely be characterized as separate.

Debt incurred by both parties, but awarded to one spouse, is still legally owed by both spouses. That is to say that, simply because your spouse is suppose to pay a certain debt per the divorce decree, the creditor can still attempt to collect the debt from both spouses. Creditors do not consider the property division in a decree when deciding from whom to collect the debt.

If you are considering a divorce, figuring out the character and scope of the marital debt and assets should be done prior to filing suit. Knowing the amount and character of your debt early on can help the process resolve quicker. A Houston Divorce Attorney at Veritas Legal Group, PC will be able to counsel you on just how to handle the division of your assets and liabilities. To contact a West Houston Family Law Attorney at Veritas Legal Group, PC, you may simply fill out the online contact form, or call 713-492-0337 to set a time for a consultation. Being well-informed early on in the divorce process can help you reach resolution quicker and with less expense.