TPS For Nepal - Gasparian Spivey Immigration

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TPS For NepalKathleen GasparianGasparian ImmigrationKathleen@gasparianimmigration.com504 262 9878

WARNING WARNING WARNINGThe information contained in thispresentation is intended to educatemembers of the public generally and is notintended to provide solutions to individualproblems. Readers are cautioned not toattempt to solve individual problems on thebasis of information contained herein andare strongly advised to seek competentlegal counsel.

What is Temporary Protected Status?A safe haven for nationals of a country that has beendesignated by DHS as unsafe for returnCountry can be designated because ofArmed conflictEnvironmental disasterExtraordinary and Temporary Conditions that prevent a safereturnIndividuals granted TPS – can obtain work authorization,are not removable from the US, may be granted travelauthorization, and cannot be detained solely on thebasis of immigration status.It is not permanent residence or citizenship and by itselfdoes not lead to permanent residence or citizenship.

TPS for NepalDesignated on June 24, 2015Must have physical presence andcontinuous residence from June 24, 2015Registration period open from June 24, 2015through December 21 2015Initial period is until December 24, 2016

Eligibility for TPSNational of designated countryContinuous physical presence in UnitedStates since the date of most recentdesignationContinuous residence in United States sincedesignated dateAdmissible and not ineligibleRegisters during registration period

Eligibility for TPS - NationalMust be a national of the designated countryor if stateless, last habitually resided inthat countryEvidenced by passport, birth certificate,national identity documents, affidavitsNational is broader than citizen. A nationalis one who owes permanent allegiance toa state.

Eligibility for TPSPhysical Presence & Continuous ResidencePhysical presence physical body in the USResidence intent to be in USBrief, casual, and innocent absences will notbreak physical presence or continualresidenceA departure from the U.S.:Of short durationReasonably calculated to accomplish purposefor absenceNot because of removal/deportation order,

Eligibility for TPS – AdmissibilityAdmissible to the US butPublic charge is waivedLabor certification is waivedValid entry is waivedCan be EWI or OOS

Ineligibility for TPSIs described in INA § 208(b)(2)(A) (ineligible for asylum)Convicted of any felony or two or more misdemeanorsHas very limited definitions of felony/ misdemeanor at 8 CFR 244.1, specific toTPSFelony - a crime committed in U.S. punishable by imprisonment of more than one year,irrespective of actual confinement. A felony does not include an offense defined by thestate as a misdemeanor where the sentence actually imposed is one year or less.Misdemeanor - any crime punishable by one year or less, irrespective of actual timeserved. However, any crime punishable by a maximum of five days or less shallnot be considered a misdemeanor.

Eligibility for TPS - RegistrationInitial registration period is usually 6- 18monthsMUST register during the initial period toqualify and to re-register later onLate initial registration permitted in some limitedcircumstancesMust then re-register every timeMay late re-register for “good cause”

Some common questionsCan I be out of status and apply for TPS?YesWhat if I have a criminal history?Get together all of the charges, judgments,sentences and see a good immigrationattorney.Do I need a lawyer?Most people don’t. Some people like to haveone. Criminal history – YES. In removalproceedings – YES. Order of deportation or

Common Questions ContinuedHow long will it last?As long as congress determines that there arestill problems in your country.What happens when TPS for my country runs out?Return to previous statusIs only meant to be temporary – should continue to pursue routes topermanent residence

Common Questions ContinuedCan I lose TPS?Yes.Travel without authorizationCriminal activityEven “traffic violations” like reckless driving can beconsidered a misdemeanor.No matter how small, talk to a criminal lawyer ANDan immigration lawyerMake sure they know what status you have, your plans forinternational travel, and plans for becoming a permanentresident.

Common Questions ContinuedIf I don’t register now, can I do it later?If an individual misses the initial registration –but otherwise qualifies for TPS – may be ableto late register within 60 days after anyregistration ends:Spouse or parent is eligible for TPS and the relationship existed at the time of the initialregistration periodHeld Non-Immigrant status (like F-1) or Voluntary Departure or some other authorizedreliefHad a pending asylum, change of status, adjustment, or other application pendingWas a parolee at some time during the initial registration period

TPS and Removal ProceedingsA person with TPS shall not be removed while status is in effect.DHS should agree to admin close any active proceedings – Will agree only afterpleadings taken/ removability establishedIf in active removal, alien shall be notified of availability of TPSTPS affects calculation of time for Non-LPR CancellationDoes not cause a break in continuous presence, but time in TPS does not count aspresence unless extreme hardship existsAn applicant whose TPS application has been denied, or whose TPS statushas been withdrawn, has a right to a de novo review in proceedings. Thedecision of the judge may be appealed to the Board of Immigration AppealsMatter of Barrientos, 24 I&N Dec. 100 (BIA 2007); Matter of Lopez-Aldana, 25I& N Dec 49 (BIA 2009).

TPS and Unlawful PresenceIndividuals who have been grantedtemporary protected status (TPS) are alsoconsidered to be in a period of stayauthorized by the attorney general. Thisperiod begins on the date a prima facieTPS application is filed, if the application isultimately approved. If the application isdenied or does not establish prima facieeligibility, unlawful presence beginsaccruing from the date the individual’s

TPS and concurrent NIV statusstatute explicitly provides that a nonimmigrant alien is not required torelinquish status to obtain TPS and thatTPS is not inconsistent with the granting ofnon-immigrant statusgood idea for anyone who qualifies toregister for TPS as a back-up oralternative plan and maintain nonimmigrant status as long as possible aswell.Travel? Requirement for advanced parole

TPS and travelMay travel with permission; must apply forand receive advanced parole beforetravelingTravel and unlawful presence is complicatedand beyond the scope of this presentation.If you have had time out of status or timein the US without authorization, talk to animmigration attorney before leaving theUS.

TPS & change of statusMay adjust or change status and is considered in non-immigrant status forthose purposesCan apply for asylum, but the mere designation of country is not proof ofeligibility.Aliens granted TPS prior to the expiration of their authorized stay, are notsubject to INA §222(g) if they remain in TPS status throughout their stay inthe United States. If the TPS grant is made after the alien’s authorized stayhas expired, or if the alien stays in the United States after the TPS statushas expired, then §222(g) would apply.

Some AdviceDon’t get arrested. Don’t be in situations that could leadto an arrest or trouble.If you do get arrested/cited/ charged, talk to animmigration attorney and a criminal attorney rightaway.Be careful about taking immigration and criminal advicefrom friends.Be diligent with your documents and expiration dates.Register every time (unless you become a permanentresident). Do not miss a registration period.Keep your address current with USCIS at all

TPS – Basic ProcedureI-821 Application for TPS with I-765Application for Employment AuthorizationMust file I-765 even if you do not want EADFee or Fee waiverProof of identity, nationality, and presenceAlways file by “trackable” meansCommon reasons for rejectionsWrong fees/ check misspelledMissing infoWrong formsForms not signed

Where to fileMust file in hard copy- Make sure to keep acopy and send by trackable meansMailUSCISP.O. Box 7555Chicago, IL 60680A non-U.S. Postal Service courierAttn: Nepal TPS131 S. Dearborn 3rd FloorChicago, IL 60603

Preparing theI-821- Select the type ofapplication in part one- Information about you inpart two- Look at your passport, visa,other immigrationdocuments and make surename is consistent- If you only have one name,CIS will use FNU as yourfirst name.- If you have had a legalname change throughmarriage or some otherway, you will need toinclude evidence of thatwith the filing.- The mailing address needsto be a secure address. Be

I-821continued- Do not leave questionsblank. Fill in None or N/A- Check your documents forother names used andplaces and dates- Place of entry should be athree letter code on yourentry stamp- Electronic I-94 can beretrieved on

I-821continuedYou must list your spouse andall children.If you are separated, but notdivorced – you have a spouseand need to list that person.You need to list all children –born here, born back home,born in wedlock or out, legallyadopted by you, or your childvia marriage.

I-821 continuedRead carefullyIf the answer is yes, youshould talk to a lawyer.

I-821 continuedA yes answer to one of these questions does not alwaysautomatically disqualify you.

I-821 continuedFailing to sign is one ofthe top reasons forrejection!!!

The I-765Be completed. DO not leaveanything blank.Type in None or N/A.Make sure it is consistent withthe information your put on theI-821.If you have had an EAD fromUSCIS before (like OPT) thathas to be on the form and youneed to include copies of thatdocument.The category for TPS is(a)(12)Don’t forget to sign!

Other forms and documentsG-1145 – to get notifications by email or textin addition to by mail. Need one for eachapplication submitted.I-912 – fee waiverNeed 2 passport photos for I-765Proof of who you are and nationalityProof of entry to USProof of presence in the USTranslations of documents

Translations of documentsI, (name of translator), hereby certify that Ihave made an accurate and truthfultranslation from (source language) toEnglish of the (document title) belonging to. I declare under penalty ofperjury under the laws of the United Statesof America, 28 U.S.C. § 1746, that theforegoing is true and correct.

The filing feeCheck or money orderRecommend check so you can track – but do notuse temporary checks!Make sure the information on the check is correct –the numbers are right, it is written out correctly,and the check is signed!I-821 50Bio fee 85EAD 380Total 515 or 135 (if you don’t want an EAD – stillmust submit form I-765)

ChecklistCover letter – list out everything you are sendingFiling feeForm I-821Form G-1145Evidence of identity and nationality (copy of passport, or birth cert andphoto id)Evidence of date of entry (stamp in passport, I-94)Evidence of immigration statusEvidence of physical presence and continuous residenceForm I-765Form G-11452 passport photosEvidence of identity (copy of passport)Evidence of previous EADs

OverviewFile the applicationsGet receipt noticesGet biometrics noticeGo to biometrics appointmentBring evidence of nationality and identity with a photograph of you, such as a passportYour receipt noticeYour ASC appointment noticeYour current EAD, if you already have oneWaitWaitGet EAD – may or may not get separate TPS approvalKeep address current with USCISReregister as needed

TPS For NepalKathleen GasparianGasparian ImmigrationKathleen@gasparianimmigration.com504 262 9878

TPS and Removal Proceedings A person with TPS shall not be removed while status is in effect. DHS should agree to admin close any active proceedings -Will agree only after pleadings taken/ removability established If in active removal, alien shall be notified of availability of TPS TPS affects calculation of time for Non-LPR Cancellation

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