What does the Provisions Waiver mean?

Recently, the U.S. government finally approved the provisional waiver, with the corresponding procedures to follow in the coming months.  Under the previous 601 waiver policy, individuals who entered the country without inspection could not apply for permanent residence without leaving the country during the duration of the waiver process.  The new provisional waiver has been applauded by immigration activists throughout the tri-state area; and immigration lawyers in NJ, NY and throughout the country see the new act as an important step in providing status to law abiding immigrants with family in the US. 

Who can apply for the Provisional Waiver? 

First, in order to be eligible for the provisional waiver, one must be the immediate relative of an individual who is a citizen of the United States.  Under US immigration law, US citizens may petition for the following immediate relatives:

1.      Spouses;

2.      Unmarried children under the age of 21;and

3.      Parents (so long as the U.S. citizen is 21 or older). 

Second, one must have entered the country without inspection (or entered the country without coming through a port of entry) and stayed for over 6 months.  The overwhelming majority of this group of people crossed into the United States through the border with Mexico.  For individuals who have entered into the country legally and overstayed their visa, they can apply for a green card and stay in the country without having to apply for a waiver. 

However, a person cannot apply for a provisional waiver if he or she in inadmissible for a reason other than the fact that they were unlawfully present in the US.  This primarily applies to those who have a criminal conviction that necessitates a waiver of its own.

What is the 601A waiver application and what must it show? 

USCIS will release a new application called at 601A waiver.  This is a complex procedure that is best handled by a provisional waiver lawyer, with a background in the previous 601 waiver application process.  Much like the conventional 601 waiver, the applicant must show that the rejection of the waiver application will result in extreme hardship to his or her US citizen immediate relative (note that the current USCIS statement on the provisional waiver states that the hardship must be shown on a US citizen spouse or parent only; so it is not clear whether hardship can be shown to children). 

What are the procedures?

Though the exact procedures will be clear in the coming weeks, there are certain general features that are known.  First, the applicant will apply for a green card though their immediate relative, and send the application to the embassy in their country of origin. Then, the applicant will submit the 601A waiver application.  Next, the applicant will inform the National Visa Center that he or she is applying for the provisional waiver from USCIS.  Finally, the applicant will leave the country in order to appear at the visa interviewin their home country’s US embassy.   While there is still much to be decided, the new rule will relieve the burden on countless number of immigrants who have immediate relatives in the US but are living without status.

Guide to New Jersey’s Juvenile Justice System From the Perspective of a Criminal Lawyer in NJ

In continuing with New Jersey’s Juvenile Justice System, we now look at the later stages of the juvenile proceeding.  Remember, in order to effectively navigate these proceedings, it is crucial to consult with a criminal lawyer in NJ who has the expertise to properly represent you or your loved one.

Probable Cause Hearing

In cases where a delinquent remains in carcerated after the first hearing, within 2 days a probable cause hearing will be conducted in Family Court. In the event that the judge does not find probable cause that the child committed the act he or she is accused of, the child will be released and the charges will be dismissed.  If probable cause is found, either a pre-trial date or a trial (adjudication) date will be set by the court. 

Plea or Trial

In the event that a juvenile chooses to plead guilty, an effective criminal lawyer in NJ can negotiate a deal that is favorable to the juvenile.  In more minor cases and matters where the juvenile has no criminal history, an attorney can negotiate for counseling, community service as well as other programs as an alternative to detention.  Traditional punishments such as probation are available, but even those can be catered to the needs of the child. 

In the event that the child elects to go to trial, he or she will not be in front of a jury but will be in front of a judge.  However, in most other respects the trial process is similar to the process in adult court.   In the event that a child is found guilty then the case proceeds to sentencing or a dis-positional hearing.  

Dis-positional Hearing

At the dis-positional hearing, the judge will mold a program aimed at rehabilitating the child. The Court will consider the plan set forth by probation and the prosecutor.  Also, the court reviews any statements made by the parents.The court will adopt a disposition,which may include counseling, detention, intensive supervision, community service, and placement in a residential home for therapy.

After an adverse disposition, the delinquent can elect to appeal his conviction.  In such cases, it is key to consult with a NJ Appeals Attorney to determine if there are appeal able issues. 

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Second Circuit Reaffirms Limits on the Right to Bear Arms

In a unanimous decision, the Second Circuit held that it is not unconstitutional for New York to require applicant seeking a gun permit to show proper cause or a heightened need for special protection in comparison to the general public. 

In Kachalsky, et al. v. Cacace, et al., five residents from Westchester County were denied gun permits because they failed to meet this “heightened need” standard.
   
The Second Amendment right to bear arms is not an unlimited right. The Supreme Court reaffirmed this notion in District of Columbia v. Heller where it confined one’s possession right to the home. Gun possession outside of the home, however, is a completely different matter. 

The Second Circuit’s unanimous decision in this case emphasized the public safety concerns New York’s heightened-need standard is meant to protect. Residents are not prevented from obtaining a handgun – one may still obtain a permit for hunting purposes. The only caveat is that those who wish to carry a handgun in public must demonstrate their need for self-protection.

While states may not outright ban possession of a concealed weapon, it is not unconstitutional to regulate use when it is clear that public safety considerations clearly outweigh one’s subjective need for self-defense. 

Residents in California, New Jersey, and Maryland are also challenging licensing laws, respectively. It should be interesting to see how the Courts rule, and if the Supreme Court grants certiorari on any of these cases.  It does seem that there is broad support for such laws, as criminal justice advocates and law enforcement officials both advocate for more restrictive gun laws.  However, many criminal lawyers in NYC are not supportive of laws that will criminalize what they feel are reasonable attempts to possess a weapon.  Some criminal lawyers in Queens and other high-crime boroughs are further discouraged that such restrictive laws only push individuals who desire to own a weapon to turn to the black market for their purchase.

Experts Propose Green Cards for International College Graduates

After successfully advocating for the implementation of President Obama’s deferred action directive, immigration experts have now shifted their attention to granting international students similar status.

Immigration has maintained and fueled this country for over 200 years; therefore, it goes without saying that international students are the stimulus our slowing economy needs. Even New York City Mayor Michael Bloomberg agrees that this might be the answer to our financial crisis.

If giving green cards to international graduate students seems too radical, Mayor Bloomberg suggested creating a new visa in the alternative.

While immigration is the solution rather the problem, Congress has yet to signal the execution of such legislation.

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