New York adopts true no fault divorce law

On August 15, 2010 Governor Paterson announced that he had signed several bills significantly reforming New York State’s Domestic Relations Law. The first bill, A.9753A/S.3890 creates a “non-consensual” “no-fault” grounds for divorce. New York has long had “no fault” by consent, where both spouses agree by contract to get divorced and must wait a year after the contract is executed to apply for a divorce under D.R.L. sec. 170(6) commonly called a conversion divorce. This new law adds a subsection to D.R.L. Sec. 170(7) which states, (in part) that the Supreme Court can grant a divorce when: “The relationship between husband and wife has broken down irretrievably for a period of at least six months, provided that one party has so stated under oath.” The law goes into effect 60 days after the date the governor signed it (likely October 14, 2010) and only applies to those actions for divorce started on that day or later. The new law also states that no divorce will be granted under the new grounds “unless and until” the economic issues of equitable distribution of marital property, payment or waiver of spousal support, child support, counsel, expert fees and expenses and custody and visitation of children has been resolved between the parties or determined by the Court and incorporated into the judgment of divorce.

The other laws signed by the Governor amend the divorce law to strengthen a party’s ability to seek an award interim spousal support and attorney fees at the beginning of an action, rather than the end.  One law (A.10984/S.8390 and A11576/S.8391) creates a presumption that that will revise the process for setting awards of temporary maintenance while a divorce is pending, by creating a formula and list of factors that presumptively governs such awards, a scheme similar to the Child Support Standards Act. This change should result in a speedy resolution of the maintenance issue once litigation has begun and prevent a less well-off party in to divorce proceedings from falling into poverty during litigation because they lack the resources to obtain a temporary maintenance order. For situations where one spouse makes $500,000 or less (subject to annual COLA adjustments) the formula is basically the lower of two amounts, (A) thirty percent of the payor minus twenty percent of the potential payee spouse or (B) forty percent of the sum of both spouses income minus the payee spouse’s income. If A-B is zero or less, interim maintenance shall be zero. The court may deviate from this formula and as in the Child Support Standards Act the “self support reserve” is the lower level cutoff factor for the payor’s resultant net income after maintenance is deducted.

The final law (A7569-A/S4532-A) creates a presumption that the spouse with less money in a divorce case is entitled to payment of attorneys’ fees at the beginning of litigation. Under current law, a party that cannot afford to secure representation in a divorce proceeding is often forced to make an application for fees at the end of the process, which can force a poor individual to proceed without a lawyer, or to not fight for their rights due to lack of means or legal support as many lawyers are not willing to wait to receive their legal fees after years of litigation.

haitians targets in advance fee fraud visa scheme

The United States Embassy in Port au Prince, Haiti is warning that there is a new advance fee fraud scheme targeting Haitians and Haitian Americans. Haitians, and Americans who are sponsoring their Haitian relatives, are being asked to pay fees up front in exchange for a guarantee that they can bring up to five of their relatives to the United States under a special program. Sometimes these scammers operate by telephone, email or by having criminals hand out flyers in neighborhoods where Haitian Americans live requesting that money be wired to Western Union account or similar service in exchange for an “authorization code” that they can use to fly to Haiti and sponsor five of their relatives to come to the United States.

As it states on the Department of State website: “Anyone who receives a phone, letter or email request asking for such an advance payment should consider the request to be fraudulent. Do NOT transfer any monies to an unknown person! Several Haitians and Haitian-Americans have already lost thousands of dollars because of these dishonest acts. If you have been contacted about one of these advance payments or know of someone who has, please contact the Consulate at 222-0200, x8684 or via email to PAPrso@state.gov or PAPfraud@state.gov.”

No U.S. Consular Official or U.S.C.I.S. Official will ever legitimately ask you for money outside of their official function except fees that are to be paid to an official cashier. All fees are collected either by check or money order through the mail to a U.S.C.I.S. Service Center or by cash at a Local Office. Cash is only collected at a Cashier’s Office within a U.S.C.I.S. or State Department government facility (some take credit cards such as the Cashier at 26 Federal Plaza) or by cash at a U.S. Embassy Consular Section Cashier that is clearly marked. One should never give cash to anyone in or outside a U.S. Embassy or Consulate who says they are a US government employee or consular staff.

Generally these types of scams are called “advance fee scams” where you are promised to receive something you need or want (money is usually the reward, though I have been involved in cases where the desired object is a visa or even citizenship in some country). You are asked to pay some money “up front” to cover costs, legal fees, etc. but what usually happens is that after you pay the fees you discover that the addresses, phone numbers or other information given to you are incorrect and that anything you are given, such as visas or bank checks are fraudulent and worthless. If you wire the money through one of these services, generally speaking the service cannot get your money back.  This is also true if you wire money to a bank account, unless you can hire a lawyer in a jurisdiction where the account is located and your lawyer can convince a judge to freeze the account (something I have done in the past) before it is withdrawn or transferred out of that bank, you money will be lost forever. This is a common scam over the internet these days. Please be careful before giving or sending money to anyone whose credentials you have not verified independently.

If you want information on the United States immigration benefits that are available to Haitians please read our other blog posts covering this subject regarding TPS for Haitians in the United States on January 12, 2010 and other temporary immigration benefits that are being granted at this time to Haitians due to the terrible calamity that has befallen the Republic of Haiti.

Wikipedia Dispute Resolution

Putting my last name into Google a few days ago, I found an article recently published in volume 59(1) of the Emery Law Journal regarding the role of dispute resolution in the collaborative online production of the English Wikipedia project. As the article mentions in detail (pgs. 166-170), I had a role in the policy discussion that lead to establishing mediation and arbitration procedures on the English language Wikipedia. The article examines how game theory can be used to analyze dispute resolution mechanisms and how a statistical analysis shows that the Wikipedia dispute resolution system has a normative effect not on the content of the English language Wikipedia project, but by “weeding out” problematic users, on the behavior of Wikipedians. This is an interesting analysis, however the problem that I see with the dispute resolution process is not that it weeds out problematic users, but that it does not function to teach these users how to be good volunteers. While I originally suggested in the fall of 2003 that Wikipedia have a structured dispute resolution process, instead of making this process simple and straightforward, ADR at Wikipedia has become a complex system that has all kinds of hard to understand rules.

Perhaps it is the management of this dispute resolution process (or lack thereof) is what has caused or contributed to a lot of Wikipedia users leaving the project and the ripple effect this system has on the general behavior of editors and administrators whose behavior is mediated by this process. As a recent article in the Wall Street Journal has shown there are many individual editors who are leaving Wikipedia. Felipe Ortega, a researcher working at the Universidad Rey Juan Carlos in Madrid, feels “Wikipedia is becoming a more hostile environment … Many people are getting burnt out when they have to debate about the contents of certain articles again and again.”

Another study by a group of researchers known as The Augmented Social Cognition Research Group at the Xerox founded PARC (Palo Alto Research Center, which is known for inventing laser printing, the ethernet and the graphical user interface – GUI)  suggest that the slowdown in volunteers at Wikipedia may be due to “wiki-lawyering barriers” which have generally been linked to the development of the dispute resolution process. Today in order to be a successful volunteer editor at Wikipedia one must master numerous principles. There are even books available to assist the newbie in this quest.

When I suggested mediation and arbitration as being a way to resolve disputes between volunteers my background was the extensive research I had done while a law student and graduate history student at McGill University in Montreal into the legal history of alternative dispute resolution dating back to Roman times under the guidance of law Professor John E.C. Brierley and historian Brian Young. When the King of France has established the colony of New France, lawyers were not allowed to practice in this colony and the Intendant, the colonial governor, was given the traditional “high” jurisdiction that had been granted to many overlords or seigneurs in ancien régime feudal property law but the only advocates for those brought before this police power were not given the benefit of Parisian trained avocats, as the King had forbade any law practice in this colony. Most minor disputes in New France were “negotiated” between parties by the local Catholic priest or the notaire who registered contracts, land transfers and dealt with wills and inheritances but had no right of representation before any court, provincial or metropolitan. New France, and later Lower Canada, had originally developed a means of extrajudicial dispute resolution. My experiences as a solo practitioner in Brooklyn had also emphasized to me the importance of negotiation and compromise as a means of resolving differences. In the last five years my work as an court appointed Arbitrator in the Small Claims Part of New York City Civil Court has shown me that a minimum of procedure is often the best way at getting to the legal issues expediously with fairness and a sense of natural justice.

After seeing the discussion develop at Wikipedia in the fall of 2003 I saw that there were a lot of people who misunderstood the idea of arbitration, They wanted to make it something formal, like a Wikipedia court system, the ArbCom, as it was called became a place where someone could obtain status in the Wikipedia community, originally by being appointed by Mr. James “Jimbo” Wales, one of the founders of Wikipedia, and later by election. When I suggested this kind of system my intention was to get people to talk, mostly through mediation by a neutral third party, to come to a mutual understanding that editors were all contributing knowledge, not fighting against each other to be “right” or “wrong”. Even though I was given the opportunity to participate in the formal dispute resolution system I opted to remain apart from it and instead to start a voluntary association within Wikipedia called the Association of Members Advocates.

The original idea of this Association was to get volunteers who understood the complexities of the system to help individuals who had disputes and to help them understand the dispute resolution system and assist them to get through these disputes so that they could remain valuable contributors. Our belief was that all volunteers should be encouraged to learn how to contribute and not be driven away from Wikipedia by legalities. As a Wikipedia group were were the first group to have a democratic election amongst our members that actually occurred on the Wikipedia talk pages. The organization existed for several years and I tried to help it continue, and I felt it did assist users in understanding dispute resolution at Wikipedia but finally a group of administrators “deleted” the organization, i.e. refused to allow Wikipedians to use the talk pages to help people understand the dispute resolution process!!! There were people who criticized it and wrongly stated, in my opinion, that the organization was bureaucratic, unhelpful and prone to wikilawyering. I couldn’t disagree more, we had very little structure, many of the people who used our services stated they were significantly helped in understanding dispute resolution better and most of our volunteers were not involved in arbitration, but mostly mediation, as most disputes were solved on that level. I think the reason it was closed was because it was a threat to those who wanted the dispute resolution system to be complex and difficult to navigate so that newbies would lose and long time contributors could use it to buttress their position within the community. Today there are dozens of “associations” that have copied the basic structure that I first established for having a group within Wikimedia and they debate all kinds of issues such as “inclusionism” and “exclusionism” but do little to change the difficulties that have developed in editing Wikipedia or provide support for people who wish to contribute by find the rules to daunting and complex to the point of absurdity.

After starting the Association of Members Advocates and trying to develop a group of volunteers I left the organization to allow others to run it, and partly because the volunteers could not find anyone else to run the organization it shut down — there was no one left to defend it. I also left Wikipedia and Wikimedia at the end of 2006 after a decision was made to change the organization from a membership to an elite organization run by people mostly appointed by those who started it and continued to control it. I personally became frustrated by the cult-like jargon of Wikipedians, the trite slogans that would be repeated by people who disagreed with someone and refused to discuss real issues, the lack of basic common sense on many levels that I repeatedly experienced, and the obvious wish to use the money that I and other Wikipedians helped raise to fuel staff who were not interested in working with volunteers since they were “professionals” being paid to “run” the Wikimedia Foundation. How ironic that the one thing of value that Wikipedia has, volunteers, are being driven away by institutional forces. I seen this before Wikipedia in other successful organizations, it is easy for people with money to loose sight of their origins.

Like most of the volunteers, I never made a penny from Wikipedia, was never paid for all the legal work I did either in the various projects relating to copyright and open source licensing issues, or to help the Foundation (in areas such as trademark, tax-exempt organizations law and charities registrations) nor even reimbursed for my out of pocket expenses and I am proud of that fact; I was not corrupted by money or success. I just wanted to help what I thought was a community volunteer group. When I was volunteering I never thought it would become a bureaucracy with dozens of employees who essentially get paid thanks to the many anonymous volunteers who contribute to Wikipedia projects.

CUNY Haitian TPS Workshops

The City University of New York (CUNY) is offering a series of free workshops to assist Haitians applying for TPS, the last upcoming workshop is on Saturday, February 20, 2010. The free workshop will be held at: York College, Academic Core Atrium and Lobby, 94-20 Guy R. Brewer Blvd., Queens, NY 11433. If you would like to attend either event, please RSVP Nadine Huggins at nadine.huggins@mail.cuny.edu or (212) 568-7208.

For more information on what documents you will need to bring and directions please visit the CUNY website.

Internet Addiction

Is it possible to sue for internet addiction, online gaming addiction, computer or Blackberry addiction? Who is responsible for someone who has psychological or even physical symptoms from overuse of their computer, portable device or gaming console?

Some might think these questions silly — “Of course the person responsible for using the computer is the cause of the ‘addiction’, you can’t blame the computer company, the software manufacturers or the computer gaming programmers.” However, there was a time when the cigarette manufacturers were considered to be immune from any kind of liability for manufacturing and selling cigarettes and we now know how that turned out. If you have the time, you might want to read the DC District Court decision regarding the history of tobacco use in the United States, it is only 1682 pages, not including Appendixes. Are these new digital technologies the new tobacco? Perhaps, but a few years ago they suggested that “fat lawsuits” were going to be the new area of public health litigation, but most of these cases have gone nowhere with some states even granting food manufacturers and restaurant owners immunity from suit. Perhaps the most famous of these cases was the McDonald’s lawsuit filed in federal District Court in the Southern District of New York The theory upon which this case was based was a New York State consumer law, General Business Law section 349(a), ” (a) Deceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service in this state are hereby declared unlawful.” Most of the provisions of this section of the General Business Law provide that the New York state Attorney General is empowered to bring proceedings, but the final subsection (h) of § 349 provides for a private right of action with treble damages if the manufacturer or seller knowingly violated §349 with a discretionary award of attorney fees:

In addition to the right of action granted to the attorney general pursuant to this section, any person who has been injured by reason of any violation of this section may bring an action in his own name to enjoin such unlawful act or practice, an action to recover his actual damages or fifty dollars, whichever is greater, or both such actions. The court may, in its discretion, increase the award of damages to an amount not to exceed three times the actual damages up to one thousand dollars, if the court finds the defendant willfully or knowingly violated this section. The court may award reasonable attorney’s fees to a prevailing plaintiff.

This section can and has been used in situations where something has been sold and in the process of it being sold or used, something that is known to the manufacturer or seller that is not disclosed to the purchaser or user that has an adverse effect on the purchaser or user, thus in the case of this McDonald’s obesity suit, the purchasers (parents) and users (children) of McDonald’s food, the effect that McDonald’s food was to cause the children abnormal weight gain. This lawsuit settled, no doubt because of the expense and difficulty of proving that the plaintiffs were not aware of the effects of fast food and the costs of discovery, which, in such a case, as in the tobacco cases, can be extremely difficult, time consuming and costly.

Cigarettes were first introduced around the time of World War I, and it took almost 100 years before cigarette companies admitted liability for the health problem they caused.  It may take that long to find liability for addictive computer programs, but will it ever be possible to sue for conduct on an information channel.  You have never heard of telephone addiction, nor of typewriter addiction, or short wave radio addiction, yet it seems plausible to “blame” someone for addictive behavior over the internet or due to misuse of digital gaming technology. Why is that? Are we not able to take responsibility for our actions? Is it because these new type of technology alter our perception of the world? Perhaps. Have these new types of technology changed us? There is a lot of new research asking questions on the effect of these new technologies such as immersive reality (such as Second Life, A Tale in the Desert or World of Warcraft [WoW]).

Doesn’t all technology change the user? In the iron age, tools and weapons changed the ability of humans to hunt and protect themselves. Saws, hammer and nails made woodworking possible. The printing press made book publishing possible. All these technologies changed the human race, so why should yet another technology, developed by humans, be blamed for the evolution of human behavior which appears to be in a constant state of flux anyway.

Perhaps I am playing the devil’s advocate here, but while it is true that these digital technologies are extremely powerful and can be misused, they also give us new possibilities of access to knowledge, transmission of information, broadcasting of specialized timely knowledge (such as we hope to present on this blog from time to time) which can break down boarders and bring people from across the world to a better appreciation and understanding of the many cultures and view points that exist.

If you find this discussion interesting, you may want to watch a new PBS Frontline documentary, Digital Nation. If you missed it on PBS you can watch Digital Nation online.  It shows us how we are all immersed in technology and new developments in education and the military applying these digital technologies. The show was written by Frontline correspondent Douglas Rushkoff and producer Rachel Dretzin.  You can also listen to an interesting interview of them discussing the documentary and their research making it that was broadcast on WNYC on February 2, 2010 on the Phillip Lopate Show.

Google Scholar Free Legal Research

Google Scholar has made freely available a searchable database of US legal cases. in a blog post on the Official Google Blog the details of this great new development have been found.  According to Google, “We think this addition to Google Scholar will empower the average citizen by helping everyone learn more about the laws that govern us all.” Case citations will often being clickable (as in Westlaw or Lexis) and a “cases cited” function, similar to the manual “shepardizing” of cases many of us learnt in law school will find cases in the new Google database that cite the case your are searching. The database also includes links to various legal journals, though when I tried to click through to results, often only the first page of the journal was available, some kind of paid scholar research account was necessary to retrieve the full article. The coverage will initially include eighty years (80) of federal case law, including Supreme Court decisions from the founding of the Republic, and fifty (50) years of state case law. You can access Google Scholar case law here (will open in a new window).

Will this bring down the cost of Lexis and Westlaw? Probably not as they still monopolize digital access to many of the legal treatises that provides specialized legal knowledge to practitioners in various specialty areas.

Health Club Contracts in New York

In the effort today to get fit or stay fit many consumers become “members” of health clubs. However sometimes the contract they enter into is neither healthy nor for a “membership organization”.

If you feel you have become a victim of fraudulent health club practices at your local gym, swimming pool, athletic  or sports club and you are a resident of New York State you may have some recourse thanks to the provisions of the General Business Law, specifically Article 30, “Health Club Services” Sections 620 to  631. This law is a powerful shield to assist consumers who have been the victims of fraudulent or deception business practices.

This article, like many of the provisions of the General Business Law are powerful, even if relatively unknown, tools that can be used in the protection of consumer rights which applies to “offering instruction, training or assistance or the facilities for the preservation, maintenance, encouragement or development of physical fitness or well being. Such term shall include but shall not be limited to health spas, sports, tennis, racquet ball, platform tennis and health clubs, figure salons, health studios, gymnasiums, weight control studios, martial arts and self-defense schools or any other similar course of physical training” as defined in Section 621. There are exceptions such as not-for-profit organizations (like the Y.M.C.A.) and public school facilities.

Section 627 of the law provides that contracts violating any provision this article (sections 620-631) are “void and unenforceable” giving the consumer powerful protection that can be easily resolved in Small Claims, NYC Civil Court or County Court. Section 626 provides that deceptive acts and practices are prohibited, including misrepresenting the size and facilities of the club you are joining

There is also a powerful “treble damages” and attorney fee clause for violations in section 628 which allow a judge to award up to three times the actual damages and reasonable attorney fees, if incurred by the plaintiff or claimant.  In section 623, it states that contracts cannot be longer than36 months, cannot contain a clause that limits any defenses or waives any claims and the health club cannot charge more than $3,600.

Under the provisions of section 630 the Attorney General of New York State can prosecute violations of the law in addition to the private civil litigation; there are also provisions for a civil fine of up to $2,500 per violation, and violations of section 622-a is a misdemeanor as stated in section 629.

If you think you have been a victim of any deceptive practice by a health club or you feel that their contract has violated any of the provisions of the General Business Law please contact our law office for a free initial consultation to see if we can help you.

DHS publishes TPS Notice in Federal Register for Haitians

The Department of Homeland Security has published the Temporary Protected Status (TPS) Notice as required in the United States Federal Register. This notice has set the period for which individuals can apply for Temporary Protected Status which has a begin date of January 21, 2010 until July 20, 2010. A copy of the Notice can be accessed here. This Temporary Protected Status (TPS) has been designated for 18 months under section 244(b)(1) of the Immigration and Nationality Act. If you need assistance with a potential application please read this blog post.

Temporary Immigration Relief for Haitians in the United States

In addition to the forthcoming grant of Temporary Protected Status (which we can help Haitians in the United States apply for pro bono) the USCIS will also extend other temporary benefits to Haitians either in the United States or with pending USCIS applications.  A “field memo” has been issued by USCIS Director authorizing these temporary measures.

Here are a list of frequently asked questions (FAQ) regarding these new USCIS policies:

1. What temporary relief measures aside from Temporary Protected Status, will USCIS make available to Haitian nationals in response to the earthquake devastating that country?
Temporary relief measures available to nationals of Haiti include favorable adjudication, where possible, of requests for change or extension of nonimmigrant status, acceptance of applications for change or extension of nonimmigrant status submitted after the alien’s authorized period of admission has expired, re-parole of aliens granted parole by USCIS, extension of certain grants of advance parole, expedited processing of advance parole requests, favorable and expedited adjudication, where possible, of requests for off-campus employment authorization due to severe economic hardship for F-1 students, expedited processing of immigrant petitions for children of U.S. citizens and lawful permanent residents (LPRs), issuance of employment authorization where appropriate and assistance to LPRs stranded overseas without documents.

2. Who will be eligible for temporary relief?
All nationals of Haiti with current immigration benefits or benefit applications pending with USCIS will be eligible for temporary relief.

3. I am a Haitian national, currently I cannot return to Haiti due to the earthquake and my allowed time to stay in the US is expiring or about to expire.  What are my options? Can I work during my stay in the US?
Aliens wishing to change or extend their nonimmigrant status must submit an application, per existing standards, and submit evidence establishing that the events of January 12, 2010 is the basis for their inability to return to Haiti prior to the expiration of their authorized period of admission.

Change or Extension of Nonimmigrant Status: USCIS will implement procedures to adjudicate favorably where possible applications for change or extension of nonimmigrant status following the expiration of an applicant’s period of admission.
• Form I-539 applications currently in process and newly filed applications for Haitian nationals will be identified for immediate processing.
• B visa non-immigrant visitors can apply for an additional six month extension. All other nonimmigrant aliens must continue to meet existing criteria for change or extension of status.
• In cases where an alien is no longer able to extend his or her current nonimmigrant status, favorable consideration should be given to requests for change of status to B-1 or B-2.

Employment Authorization:  Certain nonimmigrant classifications are not permitted to apply for or receive employment authorization. Nonimmigrant visitors, for instance, would not be granted work authorization.

4. I am a Haitian national, I was granted parole to enter the United States temporarily. I cannot return to Haiti due to the earthquake and my allowed time to stay in the US is expiring or about to expire.  What are my options? Can I work during my stay in the US?
A Haitian national who has already been paroled into the U.S., may apply to extend the period of parole. If an alien presents a genuine, expired or unexpired Form I-94, which contains an expiration date of January 12, 2010 or later, and the alien demonstrates that he or she was or is prevented from returning to Haiti prior to the expiration of his or her parole as a direct result of the earthquake, he or she may file for re-parole. The length of the extension is at the Director’s discretion but normally should not exceed 6 months.

Re-parole Affected Parolees:
• Aliens may file for re-parole at the USCIS District office with jurisdiction over their current place of residence in the United States.

Employment Authorization:
• Parolees in the United States may apply for employment authorization; please refer to the instructions on the Form I-765.

5. I am a Haitian national, I was granted advance parole to travel outside of the United States. I cannot return to the US from Haiti due to the earthquake and my allowed time is expiring or about to expire.  What are my options?
Due to disruption of consular services following the earthquake and in recognition of the humanitarian needs of affected aliens, an automatic extension of advance parole until March 12, 2010, is granted to those aliens who are currently in Haiti and who are outside of the United States if their advance parole authorization, Form I-512, Authorization for Parole of Aliens into the United States, expires between January 12, 2010 and March 12, 2010. Ports of entry have been instructed to accept these auto-extended Form I-512s.

6. I am a Haitian national student currently enrolled in school in the US; due to the earthquake in Haiti I can no longer cover the cost of my education. What are my options? Can I work during my stay in the US?
Nonimmigrant F-1 students from Haiti who may be unable to continue to cover the cost to engage in a full course of study may need off-campus employment authorization. An F-1 student who can demonstrate that he or she is from Haiti can apply for employment authorization to work off-campus.

The student needs to be recommended for employment by the Designated School Official (DSO) and should submit Form I-765, Application for Employment Authorization along with the Form I-20 with approval from the DSO to the USCIS Service Center with jurisdiction. Please refer to the Form I-765 for instructions. The filing fee for Form I-765 is $340.

7. I am a Haitian national currently in the US under an Order of Supervision pursuant to a stay of removal issued by U.S. Immigration and Customs Enforcement. Can I work during my stay in the US?
You may be authorized to work and should submit Form I-765, Application for Employment Authorization and USCIS will adjudicate as promptly as possible.

8. I am a Haitian national; I have a pending case with USCIS and need my case expedited due to the earthquake in Haiti.  What are my options?
Given the need for immediate relief, USCIS will expedite certain applications. Standard requirements for security checks remain in place under expedited procedures.

Expedite Processing:

• Relative Petitions for Minor Children of legal permanent residents and U.S. Citizens Residing in Haiti:
  • In cases where the petitioner requests expedited processing of a Form I-130, Petition for Alien Relative, for a child from Haiti, the case will be expedited where a visa number is readily available.  (As it’s written, it implies the ‘case’ will receive favorable consideration (i.e. approval) where a visa number is readily available.
• Requests for Advance Parole:
  • Haitian nationals with benefit applications pending in the United States may need to travel quickly for emergent reasons and will need to apply for advance authorization for parole to return to the United States. USCIS will expedite the Form I-131, Application for Travel Document

9.  I am a Haitian national; I have lost my resident status documents due to the earthquake in Haiti.  What are my options?
Persons Stranded Without Documents: USCIS overseas offices will continue to assist legal permanent residents who have lost their documents. Database checks and interviews will continue to be conducted during and outside of business hours to rapidly verify status and authorize issuance of boarding letters at the consulate in Haiti. (Boarding letters issued by DHS permit airlines to allow aliens to travel to the United States.)

10. I am a Haitian national; I am in removal proceedings and cannot leave due to the earthquake in Haiti.  What are my options?
Individuals from Haiti who are under a final order of removal may be granted a stay of removal.  This temporary suspension is specific to Haiti due to the massive infrastructure damage.

• Decisions will be made on a case-by-case basis and based on specific circumstances.
• Where appropriate and authorized by law, nonimmigrant visitors and aliens that receive a stay of removal may be eligible to apply for or receive employment authorization so that they may financially support themselves, or potentially help the rebuilding effort by sending remittances to Haiti.

11. If a person from Haiti is out-of-status, will this person be eligible for any relief?
A person whose nonimmigrant status has expired may be able to file for a change or extension of status, if he or she was in valid, nonimmigrant status.

12. Can a person from Haiti, who is out-of-status, travel to his or her country to assist stricken family members and return to the U.S.?
A person from Haiti who is out of status may travel to Haiti, but will not be eligible for Advance Parole. Advance Parole is permission to re-enter the United States.

13. Is USCIS/DHS going to grant Temporary Protected Status to Haitian nationals?
Yes.  Please refer to the Temporary Protected Status blog post.

14. Can an applicant for adjustment-of-status (Form I-485) travel to Haiti to assist family members without forfeiting his or her application?  Can such applicants travel to Haiti to attend funerals?
Aliens who have pending applications for permanent residence, Form I-485, are eligible for advance parole if they have an approved Form I-131 Request for Advance Parole.  Aliens wishing to return to Haiti to assist family members or attend funerals can request expedited processing of their I-131’s as described above. So long as the alien has been approved for Advance Parole, he or she may travel for short periods of time outside of the United States without abandoning the application for permanent residence.

15. Can a naturalized citizen, originally from Haiti, sponsor nieces and/or nephews or other extended minor family members who were orphaned as a result of the devastation?
A U.S. citizen, whether naturalized or born in the United States, may not file a Form I-130, Petition for Alien Relative, on behalf of a niece, nephew or other minor extended family member who was orphaned as a result of the earthquake.  A U.S. citizen may only petition for his or her spouse, parents, children, adult sons and daughters, and brothers and sisters.

The international standard among adoption professionals in a crisis is to keep children as close to their family members and community as possible. It is often difficult to determine whether children whose parents are missing are truly orphans. In the current situation, many children have become separated from one or both of their parents whose fate is unknown. Even when children are indeed orphaned, they are often taken in by other relatives. Staying with relatives in extended family units is generally a better solution than uprooting the child completely. Also, in the immediate aftermath of such disasters, a country’s government may be in disarray and what resources are available may be deployed on recovery projects.

USCIS believes that it will take many months before the countries affected by the disaster will be able to identify the children who are actual orphans. It is only if and when these countries decide to make these orphans available for international adoption that American citizens will be able to begin adoption proceedings for those children who also qualify as orphans as defined in the Immigration and Nationality Act.

Additional information regarding the process of inter-country adoptions by U.S. citizens can be found at: http://uscis.gov/graphics/services/index2.htm

16. I am a U.S. citizen in the process of adopting a Haitian child.  What is the U.S. Government doing to help me?
USCIS has received numerous inquiries from American citizens who are in the process of adopting children from Haiti and is actively working to identify available options in light of the recent tragedy.  DHS’ U.S. Citizenship and Immigration Services and the DOS Bureau of Consular Affairs have already begun defining possible ways to expedite these pending cases.  As soon as there is a plan in place and USCIS publishes information regarding the plan,  it will be posted on this blog.

Pro bono help for Haitians in US eligible for TPS

The Department of Homeland Security has recently decided to allow for TPS (Temporary Protected Status) to out-of-status Haitians in the United States on January 12, 2010. If you are qualify and are in need of assistance with filing your application with USCIS we are currently assisting eligible individuals by helping them complete their paperwork “pro bono” (no legal fee, free to you, does not include filing fees, though we can help you apply for a fee waiver, if appropriate and necessary). Please email us with your cell phone number and we will contact you. You do not need to reside in Brooklyn, we can help you if you live anywhere in the United States. Applications can be submitted until July 20,. 2010 for the 18 month TPS period ending July 22, 2011.

INFORMATION REGARDING FILING FOR TPS (Temporary Protected Status)

Temporary Protected Status will allow you to remain in the United States for at least eighteen (18) months and may be renewed. You can also apply for work authorization and travel authorization.

The laws pertaining to TPS can be found in section 244 of the Immigration and Nationality Act (INA), 8 USC section 1254a, and in the regulations at 8 CFR Part 244.

The forms used to register and re-register for TPS are:

• I-821, Application for Temporary Protected Status
• I-765, Application for Employment Authorization

You must file both forms together, even if you do not want work authorization. You must also file these forms with the required fees, or a fee waiver request if you can show that you are not able to pay the fees.

You are eligible for TPS if you meet all of the following requirements:

• Are a national of a country designated for TPS, or a person without nationality who last habitually resided in the designated country (i.e., in your case, Haiti);
• File during the open registration or re-registration period, or you meet the requirements for late initial registration regardless of whether there is currently an open registration or re-registration period;
• Have been continuously physically present (CPP) in the United States since the most recent designation date of your country (January 12, 2010 for Haitians);
• Have been a continuous resident (CR) in the United States since the date specified for your country;
• Have not been convicted of any felony or two or more misdemeanors in the United States;
• Are not a persecutor, or otherwise subject to one of the bars to asylum;
• Are not subject to one of the criminal or security related grounds of inadmissibility for which a waiver is not available; and
• Have met all the requirements for TPS registration or re-registration as specified for your country

More specific information relating to the grounds of eligibility may be found at INA § 244(c) and 8 CFR §§ 244.1-244.4.

More information about the application process can be found on the USCIS website.