I Lost My Indian Passport — Help!

Recently, I have been getting referrals from clients about losing their passport from India. Now, losing an Indian passport is a greater deal than losing your US Passport, because there is an established procedure for recovery and reissue of a US Passport.

But recovery and reissue of an Indian Passport is another matter.

The fear of clients who contact me is that they will be turned into either ICE or USCIS because they are out of service. The good news is that there is now a procedure to reapply for a lost passport. However, it is complex.

In my experience, there is a better procedure if your application is filed as a walk-in rather than mailing in the application.

The next complexity is added because the Indian consulate does not update their website often. The result is that the information on the website is often unreliable or out of date. If my client is traveling from outside the consulate area, then I suggest planning the trip in advance to allow for contingencies, such as insufficient paperwork.

Contact us for further information.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney St. Louis, Missouri
nsm@mlolaw.us

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The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.

Copyright 2014. All rights reserved.

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CBP Announces Electronic Form I-94 Arrival/Departure Record

Form I-94 is the main way in which persons who are not US citizens, and who are not legal permanent residents, demonstrate their legal entry into the US. Customs and Border Protection (CBP) have announced the digital automation of Form I-94 Arrival/Departure, which will standardize travelers’ arrival and inspection processes, and ultimately lower costs and travelers’ wait time. Currently, CBP does not have a fail-safe method of keeping track of non-immigrant departures — an electronic I-94 could eliminate this loophole.

In late March, CBP published an interim final rule to the Federal Register, which redefines the definition of Form I-94 to include the electronic format and will be effective on April 26, 2013. Non-immigrants, who enter the US by air or sea will not have to submit paper Forms I-94.  But those who are subject to secondary inspection and asylees, refugees and parolees, will be required have to submit a paper form given to them by a Customs and Border Patrol officer. Travelers who enter through land border ports of entry will receive paper versions of Form I-94.

CBP will maintain I-94 records for all travelers who require one, but all records will instead be entered into the system in an electronic format and not given to the traveler. CBP will scan the traveler’s passport, creating an electronic arrival record for that person. Travelers will receive a CBP admission stamp on their travel documents, which detail the date and class of admission, and the admitted-until date. Departures will also be recorded electronically — if the traveler has a paper I-94, then he/she must surrender it upon leaving the US.

Some agencies will require a paper copy of Form I-94. USCIS will ask applicants to fill out paper copies when requesting particular benefits; and the State Department of Motor Vehicles (DMVs) will ask for paper copy submissions. In addition, non-immigrants with work authorization can present paper copies of Form I-94 to their employers during the Form I-9 process. If a traveler needs a paper copy of Form I-94, it will be available at www.cbp.gov/I94.

The Takeaway

Since this program is very new, we can expect confusion from all corners for a while, and differences in enforcement and paper documentation requirements from agencies. If you are a non-citizen, who is not a permanent resident, you will not receive a paper I-94 form from CBP as you enter the US, if you come by air or by sea. You will continue to receive a paper I-94 if you come by land from Canada or Mexico, if you require a secondary inspection, or you are a refugee or asylee. The problem is that USCIS and individual state-run agencies, such as drivers licence bureaus, will continue to require the now defunct I-94 form. In addition, it will become important to log onto the CBP website to ascertain that all your details on the electronic record are correct, and to print out a copy for your non-immigrant record. The electronic record will be erased from the system on departure from the US — maintaining a paper copy to prove departure may be useful under these new circumstances.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
Lowenbaum Partnership, LLC
St. Louis, Missouri

The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.

Tara Mahadevan

Copyright 2013. All rights reserved.

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How Family Law Affects Non Citizens

We have two kinds of people in the United States: US citizens and non citizens. Non citizens can be classified as persons who can stay here permanently, also called permanent residents or immigrants. We call those who have a non immigrant visa – these people may be able to work and some cannot; and those who have overstayed their visa or have entered without US Government visa, illegal aliens. This article discusses the effects of family law action on the immigration status of persons with lawful immigration presence.

Questions from family law practitioners are often about how an action in family court will affect their client’s immigration status. The first step is to recognize the documents and to ask for immigration documents from clients. In our office, we regularly ask for evidence of immigration status in the United States, regardless of accent, education, race or other appearance characteristics. We have clients from Canada who, for all intents and purposes, act like US citizens and those who are US citizens who have accents. So as a matter of procedure, immigration status is a routine question to ask.

Divorce and Annulment
Permanent residents, who are also called ‘green card’ holders in popular parlance, are generally not affected by family court actions like divorce, unless they are a conditional permanent resident. A conditional permanent resident has been married less than two years when they received their ‘green card’ with conditions, which have to be removed within 2 years. A conditional resident can apply for removal of conditions either jointly (which is an easier application) or after they obtain a divorce. Conditional permanent residents are not eligible for a permanent green card valid for 10 years, until they have removed conditions. Conditions can be removed either while being married or after divorce, but not during the pendency of a divorce action[1]. An annulment action negates the marriage, which is the basis of the application for the spousal ‘green card’. So such an action is not recommended for a spouse who is on conditional residency or whose application to USCIS has been based on marriage to a permanent resident or US citizen.

Affidavits of Support
In a divorce action, maintenance and spousal support may be an issue. In family spousal application, an affidavit of support is filed as part of the application package with USCIS[2]. The affidavit of support is filed for the foreign spouse on Form I-864. The sponsor promises to maintain the foreign spouse so that he or she does not become a public charge. There are certain conditions to be fulfilled before this obligation is discharged.  The case discusses the sponsor’s obligations and discharge of duty under the law. In Cheshire v. Cheshire[3], a case in Florida, it was held that pursuant to the INA[4] and the terms of Form I-864, a sponsor’s support obligations to the sponsored immigrant under an affidavit of support terminate only upon the occurrence of one of five circumstances: 1) the sponsor’s death, 2) the sponsored immigrant’s death, 3) the sponsored immigrant becoming a U.S. citizen, 4) the sponsored immigrant permanently departing the U.S., or 5) the sponsored immigrant being credited with a total of 40 qualifying quarters of work, 8 U.S.C. § 1183a(a)(2), (3); 8 C.F.R. § 213a.2(e). The majority of sponsored immigrants will have to work ten years to meet the 40 quarters requirement, as a maximum of four quarters can be earned in a year. However, sponsored immigrants can be credited with quarters earned by the immigrant’s spouse during the marriage, but only if the alien remains married to that spouse. The sponsor’s financial obligations under the affidavit of support terminate only upon the occurrence of one of the five circumstances above; hence divorce does not invalidate the contract created by the affidavit of support. As such, a spouse sponsoring an immigrant spouse can be liable under the affidavit of support even after divorce. The instructions accompanying the affidavit of support, Form I-864, provide that “divorce does not terminate the obligation” of a sponsor to support the sponsored immigrant. Federal courts have found that divorce between a sponsored immigrant and a sponsor does not necessarily negate a sponsor’s financial liability under an affidavit of support[5]. The parties in Cheshire were divorced but that does not alleviate the sponsor’s obligation to support the foreign spouse according to Section 1183(a) and the terms of Form I-864. Family law practitioners could enforce a valid affidavit of support following the guidelines of sponsor’s financial obligations.

Enforcing Child Support
Personal Responsibility and Work Opportunity Act, 1996, Section 652(k) sometimes requires a denial of passport renewal for failure to pay child support. Under this law, there is a possibility of a denial or revocation of passports for individuals who fail to pay child support. Through this law, Congress sought to eliminate entitlements, or cash welfare, to individuals who were dispersed as part of the Social Security Act. Using Temporary Assistance to Needy Families or TANF, Congress attempted improve child support collection rates with the hope that single parent families would move off welfare rolls and remain self-sufficient. The idea was that “States should diligently continue their efforts to enforce child support payments by the non-custodial parent to the custodial parent, regardless of the employment status or location of the non-custodial parent”[6]. To achieve these purposes, the law was designed to encourage states to have similar child support laws, to share information through the Federal government, and to handle interstate child support cases quickly. One of the enforcement measures included a denial by the US Department of State of Passports for nonpayment of child support[7]. Under Section 51.70 (a) (8) of Title 22 of the Code of Federal Regulations, if you are certified to Passport Services by the U.S. Department of Health and Human Services (HHS) to be in arrears of child support payments in excess of $2,500, you are ineligible to receive a U.S. passport. As a practice pointer, may I say that in my experience it is easier to obtain a settlement for your client if the child enforcement department of the state is owed money. In other words, the custodial parent receives public assistance from the state. The state has an interest in collecting and arriving at a settlement; there are no emotions that cloud the issue as in the case of a custodial parent.  Information on child support can be obtained from the appropriate State child support enforcement agency.


[1] USCIS Acting Associate DirectorYates Memo dated April 10, 2003,
[2] United States Citizenship and Immigration Service.
[3] Cheshire v. Cheshire, 895 So. 2d 408 – Fla: Dist. Court of Appeals, 1st Dist. 2005
[4] Immigration and Nationality Act, 1952
[5] Schwartz, 2005 WL 1242171, (finding that “a sponsor and a sponsored immigrant’s divorce does not automatically terminate the sponsor’s obligations under the affidavit of support,” in case where plaintiff, permanent resident alien of the U.S. and defendant’s ex-wife, brought suit against ex-husband sponsor seeking to enforce affidavit of support);Stump, 2005 WL 1290658, (holding former husband, sponsor, liable to former wife, sponsored immigrant, for financial support under terms of affidavit of support where parties’ divorce was pending);Ainsworth, 2004 U.S. Dist. LEXIS 2896, (noting that divorce did not end enforceability of affidavit of support contract).
[6] Reconciliation Committee. “H. Report 104-725”. Retrieved 2011-01-09.
[7] Section III (Child Support), Subtitle G (Enforcement of Child Support) contained 14 enforcement measures to improve the collection of child support, including Denial of Passports for Nonpayment of Child Support in Section 370. Under Section 370, 42 U.S.C. § 652(k)(2) was amended so that the “Secretary of State shall, upon certification by the Secretary transmitted under paragraph (1), refuse to issue a passport to such individual, and may revoke, restrict, or limit a passport issued previously to such individual.”

See you in my next blog.

Nalini S Mahadevan, JD, MBA

Attorney at Law

www.lawyersyoucantalkto.com

Copyright 2011. All rights reserved.

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