Your Questions (F.A.Q.)
IMMIGRATION LAW:
What is the difference between Asylum and Refugee Status?
Asylum seekers and refugees can gain legal residency status in the United States
if they fulfill certain requirements under immigration law. The main differences
between the two forms of relief are:
• Asylum seekers are already on U.S. soil, while refugees are outside of the
United States; and
• Refugees seek help from the United Nations, while asylum applicants
submit their petition to the U.S. government.
Although federal law and regulations govern the asylum and refugee process,
each request is determined on a case-by-case basis, meaning that an individual’s
application as presented to an immigration law officer is the most crucial factor in
obtaining the relief sought—asylum or refugee status. Following is a discussion
of asylum and refugee status under immigration law.
Who is eligible for Asylum?
Asylum is a type of protection that allows individuals who are already in the
United States to remain here. In order to obtain asylum, an applicant must
demonstrate to the United States government that he or she fears persecution in
their native country based upon one or more of the following:
• Race,
• Religion,
• Nationality,
• Membership in a social group, or
• Political opinion.
An individual seeking asylum applies directly to the United States government. U.
S. law generally requires that an application for asylum be filed within one year of
the person’s arrival in the United States, although there are very limited
exceptions. The procedure and evidence that is required in an asylum application
is significantly more complex than for individuals seeking refugee status before
the U.N. In addition, there are dangers of applicants being held in detention
while their request is being considered, if they have entered the United States
illegally. Finally, asylum applicants cannot seek employments authorization at the
same time they apply for asylum. They need to wait for an initial 150 days prior
to application.
What happens if USCIS does not grant my asylum?
After asylum interview, there are four possible outcomes:
First is to grant your application for asylum.
Second is to reject the application because it was not filed within one year after
you arrived in the United States and there are no exceptional or changes
circumstance s to justify not filling within one year.
Third, if you are not in a valid immigration status at the time for your interview,
USCIS will most likely send your case to Immigration Court. This action is
called “referring” the case for a hearing in front of an Immigration Judge.
Forth, if you are in a valid immigration status at the time of your asylum
interview (such as student, or Temporary Protected Status), USCIS will send you
a “Notice of Intent to Deny” explaining that they intend to deny your case. If
they do deny your case nothing further will happen until your valid immigration
status ends. When that happens, USCIS can send your case to Immigration
Court.
My asylum application was sent to Immigration Court.
What happens now?
If USCIS does not grant your asylum application, they will most likely send your
case to Immigration Court for a Judge to make a decision in your case. In this
situation, immigration services will start what is called “removal proceedings”
against you. This means that USCIS is saying that you do not have the right to
be in the US, and that they want to deport you. You will have the right to apply
for asylum again in front of the Immigration Judge, at which you will have the
right to explain your whole case again for the judge. It is strongly advisable that
you consult with an experienced immigration attorney if you are put into removal
proceedings.
What is Naturalization?
Naturalization is the process whereby United States citizenship is conferred on a
foreign or national after he or she fulfills the requirements established by
Congress in the Immigration and Naturalization Act (INA). The general
requirements for administrative naturalization include:
• A period of continuous residence and physical presence in the United States
• Residence in a particular state prior to filling
• An ability to read, write, and speak English
• A knowledge and understanding of United States history and government
• Good Moral Character
• Attachment to the principles set forth in the United States Constitution
• Favorable deposition toward the United States.
All naturalization applicants must demonstrate good moral character and a
favorable disposition toward the United States. The other naturalization
requirements may be modified or waived for certain applicants, such as spouses
of United States citizens and persons with mental or physical disabilities.
What is a VAWA self-petition?
Immigrants married to US citizens or permanent residents who subject them to
domestic violence may petition for permanent residence on their own, without the
involvement of the abusive US citizen or permanent resident spouse. These
petitioned are known as VAWA petitions, after the Violence Against Women Act,
which introduced these applications. Instead of submitting an I-130 relative
petition along with the abuser, the battered spouse will become eligible to file an I-
485 application for adjustment of status to permanent resident. Self-petitioners
married to lawful permanent residents will have to wait until there is a visa
number for them (just like in family preference cases). Self-petitioners married to
US citizens will be immediately eligible to file I-485 application for adjustment of
status to permanent resident.
What is green card?
Green Card” is a term often used to refer to lawful permanent residence in the
United States. Lawful permanent residents have the right to live and work
indefinitely in the United States, as well as to petition for certain family members
to get green cards. Lawful permanent residence is also the first step towards
becoming a citizen of the US(naturalizing”). There are a number if different
ways to become a lawful permanent resident of the US, including through a
family member, through an employer, by being granted asylum or refugee status,
or through the diversity visa lottery.
How do I get a green card?
There are five major ways to get lawful permanent residence in the United States:
1) through a family member; 2) through an employer; 3) through the diversity
visa lottery; 4) by being granted asylum; 5) by entering the US as a refugee.
What is “adjustment of status”?
Adjustment of status is the process by which a person inside the United States
becomes a lawful permanent resident. The person’s immigration status is
“adjusted” to that of a lawful permanent resident.
What is the difference between “change of status” and “adjustment of
status”?
Change of status refers to the process of changing from one nonimmigrant status
to another, such as from a student to a temporary worker. Adjustment of status
refers to the process of becoming a lawful permanent resident of the US.
Are affidavits of support required for all adjustment of status applications?
No. The I-864 enforceable affidavit of support is required only in family petition
and some employments-based cases. Affidavits of support are not required for
refugee or asylees, nor of VAWA self petitioners.
MATRIMONIAL AND FAMILY LAW:
PRE-NUPTIAL/POST-NAPTIAL AGREEMENTS
Pre-Nuptial Agreement- An agreement made prior to marriage concerning
property, financial issues or children.
Post-Nuptial Agreement- An agreement made after marriage concerning property,
financial issues or children.
In order to be valid these agreements must be fair and include full disclosure of
the assets and debts of both parties. Each party should be represented by his/her
own independent attorney. If an attorney does not represent one of the parties
he/she may later be able to void this agreement by taking the position of not
understanding of what was signed. If properly reviewed and executed by parties
independent attorneys, prepared and contain certain language Pre-nuptial and
Post-Nuptial agreements are found by courts to be enforceable.
WHAT ARE THE BASIC REQUIEREMENTS TO FILE FOR A DIVORCE
IN NEW YORK STATE?
There are two basic requirements that must be met before filling for a divorce in
New York State:
1. The residency requirements are as follows:
a. The marriage ceremony was performed in New York State and either
spouse resided as a resident in New York State for at least one year prior to their
divorce action.
b. The couple lived as husband and wife in New York State and either
spouse is a resident of the state wherein he/she resided for at least one year prior
to their divorce action.
c. The grounds (see explanation below) for divorce occurred in New York
State and either spouse is a resident of the state and resided in New York State
for a continuous period of one year immediately before their divorce action began.
d. The grounds for divorce occurred in New York and both spouses are
New York residents at the time the action is commenced.
e. If you and your spouse were married outside New York State and you
never lived as husband and wife in this state and the grounds (see explanation
below) for divorce not occur in this state, therefore either you or your spouse
must presently be a resident of New York State and have resided in New York
State continuously for at least two years.
2. The Grounds requirements are as follows:
a. Cruel and Inhuman treatment -must rise to the level that the physical or
mental being of the person who wants to file for a divorce is endangered and
making it unsafe or improper for the him/her to continue living with his/her
spouse.
b. Abandonment-there are three types of abandonment:
First is a physical abandonment meaning one of the spouses has physically
departed from his/her marital home for a period of one year or longer prior to
their divorce action and until present.
Second is a constructive abandonment which involves one spouse refusal to
engage in sexual relations with the other spouse without consent, cause or
justification, continuously, for the period one year or longer prior to commencing
the action and continuing to present.
Third is a lock out involves one spouse’s refusal to allow the other spouse into
the home continuously for more than one year prior to commencing the action
and continuing to the present.
c. Imprisonment –may be maintained where the Defendant is imprisoned for
a period of at least three consecutive years. The imprisonment must have
commenced after the date of marriage and the Defendant must still be in prison
when this divorce action is commenced. Time limit to start this action is five
years beginning from the time of the completion of the third year in prison.
d. Adultery-act of a sexual or deviate sexual intercourse voluntarily
performed by the Defendant with a person other than his or her spouse during the
course of marriage. (Cannot be based only on the Defendant’s or Plaintiff’s
testimony, evidentiary requirements must be satisfied. In some case can be
maintained as grounds for Cruel and Inhuman treatment).
e. Conversion of a Separation Agreement: if you and your spouse have lived
apart for more than one year pursuant to the properly executed separation
agreement, you may maintain an action for divorce.
CHILD SUPPORT
Do I need to be married or divorced in order to receive child support?
No, it is not required for a custodial parent to be married or divorced to a non-
custodial parent in order to receive child support for the child(ren) of the marriage.
Who determines the amount of Child Support that I am eligible for?
The Child Support Standards Chart can be used to determine an approximate
annual child support obligation. The Child Support Percentages at are as follows:
One Child-17%
Two Children-25%
Three Children-29%
Four Children-31%
Five + Children-no less than 35%
When and Where Child Support petition can be filed?
If both parents agree to the specific amount of child support, which can not be
less than required by the Child Support Standards Chart, the amount of child
support can be entered into the Divorce Judgment or can be separately filed for
and determined by the Judge in the a Family Court.
BANKRUPTCY LAW:
What is Chapter 7 Bankruptcy?
Chapter 7 bankruptcy, also known as “liquidation”, is legal process by which
most unsecured debts can be discharges, or wiped out. Chapter 7 bankruptcy is
known as liquidation because any non-exempt assets the debtor has may be
liquidated by the trustee-sold for the benefit of creditors. Many Chapter 7
bankruptcy debtors have not non-exempt assets, and so there is in no liquidation,
and unsecured debts are simply discharged. There are, however, certain
unsecured debts that re not dischargeable in Chapter 7 bankruptcy.
Who can file for chapter 7 Bankruptcy?
In order to file for chapter 7 Bankruptcy one must pass Chapter 7 means test.
This test is used to compare person's income to the median income in the state of
residency. The person’s income has to be lower than the median income
determined by the state. However, if your income is greater than the median
income of your state of residency, other calculations regarding income and
expenses can be made to determine your eligibility to file for chapter 7
Bankruptcy.
What is Chapter 13 Bankruptcy?
Chapter 13 Bankruptcy is a full or partial repayment plan administered by the
bankruptcy court. The debtor submits a plan for approval and, when a plan is
approved, makes monthly payments to the bankruptcy trustee. The trustee
makes payments to creditors in accordance with the terms of the period. If all
payments have been made according to the paln, remaining unsecured,
dischargeable debt may be discharged.
What is the difference between Asylum and Refugee Status?
Asylum seekers and refugees can gain legal residency status in the United States
if they fulfill certain requirements under immigration law. The main differences
between the two forms of relief are:
• Asylum seekers are already on U.S. soil, while refugees are outside of the
United States; and
• Refugees seek help from the United Nations, while asylum applicants
submit their petition to the U.S. government.
Although federal law and regulations govern the asylum and refugee process,
each request is determined on a case-by-case basis, meaning that an individual’s
application as presented to an immigration law officer is the most crucial factor in
obtaining the relief sought—asylum or refugee status. Following is a discussion
of asylum and refugee status under immigration law.
Who is eligible for Asylum?
Asylum is a type of protection that allows individuals who are already in the
United States to remain here. In order to obtain asylum, an applicant must
demonstrate to the United States government that he or she fears persecution in
their native country based upon one or more of the following:
• Race,
• Religion,
• Nationality,
• Membership in a social group, or
• Political opinion.
An individual seeking asylum applies directly to the United States government. U.
S. law generally requires that an application for asylum be filed within one year of
the person’s arrival in the United States, although there are very limited
exceptions. The procedure and evidence that is required in an asylum application
is significantly more complex than for individuals seeking refugee status before
the U.N. In addition, there are dangers of applicants being held in detention
while their request is being considered, if they have entered the United States
illegally. Finally, asylum applicants cannot seek employments authorization at the
same time they apply for asylum. They need to wait for an initial 150 days prior
to application.
What happens if USCIS does not grant my asylum?
After asylum interview, there are four possible outcomes:
First is to grant your application for asylum.
Second is to reject the application because it was not filed within one year after
you arrived in the United States and there are no exceptional or changes
circumstance s to justify not filling within one year.
Third, if you are not in a valid immigration status at the time for your interview,
USCIS will most likely send your case to Immigration Court. This action is
called “referring” the case for a hearing in front of an Immigration Judge.
Forth, if you are in a valid immigration status at the time of your asylum
interview (such as student, or Temporary Protected Status), USCIS will send you
a “Notice of Intent to Deny” explaining that they intend to deny your case. If
they do deny your case nothing further will happen until your valid immigration
status ends. When that happens, USCIS can send your case to Immigration
Court.
My asylum application was sent to Immigration Court.
What happens now?
If USCIS does not grant your asylum application, they will most likely send your
case to Immigration Court for a Judge to make a decision in your case. In this
situation, immigration services will start what is called “removal proceedings”
against you. This means that USCIS is saying that you do not have the right to
be in the US, and that they want to deport you. You will have the right to apply
for asylum again in front of the Immigration Judge, at which you will have the
right to explain your whole case again for the judge. It is strongly advisable that
you consult with an experienced immigration attorney if you are put into removal
proceedings.
What is Naturalization?
Naturalization is the process whereby United States citizenship is conferred on a
foreign or national after he or she fulfills the requirements established by
Congress in the Immigration and Naturalization Act (INA). The general
requirements for administrative naturalization include:
• A period of continuous residence and physical presence in the United States
• Residence in a particular state prior to filling
• An ability to read, write, and speak English
• A knowledge and understanding of United States history and government
• Good Moral Character
• Attachment to the principles set forth in the United States Constitution
• Favorable deposition toward the United States.
All naturalization applicants must demonstrate good moral character and a
favorable disposition toward the United States. The other naturalization
requirements may be modified or waived for certain applicants, such as spouses
of United States citizens and persons with mental or physical disabilities.
What is a VAWA self-petition?
Immigrants married to US citizens or permanent residents who subject them to
domestic violence may petition for permanent residence on their own, without the
involvement of the abusive US citizen or permanent resident spouse. These
petitioned are known as VAWA petitions, after the Violence Against Women Act,
which introduced these applications. Instead of submitting an I-130 relative
petition along with the abuser, the battered spouse will become eligible to file an I-
485 application for adjustment of status to permanent resident. Self-petitioners
married to lawful permanent residents will have to wait until there is a visa
number for them (just like in family preference cases). Self-petitioners married to
US citizens will be immediately eligible to file I-485 application for adjustment of
status to permanent resident.
What is green card?
Green Card” is a term often used to refer to lawful permanent residence in the
United States. Lawful permanent residents have the right to live and work
indefinitely in the United States, as well as to petition for certain family members
to get green cards. Lawful permanent residence is also the first step towards
becoming a citizen of the US(naturalizing”). There are a number if different
ways to become a lawful permanent resident of the US, including through a
family member, through an employer, by being granted asylum or refugee status,
or through the diversity visa lottery.
How do I get a green card?
There are five major ways to get lawful permanent residence in the United States:
1) through a family member; 2) through an employer; 3) through the diversity
visa lottery; 4) by being granted asylum; 5) by entering the US as a refugee.
What is “adjustment of status”?
Adjustment of status is the process by which a person inside the United States
becomes a lawful permanent resident. The person’s immigration status is
“adjusted” to that of a lawful permanent resident.
What is the difference between “change of status” and “adjustment of
status”?
Change of status refers to the process of changing from one nonimmigrant status
to another, such as from a student to a temporary worker. Adjustment of status
refers to the process of becoming a lawful permanent resident of the US.
Are affidavits of support required for all adjustment of status applications?
No. The I-864 enforceable affidavit of support is required only in family petition
and some employments-based cases. Affidavits of support are not required for
refugee or asylees, nor of VAWA self petitioners.
MATRIMONIAL AND FAMILY LAW:
PRE-NUPTIAL/POST-NAPTIAL AGREEMENTS
Pre-Nuptial Agreement- An agreement made prior to marriage concerning
property, financial issues or children.
Post-Nuptial Agreement- An agreement made after marriage concerning property,
financial issues or children.
In order to be valid these agreements must be fair and include full disclosure of
the assets and debts of both parties. Each party should be represented by his/her
own independent attorney. If an attorney does not represent one of the parties
he/she may later be able to void this agreement by taking the position of not
understanding of what was signed. If properly reviewed and executed by parties
independent attorneys, prepared and contain certain language Pre-nuptial and
Post-Nuptial agreements are found by courts to be enforceable.
WHAT ARE THE BASIC REQUIEREMENTS TO FILE FOR A DIVORCE
IN NEW YORK STATE?
There are two basic requirements that must be met before filling for a divorce in
New York State:
1. The residency requirements are as follows:
a. The marriage ceremony was performed in New York State and either
spouse resided as a resident in New York State for at least one year prior to their
divorce action.
b. The couple lived as husband and wife in New York State and either
spouse is a resident of the state wherein he/she resided for at least one year prior
to their divorce action.
c. The grounds (see explanation below) for divorce occurred in New York
State and either spouse is a resident of the state and resided in New York State
for a continuous period of one year immediately before their divorce action began.
d. The grounds for divorce occurred in New York and both spouses are
New York residents at the time the action is commenced.
e. If you and your spouse were married outside New York State and you
never lived as husband and wife in this state and the grounds (see explanation
below) for divorce not occur in this state, therefore either you or your spouse
must presently be a resident of New York State and have resided in New York
State continuously for at least two years.
2. The Grounds requirements are as follows:
a. Cruel and Inhuman treatment -must rise to the level that the physical or
mental being of the person who wants to file for a divorce is endangered and
making it unsafe or improper for the him/her to continue living with his/her
spouse.
b. Abandonment-there are three types of abandonment:
First is a physical abandonment meaning one of the spouses has physically
departed from his/her marital home for a period of one year or longer prior to
their divorce action and until present.
Second is a constructive abandonment which involves one spouse refusal to
engage in sexual relations with the other spouse without consent, cause or
justification, continuously, for the period one year or longer prior to commencing
the action and continuing to present.
Third is a lock out involves one spouse’s refusal to allow the other spouse into
the home continuously for more than one year prior to commencing the action
and continuing to the present.
c. Imprisonment –may be maintained where the Defendant is imprisoned for
a period of at least three consecutive years. The imprisonment must have
commenced after the date of marriage and the Defendant must still be in prison
when this divorce action is commenced. Time limit to start this action is five
years beginning from the time of the completion of the third year in prison.
d. Adultery-act of a sexual or deviate sexual intercourse voluntarily
performed by the Defendant with a person other than his or her spouse during the
course of marriage. (Cannot be based only on the Defendant’s or Plaintiff’s
testimony, evidentiary requirements must be satisfied. In some case can be
maintained as grounds for Cruel and Inhuman treatment).
e. Conversion of a Separation Agreement: if you and your spouse have lived
apart for more than one year pursuant to the properly executed separation
agreement, you may maintain an action for divorce.
CHILD SUPPORT
Do I need to be married or divorced in order to receive child support?
No, it is not required for a custodial parent to be married or divorced to a non-
custodial parent in order to receive child support for the child(ren) of the marriage.
Who determines the amount of Child Support that I am eligible for?
The Child Support Standards Chart can be used to determine an approximate
annual child support obligation. The Child Support Percentages at are as follows:
One Child-17%
Two Children-25%
Three Children-29%
Four Children-31%
Five + Children-no less than 35%
When and Where Child Support petition can be filed?
If both parents agree to the specific amount of child support, which can not be
less than required by the Child Support Standards Chart, the amount of child
support can be entered into the Divorce Judgment or can be separately filed for
and determined by the Judge in the a Family Court.
BANKRUPTCY LAW:
What is Chapter 7 Bankruptcy?
Chapter 7 bankruptcy, also known as “liquidation”, is legal process by which
most unsecured debts can be discharges, or wiped out. Chapter 7 bankruptcy is
known as liquidation because any non-exempt assets the debtor has may be
liquidated by the trustee-sold for the benefit of creditors. Many Chapter 7
bankruptcy debtors have not non-exempt assets, and so there is in no liquidation,
and unsecured debts are simply discharged. There are, however, certain
unsecured debts that re not dischargeable in Chapter 7 bankruptcy.
Who can file for chapter 7 Bankruptcy?
In order to file for chapter 7 Bankruptcy one must pass Chapter 7 means test.
This test is used to compare person's income to the median income in the state of
residency. The person’s income has to be lower than the median income
determined by the state. However, if your income is greater than the median
income of your state of residency, other calculations regarding income and
expenses can be made to determine your eligibility to file for chapter 7
Bankruptcy.
What is Chapter 13 Bankruptcy?
Chapter 13 Bankruptcy is a full or partial repayment plan administered by the
bankruptcy court. The debtor submits a plan for approval and, when a plan is
approved, makes monthly payments to the bankruptcy trustee. The trustee
makes payments to creditors in accordance with the terms of the period. If all
payments have been made according to the paln, remaining unsecured,
dischargeable debt may be discharged.
Copyright 2007, Tatiana Pahman, PLLC, All rights reserved
2nd Floor
Brooklyn. NY 11229
(corner of Avenue U)
-----------------------------
TEL: (718)-998-9789
TEL: (718)-755-9577
FAX: (718)-998-4219
e-mail:
wtpah2@yahoo.com
Brooklyn. NY 11229
(corner of Avenue U)
-----------------------------
TEL: (718)-998-9789
TEL: (718)-755-9577
FAX: (718)-998-4219
e-mail:
wtpah2@yahoo.com
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