|June 18, 2012||Posted by admin under Deportation & Removal||
President Obama passed an Executive Order last week allowing eligible young people to apply for an immigration benefit known as “Deferred Action”. This announcement was met with applause from the immigrant and immigrant-advocate communities and was viewed by many as passage of the Dream Act, a piece of legislation that has been debated but never actually passed in Congress, which would have provided a path to lawful status for young people who came to the U.S. through no fault of their own.
Deferred action however does not lead to a green card and does not provide a path to become a naturalized U.S. citizen. The benefit has been defined as an “administrative convenience” that merely de-prioritizes the grantee from deportation. On the up side, deferred action allows one to apply for work authorization. With work authorization, one can more easily apply for a social security card. As for driver’s licenses, Virginia is strict with who is eligible for one and who is not, and it will remain to be seen whether Virginia will allow those granted deferred action the right to apply for a driver’s license. Another plus is that it invites thousands of undocumented people to come out of the shadows and possibly sets the stage for a greater immigration benefit in the future.
It does not come without risks. The President announced that deferred action for eligible young people will be granted in increments of two years with renewal available at the end of that period. This is a benefit that can change with the political tide. If Mitt Romney is elected President, it may sunset long before the two years. The benefit will also require biometrics capture. Applicants must be aware that by applying they are coming out of the shadows for a benefit that does not confer substantive legal rights, all the while effectively putting them on the government’s radar screen.
So what is all this talk about “eligible” young people? The criteria is as follows: applicants must have entered the US prior to the age of 16; resided in the US for 5 years prior to June 15, 2012; must currently be no older than age 30, must be a high school graduate, possess a GED or have honorable discharge from the US military; and must have no serious criminal convictions or multiple misdemeanors. The government has also warned that fraud in the application will not be tolerated and those who submit fraudulent documents or information can expect full prosecution including referral for removal (deportation).
Deferred action is a good benefit for those in removal proceedings or who are subject to a final order of removal. For those who apply affirmatively – a group who are permitted to do so under Obama’s announcement – applicants should consult with a qualified attorney and carefully weigh the risks before applying.
|February 22, 2011||Posted by admin under Business Immigration||
Is your company sending you to the United States? Do they want to send you permanently or temporarily? Are you coming to the U.S. to attend a meeting or conference or take steps to get a business started or is your company’s U.S. location ready for the real deal?
An “L” visa is for intracompany transferees. From an immigration perspective it is probably one of the more challenging visas to obtain. When the government is not satisfied with the amount of evidence the petitioning company has submitted it issues a Request for Evidence, “RFE” for short, and with L visa petitions, it is usually four or five pages long.
Why is this? One reason is because case precedent and U.S. policy is downright vague on which job duties constitute managerial or executive, and many adjudicators appear untrained on the complicated nuances of L visas. Some are overturned on appeal, many are not. RFE’s are time-consuming and expensive for the client who has to pay attorney’s fees. Moreover, they delay the client’s travel to the United States.
How can an RFE be avoided?
Planning. Before you retain an attorney to represent you in applying for an L visa, you should first make an honest assessment as to whether your U.S. entity is ready for a manager or executive. You may be a small business — not a disqualifying factor in applying for a L visa — but the size of your business may lead USCIS to believe that your business is not ready for a manager or executive, even considering the reasonable needs of your organization. A safer approach is to plan well in advance by gathering documents and preparing a business plan for the U.S. location (especially if the U.S. office would be considered a new office meaning it has been engaged in business for less than one year) and taking those documents to your attorney for an honest assessment.
Gather documents. There are two broad areas that your attorney must successfully pitch to the government on your behalf. The first is that all of the entities involved are qualifying organizations under the immigration regulations and have the requisite relationship to one another (for example, parent, subsidiary, branch, or affiliate). You must supply your attorney with, for both the foreign entity and the U.S. entity, articles of incorporation, stock certificates, corporate income tax returns, company brochures / literature and joint venture agreements. Rarely will the documents specify the relationships between the parties, it must be determined through other types of evidence. The second area to prove is that the beneficiary – employee in fact qualifies as a manager or executive and is not merely a “manager” or “executive” in title who is actually performing lower-level or non-qualifying duties. You must provide your attorney with one of each of the following for the foreign position and the U.S. position: the beneficiary’s job description, breakdown of job duties with percentage of time devoted to each duty, and an organizational chart. You should also provide a copy of the beneficiary’s resume and diploma/ degrees. These are only the initial documents that your attorney may ask for. In the planning stage, you should also get position descriptions for every staff member employed under your ultimate direction with a list of duties performed and percentage of time spent on each job duty. The beneficiary’s job description will be very important and should be crafted carefully.
Non-Immigration Issues. If your company does not already have a corporate or tax lawyer, it should get one. Your immigration attorney will need to confer with him or her on various issues pertaining to your case, with your permission. Many immigration lawyers do not practice corporate or tax law, yet issues related to these areas of the law will arise in preparing a strong L visa petition.
Patience. Clients will get frustrated, particularly when the L visa petition gets to the RFE stage. The Department of Homeland Security (USCIS) will be asking for all kinds of information, ranging from proof of ownership and control between the petitioning company and the foreign entity, sales invoices, bank statements and stock ledgers. Between the amount of documents that your attorney will be requesting and what seems like an eternity in gathering all the necessary information, clients will lose patience and may start to question the capabilities of even the most seasoned lawyers.
Competence. All attorneys are under a duty of competence per the Rules of Professional Conduct governing attorneys. You should expect no less. On that note, clients might find attorney’s fees to be steep on L visa petitions. This is because they present challenging issues and tend to be highly time-consuming, for both the attorney and his or her support staff.
Once your attorney receives your initial documents, allow him or her to spend several days analyzing them to determine whether you are eligible for the L visa. If you are not eligible, there is no need to continue. If you plan to eventually apply for your green card through the streamlined employment-based first-preference (“EB-1″) category for managers and executives, make sure your attorney is aware of this very early in the case. This is available for applicants who were employed as managers or executives (but not who were employed as employees with specialized knowledge) with the foreign entity. If the L visa is granted as a “new office” petition, the authorized period of stay will not exceed one year. During this time the petitioning company and beneficiary should work closely with their attorney in planning to apply for an extension before the one year is up. Clients should expect that the attorney will apply for the EB-1 green card after the first extension has been granted.
The government is committed to providing a path for U.S. admission for businesses and entrepreneurs but they have been strict with these visas in recent years. Proper planning well in advance of filing the L visa petition and patience for the long road ahead will minimize stress for both you and your attorney.
|January 25, 2011||Posted by admin under Criminal, Deportation & Removal, Waivers||
The Fourth Circuit ruled earlier this month in Crespo v. Holder, __ F.3d. __, that a deferred adjudication may not be a conviction for immigration purposes. The respondent was a Peruvian who had overstayed his tourist visa in 1997. When his wife, a U.S. citizen, petitioned for his green card, respondent found that he needed a “waiver” to overcome an earlier conviction for possession of marijuana under Virginia Code 18.2-251.
This provision of the Virginia Code applies to a first offender who pleads either guilty or not guilty. After such plea,the court may, if it finds facts that are sufficient to justify a finding of guilt, defer proceedings and place the offender on probation. This “deferred adjudication” also means that the court has not entered a judgment of guilt.
The Court delineates the five circumstances by statute under which a deferred adjudication can still be considered a “conviction” for immigration purposes and subsequently ruled that respondent met none of them. One of the prongs represented a snag for the government and that was where “a judge or jury has found the alien guilty”. The Court ruled this meant a finding of guilt by jury because to interpret it otherwise would render Congress’s wording of the other four factors superfluous.
This case is a victory for immigrants and lends credence to the principle that lawyer’s advise their clients not to sign or admit to anything. Had respondent pled guilty or made admissions of fact sufficient to warrant a finding of guilt – a factor that is likely met by defendant signing something – the outcome would have been different. Since the deferred adjudication in this case was not a conviction under the immigration laws, respondent was free to pursue the waiver in connection with his adjustment of status application.
|January 23, 2011||Posted by admin under Family-Based Immigration||
Family-based preference category 2A is backlogged again, after six or so blissful months where lawful permanent resident petitioners across the country enjoyed the prospect of speedy family unification. USCIS is now adjudicating petitions that were filed by LPRs for their spouses or children under 21 prior to January 1, 2008. To provide contrast, last month USCIS was adjudicating petitions in this category that were filed prior to August 1, 2010, which basically made that category close to current!
This is disappointing news for thousands of LPRs whose I-130 petitions were pending adjudication or otherwise hadn’t been sent to the National Visa Center yet. On the hopeful side, each month brings different processing estimates from USCIS and maybe they will be able to catch up again with processing speed. Much will depend as well on how many petitions are filed.
|January 23, 2011||Posted by admin under Uncategorized||
The government reiterates the importance of using social networking sites as part of its investigation into potential immigration fraud.
|January 23, 2011||Posted by admin under Deportation & Removal||
It may come as a surprise to some that both undocumented aliens and green card holders in the United States are subject to the removal provisions of the U.S. immigration laws. One such ground of removal that may take long-time green card holders by surprise is that involving criminal convictions. A provision of the immigration laws mandates that a foreign national who has committed two or more crimes involving moral turpitude occurring at any time after admission makes that foreign national deportable.
So hypothetically if Jose, who got his green card in 1984, is convicted of petty larceny in Virginia in 2007 and then subsequently is convicted of forging a check in 2009, he may be placed in removal proceedings. Once in front of the judge he may have several different forms of relief available to him because he has had his green card for at least 5 years, has at least 7 years of continuous residence following a lawful admission and has no aggravated felonies. This form of relief is called cancellation of removal. Alternatively, Jose may be eligible for a waiver in conjunction with a petition for relief, filed by a relative who is eligible to petition for him. This can get costly between government filing fees for the petitions and waiver, not to mention legal fees. It is important to keep in mind that there are many people placed in removal proceedings who have no relief available to them.
The immigration laws only get stricter. Let’s use the same hypothetical, with some changes. This time Jose gets his green card in 1999 and is convicted of a petty larceny (or shoplifting) in Virginia in 2002. What happened was that his friend was shoplifting and the security guard in the store wasn’t sure who had committed the theft and so both were prosecuted. Unable to speak much English and not understanding the legal process, Jose pled guilty and agreed to pay a fine and perform community service. What happens next? Yep you guessed it. Jose can get deported. Jose is subject to removal on the grounds that he committed a crime involving moral turpitude within 5 years after a lawful admission (getting his green card was considered an “admission” into the United States) for which the potential maximum sentence under state statute was at least one year. Jose should see a qualified immigration attorney right away who can evaluate his options for relief in removal proceedings.
Once Immigration and Customs Enforcement (“ICE”) decides to bring charges against an individual, they may chose to detain that person. The detainee (or more likely his or her family) will want to find out if he is eligible for bond. ICE can decide to release the detainee on supervised release (in lieu of bond), where the detainee must wear an electronic ankle bracelet and check-in with ICE on a regular basis. Your attorney’s representation of you may include the bond hearing as well as the substantive removal defense, depending on what you and the attorney have mutually agreed.
The bottom line is if you or a friend or loved one is faced with removal, you may still have the opportunity to avoid deportation. Better yet, if you have had your green card for 5 years or more (3 years if you are married to a U.S. Citizen) and you have good moral character for that period, you should consider applying to become a naturalized U.S. Citizen.