Immigration Visa Attorney Blog

In recent weeks we've done some blogging about Deferred Action for Childhood Arrivals, the program similar in many ways to the DREAM Act most people are familiar with. (If you're not up to date on Deferred Action for Childhood Arrivals, please check out THIS POST.)

An interesting component of the Deferred Action for Childhood Arrivals which will begin to play itself out over the upcoming months deals with how qualified candidates will be made aware of the program. Some estimates say more than 1 million immigrants are eligible for Deferred Action. According to United States Citizenship and Immigration Services, less than 85,000 have signed up.

That disparity means there are quite a number of immigrants who are unaware they qualify for the two-year deferment. That is literally hundreds of thousands of children, teenagers and younger adults who don't have access to information that could impact their lives significantly.

Continue reading "Getting Creative to Reach DREAM Act Candidates" »

This will be the third blog in our series on Consideration of Deferred Action for Childhood Arrivals. After an examination of the program as a whole (LINK) and some of the program's specific guidelines (LINK), we will now take a look at the documentation needed to demonstrate for the United States Citizenship and Immigration Services (USCIS) that guidelines have been met.

For proof of identity, an applicant must be able to submit one of the following: A passport/national identity document from the country of origin; a birth certificate with photo ID; a school or military ID; or a U.S. government immigration document containing both name and photo. For proof of immigration status the USCIS will accept a Form I-94/I-95/I-94W with authorized stay expiration date; final order of exclusion or deportation as of June 15, 2012; or a charging document which places the applicant into proceedings for removal.

Records from U.S. schools attended, travels records, Form I-94/I-95/I-94W, immigration documents from the DHS or INS stating date or entry or hospital records can be used to prove an applicant came to the U.S. prior to the age of 16.

Continue reading "Consideration of Deferred Action for Childhood Arrivals - Part III" »

In our last blog, we provided an overview of the process of Consideration of Deferred Action for Childhood Arrivals (LINK). As mentioned, the two-year deferment is available to those who came to the United States as children, have not committed serious criminal offenses and who meet certain guidelines. In this blog we will look at those guidelines.

For starters, there are several important dates to keep in mind. As of June 5, 2012, perspective deferment applicants must have been under the age of 31. They must also have come to the U.S. before their 16th birthday and must have resided in the country, continuously, from June 15, 2007, to the present time. To be considered, applicants must have entered without inspection prior to June 15, 2012 or have had their lawful status expire as of the same date.

There is also an educational component to the deferment process. In order to be considered, an applicant must be: currently enrolled in school; have completed their GED; or be an honorably discharged veteran of the U.S. Armed Forces or Coast Guard.

Continue reading "Consideration of Deferred Action for Childhood Arrivals - Part II" »

The Department of Homeland Security (DHS) continues to focus its immigration enforcement efforts on the removal of two types of individuals: 1. Those who pose a threat to national security, and 2. Those who are a risk to public safety, such as violent criminals, felons, and repeat offenders. DHS does not want to expend resources on low priority cases, such as individuals who came to the United States as children, have not committed serious crimes, and who meet certain guidelines. This is where the process of Consideration of Deferred Action for Childhood Arrivals comes in.

While this deferral does not confer lawful status upon an individual, nor excuse an individual from previous or subsequent periods of unlawful presence in the United States, the Deferred Action for Childhood Arrivals gives an undocumented individual some allowances. That is, under existing regulations an individual who has obtained this deferral, which lasts for two years, is eligible to receive employment authorization for the period of deferred action, provided the person in question can demonstrate "an economic necessity for employment." Additionally, it also allows the individual to attend school.

Continue reading "Consideration of Deferred Action for Childhood Arrivals - Part I" »

A recent case brought before the Sixth Circuit Court of Appeals highlights the issue of immigrants facing removal based on the Immigration and Nationality Act's (INA) policy dealing with so-called crimes involving moral turpitude (CIMT).

INA code refers to elements of CIMT as most commonly involving fraud, larceny and "intent to harm persons or things." Along with giving or being aware of false testimony, there is a long list of crimes the government believes contain "an inherently evil act." Everything from arson, to bribing a public official, to assault and murder is included.

In the case before the Sixth Circuit, the judge was asked to rule on whether the crime of felony-flight is one that involves moral turpitude. Mexican native Armando Ruiz-Lopez entered the country in 1991 and had been living in the U.S. for six years when he was pulled over for speeding less than a mile from his home. He continued driving and pulled into his driveway where he was arrested. As a first-time offender Ruiz-Lopez received a 40-day prison sentence and two years of community supervision for felony flight.

Continue reading "Crime Involving Moral Turpitude" »

In May the Obama administration decided to increase the parameters for Optional Practical Training (OPT) program, significantly increasing the number of fields involved. This is a somewhat significant development, potentially impacting thousands of students across the country.

For those unfamiliar with OPT, it is a temporary employment program connected with Science, Technology, Education and Mathematics (STEM) students in the United States on F-1 visas. OPT allows F-1 visa students to remain in the country and work for an additional 29 months before or after completion of their education.

In 2008 President George W. Bush added a 17-month extension to the program, increasing the maximum length of the visa from 12 months to its current parameters. To be eligible for the extension, the applicant must have received his or her STEM degree and have an employer enrolled in E-Verify.

The big change unveiled last month is that the administration is adding approximately 90 eligible fields to the total pool of OPT, with raises the number to 400. There will be no change to the 29-month limit.

Continue reading "OPT Visa Program Expanded" »

Some of you are no doubt aware the Obama administration made a major announcement last week regarding undocumented immigrants who would fall under the auspices of a program like the DREAM Act. That is, hundreds of thousands of immigrants in good legal standing who were brought to the U.S. as children will no longer be pursued for deportation by the Department of Homeland Security (DHS).

Effective June 15, DHS will not pursue these cases as part of a new Deferred Action Process (DAP).

"Our nation's immigration laws must be enforced in a sensible manner," said Secretary of Homeland Security Janet Napolitano. "But they are not designed to be blindly enforced without consideration given to the individual circumstances in each case. Discretion, which is used in so many other areas, is especially justified here."

First, the particulars. To qualify for the DAP you must:

1. Have come to the United States before the age of 16.
2. Currently live in the U.S. and have resided here for five continuous years preceding June 16.
3. Have graduated from high school or received a GED, be currently enrolled in school, or be an honorably discharged veteran of the Armed Forces or Coast Guard.
4. Have never been convicted of a felony, "significant misdemeanor" or multiple misdemeanors. You can also not pose a threat to national security or the public safety.
5. Be 30 years of age or younger.

If an immigrant is able to prove they meet these criteria through "verifiable documentation," they will be allowed to receive deferred action for two years and be able to apply for work authorization. This deferment will be subject to renewal after two years. At that point individuals who wish to renew their deferment will have to re-apply for an extension. If the extension is granted, they will need to re-apply for employment authorization.

Continue reading "Deferred Action Process" »

A recent CBS report focuses on the small Alabama town of Thomasville. Thomasville could lose out on a multi-million dollar foreign plant and the corresponding jobs it would create because of the state's new immigration law.

A representative of the Chinese company told Thomasville's mayor he thinks Alabama "shot itself in the foot" in terms of foreign investment:

We wanted to touch on a national initiative that the United States Citizenship and Immigration Services (USCIS) has undertaken to combat fraud related to immigration services provided by non-attorneys.

Malfeasance related to immigration services provided by those not licensed to practice law is a serious issue and it's important our readers are aware of what the government is doing to tackle the problem.

This year the USCIS has launched a program that aggressively targets scam agencies which prey on the immigrant community by promising unrealistic servicers. Unusually fast acquisition of green cards and work permits are offered using email and word mouth, among other means.

The initiative focuses on enforcement and education, along with collaboration with those in the community. USCIS is targeting unauthorized practice of immigration law and is setting up a database to better manage consumer complaints.

Assistant Attorney General for the Civil Division of the Department of Justice Tony West said: "This coordinated initiative targets those who prey on immigrant communities by making promises they do not keep and charging for services they are not qualified to provide."

Continue reading "Columbus, OH immigration attorney on the unauthorized practice of law" »

Sometimes family members get left out of the immigration process. Costs, logistics, family obligations and other inconveniences can prevent a family member from coming to the United States.

There's no need to worry, though, United States Immigration officials have anticipated this situation. We'd like our friends here in Columbus to make sure they're aware of a potentially helpful tool.

Following to join allows a spouse or child of a principal immigrant to immediately obtain a visa to immigrate to the United States any time after the principal immigrant becomes a lawful permanent resident of the United States. There are, though, some major limitations of following to join.

Following to join is only available to immigrants in categories that give derivative status to spouses and children. Such categories include family-preference immigrants and employment-based immigrants. Further, following to join only applies to preexisting spouses and children. Spouses and children added after an immigrant becomes a permanent resident cannot follow to join. Finally, children can "age out" of eligibility to follow to join.

In spite of the above limitations following to join is far more versatile than one might think. A family member that is following to join doesn't have to literally follow the principal immigrant to the United States. Spouses and children that are inside the United States as nonimmigrants can "follow to join" and adjust status through a principal immigrant, even if they precede the principal immigrant in entrance into the United States.

Considering its limitations, following to join is not for everybody. That being said, following to join is still a valuable and important part of the immigration toolbox. Using following to join to immediately obtain an immigrant visa for a spouse or child is an excellent way to avoid the long waits that can be associated with family based immigrant petitions.

Here is an update for our readers on an immigration story we highlighted back in January. The case takes place in California but the issues related to student visas and the college system are worth examining here in a central Ohio community very strongly centered around higher education.

Last month Susan Xiao-Ping Su was arrested by federal prosecutors on charges including visa fraud, money laundering, wire fraud and alien harboring. Su, 41, was arrested in Pleasanton, California on May 2 after being indicted April 28 on 33 separate counts.

(You can find our detailed post on Tri-Valley HERE.)

Su's indictment says that over a two-year period she used the country's visa program to defraud the Department of Homeland Security out of millions of dollars. Su would submit fraudulent documents, the indictment says, for student visas in exchange for payment Tri-Valley referred to as "tuition and fees."

U.S. Attorney Melinda Haag said in a statement that Su's indictment alleges she "took advantage of others' eagerness to come to the United States."

Students were admitted to the unaccredited Tri-Valley so they could remain in the country on student visas without requiring them to attend class. In 2009 Tri-Valley had two international students enrolled on visas. In the fall of 2010 that number became more than 1,100.

95 percent of Tri-Valley's students were from India. The school was primarily an online university, with its students living throughout the country. Tri-Valley filed documents alleging more than half of the school's 1,500 international students were living in the same apartment. Prosecutors referred to the school as a "sham university" in a separate civil suit filed in January.

In the civil suit the university was said to be engaged in a pyramid scheme, whereby those already enrolled at the school could collect 20 percent of the tuition for new students they recommended.

Continue reading "Tri-Valley President Arrested on Fraud Charges" »

Advocates of immigration are hailing an announcement last month that the U.S.
Immigration and Customs Enforcement (ICE) has ceased seeking deportation for
foreign nationals eligible for green cards.

The announcement was made by John Morton, the assistant secretary for ICE.
Morton added that the agency would drop existing deportation proceedings
against anyone eligible under this new guideline.

Morton wrote in an Aug. 20 memo that in situations where there is "an
underlying application or petition" and ICE determines "a non-detained
individual appears eligible for relief from removal, [its attorneys] should
promptly move to dismiss proceedings." ICE lawyers are being told to move
towards dismissal in situations where the immigrant does not have a criminal
record and is likely to receive a green card.

According to the Miami Herald, those impacted by the change in policy "are
possibly tens of thousands who are married to a U.S. citizen or a legal
resident who has filed a petition for them."

Advocates for immigration believe this is better use of ICE's time and
budget. Cheryl Little, executive director of the Florida Immigrant Advocacy
Center told USA Today that "Targeting those who intend to do harm while
expediting the cases of law-abiding immigrants is the best use of ICE's
precious resources and will save taxpayers money."

Indeed, ICEs press secretary emphasized to the Herald that the agency is
"committed to smart, effective immigration reform, prioritizing the arrest
and removal of criminal aliens and those who pose a danger to national
security,''

The overwhelming reason for the policy change is to deal with what Morton
called "major inefficiency." The New York Times reported that 17,000 cases
could be eliminated from the immigration court dockets if ICE dismissed cases
of immigrants like those married to U.S. citizens. Currently the wait for
hearings in immigration court begun by an ICE deportation case is 459 days.

Continue reading "Columbus Immigration Attorney Comments On Commonsense Deportation Policy " »

Nine years ago Jose Padilla, a Honduran-born Vietnam veteran who had lived in the United States legally for four decades, asked his attorney if pleading guilty to a drug charge would impact his immigration status. The lawyer told Padilla it would not.

The lawyer was wrong.

Padilla pleaded guilty to a felony drug charge and received a five year sentence. It meant he would almost certainly be deported after serving his time. Padilla said later he only agreed to the deal because of his lawyer's assurance he would not be deported and appealed the decision based on his sixth amendment right to competent representation.

On March 31 the Supreme Court decided by a 7 to 2 margin that attorneys must advise non-citizen clients when there is a possibility they can be deported.

Writing on behalf of five members of the majority Justice John Paul Stevens said that "It is our responsibility under the Constitution to ensure that no criminal defendant - whether a citizen or not - is left to the mercies of incompetent counsel."

"Deportation is an integral part," Stevens added, "indeed, sometimes the most important part - of the penalty that may be imposed on noncitizen defendants who plead guilty to specific crimes."

While Padilla's is an extreme case (he was arrested with 1,000 pounds of marijuana in his truck) the ramifications will be felt across the country.
Immigrants facing very minor legal issues could see the benefits of the court's decision. Padilla's lawyer for the Supreme Court case noted that that with 13 million legal immigrants living in the United States it is self-evident that tens of thousands will be impacted by this decision.

You don't have to look far to find cases where proper counsel would have helped legal citizens.

Continue reading "Right To Immigration Advice Is Protected Says The Supreme Court" »

Certain acts, events or circumstances can render a foreign national ineligible for a visa or inadmissible to the United States. One such event is certain criminal convictions.It matter not if such conviction occurred in Columbus, Ohio, Troy Michigan, or anywhere in the US or overseas. Any foreign national that is convicted of, or admits to having committed, a crime of moral turpitude or a violation of any U.S. or foreign law or regulation relating to most controlled substances is considered inadmissible. Generally, a foreign national seeking admission to the United States who has committed a crime of moral turpitude would need to apply for a waiver of inadmissibility using Form I-601, Application for Waiver of Ground of Inadmissibility. However, there are exceptions to the rule of inadmissibility.

Under the Immigration and Nationality Act § 212(a)(2)(A)(ii)(II), a foreign national who has committed a single crime of moral turpitude will still be admissible if the maximum penalty possible for the crime is less than one year imprisonment and the foreign national was not sentenced to more than six months in prison. If the foreign national's conviction falls under the aforementioned Petty Offense Exception, they need not apply for a waiver of inadmissibility. Along the same lines, a foreign national's petty offense crime cannot be used against them as evidence of bad moral character for purposes of voluntary departure or to stop the clock for cancellation of removal.

It is important to remember that under the Petty Offense Exception the foreign national's conviction or admission must be their first and only crime. Notably, the foreign national need not be convicted of the crime to be deemed to have committed the crime for admissibility purposes. If a foreign national admits to having committed a crime, or even admits to having committed the elements of a crime, the Department of Homeland Security will treat such admissions the same as if the foreign national was actually convicted of the crime. Thus, foreign nationals should be aware of, and immigration attorneys should counsel their clients on, the consequences of making admissions to the Department of Homeland Security.

In light of the immigration law recently passed in Arizona, similar legislation has been proposed in other states and, unfortunately, Michigan will be no exception. House Representative Kim Meltzer announced on May 7, 2010 that she is in the process of drafting and will be introducing an immigration bill modeled after the Arizona law in the Michigan Legislature. Though the actual bill has not yet been introduced, Representative Meltzer has been speaking publicly about the contents of the fledgling bill.

In particular, the proposed bill would give Michigan law enforcement the authority to inquire about an individual's immigration status if they have been stopped for any lawful reason. The stopped individual can be questioned about and required to prove their lawful status on the spot. Any individual that cannot prove their lawful status risks being arrested. Interestingly, according to Representative Meltzer, a Michigan Driver's License would be acceptable proof of lawful status. This begs the question, will the inability to produce a Michigan Driver's License lead to the presumption that an individual is not lawfully in the United States?

Representative Meltzer has stated the bill would prevent law enforcement from solely considering race, color or national origin when questioning an individual about their immigration status. The exact language of the bill remains to be seen, but based on Representative Meltzer's comments race, color and national origin can be a consideration, just not the only consideration. If the bill is in fact drafted in such a fashion, it would essentially be giving law enforcement the ability to discriminate and racially profile. Regardless of the reasons, discriminatory conduct and racial profiling should never be tolerated, let alone legalized by the Legislature.

There are several immigration-related bills that have been introduced in the Michigan Legislature not patterned after the Arizona law, including one which was just passed into law. The new law requires employers that are servicing public contracts to verify the legal status of their workers. The new law also prevents cities and counties from enacting legislation that restrains local authorities enforcement of immigration-related laws, otherwise known as sanctuary ordinances. There are also bills pending in the Michigan Legislature that require heightened scrutiny and additional verification of the employment authorization of foreign national workers.

With each immigration law passed at the state level, the immigration system becomes more and more fractured at the national level. Michigan is not the first state, and it certainly will not be the last state, to try to address the national system's deficiencies through mis-guided policies at the state level. These state immigration laws are a clear indication of more to come and Congress would be wise to reform immigration at the national-level before each state takes it upon itself to enact its own immigration law.