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Immigration

Monday, December 22, 2014

Obtaining U.S. Citizenship Through a Grandparent

The Immigration and Naturalization Act provides that children born outside the U.S. are automatically U.S. Citizens if one of their parents is a U.S. citizen.  There are, however, a number of exceptions.  

To transmit citizenship to a child, the parent must not only be a U.S. citizen but must also meet a physical presence requirement.  The parent must have resided in the U.S. or one of its possessions for at least five years, and for two of the five, the parent must have been at least 14 years old.

If a child is not eligible because a U.S. citizen parent failed to meet the physical presence requirement, the child can still receive citizenship through the physical presence of a grandparent.  There are three basic requirements:

1.  The child is the offspring of parent who is a U.S. citizen, whether by naturalization or birth.

2.  The child is under the age of 18 and in the custody of the U.S. citizen parent.

3.  The child's U.S. citizen grandparent was physically present in the U.S. or its possessions for at least five years, for two of which the grandparent was at least 14 years old.

As with the U.S. citizen parent, the calculation of the total time of physical presence can include periods when the grandparent was not a U.S. citizen.

If the grandparent is dead, the provision is still available.  All that is required is that the grandparent was a U.S. citizen and met the physical presence requirements at the time of his or her death.

Parents seeking to use the grandparent provision for a child must file a form N-600K with the United States Citizenship and Immigration Services prior to the child's eighteenth birthday and attend an appointment in person with the child.  If the parent has died, the child's grandparent or legal guardian can apply within five years of the parent's death.

If you or your loved one is trying to obtain U.S. citizenship through a grandparent, you should seek the advice of a seasoned immigration attorney to achieve the best possible result.


Monday, December 8, 2014

FDNS Administrative Site Visits/ Business Law

In 2009, the Fraud Detection and National Security Directorate (FDNS) of the U.S. Citizenship and Immigration Services (USCIS) launched a program to ensure that employers comply with immigration rules designed to protect public safety and national security.  Under the Administrative Site Visit and Verification Program (ASVVP), FDNS makes surprise site inspections to verify the information that employers provide to the government.

Who Is Inspected?

The FDNS selects sites at random, before or after adjudication of a visa petition.  It focuses on employer fraud in immigration petitions filed on Form I-129 (Petition for a Nonimmigrant Worker), particularly in connection with H-1B, L-1, R-1, and certain other workers.  If it finds fraud, it asks the USCIS to deny or revoke a petition.  An employer could also face fines and penalties.

What Happens During an Inspection?

FDNS Inspectors arrive without notice at a workplace.  They usually interview the employer or a representative, and the foreign worker or "beneficiary" who is the subject of the inquiry.  They may interview each separately to determine whether employer and employee answer the same questions similarly.  They may ask for tax records, employee lists, and payroll information.

ASVVP site inspectors are given five specific tasks to perform at each site visit:

  • Verify that that the employer is not fictitious;
  • Verify the accuracy of information submitted by the employer;
  • Take digital photographs;
  • Review documents on site and make sure they match those submitted to the government; and
  • Confirm the beneficiary's work location, employment, duties, compensation, hours, and other details.

 What Happens Afterwards?

 The site inspectors make a report of their findings to FDNS, which may provide a Summary of Findings to an Immigration Services Officer (ISO).  The ISO decides whether a petitioner organization is entitled to the immigration benefit it seeks.  The ISO may also request further information from the petitioner.  If the FDNS detects signs of criminal immigration fraud, it may refer the matter to Immigration and Customs Enforcement.

 How Should Employers and Employees Prepare?

 Both the employer and the beneficiary worker should be familiar with the information included in the employer's I-129 so they can answer questions accurately and consistently.  Employers should make sure that the information in their petition is up-to-date and amend the petition if there have been changes.  Employers should also designate a representative—an attorney or HR manager—to deal with inspections and make sure that tax documents, employment records, and immigration forms are readily available.

These matters can be complex and time consuming.  It is therefore in your best interest to contact an experienced immigration attorney in the event that you are accused of violating these laws or if would like to ensure that you are in compliance with them.


Monday, November 24, 2014

When Will an Immigrant Be Barred from Entry Because of a Connection to Terrorism?

Section 212 of the Immigration and Nationality Act (INA) bars individuals from entry in the United States for a variety of reasons.  These include terrorism-related inadmissibility grounds (TRIG). 

Regardless of whether a person is coming to the U.S for tourism or employment, and regardless of whether he or she has married a U.S. citizen or won a visa lottery, TRIG may bar entry completely.

Types of Terrorism-Related Activities That May Be Covered

Terrorism-related activities include some that are violent and illegal, others that involve association with and support of causes or people involved in terrorism.  For example, a person who engages in terrorist acts, who has received military training from a terrorist organization, who has incited terrorist activity, or who has endorsed or espoused terrorism would be inadmissible.  So too would a spouse or child of anyone who engaged in terrorist activity during the preceding five years.

The INA's definition of terrorist activity covers various types of sabotage, assassination, kidnapping, hijacking, and other acts commonly associated with terror. 

"Engaging in Terrorist Activity" can involve planning and carrying out a terrorist act, but it can also be recruiting others to act, providing support, fundraising, or other help.  Providing a safe house, transportation or fake documents might constitute material support of a terrorist group.  So would feeding members of the group, distributing literature, or making a modest financial contribution.

Categories of Terrorist Organizations

Terrorist organizations are divided into three tiers:

  • Tier I includes Foreign Terrorist Organizations  (FTO) that threaten the security of the U.S. or U.S. citizens. 
  • Tier II includes groups on the Terrorist Exclusion List (TEL).  These are organizations that carry out or provide material support for terrorist acts that are unlawful under U.S. law or the laws of another country.
  • Tier III involves groups of two or more, organized or not, that are engaged in terrorist activity.  A less formal designation than the others, Tier III changes from time to time and determinations of who is affected are made on a case-by-case basis.

Exemptions

The Secretary of State and the Secretary of Homeland Security can exempt some individuals from TRIG.  Exemptions have been issued to people who acted under duress, to people who provided voluntary medical care, and to selected individuals with existing immigration benefits.  Because the definition of terrorist activity is broad, potentially encompassing freedom fighters, group exemptions have been given to a number of organizations ranging from the All Burma Students Democratic Front to the Democratic Movement for the Liberation of Eritrean Kunama.

Being involved in terrorism is a serious matter and can have an effect on the ability to obtain U.S. citizenship.  For more information regarding TRIG or if you think you might be exempt from exclusion, contact an experienced immigration attorney today.


Monday, November 10, 2014

Will Marriage to a U.S. Citizen Make an Undocumented Immigrant Legal?

Under the laws of most states, a United States citizen can marry an undocumented immigrant.  Regardless of whether the marriage is legal, however, the marriage may not confer legality upon the undocumented spouse's immigration status.

Usually, an immigrant who marries a U.S. citizen becomes an "immediate relative" and is eligible to apply to the United States Citizenship and Immigration Service (USCIS) for a green card, i.e. lawful permanent residence.  After the marriage, the U.S. citizen spouse can file Form I-130, Petition for Alien Relative and the immigrant can file Form I-485 seeking Adjustment of Status to permanent resident.

If the spouse is here illegally, however, the couple may encounter some obstacles.  The spouse's illegal presence may mean that using Form I-485 to apply for permanent residence is not an option.  The undocumented spouse must first leave the United States and rely on  processing by a U.S. Department of State Consulate abroad before returning.  Once outside the U.S, however, he or she may be barred from returning to the U.S. for years because of laws designed to punish and deter illegal immigration.

According to Section 212 of the Immigration and Nationality Act, if the spouse was present unlawfully for more than six months but less than a year, he or she would be barred from returning to the U.S. for three years.  If present for more than a year, the spouse would be barred for ten years.

Under a recent change in immigration law, undocumented immigrants can apply for a provisional waiver of the three- or ten-year ban.  If granted, the undocumented spouse would still have to leave the U.S. and apply at a consulate for reentry, but would not barred from returning.

Undocumented spouses must also meet the requirements that any documented spouse would have to meet.  They might have to show that they are not inadmissible for other reasons, such as a criminal past, a dangerous communicable disease, or a need for public assistance.  The marriage to an undocumented immigrant, like a marriage to a legal immigrant, would also have to be genuine and not a ploy to help the immigrant spouse get citizenship.

As the consequences of remaining in the country illegally can be severe, if you or your spouse is undocumented and intends to apply for citizenship based on the marriage, you should contact an immigration attorney as soon as possible.


Monday, October 27, 2014

Differences Between Immigrant and Non-Immigrant Visas

A U.S. visa is an authorization, typically in form of a stamp inside a passport, which demonstrates that a U.S. consular official has determined that the traveler is eligible to enter the U.S. for the purposes stated in the visa. The United States issues two classes of visas, an Immigrant Visa and a Non-Immigrant Visa.

Choosing which visa to request is an important decision, and will largely depend on the reasons for coming to the U.S., as well as the visitor’s intentions regarding immigration. An Immigrant Visa is issued to aliens who intend to permanently reside in the U.S., whereas a Non-Immigrant Visa is issued to those who are coming to the U.S. for a specific, temporary purpose, such as travel, business, medical treatment, temporary work or study.

Immigrant Visas are for those who wish to stay and work in the United States, or who would like to seek U.S. citizenship. However, there are a limited number of these visas available each year. Immigrant Visas are subject to numerical limits and once the quota is filled, applicants are placed on a waiting list until a visa becomes available.

Non-Immigrant Visas are easier to obtain than Immigrant Visas, and usually do not involve a waiting list. However, Non-Immigrant Visas limit the length of time and scope of activities the visitor may engage in while in the U.S. For example, those granted a B-2 Tourist Visa are only permitted to undertake activities consistent with being a visitor in another country, such as sightseeing or visiting with relatives or friends; they are not permitted to work or enroll in school.

Visitors in the U.S. on one type of visa may be able to change the visa status to another category, provided the qualifications are met. An experienced immigration attorney can help facilitate this process.

Within each category, the various types of visas are grouped within subcategories. There are many different types of Non-Immigrant Visas, each designed to serve a specific purpose, such as tourists, business visitors, specialty occupations, media professionals, religious workers, temporary workers, medical treatment, government officials, students, exchange visitors, and fiancées of US citizens. Immigrant Visa categories include employer-sponsored immigrants, family-sponsored immigrants, immediate relatives of U.S. citizens and special immigrants.

Not every traveler is required to obtain a visa. If your home country is part of the Visa Waiver Program you may not need a visa at all, though you will not be able to work or permanently reside in the U.S. Anyone who wants to travel to the U.S. for purposes of living or working herein is required to obtain an Immigrant Visa.

Whether applying for an Immigrant Visa or a Non-Immigrant Visa, it is vital that you apply for the right type of visa. Consulting with an experienced immigration lawyer can save money and time, by limiting delays caused by incomplete applications or requests for the wrong type of visa. Also, by ensuring you obtain the correct visa, you can avoid engaging in unauthorized activities while in the United States.


Wednesday, July 30, 2014

Obtaining Legal Authorization to Work in the US

There are thousands of foreign workers who enter the U.S. each year. Foreign workers must obtain legal permission to work in the U.S. or risk deportation.  There are also possible legal consequences to the employer should they hire an employee who does not have work authorization. There are several employment categories for admission that apply to different types of workers. Each category has different requirements, conditions, and periods of time that the worked may legally stay in the country

Temporary Workers

There are a variety of categories of temporary workers. In order to come to the U.S. for temporary employment, an employer must file an immigration petition on behalf of the immigrant with the U.S. Citizen and Immigration Services Department.

Permanent Workers

There are over 100,000 immigrant visas given each year to aliens who want to come to the U.S. to fill positions that require unique job skills. For some people with the right skills, education, and experience, they may be able to live permanently in the U.S. This usually applies if there is a shortage of experts in the particular field(s) in which the immigrant has expertise.

Students and Exchange Visitors

There are two types of immigration visas for full-time students in the U.S. enrolled in both academic or vocational programs which allow them to work on a limited basis in a position related to their field of study.

Temporary Visitors for Business

Those who wish to come to the U.S. for a short period of time in order to conduct business may be able to obtain a Temporary Visitors for Business Visa.

Each type of visa comes with its own special rules regarding the type of work that the immigrant can perform and includes guidelines on the length of stay, and whether family members can accompany the immigrant as well as tax obligations.


Tuesday, June 10, 2014

Do Local Police Have to Detain Illegal Immigrants?

Are local law enforcement agencies required to detain undocumented immigrants on behalf of the federal government? A new finding suggests that jurisdictions that partake in Secure Communities, a program whereby the FBI crosschecks the fingerprints of any individual taken into custody by local law enforcement officials against a U.S. Immigration and Customs Enforcement (ICE) database, do not have to adhere to federal requests to retain undocumented immigrants. The findings come from documents obtained from the Internal Department of Homeland Security and could drastically affect the way local law enforcement agencies treat undocumented immigrants.

According to documents, obtained by Benjamin Cardozo School of Law, requests from federal immigration officials for police to hold undocumented individuals in custody are not enforceable.   Currently, the detainers ask law enforcement agencies to hold arrested undocumented individuals for 48 hours – regardless of the severity of the crime. But the revelations find that while local law enforcement officials are asked to honor detainer requests, there are no legal consequences for a failure to comply with an ICE detention request.  

These documents provide additional clarity to law enforcement agencies and counties that are uncomfortable or unwilling to comply with immigration enforcement.   Cost remains one of the biggest concerns for local law enforcement when it comes to retainer requests.  Opponents of detention argue that enforcing the Secure Communities program can cost counties millions each year, despite the promise of reimbursements from the federal government.

Officials stress that this only applies to those undocumented immigrants with misdemeanors who ordinarily would not be detained, not serious offenses. The findings provide a clear loophole for law enforcement agencies and counties that are unwilling to detain undocumented individuals with low-level offenses.
    
 


Friday, May 9, 2014

Returning to the U.S. After Deportation

Each year, hundreds of thousands of individuals are deported from the United States. For many of these people the dream of living and working in the U.S. is far from over. Unfortunately after deportation, the path to reenter and live in the U.S. is incredibly difficult. Depending on the reason for removal and number of violations, a deported individual may have to wait several years before reentry or they may be permanently banned from ever returning to the United States.

If you or a loved one has been removed and now want to return to the U.S., it’s important that you first identify whether or not an Order of Removal was issued. This order will impact your options for reentry. In some cases, you may have been granted voluntary departure (rather than an Order of Removal) which may make the process of returning an easier one.   If you’re unsure of the type of order, you should contact an immigration attorney who can help you obtain your U.S. Citzenship and Immigration Services (USCIS) and Immigration Court Records.

If you do have an Order of Removal against you, you may not be able to re-enter the United States for a set time period ranging from 5-20 years. If a removed individual is perceived as posing a threat to national security or has been convicted of a felony, he or she may be permanently banned from the country.

If you have a new basis on which you are looking to return to the United States (e.g. you have been offered a job with an emerging tech company in Silicon Valley or a relative who can now sponsor you) during the time period that you are ineligible, you may be able to return by filing a waiver request,  Form I-212, “Permission to Reapply For Admission Into the United States After Deportation or Removal” which essentially requests that the immigration authorities consider the new situation and forgive the past removal.  Along with the form, you may be required to submit supporting documentation showing proof of sponsorship or employment, moral character and even evidence of rehabilitation (if you were arrested during your time in the United States).

Depending on the grounds for your removal, you may have to wait a certain length of time before filing the request. An immigration attorney can help you better understand your options, assist with the form and compilation of supporting documentation to ensure have the best chance of successfully reentering the United States.

 


Thursday, April 10, 2014

Do Restrictive Immigration Laws Drive Undocumented Immigrants Out of America?

Proponents of strict immigration laws often state that stricter laws can significantly reduce the number of undocumented immigrants in the US.  However, according to a study released by the Center for American Progress, increasing regulation will not necessarily drive America’s estimated 10 million unauthorized immigrants out of the country. The study “Staying Put but Still in the Shadows: Undocumented Immigrants Remain in the Country Despite Strict Laws” instead suggests that several other factors influence whether unauthorized immigrants stay or leave.

According to the study, proponents of “attrition through enforcement,” a measure whereby law enforcement puts into effect strict measures against unauthorized immigrants to encourage them to leave, are mistaken in their basic premise. The basic idea of “attrition through enforcement” revolves around making life miserable enough for unauthorized migrants that they “self-deport” to their home country. But the authors of the study argue that such restrictive measures against unauthorized migrants are not only costly – they’re ineffective. Instead, the measures “complicate” already-tense relationships between law enforcement agencies and unauthorized immigrants.

Family ties are a primary reason unauthorized immigrants hesitate to leave the US, despite pressures which may be placed on them by stricter laws. According to the study, most undocumented immigrants have lived in the United States for upwards of 10 years. Uprooting would mean leaving their nuclear and extended family units. The cost of travel is also an issue. The study notes that the lack of opportunities in the unauthorized immigrant’s home country is also a significant factor. Despite the effects of the American recession, the authors added that for most immigrants, dwindling opportunities in their home countries offered even less incentive to leave.

The study further notes that many unauthorized immigrants do not even take anti-immigrant laws into consideration when deciding whether they should stay or leave the United States. Instead, these laws merely shuffled unauthorized immigrants from place to place. The study noted that the displacement of unauthorized immigrants by anti-immigration laws further estranged them from law enforcement officials by driving them deeper underground. As a result, unauthorized immigrants are less likely to report crimes, in order to avoid interaction with the police.

The authors of the study offer a counter-solution to “attrition through enforcement”:

"Instead of burdensome state and local legislation, sensible policy solutions lie with the federal government and with Congress, which has the power to pass comprehensive immigration reform, bringing immigrants out of the shadows to vet them in a secure and orderly way rather than further criminalizing them. Reforming the legal visa system will help diminish the impetus for clandestine migration in the first place. Revamping the cumbersome, slow, and backlogged system will curtail illegal entry and promote the complementary goals of economic growth and family unification. Rather than unsuccessfully trying to drive unauthorized immigrants out of the country, we should work to integrate them, which will keep families together, improve community safety, and better the economy all at the same time."

Others would argue that even if such laws are not successful in terms of pressuring undocumented immigrants to leave the country, they will serve as a deterrent to those who may be contemplating immigration outside legal channels, especially those who do not have close family members already in the United States.


Monday, March 10, 2014

Important Changes in Immigration Policy for LGBT Couples

The U.S. Supreme Court repealed Section 3 of the Defense of Marriage Act (DOMA) in June 2013, which resulted in a slew of enhanced rights for lesbian, gay, bisexual, and transgender, or LGBT, families. LGBT couples and families who are binational benefit from the repeal of Section 3 as it pertains to immigration.


Read more . . .


Saturday, February 15, 2014

How to Get Your School “I-20 Certified”

How to Get Your School “I-20 Certified”

Student and Exchange Visitor Program (SEVP) certification enables schools to enroll foreign students and issue a Certificate of Eligibility for Student Status (Form I-20), declaring the prospective student is eligible for the F-1 student visa. Once certified, the school is authorized by the Department of Homeland Security (DHS) to enroll nonimmigrant students.

How to Get Your School “I-20 Certified”

Student and Exchange Visitor Program (SEVP) certification enables schools to enroll foreign students and issue a Certificate of Eligibility for Student Status (Form I-20), declaring the prospective student is eligible for the F-1 student visa. Once certified, the school is authorized by the Department of Homeland Security (DHS) to enroll nonimmigrant students.

Under the Immigration and Nationality Act, the following schools are considered to be academic institutions and may be approved to enroll nonimmigrant students:

  • A college or university (i.e., an institution of higher learning which awards recognized bachelor's, master's doctor's or professional degrees);
  • A community college or junior college which provides instruction in the liberal arts or in the professions and which awards recognized associate degrees;
  • A seminary;
  • A conservatory;
  • An academic high school;
  • A private elementary school; and
  • An institution which provides language training, instruction in the liberal arts or fine arts, instruction in the professions, or instruction or training in more than one of these disciplines.

To apply for SEVP certification, a school must submit Form I-17,Petition for Approval of School for Attendance by Nonimmigrant Student. Certain eligibility requirements must also be met prior to filing the Petition. To qualify for certification, a school must prove that it:

  • Is a bona fide school;
  • Is an established institution of learning or other recognized place of study;
  • Possesses the necessary facilities, personnel and finances to conduct instruction in recognized courses; and
  • Is, in fact, engaged in instruction in those courses, prior to the time the Petition is filed.

Additionally, institutions applying for “M” certification (vocational or technical) and English language school programs must meet for a minimum of 18 hours per week if the program is primarily classroom instruction, or 22 hours per week of the program is primarily lab work.

Some educational programs are not eligible to apply for SEVP certification, including:

  • Home schools;
  • Pre-school or day care institutions;
  • Public elementary and junior high schools (grades K-8);
  • Online or distance education programs;
  • Adult education programs, if the program receives funding under the Adult Education and Family Literacy Act, or any other federal, state, county or municipal funding; and
  • Flight schools that are not Part 141 or Part 142 certified by the Federal Aviation Administration

The certification process includes many steps which must be followed with precision. The process typically takes at least 16 weeks, often longer. Petitions are processed on a “first-come, first-served” basis. Errors or incomplete information can significantly increase the amount of time it takes to complete the process. Legal counsel should be involved early in the process, to ensure a thorough understanding of, and compliance with, all regulations governing the qualification and application to become an “I-20 school.”

In processing a Petition for Approval of School for Attendance by Nonimmigrant Student, the SEVP’s School Certification Branch will:

  • Review the Petition in detail;
  • Conduct a site visit inspection;
  • Perform necessary research;
  • Review supporting documentation; and
  • Make a ruling on the entire submitted package.

Once your school has been SEVP certified, the school can access the Student and Exchange Visitor Information System (SEVIS) and issue Forms I-20 to prospective students.
 


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