Jun 20

Immigration reform: who will take the initiative?

It is widely admitted that immigration reform is necessary and overdue. The question is who will take the initiative? The people asking this question are those most hurt by the current system: those who fear they will be deported and have their families rent asunder. The system simply doesn’t work they say, and cite long detentions and deportations as the source of their fears.

The law that created the current state of affairs is the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, which essentially made migration a criminal act, whereas before it was an administrative infraction. It also streamlined the deportation process, imposed lengthy bans for those found to have resided in the U.S. unauthorized, and essentially made undocumented aliens persona non grata.

The major reform bill of 2013 seemed like a light at the end of the tunnel, but the bill would have come at some cost. “Beefing up the border would make the U.S look like it’s building another Berlin Wall,” said one organizer.  It would also increase the government’s police powers, say others, and possibly make circumstances more oppressive. Finally, it has not gone unnoticed that corporations running private prisons have been big supporters of immigration “reform.”

Other nice sounding talk that has made activists jaded includes “path to citizenship.” Closer examination reveals that while the term implies the process of becoming a citizen will be streamlined, it is expected that it will still take 10 years on average just to get residence. Citizenship may then be applied for after three years. Fees will not be significantly reduced, nor will legal costs, and the hoops that hopefuls need to jump through will not be reduced.

So activists are not particularly hopeful that politicians will be the spearhead of immigration reform. Instead they will look to Latino voters, whose power increases every year. Eventually it will become impossible to ignore. For the time being,  most districts are non-hispanic by a wide margin.

Jun 13

Initiative to allow spouses of HB-1 visas holders to receive work permits in the United States

One of the most painful aspects of working as an expat is being separated from one’s spouse. But there is good news for HB-1 visa holders: a new initiative by the Department of Homeland Security will allow spouses of those visa holders to receive work permits. Advocates of the plan say that it will make it easier for businesses to keep highly skilled workers in the United States, and give the country a competitive edge over competing nations.

Currently, dependents (H-4 nonimmigrants) do not receive authorization to work, but the proposed changes would allow it if the HB-1 holder is applying for permanent residence. This means that the U.S. can benefit from their education and initiative as well, and business and government leaders have concurred. “Many wives of HB-1 holders already have education and experience. It doesn’t make sense to not allow them to be with their spouses,” said one U.S. Commerce Department official.

The opportunities would be most available to those with the highest quality skills. Those with the most sought after skills would find these skills weigh more heavily in the decision to permit entry into the U.S. For instance, research scientists, physicians and professors will likely get top priority.

Activists and community leaders hail this as a major step, but feel there is work to be done. They say it’s time for Congress to make serious and permanent reform to the system. Many agree with this, and note that the initiative will clear much of the backlog that is weighing the system down already.

 

Jun 06

Congress reining in family-based visas in favor or work based visa.

It’s been a common practice for decades that when one immigrant family member gets residency, he or she petitions for other family members to join him. In fact, tens of thousands of these petitions are filed each year. But there are been a push to cap these petitions so that the demand for works visas may be expanded.

As one might expect, immigrant activists have not been pleased with the effort. Many resident immigrants come from cultures that rely on extended family bonds to create a stable foundation for building businesses and caring for elderly parents. Activists say that these support systems are integral for the “success” of many immigrants, and that there is no need for family visas to be sacrificed in the name of employment visas.

Under a bipartisan bill passed last year, residents would no longer be able to petition for adult relatives to be granted residency, though those who already have petitions in the pipeline will not be forced out of the process. The bill seems to be aimed at addressing a customary practice of granting residency to family members, who in turn petition for more family members, a practice called “chain migration.” The legislation would scale the program back considerably because legislators claim that they are merely trying to bring some balance to the system.


The bill will still allow for spouses and children to be granted green cards.

May 02

How to avoid being deported: adjustment of status

 

For those who are in removal proceedings, in some cases they can ask the courts to change their residence status to permanent. Those most likely to have their status adjusted  are those with family ties, in particular if are a parent or spouse. Applicants must otherwise be judged admissible.  It allows for immediate change, as opposed to having to repatriate to their home country to apply.

The first thing you must do is determine which immigrant category you fit into. For example, some are in the United States for reasons of asylum, others have people who are financially dependent, and so on. An attorney will help you determine your specific category.

The next step is having someone file a petition on your behalf. Which petition will vary according to your category. If  you are marrying a citizen or permanent resident, or have children in the U.S. you will have to have a permanent resident or citizen file Form I-130, Petition for Alien Relative. Note that if the purpose is marriage, be prepared for a lot of questioning and probing from the USCIS, who are always on the watch for “immigration marriages.” If you are investing in a business, you will need to file Form I-526, Immigrant Petition by Alien Entrepreneur. If you are a refugee or seeking asylum, you will file under Humanitarian programs. These do not require applications, as such, but you will usually have to provide supporting evidence to be considered. Finally, some requests do not fall under any existing category and are collectively referred to as Special Class applications. If you are the child of an American soldier and a Vietnamese woman or a widow, your application will fall under Special Class.

How you entered the U.S. will affect how you file. If you entered with a proper visa, any kind, you entered legally. If it is later determined that you took out a visa to marry someone in the U.S, your application will be judged fraudulent, particularly if you knew your spouse before entering the country. If you entered the country legally with a visa, and you seek an adjustment before the visa runs out, you can opt to return to your home country and apply at the local consulate. Consulate filing can sometimes be speedier than filing in the U.S., especially if the country of origin does not have many residence seekers. If you entered legally with a visa, and you are seeking adjustment after the visa has run out, do not choose the consulate application path. You will almost certainly have problems, and may even find yourself with a 10 year ban.

*Note: the content of this blog does not constitute legal advice. Always consult an attorney directly to explore your immigration options.

May 02

How to avoid deportation: Cancellation of removal for permanent residents

A permanent resident in the United States is defined as a foreign national who has been granted the permission to reside in the United States for the rest of their lives. Even though their status is permanent, they are not citizens, and therefore their legal status remains under the auspices of the DHS. This means that if they commit a crime, it’s not simply a matter for the criminal courts, the DHS is automatically involved.

Often the DHS will request your removal – formerly known as deportation. In most cases the only recourse for permanent residents threatened with removal is Cancellation of Removal. Cancellation of Removal is simply a plea to the court that even though you have done something wrong, you think that positive factors should outweigh the negative ones.

To apply for cancellation of removal, you need to have residence status for at least 5 years, you need to have lived in the United States continuously for 7 years after being admitted (including visas), your removal proceedings are not the result of a felony, and that your removal is not the result of being deemed “inadmissible.” Additionally, the 7 year requirement is reckoned from your legal admission to the time of your infraction, not when the DHS starts proceedings. So, if you were busted for drugs after 6 years, you can still be removed even if the government does not start proceedings until after 7 years.

To come to a decision on your case, a judge will simply weight the positive factors against the negative factors. Positive factors include involvement in the community, family ties, volunteerism, church attendance, served in military. Negative factors include repeat offenses, likelihood of rehabilitation, sketchy employment history.

Cancellation of Removal is applied for with form EOIR-42A and the fee. If the court rules in your favor, your life goes on like normal. If it rules against you, you will need to speak to an attorney about your options.

*Note: the content on this site does not constitute legal advice. You should always discuss your case directly with an attorney.

May 02

Deportation Defense: You May Not Be Removable as Charged

If you are an undocumented resident, you have more legal challenges when it comes to avoiding removal, but you can still get the the court system to work for you. There are defenses that you can use to win your case (or at least buy some time), One of which is denying that you can be removed as charged.

Early in the removal process you will have a hearing during which the government will provide allegations and evidence to justify your removal. Then a judge will ask that you admit or deny the allegations, and whether you want to contest the charges. As a rule you should deny any allegations and contest your removal. Conceding anything makes the government’s job easier. It is important for you to know that you should not lie to the judge. If it is discovered that you have, you will almost certainly not be able to file for relief from removal; and any other attempts to fight removal will be tainted by your dishonesty.

Undocumented aliens are usually removable, but there are ways to challenge the allegations. For instance, sometimes the government screws up the paperwork showing why you should be removed. It sounds unrealistic, but it’s been used as a viable defense.

As always, to get the most out of the legal system, you must have a competent and experienced attorney at your side.

NOTE: the content on this site does not constitute legal advice. You should always contact an attorney directly for legal guidance.

Apr 14

HB-1 Visa cap reached in days

HB-1 work visas are among the most sought after visas the U.S provides, especially for IT professionals. On 1 April the US Citizenship and Immigration Services began to accept applications for this coveted doorway to high paying jobs in the U.S. On April 5 the government announced that the Congress mandated cap of 65,000 had been reached, revealing the fierce competition for the prize.

“I’m really glad I hired an attorney to handle my submission,” said Adit Singh, one of the many hopefuls. “One mistake can nullify the entire application.” While rejected applicants receive their application fees back, this is a small consolation for those who have a lot staked on receiving the visa, because it can open a lot of doors career-wise, and many visa holders eventually apply for residence here, as well.

The HB-1 is popular with employers as well. While foreign workers usually make much better pay than they would make in their home countries, they are paid at a fraction of the cost of a citizen. Indeed there has been a modest backlash against hiring HB-1 holders, given that so many citizens are out of work. Congress has responded to this by setting a cap of 65,000, which means applicants need to make sure that their applications are done properly.

Applicants are drawn from the pool by a random selection process, which is in fact a computer-generated lottery. Before announcing the lucky winners, USCIS must first finalize the intake process of the applications they have received. No date has been set for the announcement of those who will be granted visas.

HB-1 visas are set to take effect for the fiscal year starting on October 1, 2014.

Jan 20

New bill will create state specific Dreamer Act

There has been some foot dragging on offering in-state tuition to American offspring born to undocumented aliens. A new bill introduced by Colorado representative Jared Polis called the Investing IN States to Achieve Tuition Equity (IN-STATE) has been introduced to provide $3/4 billion in student aid to states that establish tuition rates for undocumented children that are in line with citizen’s tuition rates. The aid man in some cases be awarded directly by the government.

To apply for the program, prospective students must have attended a Colorodo high school for 3 years or more, or completed the Colorado administered GED, and they must show that they have been accepted to a university in Colorado within one year of graduating. If the applicant cannot demonstrate the above criteria, they must present evidence that they have lived in Colorado for the previous 18 months. All applicants must also have at least applied for legal presence, or produce an affidavit that the will be doing so in the near future.

The measure has broad support from a host of organizations including labor groups, immigration activists, teachers unions and other educational groups, and a host of others. The bill also has support of Hispanic groups and legislators who have come to the United States as a children.

Jan 10

Stalled immigration reform is now affecting businesses

It’s not easy finding quality labor these days in Colorado. Just ask Angela Carlson, who has been trying for weeks to find laborers for the construction business she and her husband own. Building projects are on the upswing, which means the labor market gets tighter as the opportunity to make money increases. Carlson is concerned that she will have to stall projects soon.

“It really is a laborers market,” she says. “If immigration reform doesn’t come through soon, we will have to start turning down work, and that’s not good for anyone.”

And it’s not only Ms Carlson. All over the state, any type of business that needs a steady and reliable pool of hard working labor is feeling the pinch. Every time they read about the failed bill in the news, their hearts sink a little more. “It hasn’t reached a critical point yet, but if we have to go another year without reform it’s going to make the constructions companies who are on a tighter margin go under” says Preston Rios, owner of a house building company.

It’s especially difficult for companies that have government contracts, because they really have to make sure they don’t break any laws, because they can be penalized and be forever banished from every getting another contract.

The problem arose from the national real estate market crash, which sent many workers into different fields. Now that things are looking up, those workers don’t want to go back.

Dec 23

Colorado Republicans voice support for immigration reform bill

Almost everyone is in accord that immigration reform is a necessary step in Colorado and the rest of the nation. Of course the question is exactly what kind of reform will it be. Many undocumented aliens are fearful that a Republican victory over the reform (which is appearing less and less likely) will sent them back to their country of origin. There is no need for worry however, as there are already measures in place that will make it difficult if not impossible to have them deported.

There are currently approximately 11 million undocumented aliens in the United States. As one might expect, those undocumented aliens are the most enthusiastic about reform, but there has been considerable opposition by Republicans who have conservative constituencies that would prefer a more modest reform.

Nevertheless it has been revealed that a majority of Republicans want reform as much as everyone else. It would seem that everyone has tired of the politics around the issue, and simply want the matter to be settled. This is great news for the undocumented, because they can count on the day finally see the day where their contributions are “legitimized” by the government.