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Yearly Archives: 2017
The 90-Day Rule and a Presumption of Misrepresentation
When a person travels to the United States on a non-immigrant visa, he or she makes certain representations to the immigration officials regarding an intent to immigrate to the United States and settle there permanently. Essentially, by applying for a non-immigrant visa, a person is telling immigration officials that he or she intends to stay in the United States on a temporary basis, and has no intention to live or work in the country beyond the period of his or her non-immigrant visa. If the visa does not authorize employment in the country, then the person is also expressing an intent to refrain from working.
After a person is granted entry into the United States on a non-immigrant visa, his circumstances may change in a way that requires the person to adjust their status to an immigrant. This could be because the person gets a job offer or gets married and qualifies for different visas or for permanent residency. The adjustment of status usually comes with a lot of scrutiny depending on how long a person was in the country on the non-immigrant visa before seeking to adjust his or her status.
Previously, if a person on a non-immigrant visa sought to adjust his or her status within 30 days of arriving in the United States, there was an automatic presumption that the person had made misrepresentations to immigrations officials concerning his intent to immigrate to the United States. In 2017, a change was implemented extending the 30 day rule to a 90 day rule. This presumption is also applicable when a person works without authorization or engages in other conduct that violates the terms of his or her non-immigrant visa within the first 90 days of arrival on a non-immigrant visa.
The presumption does not mean that the immigrant is automatically found to have misrepresented his or her intent. If this presumption of misrepresentation applies, the immigrant still has an opportunity to present evidence that rebuts the presumption of misrepresentation. The person can present information showing that at the time of making the application, it was his or her true intent not to permanently immigrate to the United States. This may involve presenting documentation and testimony or affidavits, and it may be better to seek the assistance of an immigration attorney in order to prepare this evidence.
There are serious consequences for a person who is accused of having willfully misrepresented the intention not to permanently immigrate to the United States when applying for a visa. In addition to being deported, the person may be banned from the United States, either for a period of time or permanently. It could also affect the person’s changes of applying for other immigration benefits, including United States citizenship at a later date.
Contact an Experienced Immigration Attorney
If you are alleged to have intentionally or willfully misrepresented your immigration intent while seeking a non-immigrant visa, and want to challenge the 90-day presumption, you need to contact an experienced immigration attorney. For more information on how an experienced immigration attorney can assist you, contact our multi-lingual staff to speak to an experienced immigration attorney from Strassburg, Gilmore & Wei, LLP, in Pasadena, California.
Changes to the Way Renewals of Nonimmigrant Work Visas are Handled
Employers who have hired nonimmigrant workers usually acts as sponsors for visas for the workers they employ. Not every employer wants to go through the process of hiring a foreign worker, and many employers prefer to employ foreign workers only if they already have work authorization independent of their employment. Applying for a visa for a nonimmigrant worker can be an expensive process for the employer, and can cause work disruptions when the time comes to renew the visa. Under new guidelines from the United States Customs and Immigration Service (USCIS), the process may get more expensive and time consuming for both the employer and the worker.
Before the changes announced in October, when a nonimmigrant worker needed a visa extension, the application for an extension was not reviewed with the same level of scrutiny as an initial application when there were no changed circumstances with the worker and his employment. However, under current guidelines, the adjudicator reviewing an application for an extension has the discretion to review the application as though it is a new application.
This means that the applicant has the burden of proving all the facts that make him eligible for a work visa, even though nothing has changed since the initial application. The additional requirements are expected to add time and expense to the extension process, which in turn is likely to discourage employers from hiring foreign workers. Visa renewals for foreign workers are usually up for renewal every three years; although in some cases visas may need to be renewed in one to two years. Under the new guidelines, employers and workers may need to go through the grueling renewal process annually or every three years.
This change follows other updates to policies increasing scrutiny on employers who hire workers, especially on the H-1B visa program. The H-1B visa program was originally supposed to allow employers to hire highly skilled foreign workers in fields where there was a shortage of American workers. The H-1B visa process has been criticized as awarding visas to non-qualified workers, and has been targeted for major revision and possible elimination by the current administration. There could be other changes coming to the H-1B visa program and other programs authorizing foreign workers to work in the country. One such change would eliminate a rule allowing spouse of H-1B visa recipients to work in the country under a H-4 dependent visa.
There are legitimate issues with how some employers hire nonimmigrant workers. However, the guidelines implemented by USCIS will probably cause difficulty for legitimate candidates in addition to those who are being hired fraudulently.
Contact an Experienced Immigration Attorney
If you are currently working in the United States on a nonimmigrant visa, you need to review your status and the options you have to continue working legally in the United States. You should consult your own immigration attorney to explore your options if you are nearing the expirations of your visa. For more information, contact our multi-lingual staff to speak to experienced immigration attorney Nathan Wei from Strassburg, Gilmore & Wei, LLP, in Pasadena, California for a consultation.
Proposed Law to Make Employer Verification of an Employee’s Work Status Mandatory
Businesses operating and hiring employees in the U.S. are required to ensure that they are hiring employees who can work legally in the country. In order to help businesses ensure that the employees they hire are legally allowed to work in the country, the government encourages employers to use the E-verify program. The verification of an employee’s employment status through the government’s E-verify program has been voluntary to employers, except for certain employers who work on federal contracts, and employers in states that have laws requiring the use of E-verify.
Under a proposed law, the Legal Workforce Act, employers could be required to use a system modelled after the E-Verify program. The law would require the use of this program to be mandatory for all employers, and would be implemented in stages across the country. The law would preempt state law on this issue, and states would be required to comply with the law, or if they choose, they could enact stricter laws on employment verification.
The bill would require that employees who are not currently verified under the E-verify program to be reverified, which will require the employee to verify that he can work legally in the U.S., and for employers to certify that they verified an employee’s status.
If the bill is passed and signed into law, employers who use the system to verify their employees’ status will have a defense to allegations of improperly hiring employees who cannot work legally in the country. Therefore, if the system made an error and verified an employee who was not actually legally allowed to work in the country, the employer would not be liable for federal fines.
Employers with 10,000 or more employees would be required to use the new system within six months of the Legal Workforce Act becoming law, employers with 500 to 9,999 employees would have 12 months, employers with 20 to 499 employees would have 18 months, and employers with one to 19 employees would be required to comply with the law within 24 months. There will be different compliance dates for employers hiring agricultural workers.
There are also provisions in the law that seek to stop people from using other people’s social security numbers when applying for positions. These provisions are supposed to limit identity theft.
There have been proposals to make E-verify mandatory in the past, for example, the 2013 Accountability Through Electronic Verification Act proposed to make E-verify mandatory, but it did not make it to law. This time, there is a greater push for these changes, and the bill may have a better chance of becoming law.
Contact Us for Legal Assistance
If you are an immigrant or foreign worker who needs to determine if you are working legally in the U.S., or who needs to adjust your status in order to work legally in the U.S., you need to speak to an experienced immigration attorney about your status. Contact our multi-lingual staff to speak to experienced immigration attorney Nathan Wei from Strassburg, Gilmore & Wei, LLP, in Pasadena, California for a consultation.
How do I Prepare for an USCIS Interview?
With the recent changes to the application forms and procedures for people seeking lawful permanent residency in the United States, it is important for all applicants to prepare for their interviews with the United States Customs and Immigration Service (USCIS) officials. Generally, anyone applying for a green card is required to attend an in-person interview as part of the application process. This interview is usually that last step before the application is granted or denied.
Where a person attends the interview depends on wherehe or she is at the time of the application. If an applicant is outside the United States, the interview is conducted at a U.S. consulate. If the applicant is in the country and is seeking an adjustment of status to lawful permanent residency, the applicant is usually interviewed at a USCIS center or regional office. Whatever the setting, remember to dress well and be on time for your interview.
Review Your Application
For all applicants, it is crucial to review your application and any documents you submitted before attending the application. If you do not review the application, you may be caught up in a question about a minor detail in your records and look like you are lying because you do not know the answer or because you provide a different answer.
Tell the Truth
Another important thing to remember is to tell the truth. Lying about an aspect of your background or personal information, either in the application or in the interview could be grounds to revoke any benefits you receive as a result of the lie, including your green card. If you are worried about how negative information in your background may affect you, you should always consult an immigration attorney before filling out the forms to discuss how you should answer the questions.
Interviews of Married Couples
If your application is based on marriage to a U.S. citizen, the interview may feel more like an interrogation at times. The questions asked to married couples may be personal and could range from small minor details about everyday life living together, details on how the couple met, to the couple’s long term goals. In addition, it is not uncommon for the spouses to be interviewed separately, and the spouses tested to see if their answers will match up. If the marriage is bona fide, and not solely for the purpose of obtaining immigration benefits, the couple will generally be comfortable answering questions without studying the answers. However, details may be difficult to remember, therefore the couple may benefit from going over certain details of their relationship that they may have forgotten.
Consult an Attorney Before the Interview
If possible, you should schedule some time to prepare for the interview with your immigration attorney. This preparation could help you anticipate the tone of the interview and the kind of questions to expect.
Contact Us for Legal Assistance
If you are in the process or applying for an adjustment of status to legal permanent resident status, you should consult an experienced attorney to assist with the process. The application forms have changed and become more complicated, and providing the wrong information could lead to your application being denied. For more information on how we can help you, contact our multi-lingual staff to speak to an experienced immigration attorney from Strassburg, Gilmore & Wei, LLP, in Pasadena, California.
Court Rules No Further Delay to the Implementation of the International Entrepreneur Rule
In an effort to grow the economy, the Obama administration proposed the International Entrepreneur Rule, which would allow foreign entrepreneurs to stay in the United States for up to five years in order to grow their startup businesses. The rule was supposed to go into effect in July of 2017, but was delayed under the current administration to 2018. According to news reports, on December 1, 2017, a federal judge ordered the Department of Homeland Security to rescind its delay of the rule.
The judge’s ruling was based on the fact that the Department of Homeland Security had not followed the proper procedure before delaying the implementation of the rule. Therefore, there is no guarantee that if the proper form is followed, a similar court ruling would result. In addition, the current administration has already indicated that it is unlikely to continue the rule, and will probably get rid of it all together.
Currently, entrepreneurs are eligible to stay in the United States under the rule if they can show that their admission and stay in the United States would provide a significant benefit for the country through business growth and job creation. Entrepreneurs who are allowed to stay in the country may not be eligible for other visas that would allow them to work in the United States, for example the H-1B visa, for which the entrepreneur would need to be an employee with an established company. Small business owners who have already established their businesses and owners of businesses that could not otherwise operate legally in the United States are not eligible to apply to stay under this rule.
If the rule is allowed to continue, or is implemented pending its cancellation in 2018, entrepreneurs and their immediate family members will be allowed to stay in the country with permission to work. However, it is not clear what the next move will be for the Department of Homeland Security. The Department may appeal the decision and cause further delay to the rule’s implementation, or simply get rid of the rule.
Additionally, although the judge ruled that the Department of Homeland Security should start accepting applications without further delay, there was no order to grant parole under the rule. There may be internal administrative hurdles that could practically frustrate the implementation of the rule. Being granted parole under the rule is a matter of discretion, and the rule does not operate in the same way as a traditional visa.
Foreign immigrants seeking to enter the United States may be eligible for other visas that could help them set up their businesses. For example, under the EB-5 Immigrant Investor Program, foreign investors looking to invest in a commercial venture in the United States may be eligible for a green card.
Contact Us for More Information
If you are a foreign citizen looking to immigrate to the United States to pursue business opportunities that could benefit the country, contact our multi-lingual staff to speak to experienced immigration attorney Nathan Wei from Strassburg, Gilmore & Wei, LLP, in Pasadena, California to discuss your options.
Temporary Protected Status Ended for Haitian Citizens
Acting Secretary of Homeland Security Elaine Duke recently announced that tens of thousands of Haitians living in the United States under Temporary Protected Status have until July 22, 2019, to return to Haiti.
The Haitian citizens were given protected status to live and work in the United States after Haiti’s infrastructure was heavily damaged in a 2010 earthquake. Since then, the status of those protected and their ability to safely return to their country was evaluated periodically and the status extended. After the most recent review, the Department of Homeland Security announced its decision to end the protected status for the Haitian citizens, who must now return to Haiti by the July 22, 2019, deadline or face deportation.
Temporary Protected Status may be granted to citizens of a foreign country who are already in the United States and cannot return to their countries due to temporary conditions that make it unsafe to return, or because their government cannot handle their return. The status is granted by the Secretary of Homeland Security. Even undocumented immigrants in the country illegally when a Temporary Protected Status is designated for their countries are protected.
Haitian citizens are not the only group that is protected under the Temporary Protected Status. In addition to Haiti, there are other large groups from nine other countries that are allowed to live and work in the United States without fear of deportation. Citizens of El-Salvador living the United States under Temporary Protected Status are reported to represent the largest group of people living in the United States under this status, and will be next to hear if their status will be extended.
As the name suggests, the program is supposed to offer temporary relief for humanitarian reasons. The situations for which Temporary Protected Status may be approved for citizens of a foreign country include:
- Ongoing armed conflict,
- An environmental disaster, or an epidemic, and
- Other extraordinary and temporary conditions
Depending on the country in question however, these situations may not be temporary, and may impact the ability of the foreign government’s’ ability to receive its citizens for a long time. This is part of the criticism against the program, that it is not temporary, and is used as a back door to allow immigrants to settle in the country.
Because most people who are granted the chance to live and work in the United States under this program have children and otherwise settle into their lives here, going back to their countries of origin is not an easy task. For those with children who were born in the United States and are therefore citizens, the decision to take their children back or leave them in the United States will be a very difficult one to make. The parents will either have to find others who are willing to take care of their children, or stay beyond the deadline and face deportation. People who are facing this choice should explore their options in terms of adjusting their status in order to stay in the United States legally.
Contact an Experienced Immigration Attorney
For more information on how an experienced immigration attorney can assist you in reviewing your options to change your status and stay in the United States, contact our multi-lingual staff to speak to an experienced immigration attorney from Strassburg, Gilmore & Wei, LLP, in Pasadena, California.
How the Issue of Competence Affects an Immigration Proceeding
In criminal proceedings in which a person is charged with a crime, the prosecution cannot go on if a person is found to be incompetent or suffering from a mental illness. This is usually done in order to protect the defendant and ensure that the person is afforded constitutional due process rights. In immigration proceedings, a person’s incompetence due to a mental illness or condition can affect a person’s removal or deportation, but not in the same way as in a criminal trial.
In a deportation hearing, the person to be deported is presumed to be competent for purposes of the proceedings. However, if there is an indication that the person is not competent, for example because the person shows signs of mental illness, then the immigration judge has to make a determination of the person’s competency before the proceedings can go on.
A person who is able to communicate with his or her attorney and rationally understand the deportation proceeding is generally deemed to be competent, and the immigration proceedings can proceed without a legal challenge.
Once the judge makes a determination that a person who is facing deportation is not competent, the deportation proceedings do not stop as a criminal case would if the judge found a defendant incompetent to stand trial. The immigration judge is supposed to ensure that certain safeguards are in place, and then the removal proceedings can go on.
Some of the safeguards include ensuring that the person facing deportation is assisted by another person in presenting his or her case, not accepting admissions or other incriminating confessions from the person, and closing the hearing to the public. These safeguards do not truly address the issue of the person’s incompetence, and are therefore inadequate to offer real protections for a person suffering from mental illness and facing deportation.
Immigration judges make determinations of whether or not someone is incompetent by reviewing the evidence provided by the person facing deportation, as well as by the government. Neither the government nor the person facing deportation has a formal burden to provide the evidence upon which the judge relies. The judge also reviews all the evidence under a standard of proof that is lower than that required in a criminal case. This means that the person facing deportation cannot rely on the fact that the government has not produced evidence of competency to prove incompetency.
A person can prove that he or she has a mental illness that makes that person incompetent for purposes of the proceeding by calling witnesses to testify on his or her behalf, or by introducing medical records and evaluation reports that support the claims. If there is a long history of treatment and an indication that the treatment should be ongoing, it is likely that the immigration judge may find the person incompetent for purposes of the immigration proceeding.
Contact an Experienced Immigration Attorney
Having an attorney during an immigration proceeding is extremely important, especially for someone who cannot truly represent himself or herself due to mental illness. For more information on how a person’s mental illness can affect him or her during deportation proceedings, you should contact our multi-lingual staff to speak to an experienced immigration attorney from Strassburg, Gilmore & Wei, LLP, in Pasadena, California.
Effect of Expunging or Sealing a Criminal Record on Immigration
A criminal conviction can have a negative effect on a person’s application for immigration to the United States. Certain convictions immediately disqualify a person from migrating to the United States or changing status in order to stay in the country.
In most states, including California, there are certain procedures a person can follow to have a criminal record sealed or expunged, which wipes away some of the person’s criminal record. Even in situations where the person’s conviction has to be revealed to an employer, the employer is not allowed to discriminate on the basis of the criminal record. While this is a helpful process in terms of getting a job, it is not applicable for immigration purposes.
Even when a California arrest or conviction is removed from a person’s history, it still has to be reported as part of an immigration-related application. When applying for any visa, permanent residency, or citizenship, a person is required to disclose all criminal convictions both in the United States and abroad. This includes convictions that have been sealed or expunged either in California or in another state or country. When applying for permanent residency or citizenship, the applicant has to reveal even more, and reveal arrests in his or her history.
Revealing a conviction for some misdemeanors, for example driving under the influence of alcohol, does not necessarily mean that a person will be denied entry into the country if holding a nonimmigrant visa. However, if a person has multiple convictions, this could definitely affect the person’s ability to enter the country.
Providing false or incomplete information in order to immigrate to the United States could lead to the revocation of a visa, lawful permanent residency, and in extreme situations, the revocation of citizenship if the citizenship was obtained through naturalization. A person who provided false information on an immigration application may also be prosecuted criminally.
Expungement may also create a problem for an applicant who has to provide certified copies of a conviction or disposition of an arrest. Immigration officials require applicants to provide this information as part of providing evidence to prove good moral character. Expungement removes most records from central databases, and so it can make it difficult to get this information.
Not all convictions can be sealed, dismissed, or expunged, and these procedures generally only apply to some misdemeanor convictions. Sealing or expunging a criminal history in California does not take care of arrests or convictions from other states. If a person has multiple convictions in several states, he or she has to pursue sealing and expungement in all those states following the laws in those states. No matter where the expungement takes place, it still has to be reported to immigration officials as outlined above.
Contact an Experienced Immigration Attorney
If you have been convicted of crimes in the United States or in another country and are thinking about applying for permanent residency or U.S. citizenship, you need to contact an experienced immigration attorney to discuss how the convictions could affect your application. Contact our multi-lingual staff to speak to experienced immigration attorney Nathan Wei from Strassburg, Gilmore & Wei, LLP, in Pasadena, California.
Family Based Immigration
The United States immigration system allows immigrants who have gained legal permanent residence or who are naturalized to become United Citizens to sponsor certain relatives to join them in the United States. The goal of this is to allow family reunification. This immigration system is sometimes referred to as “chain migration,” although the term is used derisively by some.
This system is disfavored because it is assumed that permitting family members to immigrate to the United States for no other reason than family ties puts a drain on government services and poses a danger to national security. While there are people who immigrate to the United States through this method who go on to commit crimes or claim government benefits, there are a great many others who go on to lead productive lives and never get into trouble with the law or pose a danger to society.
There is no guaranteed right to immigration through a relative, even if the relative is a United States citizen. There is a right for the citizen to sponsor an application; however, the person to be sponsored still has to go through a vetting process. If the person fails the vetting, the person’s application for permanent residence or a visa can be denied. In addition to the security checks that potential immigrants must undergo, the vetting process includes an assessment of the applicant and the sponsor’s finances, and the application can be denied on the basis of insufficient funds.
Additionally, depending on the familial relationship, it can take years or decades for the family member to be allowed to immigrate to the United States. It is faster for direct family members such as children and spouses to get the chance to immigrate, but it takes a much longer time for parents’ and siblings’ applications to be processed. Distant relatives are not eligible to be sponsored in this manner.
As we have written before, there is a proposal to change the current system to one that will be merit based. A merit based system is seen by critics of the current system as more beneficial to the United Stated because only potential immigrants with certain skills would be given preference when it came to applying to immigrate to the United States.
Allowing immigrants to come into the country to be reunited with their loved ones has been of benefit to the United States economy and society. The current system may need some changes or amendments. However, completely getting rid of the ability of lawful permanent residents and citizens to sponsor their family members would be a negative blow to both immigrant families and the communities in which they live.
Contact Us for Legal Assistance
The so-called chain-based immigration system may be changed in one way or another, so if you are a U.S. resident and would like more information on how you can sponsor an application for a parent or a sibling or another eligible relative, contact our multi-lingual staff to speak to an experienced immigration attorney from Strassburg, Gilmore & Wei, LLP, in Pasadena, California.
ICE Sensitive Locations
The story of a young girl facing possible deportation after being apprehended by border patrol agents while she was on her way to a hospital to undergo surgery has raised questions about the so-called sensitive locations where immigration-based arrests are not generally conducted.
Sensitive locations refer to areas that the Immigration and Customs Enforcement agency has restricted immigration enforcement actions except in three situations:
- If there are exigent circumstances;
- The immigration officials are led to the sensitive location through other law enforcement investigations; or,
- The immigration officials have prior approval to conduct the enforcement actions from a designated supervisory official.
In some cases, arrests and other enforcement actions can take place in a sensitive location as long as there is a prior agreement between the undocumented immigrant and immigration enforcement agents. For example, when an undocumented immigrant surrenders to immigration agents at a hospital or church.
Sensitive locations include hospitals, schools, daycare centers, rallies or demonstrations, and places of religious worship. Courthouses are not considered sensitive locations. The designation of these areas as sensitive areas is supposed to encourage people to seek the services offered at these locations without fear of deportation. It is also important to note that sensitive locations that are located near a border are treated differently. Sensitive locations near borders are afforded less protection that those away from borders, although immigration officers are supposed to use common sense in taking action in these areas so as to act within the spirit of the policy.
The young girl mentioned above was detained after being stopped at an immigration check point on her way to the hospital as opposed to being detained at the hospital. Therefore, and immigration officials argue that this distinguishes her from someone who would be arrested at a hospital after going there to seek treatment. While this seems like a hollow distinction, because the policy of not making arrests in sensitive locations is a government agency policy and not a law, there are few ways to challenge its application unless the agency failed to follow its own policies.
Because of deportation priorities, immigration agents do have some discretion when it comes to whom to detain and place in immigration proceedings, and this determination can be made on a case by case basis. In the past, undocumented immigrants who were convicted of crimes were priority targets for deportation. The priorities are less clear now.
Undocumented immigrants who need to go to sensitive locations for services should not rely on the designations of these spaces as sensitive spaces. Being improperly apprehended at a sensitive location is not a defense that will necessarily stop an undocumented immigrant from being deported.
Contact Our Team for a Consultation
If your family member has been detained pending deportation proceedings, you need an experienced immigration attorney to present your best case before the immigration judge. For legal assistance with seeking a change in your immigration status, contact our multi-lingual staff to speak to experienced immigration attorney Nathan Wei from Strassburg, Gilmore & Wei, LLP, in Pasadena, California for a consultation.