How an Arrest or Conviction Affects Immigration Status
The fact that a potential immigrant has engaged in criminal activity can have far-reaching, negative consequences for him or her. A person’s immigration status and ability to apply for a visa can be affected by an arrest or a conviction, even for what some may consider minor crimes. A delay in a visa application can mean a cancelled trip or a missed semester from school.
Other than the risk of conviction and having a criminal record, immigrants who find themselves in legal trouble can lose the ability to stay in the United States. Even immigrants who are in the country legally at the time of the arrest are subject to what are called collateral consequences, which are changes to their immigration status based on a conviction in an unrelated criminal case.
When a person is arrested, he or she gets fingerprinted and otherwise processed through a national system, National Crime Information Center (NCIC), and therefore, if he or she applies for a change in immigration status or a visa, the arrest can raise a red flag and delay the application. If convicted for a crime following the arrest, there is a higher risk of deportation. Plea bargains, by which the immigrant pleads guilty to a crime in return for a more lenient sentence, are also counted against the immigrant much in the same way as a conviction.
Lawful permanent residents can be deported after a criminal conviction much in the same way as an undocumented immigrant, and the Supreme Court has held that a person’s criminal defense attorney is required to advise him or her of this fact. If your defense attorney failed to advise you of this fact, you can appeal your conviction on the grounds of ineffective assistance of counsel, and ask for a new trial.
While there are a wide range of crimes that could result in deportation, lawful permanent residents should pay attention to one class of crimes in particular – crimes involving moral turpitude. A lawful permanent resident becomes eligible for deportation if he or she commits a crime involving moral turpitude within five years of entry into the country, and receives a sentence of at least one year imprisonment.
Crimes involving moral turpitude are not defined under United States immigration law, and can be a property crime such as theft, or a crime against a person such as murder or aggravated battery. It is up to a court to determine if the crime a lawful permanent resident is convicted of qualifies as a crime of moral turpitude, and can therefore be the basis for deportation.
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In some cases, the consequences of a criminal conviction are less serious and simply result in a delay in the processing of a visa. However, for other immigrants, a criminal conviction could result in deportation. Therefore, if you were arrested or convicted in relation to a criminal matter, and you are worried about how that will affect your immigration status, you need to talk to an experienced immigration attorney. Contact our multi-lingual staff to speak to an experienced immigration attorney from Strassburg, Gilmore & Wei, LLP, in Pasadena, California.
ICE Agents Making Arrests in California Courtrooms
Following reports that United States Immigration and Customs Enforcement (ICE) agents are now going to courthouses to arrest undocumented immigrants, attorneys, and prosecutors are worried about the chilling impact this could have on people’s willingness to report crimes or come forward to testify in a judicial proceeding. The issue has attracted the attention of the chief justice of the California Supreme Court, who has written a letter to federal officials asking them to reconsider the tactic in light of the risks.
Whether or not a person is in the country illegally, he or she can file for protective orders to keep abusers away, appear as a witness in various criminal proceedings, be a complainant in criminal cases, and even be a plaintiff in lawsuits. The ability to access the judicial system in this way can be a life saver for a group of people who may otherwise be victimized or taken advantage of with no recourse. This is why this ICE tactic is seen as being so dangerous to communities.
This is not the first time ICE has engaged in this kind of policing and arresting tactic, but in the past, it was used mainly as a last recourse in cases where no home or work address could be found on a certain person, or where the risk of making the arrest elsewhere was high for the ICE agents. However, now it seems that it may be applicable in more situations.
Immigrants Assisting in Criminal Prosecutions
This tactic has support from some people because there is an assumption that at least some of the immigrants arrested in courthouses are there as criminal defendants. While this is true, there is also the risk of deporting those who are helping prosecute criminals regardless of their immigration status. The federal government has long recognized the role that can be played by immigrants in assisting law enforcement agents solve crimes and prosecute high level criminals, for example through the use of the U-Visa program.
Generally, non-U.S. citizens who are victims of certain crimes, who have suffered mental or physical abuse, and who are willing to help law enforcement officials in the investigation and prosecution of criminal activity are eligible for a nonimmigrant visa known as a U-Visa. This visa was introduced as a way to protect crime victims and ensure that crimes from domestic violence to human trafficking could be effectively investigated with the help of victims who are not U.S. citizens. While U-Visas are generally only applicable to immigrants who are admissible into the U.S., those who are inadmissible may apply for a waiver in order to meet the requirement.
It is difficult to know what areas may be targeted by ICE agents for raids to arrest undocumented immigrants for deportation proceedings. It is important to remember that you still have rights when it comes to immigration agents coming into your home to make an arrest, and a warrant is generally required.
If you are arrested at a protest rally, courthouse, church, or any other unexpected location, it is important to have a contingency plan in place if you have young children, remain calm at all times, do not resist arrest, and always carry a number for an immigration attorney just in case.
Contact Us for Legal Help
For legal assistance with your immigration issues, contact our multi-lingual staff to speak to experienced immigration attorney Nathan Wei from Strassburg, Gilmore & Wei, LLP, in Pasadena, California for a consultation.
Undocumented Immigrants and Business Ownership
While some immigrants come to the United States to escape dangerous conditions in their countries, a great number of immigrants also come to the United States to seek economic opportunities through better jobs and sometimes owning their own businesses. Undocumented immigrants who want to start their own businesses may find the process straightforward, although it does not ultimately change their immigration status.
An undocumented immigrant starting a business is not something that is technically sanctioned by the law, and in some ways successfully opening the business as an immigrant is a matter of using certain loopholes in the law. Immigrants who want to open a business in the United States are required to obtain an EB-5 visa, which allows the immigrant to apply for a green card in exchange for investing anywhere from half a million to a million or more dollars in a business in the United States. Not many people can afford this type of visa, and therefore undocumented immigrants opt to go through other avenues.
The first and most obvious challenge to starting a business as an undocumented immigrant is the lack of a social security number. However, most undocumented immigrants overcome this by applying for an individual taxpayer identification number (ITIN). In order to apply for a ITIN, a person has to submit some identifying documentation, such as birth certificate or a foreign passport.
ITINs are issued regardless of a person’s immigration status for purposes of filing taxes. This number cannot give a person work authorization in the United States in the same manner as a social security number. Once a person has an ITIN, he can apply for an employer identification number and set up a business.
With these numbers, an undocumented immigrant can apply for city and state licenses to ensure that the business is in compliance with local laws. However, even business owners who have otherwise followed the law on opening the business and paid all required taxes can be deported as easily as non-business owners who are in the country illegally.
An undocumented immigrant who chooses to open a business takes a chance that he or she can be deported at any time. For example, if the business is robbed, or an employee is attacked and the police are called in, the business owner takes the chance that his or her immigration status will come up, resulting in deportation. Business owners must also make sure that they pay all required taxes on the business income in order to avoid legal issues related to the nonpayment of taxes.
Financial challenges may also affect an undocumented immigrant’s ability to open a business. Because of his or her status, the person may not be able to qualify for a business loan or government grant, and has to rely on savings alone. This may mean that it could take a long time to raise the money it would take to launch a business, and therefore, it means deferring the dream of business ownership.
Let Us Help You with Your Immigration Problem
If you are in the country illegally, own a business, and are facing deportation, you need to consult with an experienced immigration attorney. Business ownership does not have to act against you in a deportation proceeding. Contact our multi-lingual staff to speak to experienced immigration attorney Nathan Wei from Strassburg, Gilmore & Wei, LLP, in Pasadena, California for a consultation.
Applying to Remove Conditions of Permanent Residency After a Divorce
When a foreign national marries an American citizen, he or she may want to apply for lawful permanent residence and eventually U.S. citizenship, with the American spouse as a sponsor. Initially, a spouse seeking permanent resident status on the basis of a marriage that is less than two years old receives conditional permanent resident status, which may be adjusted to permanent status after a period of time. If the couple divorce before the conditional period is over, the conditional permanent resident may still be able to get permanent residence under certain circumstances.
A conditional permanent resident generally needs to file a joint petition with his or her spouse in order to remove the conditions on his or her residency and become a permanent resident. However, if you are divorced from your spouse, you may not be able to file a joint petition. The U.S. Citizenship and Immigration Services (USCIS) allows a conditional permanent resident in this situation to apply for a waiver of the joint filing requirement, and apply for the removal of the conditions alone.
The most important factor in analyzing an application for a waiver on the joint filing requirement is that the couple has entered into the marriage in good faith, and did not commit marriage fraud. This means that if USCIS investigates and determines that the marriage was a sham, in other words, really an arrangement for the foreign national to get permanent residency and citizenship, the waiver will not be granted.
A domestic violence survivor who was battered, or had a child who was battered by an American spouse during the course of the marriage can also apply for a waiver without being divorced. This again requires the couple to have entered the marriage in good faith.
There are many things that can be considered indicators of a sham marriage, for example, if the couple never lived together or does not know details about each other’s lives. In order to prove that the marriage started out as a real marriage or in good faith, a conditional resident seeking a waiver can send in bank statements, evidence of having jointly owned property with the ex-spouse, and birth certificates of children born to the couple. Sometimes, if the couple went through marriage counselling before the divorce, letters from the counsellor or therapist may be helpful. Statements from friends and neighbors who can attest to the legitimacy of your marriage before the divorce may also be helpful.
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If you fail to file a petition for the removal of conditional status by the time your conditional permanent resident status expires, USCIS can start removal proceedings against you. If you have a valid claim for a waiver, you may still be able to receive permanent resident status even if you are divorced or widowed.
To preserve your rights, make sure you file your petition before your time is up. For more information and assistance on filing a petition for the removal of the conditions on your residency, contact our multi-lingual staff to speak to an experienced immigration attorney from Strassburg, Gilmore & Wei, LLP, in Pasadena, California.
H-1B Visa Premium Processing Suspension
The United States Customs and Immigration Services (USCIS) has recently announced that it will temporarily suspend premium processing of H-1B work visas starting in April 2017. The temporary suspension is supposed to only affect the premium processing service, which guarantees that an H-1B application is processed within 15 days.
USCIS explained that it was suspending premium processing in order to go through a backlog of other applications and improve the overall processing times. An ordinary application can take six months or longer. The suspension of premium processing is worrying for workers who may need an approved visa faster in order to have their work continue uninterrupted from another visa, such as a J-Visa.
The suspension of premium processing can also affect how a company or business plans for foreign workers. Without the certainty of this faster processing of H-1B visas, a business may not be able to adequately plan projects that require certain foreign workers with specific expertise.
However, even with the suspension in place, applicants who need to have their H-1B work visas processed more quickly than the time it takes to process a visa in regular time can request expedited processing. However, the applicant has to show that he or she meets the expedited processing criteria.
Changes to the Law
The move by USCIS to suspend premium processing follows H-1B visa changes proposed through the H-1B and L-1 Visa Reform Act of 2017, which was introduced in the U.S. Senate in January 2017. This bill proposes several changes to how H-1B visas are awarded, for example, moving away from a lottery system to one where workers are given visas based on USCIS established preferences. The bill would also reduce the length of time an H-1B visa would be valid, and have more reporting requirements for employers. There would be more focus and investigation on work visa fraud.
The use of H-1B visas has been criticized as making it easy for some companies to abuse the system and take advantage of foreign workers. Some outsourcing companies apply for visas on behalf of workers and then pass them on to other companies, taking a large percentage of the worker’s salary afterwards. The changes proposed in the bill are supposed to address issues of fraud and abuse such as these.
However, if the bill becomes law, it will mean significant changes in the way some foreign employees receive working opportunities in the United States. It may also reduce the employment opportunities available for foreign workers because it will be harder or less cost effective for employers to assist foreign workers get work visas.
For some workers who have been working in the country under previous policies need to ensure that they are in compliance with any new rules or laws that may be announced in the coming months or years.
Contact an Experienced Immigration Attorney
If you need assistance with a visa application or immigration status change, an experienced immigration attorney may be able to assist you. Contact our multi-lingual staff to speak to experienced immigration attorney Nathan Wei from Strassburg, Gilmore & Wei, LLP, in Pasadena, California and schedule a consultation.