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A Criminal History can Affect Your Immigration Chances
When you are an immigrant seeking legal permanent residency or citizenship in the United States, there are many issues and questions that may come up when you are in the process of submitting your application. One issue that may be particularly worrisome is how a criminal record can affect a person’s application for legal permanent residency or U.S. citizenship.
Generally, having a criminal history can affect your application and does lower your chances of being approved for either permanent residency or citizenship. This usually depends on the nature of your crime, and in some cases how long ago the conviction was entered. In addition, as we have noted before, if a person already has permanent residency, being convicted of a crime can lead to the revocation of that status and the beginning of deportation proceedings.
Convictions for some crimes result in a person being temporarily ineligible for U.S. citizenship for a period of time, while others result in permanent ineligibility. If a person is convicted of murder or a crime that is considered an aggravated felony, the person is permanently banned from becoming a U.S. citizen. On the other hand, convictions for less serious crimes may result in a temporary ban of three to five years, after which time the person can apply for citizenship.
Being granted citizenship is still a matter of discretion on the part of the government, this means that even if you were only convicted of a crime that results in temporary ineligibility, you may still be denied citizenship based on your background.
Lawful permanent resident applicants who have been convicted of crimes involving moral turpitude and crimes involving the trafficking of a controlled substance are ineligible to receive a green card. There are other criminal offenses that can bar an applicant from receiving permanent residency. In some cases, applicants who are closely related to a person with a conviction for trafficking controlled substances are also considered ineligible for permanent residency if they received financial support that was from the proceeds of the trafficking.
Immigrants seeking either permanent residency or citizenship should remember that they are required to disclose all their criminal history, even convictions for crimes in other countries. Failing to make the appropriate disclosures, and then signing the application saying you provided accurate information could result in more legal troubles for the applicant.
If your criminal convictions were in another country and a result of political prosecution, you may be eligible for a purely political offense exception from ineligibility. It is important to discuss this kind of criminal history with an attorney. Applicants should remember that for immigration purposes, guilty pleas and other forms of criminal dispositions can count as convictions.
Contact Us for Legal Assistance
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.
Motion To Reopen Removal Proceedings Based On Ineffective Assistance Of Counsel
In criminal cases, the accused have a right to be represented by a lawyer. If a person accused of a crime cannot afford a lawyer, the state is required to provide a lawyer at no cost. Immigrants facing deportation may be represented by a lawyer during immigration removal proceedings. However, unlike people accused of a crime, if the immigrant cannot afford a lawyer, one is not provided by the state. This means that in order to have an attorney present at an immigration removal hearing, the immigrant either has to pay for the lawyer or rely on a volunteer lawyer.
Unfortunately, simply having a lawyer during removal proceedings does not guarantee that the lawyer will provide adequate representation. The law recognizes that sometimes lawyers make mistakes that can affect their clients’ rights. Because of this, immigrants are allowed to file a motion to reopen removal proceedings that resulted in a removal order, if the immigrant can show that he or she received the ineffective assistance of counsel in those proceedings. Counsel is another word for lawyer.
The standard for showing ineffective assistance of counsel in immigration proceedings is similar to that required in criminal cases. The affected immigrant has to show there was deficient representation by the lawyer and that the immigrant suffered prejudice. Without a showing of prejudice, the court generally cannot reopen a case even with a finding that a lawyer was ineffective. To show prejudice, the immigrant has to prove that the lawyer’s mistakes materially affected the removal hearing, and if it was not for the lawyer’s actions, the immigrant would not have been deported.
The kind of things that a court may consider ineffective assistance can include:
- Failing to file required paperwork on behalf of the client;
- Telling the client he does not need to show up to hearings;
- Failing to file an appeal on behalf of the client, or
- Threatening to withdraw from a case two hours before the removal hearing if the client did not agree to voluntary withdrawal.
If an immigrant claims that his or her immigration lawyer was ineffective and that this led to deportation, the person is required to notify the accused lawyer and give him or her a reasonable chance to respond to the accusations. If the lawyer fails to respond, the case can still move forward; the immigrant filing the motion to reopen the case has to inform the court that he or she provided the lawyer with the opportunity to respond.
As can be seen from the discussion above, in order to prove the ineffective assistance of counsel, the immigrant client has to prove that there was an objective failure on the part of the lawyer or someone working for the lawyer, and that failure caused the client harm. Losing the case does not always mean that the lawyer was at fault. In other words, just because a client loses, it does not mean he or she had ineffective counsel.
Let Us Assist You
If you believe your lawyer failed to properly represent you in your case, and it resulted in an order for your removal, contact an experienced immigration lawyer for a consultation. You may have reasonable grounds to have your case reopened. Contact our multi-lingual staff to speak to experienced immigration lawyer, Nathan Wei from Strassburg, Gilmore & Wei, LLP, in Pasadena, California.
The Supreme Court to Rule on the Travel Ban
The Supreme Court of the United States has agreed to hear a case involving the implementation of the travel ban proposed by the Trump Administration earlier this year. The travel ban was originally supposed to exclude people seeking to enter the United States from Iran, Libya, Somalia, Sudan, Syria, and Yemen, from entering the country. This included visitors on travel visas, workers, students, and even those who had previously been vetted by the government and given permission to enter the United States. Refugees from all countries were to be banned from entry for a period of time.
While the Supreme Court will hear the full case later this year, it allowed the travel ban to go into effect restricting the entry of some people, but allowing those with “bona fide relationships” to the United States to be allowed entry. The problem that is developing with this ruling is that there was no exhaustive definition of what made up those bona fide relationships.
The Supreme Court did give some examples of the kinds of relationships that would meet the definition, but the rules that are developing are more restrictive than most people expected. In the examples of bona fide relationships, the Supreme Court listed close family members, students, and workers who have an offer of employment.
The new guidelines that have been issued by the administration following the court’s ruling have restricted close family members to people who belong to a traditional nuclear family, as well as some in-laws. This has excluded grandparents, cousins, and others who may otherwise have been close family members. Fiancées were later added to the list of those who would be allowed to travel to the country despite the ban. For people wanting to come into the United States with a bona fide relationship with an entity, the relationship has to be formal and long established, not a relationship created to avoid the travel ban.
Refugees will still remain largely restricted from entering the United States, but those with bona fide relationships will likely be allowed entry. For example, if a father already entered the United States as a refugee, his wife and children will not likely be affected by the ban. On the other hand, a family of refugees whose only tie is to an aid agency is unlikely to be allowed entry under current rules.
The new rules have cleared up some of the confusion that came with the implementation of the first travel ban. Therefore, those with legal permanent residence in the United States should not have any issues coming into the country, as well as those with student or work visas that were previously granted and are still valid.
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More legal challenges are expected as the government begins to implement the new rules related to the travel ban. If you are concerned or confused about how the partial implementation of the travel ban will affect you or your family members in the six countries, contact our multi-lingual staff to speak to an experienced immigration attorney from Strassburg, Gilmore & Wei, LLP today.
U.S. Guest Worker Programs
The United States has various visa programs aimed at letting foreign nationals work in the United States for a period of time. The two main guest worker programs for low skilled jobs are the H-2A program and the H-2B program. The H-2A program is for workers who take up temporary agricultural work, and H-2B program is for workers who will take up temporary nonagricultural work.
Employers usually recruit guest workers, some of whom may already be in the United States, for temporary work usually meant to be for less than a year. In order to obtain visas under these guest worker programs and allow foreign workers to legally work in the United States, the employer has to show that the need for the worker is temporary. The employer also has to show that there are not enough U.S workers who are able, willing, qualified, and available meet the need. The guest worker visas issued under H-2A and H-2B do not lead to legal permanent residence.
Because of the way the programs are set up, there have been reports of major abuses of immigrant workers by the employers and contractors who supply the workers to employers. These abuses generally relate to workplace abuses, such as time and pay issues, and even sexual harassment. In some cases, workers are also cheated out of large sums of money by contractors and recruiters who assure them that the guest worker programs lead to green cards or lawful permanent residence.
Unfortunately, most temporary guest workers do not know that they have rights even as temporary workers in the United States. Having these rights means that when employers do not pay the applicable minimum wage, cheat their workers out of hours worked, or engage in other employment abuses, the workers can sue or file complaints to enforce their rights.
For most workers who do know or are at least aware of their employment rights, there is a fear that they will not continue to get work after they complain or file a lawsuit. An employee generally cannot be fired for filing a lawsuit to enforce employment rights. However, employers under the guest worker program can terminate an employee at any time, which leads to the employee losing his visa and ability to stay in the country illegally. Employees who are fired in this way can still file lawsuits to enforce their rights against abusive employers.
If you are an immigrant looking to work in the United States under a guest worker program or any other employment visa category, you should do as much research as possible before signing on with a contractor or employee. Ask around in your community for any information about a prospective employer before you take on the job. While having an opportunity to work legally in the United States may seem an attractive offer, if you are working for the wrong person, it can quickly turn into a nightmare.
Contact us for Legal Assistance
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.
DAPA Withdrawal Ends a Path to Legalization for Undocumented Parents of U.S. Citizens
This week brought some disappointing news for undocumented immigrants who would have qualified for deferred action under a program known as the Deferred Action for Parents of Americans and Lawful Permanent Residents, or DAPA. President Barack Obama authorized DAPA in 2014 as a way to protect the undocumented parents of U.S. citizens and lawful permanent residents. However, the program never kicked off because it was blocked by courts. This week, the current administration withdrew the program, effectively ending any further litigation, and cutting off the possibility of deferred status for millions of eligible immigrant parents.
Like with DACA, the Deferred Action for Childhood Arrivals program, eligible parents who received DAPA status would have been able to apply to live in the U.S. and apply for work authorization for an initial period of three years. There was a lot of opposition against the grant of deferred status under DAPA, and it does not come as a surprise that the measure was blocked. However, with the withdrawal of DAPA comes the question of what will happen to the DACA recipients.
Fortunately, there does not seem to be any current move to revoke DACA, which means that those who are eligible under DACA can continue to apply for deferred action and work permits. DACA recipients are supposed to be protected under the program, but as we have previously discussed, some DACA recipients have recently been arrested and deported. This does not mean that it is not safe to apply for DACA; cases of DACA deportations seem to be the exception rather than the rule.
With the withdrawal of DAPA, there is currently no clear path to citizenship for millions of undocumented immigrants in the country. It is uncertain if congress will take action to craft an acceptable law that would provide the path to citizenship and allow undocumented immigrants to live without fear of deportation. It is unlikely that the current administration will take action through Executive Action as was done with DACA.
There are other alternatives for the undocumented parents of U.S. citizens to gain citizenship or lawful permanent residence. One way is through the U.S. citizen or lawful permanent resident children filing an application for an adjustment of status for their parents to be granted a visa or to receive a green card. However, this is not always easy depending on how the parents first entered the country, and if they were previously deported and reentered the country again illegally. There are several other issues that could come up when making these applications and it is often necessary to have an experienced immigration attorney handle the application.
Contact Us for Legal Assistance
When weighing the advantages of applying for the benefits available under DACA versus the risk of deportation, it is important to speak to an immigration attorney about your individual situation. If you want to discuss your DACA application, or have received a removal order for your deportation, you should contact us for legal assistance. Contact our multi-lingual staff to speak to an experienced immigration attorney from Strassburg, Gilmore & Wei, LLP today.
Changing or Adjusting Visa Status While in the United States
People visiting the United States for a temporary purpose, such as tourism or to attend school, usually obtain different visas that are grouped into a category known as nonimmigrant visas. The nonimmigrant status usually means that at the time the visa is granted, the person has represented that he or she has no intention of staying in the country long term. However, when a nonimmigrant visa holder changes his plans and wishes to stay longer, he is required to apply for a change or adjustment of status.
A person may adjust status from a nonimmigrant visa status to an immigrant visa status, or change status from one category of a nonimmigrant visa to another. For example, if a visitor on a nonimmigrant tourist visa wishes to change status in order to attend school in the United States, he or she can apply for a nonimmigrant student visa. Similarly, if a visitor on a nonimmigrant visa wishes to get married, he or she can apply to adjust his status to an immigrant visa or lawful permanent residence.
You cannot change your nonimmigrant status if your nonimmigrant visa is expired. You would have to leave the country and reapply for the visa you need from outside the United States. However, if your visa expired and you stayed in the country for a long period of time out of status, leaving the country is no guarantee that you will receive another nonimmigrant visa.
There are some nonimmigrant visa holders who may not change status while in the United States. These include finance visa holders and people who are granted nonimmigrant visa for helping the United States government by informing on terrorism and organized crime. If you cannot change status while in the United States, it does not mean that you cannot change status by leaving the country and reapplying for a different visa from your home country or from another country.
Additionally, some nonimmigrant visa holders, for example under the J-1 visa, are required to return to their home country for a minimum of two years after the end of their program. This means that they are not allowed to change or adjust status before fulfilling the two-year requirement if it applies to them. There is a waiver available under certain conditions. If the person holding a J-1 visa and his or her family members believes they will be subject to persecution based on race, religion, or political opinion upon returning to their home country, they may qualify for a waiver of the requirement. If a waiver is applicable, it may be possible to change or adjust status.
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Life can be unpredictable, and your reason for visiting the United States may change during your visit, and you may have to apply for a new visa in order to avoid immigration issues down the road. If you need to change your visa from one nonimmigrant visa to another, or from a nonimmigrant visa to lawful permanent resident status, contact us for more information and assistance on filing your application. Contact our multi-lingual staff to speak to an experienced immigration attorney from Strassburg, Gilmore & Wei, LLP.
Undocumented Students Access to Financial Aid
Generally, undocumented students are not eligible for federal financial aid to help pay for the cost of a college degree or other forms of higher education. This does not mean that the students do not have other options, and these come mainly in the form of institutional aid and state assistance.
In California, undocumented students who meet certain criteria qualify to pay in-state tuition in California schools. This can make a big difference, with students saving thousands or tens of thousands a year in tuition costs. Undocumented students who attended a California high school for at least three years may be eligible.
Additionally, California provides undocumented students with an opportunity to borrow money to pay for their educational costs. This loan, known as a DREAM loan, has a relatively low interest rate and allows a student to borrow a maximum of $20,000. Students who receive scholarships and other grants and aid can use the DREAM loan to bridge any gap in aid and pay for their education in full, even though the student has to pay the loan back.
Undocumented students have to complete annual applications in order to apply for aid and certify their eligibility for paying lower tuition fees. This does require providing a lot of identifying information to the state and to the school the student is attending. This may make some undocumented students or their parents hesitate because of a fear that this information may be used to target them for deportation.
Generally, the information that students provide for student aid purposes is not shared with federal immigration officials. Additionally, several cities and schools in California have declared they are sanctuary cities and schools, and would not likely share this information with immigration officials except in serious circumstances, or where it is required by law.
Students who have registered under DACA, sometimes referred to as DACA-mented, are not eligible for federal financial aid in the form of either loans or grants. These students still have an advantage of being able to work in the U.S. legally, which could help them earn money to help them pay for the cost of tuition and room and board. DACA-mented students can also apply for in-state tuition and the DREAM loan discussed above.
The opportunities discussed above do not generally apply to students who are seeking to attend school in California under a nonimmigrant student visa such as a J-visa or F-1 visa. Students who are on a non-immigrant visa generally pay nonresident tuition rates, and are restricted in the forms of financial aid they receive. These students typically receive private or school grants and scholarships.
Contact Us for Legal Advice
If you are the parent of an undocumented student and are worried that enrollment in school could cause problems for the student and put him or her at risk for deportation, you need to discuss what legal options your child has with an experienced immigration attorney. Contact our multi-lingual staff to speak to an experienced immigration attorney from Strassburg, Gilmore & Wei, LLP, in Pasadena, California.
Avoiding Deportation by Applying for Cancellation of Removal
Although legal permanent residents in the United States usually enjoy many rights that U.S. citizens have, unlike U.S. citizens, there are certain circumstances under which a legal permanent resident can be deported. For example, legal permanent residents can be deported for committing certain crimes. When a legal permanent resident receives notice that he or she is to be deported, he or she can apply for relief from deportation if he or she can show that he or she meets certain conditions.
Cancellation of Removal
When a legal permanent resident receives a Notice to Appear from the government, it usually means that removal or deportation proceedings against the person may be started. The notice usually has details about removal proceedings and the reason for the proceedings.
Legal permanent residents who are facing deportation have a form of relief available to them known as the cancellation of removal. The legal permanent resident can apply for a cancellation of removal by showing that he meets three conditions.
The lawful permanent resident must show that he or she:
- Has been an immigrant lawfully admitted for permanent residence for not less than five years;
- Has resided in the United States continuously for seven years after having been admitted in any status; and,
- Has not been convicted of any aggravated felony.
Once these three conditions are met, the Attorney General can exercise his authority to cancel the deportation proceedings against a lawful permanent resident. However, even if the three conditions are met, the application may still be rejected.
Stop Time Rule
Under what is known as the stop time rule, the seven years of continuance residence required for a cancellation of removal stops running when the lawful permanent resident commits a crime that makes him eligible for deportation, or at the time he receives a Notice to Appear. If more than one Notice to Appear has been issued, then the stop time rule applies to the most recent notice. Therefore, if the lawful permanent resident began residing continuously in the U.S. in 2000, and received the Notice to Appear that leads to deportation in 2006, he would not have the seven years required to apply for a cancellation of removal.
Other Cancellation of Removal Cases
Other immigrants who do not have lawful permanent resident status can also apply for the cancellation of removal relief, but they must meet different conditions than lawful permanent residents. These conditions are often harder to meet. An applicant for cancellation of removal who is not a lawful permanent resident is required to show that removal will result in exceptional and extremely unusual hardship to the applicant’s spouse, parent, or child, who is either a U.S. citizen or a lawful permanent resident.
The residence requirement is shortened to three years for a person who is a victim of domestic abuse by a U.S. citizen or permanent resident. In addition, the victim of domestic abuse must show that he or she was of good moral character during the three years, and that removal will result in extreme hardship to his or her parent or child.
Contact Us for Legal Assistance
If you are a legal permanent resident and have received a notice informing you of deportation proceedings against you, you need to contact an experienced immigration attorney immediately. Deportation will mean a loss of important rights you hold as a permanent resident. Do not delay; contact our multi-lingual staff to speak to experienced immigration attorney Nathan Wei from Strassburg, Gilmore & Wei, LLP, in Pasadena, California.
The Responsibility of Sponsorship
United States citizens with family members who want to emigrate from another country sometimes make the decision to support an application for an immigrant visa or for legal permanent residency. In supporting such an application, the U.S. citizen has to attest that he or she will support the applicant financially. Most people who are supporting a family member’s application do not necessarily think of the implications of the promise to support the application, but the promise is legally enforceable.
The document that the U.S. citizen signs to support a person applying for permanent residence is known as an affidavit of support. The affidavit of support requires the U.S. citizen, who is referred to as a sponsor for purposes of the affidavit, to promise that he or she will support the person making the application for a period of time. This time period can be 10 years or longer. The affidavit of support is legally enforceable and is relied on when the government makes the decision on the application.
The sponsor is required to provide a copy of his or her tax return and proof of income when filing the affidavit of support. The spouse has to show that he or she has income that is equal to 125% of the U.S. poverty level for his household size. If the sponsor does not have the required income, he or she can count the value of assets, and the income of others in his household. If the sponsor does not meet the income and assets requirements, it is possible that the application will be denied unless there is a co-sponsor.
If the applicant is granted legal permanent residence or an immigrant visa that allows him or her to live and work in the U.S., the sponsor does not really provide the person’s day-to-day support. The legal permanent resident works towards supporting him or herself, and at the same time accumulates work credits. When enough work credits are earned, the sponsor is released from the obligation to support the person.
The sponsor is also released from the obligation when the sponsored person leaves the country or becomes a U.S. citizen. However, divorce does not mean that the sponsor is no longer financially responsible. A sponsor can still be held financially responsible for a former spouse.
However, if the legal permanent resident falls on hard times and has to apply for means tested public assistance, the sponsor can be asked to repay any benefits paid to the legal permanent resident. In some cases, the government agency that paid out the benefits may sue the sponsor to recover the benefits.
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If you are considering acting as a sponsor for a relative, it is important to understand the obligation of sponsorship. However, in many cases, the sponsored applicant who receives the opportunity to work in the U.S. can provide this or her own support and even provide support to the sponsor. For more information on how to sponsor a relative’s application for an immigrant visa or for legal permanent residence, you should contact our multi-lingual staff to speak to an experienced immigration attorney from Strassburg, Gilmore & Wei, LLP, in Pasadena, California.
Does the United States Allow Dual Citizenship?
Immigrants who become United States citizens through naturalization sometimes end up holding dual citizenship automatically. This means they remain citizens of their country of birth, as well as citizens of the United States at the same time. Sometimes, these new citizens may be worried that they are jeopardizing their American citizenship by continuing to hold on to their prior citizenship, and as a result, they renounce their other nationality.
While United States law does not specifically allow for dual citizenship, it also does not specifically prohibit it, and many American citizens do hold dual citizenship. There are some ways in which a person who was born a U.S. citizen can lose U.S. citizenship by specifically applying for citizenship in another country with the intention of renouncing their U.S. citizenship.
The oath immigrants take upon becoming American citizens sometimes causes some confusion as to the consequences of becoming a citizen. This is because it requires immigrants to pledge their allegiance to the United States and renounce all loyalty and allegiance to another sovereign. However, for citizens of other countries, the oath they take upon becoming a U.S. citizen does not change their status in their home countries unless the laws in those countries say that taking the oath renounces the other country’s citizenship.
There are numerous advantages of dual citizenship, with travel being the greatest. Dual citizens may be able to travel to various countries without requiring visas and advanced approval either by using their U.S. passport, or the passport of their other nationality. Dual citizens should consider which passport affords them more advantages in the country to which they are travelling beforehand.
Sometimes, having dual citizenship can affect how the U.S. government may be able to help citizens abroad in a country where they hold citizenship. This is why the State Department discourages dual citizenship. Additionally, citizens of other countries may be required to pay taxes and meet other obligations even if they live primarily in the United States. Depending on the law of that other country, failure to meet these obligations may mean legal problems if the person seeks to later take advantage of their citizenship to buy real property or engage in other business in that country.
U.S. citizens who live abroad as citizens of other countries are also required to pay taxes on their foreign investments, and meet other obligations of their American citizenship. Failing to pay taxes owed under U.S. law can subject a U.S. citizen to charges of tax evasion, no matter where he or she lives or works. Sometimes, the high rate of taxes required of foreign earners has led some American citizens to renounce their citizenship, although there are also other tax implications for people who renounce their citizenship.
Contact Us for More Information
If you hold dual citizenship and are concerned about how your status as a citizen of another country and how actions you take as a citizen of that other country can affect your American citizenship, you can seek more information from an experienced immigration attorney. For a consultation, contact our multi-lingual staff to speak to an experienced immigration attorney from Strassburg, Gilmore & Wei, LLP, in Pasadena, California for a consultation.
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