Visa Lawyer Blog

Attorney Ekaterina Powell from our office has prepared this article about the recently approved I-601 waiver case handled by our law firm.

Our client in this case, John, got married to his U.S. citizen wife, Mary, in San Diego, California. They started the application process for adjustment of status. At the adjustment interview, the immigration officer let them know that a green card cannot be granted to John because he was found to be inadmissible on the grounds of misrepresentation and fraud in connection with his previous visa application.

The couple was devastated. They came to our office to see if we can help them with I-601
Application for waiver of grounds of inadmissibility. We took the case, and we started working with the couple in preparing I-601 waiver petition.

I-601 cases are very unique. Each of them has its own story, a story of a family with lives of many people dependent on the result of the waiver process. The success of the case, often times, means whether the family is going to stay together. Sometimes, if such case is denied, it is a heartbreaking story of a family that used to be happy once but now they have to separate and live apart in different countries for the rest of their lives. It is especially devastating when minor children are involved who would be raised without a parent if the waiver does not succeed.

I-601 cases are very complex and require extensive legal analysis. We are particularly happy if we can assist our clients with I-601 waivers to save their families from falling apart.

I-601 waiver can cure many grounds of inadmissibility, including unlawful presence and 3 and 10 year bars, health-related grounds, certain criminal grounds, fraud and misrepresentation, alien smuggling and certain other grounds of inadmissibility.

Continue reading "Hardship Waiver Attorney - Misrepresentation Ground of Inadmissibility and Successful I-601 Waiver" »

The California DREAM Act is now law after Gov. Jerry Brown signed AB 130 on Monday afternoon, but undocumented immigrant students’ say their fight for financial aid access is far from over in the state. The most important portion of the California DREAM Act has yet to pass, activists say.

Starting January 1 of 2012, undocumented immigrant college students will be eligible for privately funded non-state scholarships that they previously did not have access to at California community colleges, state colleges and public universities. The bill breezed through the Senate two weeks ago. AB 130 will cost taxpayers nothing, and so was widely seen as an easier political sell. Still, its passage is being hailed as a victory for immigrant communities. The California DREAM Act had been continually approved by the state legislature but was vetoed three times by former Gov. Arnold Schwarzenegger.

You can access more information on the bill here.

This year Assemblyman Gil Cedillo used a different strategy and split the DREAM Act into two bills when he reintroduced the DREAM Act. The second bill, AB 131, which is currently in suspension in Senate committee, is the more controversial and significant of the two bills. It would allow undocumented students to access Cal Grants, the state financial aid and allow undocumented college students to qualify for Board of Governors fee waivers for community colleges which allows low-income students to have their tuition waived. AB 131 would also allow students at the University of California system to be eligible for university grants.

“So really, the real DREAM Act is AB 131,” said Jonathan Perez, an activist and the founder of San Gabriel Valley DREAM Team. “It holds most of the actual aid.”

Under AB 131, legal permanent residents and U.S. citizens would have priority for Cal Grants. Undocumented immigrant students and out-of-state students would only be eligible after the former group had been taken care of. Perez said that this stipulation would mean that undocumented immigrant students would likely not see Cal Grant money until the economy improves, but that the provision was important nonetheless. Perez, like other activists pushing for AB 131, said that allowing University of California students to become eligible for university grants and tuition was an essential part of tuition equity; undocumented immigrant students pay full tuition, part of which goes into a pot of money that’s redistributed as financial aid for low-income students, but are then blocked from access to university grants and scholarships.

A 2007 UCLA study found that 40 percent of the country’s undocumented immigrant youth population lives in California, and estimated the number of undocumented young people at around 26,000. In California community colleges, 34,000 undocumented immigrant students take advantage of AB 540, the 2001 state law that allows students who’ve graduated from California high schools to pay in-state tuition, regardless of their immigration status, the San Francisco Chronicle reported. In the Cal State system, 3,600 students are enrolled under AB 540, and the UC system has 642 AB 540 students.

The state’s readiness to call the passage of AB 130 a victory frustrates activists who say it’s urgent to keep the political momentum behind AB 131, which has until August to move out of committee.

“We heard a lot that they’re ready to celebrate and frankly that’s very troublesome for us because their celebration is premature,” said Perez. “This is our lives. A lot of students don’t go to school because they can’t afford it.” Perez said that California DREAM Act groups were not done with their organizing and are planning an event for later this week to keep pressing for AB 131.

Discussions about immigration reform has often focused on the issue of “undocumented” or “illegal” aliens and national security. But fixing our broken immigration system is about more than the determining the fate of approximately ten million people currently living and working and studying in the United States without papers. In the words of President Clinton, “It’s the Economy, Stupid.” Immigration reform would allow us to create a legal framework for who we want to have remain in our country, who we want to exclude, and to do so in a way that reflects our values and our interests. Most important to Americans right now is that reform would benefit the bottom line. Reform would raise wages, decrease unemployment, and increase tax revenues. Who wouldn’t want that?

Currently, our immigration system hurts our nation’s economy. We want to invite and encourage investment in our economy, attract the best, the brightest and most talented people in our businesses, and to create a fair and level playing field for our workers. Our immigration system falls short of each of these goals.

Our current policies directly hurt American businesses. Congress limits the number of highly-skilled and college-educated workers allowed into the United States from other countries. When the economy was booming in 2007 and 2008, the visas for the entire year were gone in less than one day. Even in the worst economic downturn since the Great Depression, our country still ran out of visas with eight months left before a new foreign worker could start.

Rather than protecting American workers, this policy hampers the creation of jobs in the US. Companies are forced to wait for months or years to hire highly talented and highly skilled candidates. Some of the world’s best and brightest college graduates are choosing jobs in Europe or Canada or Asia rather than the United States because those nation’s immigration policies provide a clearer path for either temporary work or permanent residency. Our outdated immigration policies also create incentives for outsourcing, as companies hire workers abroad that they can’t bring to the United States.

Recent studies from the CATO institute, the University of Southern California, and the National Dairy Industry all found that comprehensive immigration reform would have a significant impact on the economy. In essence, it would add $1.5 trillion to our nation’s economic output over 10 years. Reform would also boost wages not only for the newly legalized workers but also for native-born employees. These higher wages would generate about $5 billion in additional tax revenue, above and beyond the cost of implementing the new policies.

In our current economic situation, we cannot afford to reject the clear benefits to our economy that immigration reform would bring us: higher wages, lower unemployment, and reduced deficits. Let’s not wait any longer and make immigration reform a reality.

While many gay couples in New York tie the knot on Sunday, when same-sex marriage becomes legal in the state, Ashley Abraham-Hughes and her wife, Corinne, will be watching the festivities from the other side of the Atlantic.

That’s because since U.S. federal law still does not recognize same-sex marriage, and since Corinne is British, the couple was forced to move to Britain, where their union — they wed in Connecticut in 2009 — is legal.

“While I do still love the U.S. and I always will, I am very resentful of the fact that I was effectively forced to become an expat,” said Abraham-Hughes, a 27-year-old who grew up in Pittsford in western New York and now lives in Manchester. “It’s absolutely ridiculous, and I just think the thinking on this whole issue is completely wrong.”

The couple’s plight is one likely facing many of the estimated 36,000 binational gay couples in the U.S., where the foreign partner in the relationship can face deportation and a 10-year ban from returning to America if they don’t already have or find a legal way to stay in the country.

Continue reading "New York Same-Sex Marriage Law is Bittersweet for Binational Couples" »

Yesterday, the House Judiciary Committee approved to go forward HR 704, the "Security and Fairness Enhancement for America Act of 2011.” With a name like that, you would think the bill was many hundreds of pages and proposed changes to the court system or at least dealt with the huge backlogs in the immigration adjudication system that were the subject of recent hearings before the Senate Judiciary Subcommittee. However, the bill, introduced by Representative Bob Goodlatte (R-VA), is little more than a page, and does nothing but cut the number of new legal immigrants to the United States by eliminating a small program known as the Diversity Visa.

The bill, sponsored by Intellectual Property Subcommittee Chairman Bob Goodlatte (R-Va.), was reported favorably to the House floor by a vote of 19-11. According to the Subcommitte, "This program is plagued by fraud and is an open door for terrorists."

For a little background information, The diversity visa program was created in 1990 to increase diversity in the United States immigrant population by providing up to 55,000 greencard visas per year. Since they were first issued in 1995, over 785,000 diversity visas have been issued. Individuals who receive a diversity visa are free to petition for greencard visas for their family members.

When sponsoring the bill, Rep. Smith stated "This diversity visa program is better known as the visa lottery since thousands of immigrants are selected at random to receive greencards. Basing our immigration system on the luck of the draw is not smart immigration policy. It’s an open invitation for fraud and a jackpot for terrorists. While a small number of people who play the lottery actually win the prize, most people lose. With the visa lottery, the American people lose since U.S. immigration policy and national security are compromised.”

Rep. Goodlatte's justification is that, "The visa lottery program poses a national security threat. Under the program, each successful applicant is chosen at random and given the status of permanent resident based on pure luck. This flawed policy is just foolish in the age in which we live. Those in the world who wish us harm can easily engage in this statistical gamble with nothing to lose. Our immigration policy should be based primarily on our national needs, security and economics and not in part on an arbitrary system, lacking even minimal checks."

Rep. Goodlatte’s justification for eliminating the Diversity Visa program is that it poses a “national security threat,” but he does not make it clear how, exactly, the Diversity Visa program is threatening. Diversity Visa immigrants pass through the same rigorous background screening process as all immigrants to the United States, and while they come from countries that send relatively few immigrants to the United States, all of those countries also send immigrants to the United States in other ways. About half of selected potential Diversity Visa immigrants, according to the State Department, come from Africa; just under a third come from Europe; about fifteen percent come from Asia; and the balance come from smaller countries in Oceania; Central and South America; and the Caribbean.

Many reasonable minds may differ about whether a program like the Diversity Visa is a good way to select immigrants, and some even believe those legal immigrants may be better selected through our other legal immigration programs for reuniting families or attracting needed skills. The program could even be reformed to require a higher skill level, or as a pilot test of new immigration selection methods, like the point system used in some countries. This bill does nothing for that debate, however.

Ultimately, Rep. Goodlatte has offered a bill which does only one thing – eliminates a legal immigration program which has allowed many good people to contribute to our social fabric. I hope others will voice their own concerns over whether eliminating the Diversity Visa is really in best interest of our national security.

We have recently won another incredible case under the National Interest Waiver Category for a renowned scientist in the field of neuropathic pain! Attorneys Ekaterina Powell and Andrew Desposito from our office did a great job in this case. Andrew provides another summary of the process for our readers.

In this second part of the National Interest Waiver series, we discuss another class of persons who qualify. As before, there are two types of individuals who may be granted a green card through the National Interest Waiver: an Alien that is a member of a profession holding an advanced degree, and an Alien that has commanded a salary, or other remuneration for services, which demonstrates exceptional ability. This article will discuss the Alien that is a member of a profession holding an advanced degree.

In order to be an Alien that is a member of a profession holding an advanced degree, one must show two things: That the Alien is a member of the professions holding an advanced degree and the Alien meets the requirements as discussed in Matter of New York State Department of Transportation, Interim Decision 3363, (Aug. 1998). If an Alien meets the requirements as set forth above, he will be granted a green card under the National Interest Waiver.

The Alien is a member of the professions holding an advanced degree

Our client that got his I-140 petition approved is a leading international expert and a pain specialist with special skills in Interventional Pain Procedures, Neuropathic Pain Management, Cancer Pain, and Palliative Cares. His research in the field of neuropathic pain treatments is unquestionably significant and is recognized on the international level. Our clients’ credentials include a medical degree from his home country, a two year study on Pain Management at a Pain Clinic, and another three years as Coordinator of that same clinic. In addition, we submitted our client’s curriculum vitae to outline their Education, Professional and Research Experience, Oral Presentations, Scientific Publications, Professional Association Memberships, Professional Development Courses, and Honors and Awards.

Another point discussed in our client’s case was the various organizations and places the individual has been invited to lecture. We demonstrated, through many exhibits, the organizations our client participated in as a member related to his field of work, as well as documents that show the various lectures and seminars our client spoke as an expert on his field of expertise.

Continue reading "National Interest Waiver Attorney - Green Card Approved for an Advanced Degree Person!" »

Ekaterina Powell from our office brings us up to date with this recent development. Aliens who have controlled substance convictions are generally deportable and ineligible for adjustment of status (with certain exceptions for simple possession of 30 grams or less of marijuana).

Whenever an alien enters a guilty plea or nolo contendere or admits sufficient facts to warrant a finding of guilt, for which the judge has ordered some form of punishment, penalty or restraint on the alien’s liberty, the alien becomes deportable and inadmissible. See definition of conviction in 8 U.S.C. section 1101(a)(48)(A).

This definition of conviction leaves most of the aliens with simple possession convictions out of luck. These individuals cannot apply for adjustment of status through their immediate relatives U.S. citizens and may be deported from the United States even after years of being in lawful permanent resident status. The length of time that has passed since the entry of judgment does not matter for immigration purposes. Thus aliens that had drug convictions adjudicated years ago would be treated the same way for immigration purposes.
Prior to July 14, 2011, in 9th Circuit, aliens who had their first simple drug possession convictions expunged under state rehabilitative statutes, qualified for relief: the immigration consequences of their first simple drug possession convictions were eliminated pursuant to Lujan-Armendariz v. I.N.S., 222 F. rd 728 (9th Cir. 2000).

Generally, rehabilitative relief is expungement or other withdrawal of plea
after successful completion of probation, such as, in California, under Deferred Entry of Judgment, Penal Code 1203.4, or Proposition 36.

On July 14, 2011, the Ninth Circuit, sitting en banc, withdrew from the Lujan-Armendariz decision and held that "rehabilitative relief" will no longer eliminate a first
conviction for simple possession drug offense (Nunez-Reyes v. Holder, 7/14/11).
Under Nunez, aliens with first simple possession drug convictions that were expunged under state rehabilitative statutes will be ineligible for adjustment of status and will be deportable.
It is worth noting that Nunez applies only prospectively. The Court held that “[f]or those aliens convicted before the publication date of this decision, Lujan-Armendariz applies. For those aliens convicted after the publication date of this decision, Lujan-Armendariz is overruled."

Therefore, according to the Court’s ruling in Nunez, aliens who were convicted before July 14, 2011 will be treated under Lujan, will receive the benefit of state rehabilitative laws and will have their conviction eliminated for the immigration purposes allowing some forms of relief, and the aliens convicted after July 14, 2011, will not receive these benefits.

Thus, in immigration proceedings under the jurisdiction of the 9th Circuit, for aliens who had only one simple possession drug conviction and whose conviction was expunged upon successful completion of probation or drug diversion program pursuant to a state rehabilitative statute, the immigration consequences of such conviction will be eliminated if the conviction occurred before July 14, 2011.

Even though the new 9th Circuit ruling has drastically changed the long-established precedent, it does not apply to aliens convicted before the date the case was published. These aliens will still be able to take advantage of the earlier 9th Circuit precedent, set forth in Lujan.

As Lawyers who specialize in I-601 extreme Hardship Waivers, we often hear of concerns form family members traveling to Ciudad Juarez for Visa Interview. An I-601, Application for Waiver of Grounds of Inadmissibility, is filed to permit an alien who has been denied admission to the United States to gain admission as a lawful permanent resident or fiancé(e) under certain circumstances. This waiver is based on extreme hardship to United States citizen or lawful permanent resident relatives of the alien which would result if the alien's inadmissibility cannot be waived.

Today we have an alarming message from the Consulate that we wanted to share with our readers. The U.S. Consulate General in Ciudad Juarez is issuing this Emergency Message for U.S. citizens in the state of Chihuahua (“Emergency Messages” were formerly known as “Warden Messages”). The Consulate has distributed the following message to our staff:
Mexican authorities have captured key members of the cartels active in Juarez. These successes also bring with them the potential for an increase in violence. The cartels may seek to retaliate and increase their attacks against rival cartel members, Mexican law enforcement and/or the public in general.

Information has come to light that suggests a cartel may be targeting the U.S. Consulate in Ciudad Juarez or U.S. Ports of Entry. In the past, cartels have been willing to utilize car bombs in attacks. We ask American citizens to remain vigilant. If the Consulate should receive any credible threat information that provides a specific time and place, that information will be disseminated immediately. U.S. citizen victims of crime or their families are urged to contact the American Citizens Services unit of the Consulate for advice or assistance.

On July 11, 2011, the Ombudsman's Office recommends that USCIS take the following actions to improve the processing of employment authorization documents (EAD):

1. Establish methods at local offices to facilitate immediate resolution;
2. Establish a uniform processing time goal of 45 days for adjudication and 60 days for issuance of an EAD;
3. Improve monitoring and ensure real-time visibility through an automated system for tracking processing times;
4. Follow established internal procedures for issuing interim EADs in cases where background checks are pending; and
5. Issue replacement EADs with validity dates beginning on the date the old EAD expires.

In the recommendation, the Ombudsman identifies several ways to implement these recommendations that build upon existing USCIS processes. We welcome the proposals and will keep you posted with any news.

We have recently won an incredible case under the National Interest Waiver Category for a challenged athlete who is also a motivational speaker. Attorney Andrew Desposito did a great job in this case. Andrew provides a great summary of this process for our readers.

The National Interest Waiver is a great way to bring an individual into the United States whose work can have an impact that is in the national interest. To apply for a National Interest Waiver, an I-140 petition must be submitted along with the proper documentation that meets the requirements of one of two categories. There are two types of individuals who may be granted a green card through the National Interest Waiver: an Alien that is a member of a profession holding an advanced degree, and an Alien that has commanded a salary, or other remuneration for services, which demonstrates exceptional ability. This article will discuss the Alien who has commanded a salary, or other remuneration for services, which demonstrates exceptional ability.

In order to be an Alien that has commanded a salary, or other remuneration for services, which demonstrates exceptional ability, one must show four things: That the Alien commanded such a salary demonstrating the exception ability, evidence of membership in a professional association related to such services, evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations, and the Alien meets the requirements as discussed in Matter of New York State Department of Transportation, Interim Decision 3363, (Aug. 1998). If an Alien meets the requirements as set forth above, he will be granted a green card under the National Interest Waiver.

Evidence of a salary demonstrating exceptional ability

Our client that got his I-140 petition approved is a motivational speaker/athlete. His accomplishments during his life gave him the opportunity to compete as a Challenged Athlete and be a motivational speaker, speaking before numerous schools, youth groups, churches, and business organizations. This individual was paid for speaking before these various groups because all of them recognize him as an exceptional individual for everything he has accomplished in his life. He rose up in a poor country where disabled individuals were once left to die and became a spokesperson and advocate for the disabled.

By showing his country people that disability does not mean inability, everyone who came in contact with our client became instantly aware that they were in the presence of person who was determined to prove to them he is the same as them. Many who know his story believe that it will inspire others to achieve the same level of success through motivation and maintaining high ideals. He continues to be invited to speak before numerous organizations to advocate for the disabled and to show how disabled individuals continue to make an impact in their communities through their own efforts.

Evidence of membership in a professional association related to such services

Our client demonstrated that he was involved in a professional association that solicits donations and plays an active role in the community. The organization is a leading international humanitarian development organization using the transformative power of sport and play to build essential skills in children and thereby drive social change in communities affected by war, poverty and disease. This organization is directly related to the values that our client has consistently demonstrated throughout his professional life as a motivational speaker/athlete. The involvement of our client in such an organization met this requirement since he was involved in the organization by advocating on its behalf.

Evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations

Probably the most important of the three elements is showing evidence of a person’s achievements and significant contributions by other individuals, government entities, or professional businesses. In our particular case, our client is a truly exceptional individual. He has been recognized by the Challenged Athletes Foundation, awarded the prestigious Casey Martin Award by Nike, awarded the Arthur Ashe Courage Award at the ESPY, and has met the President of the United States and the King of his home country. His documentary was also narrated by Oprah. In addition to these awards and recognition for his significant contributions, many people have written letters thanking him for coming to their schools, youth groups, churches, and other organizations to speak and inspire many people with his story. There was no doubt that the evidence provided for our client showed that he has achieved recognition for his significant contributions to his industry as a motivational speaker/athlete.

Meeting the Matter of New York State Department of Transportation Threshold

In addition to the above requirements to demonstrate that the person is in the national interest, the individual must also meet the requirements as set forth in the case of Matter of New York State Department of Transportation. There are three elements in the case that need to be met. First, the benefits of the individual’s proposed employment will be national in scope. Second, the individual’s work as an athletic spokesperson qualifies him as “significantly above” that which is necessary to prove the “prospective national benefit” required of aliens seeking to qualify as “exceptional.” Third, the national interest would be adversely affected if a labor certification were required in this case AND a national interest waiver is NOT being sought based on a shortage of qualified workers in the field.

The benefits of the individual’s proposed employment will be national in scope

We demonstrated that the individual’s proposed employment will be national in scope. It has intrinsic value because as a motivational speaker/athlete, he inspires people to lead great lives. As an ambassador for disabled individuals, he shows the non-disabled that no physical limitations should hold a person back and prevent them from accomplishing great things. For disabled individuals, he shows that they can lead great lives and do great things if they put their mind to it and to not let their disability hold them back.

Our client spoke at many events and before many groups all over the country, continuing to inspire them with his story of the adversities he overcame. To come from a country where children born with disabilities are exposed to die, and then to rise up from that to become the first disabled person to meet the king of his country, as well as our own President of the United States, is such an incredible accomplishment since it gives others the same hope to achieve the same.

For National Interest Waivers of this kind, it is important to make the case as clear as possible that the individual’s work is in the national scope through the organizations the individual will be involved in. We showed that our individual was involved in such an organization that promoted his ability to continue to perform as a disabled athlete and to help him speak before various groups, organizations, schools, and other individuals. By showing that our individual was involved with an organization that allowed him to do his work in a national capacity, the far-reaching benefit to the United States was made evident by his accomplishments.

The individual’s work as an athletic spokesperson qualifies him as “significantly above” that which is necessary to prove the “prospective national benefit” required of aliens seeking to qualify as “exceptional”

To demonstrate how an individual’s work is in the prospective national benefit, we showed how our client’s work had made a direct impact on various communities. We had our client bring in letters from individuals from various communities, schools, and businesses to show the impact his work had towards the national benefit. In addition, because our client spoke before children in schools, children who wrote many letters telling our client how inspirational he was, we also submitted those letters to show the direct impact on those children his motivational speeches had on them. Showing that our client’s work has such a direct impact was necessary to making such a strong case for him.

How many other motivational speakers get letters from children and adults from all over the country expressing their gratitude, support and belief in the message that he shares? To have such a far-reaching impact proves that his work is in the prospective national benefit required of someone seeking to qualify as exceptional and that it is “significantly above” those who seek to be qualified as “exceptional”.

The national interest would be adversely affected if a labor certification were required in this case AND a national interest waiver is NOT being sought based on a shortage of qualified workers in the field

This element is perhaps the easiest element to meet. In the case of our client, we simply referred back to the various awards for his work, his invitation to speak at various events for many groups, and his strong communication skills and professional experience meet this requirement. By incorporating the letters of recommendation and the other documents demonstrating our client’s extraordinariness, it goes to show that labor certification should not be required in this case. Also by incorporating those letters and documents, it shows that the national interest waiver is not based on a shortage of qualified workers, since our client is truly a one-of-a-kind individual.

The National Interest Waiver Secured

So in the end, there are six elements to prove that your client is an individual whose work is in the national interest. The extraordinariness of the individual will be unique in each case in that the individual must show that their work has a far-reaching effect in the U.S. Our client’s work shows how he is in the national interest because of how many lives he has touched. Through his story, his performance in athletics, and his efforts to raise the awareness of individuals with disabilities, our client continues to inspire people with his efforts and motivational speeches. For your own prospective National Interest Waiver you should ask yourself, “How extraordinary is my client?” The more extraordinary your client is, the better a case you will have.

Last month, the State of Alabama passed a law that was by far the strictest immigration bill passed in the United States since Arizona passed its bill. Under the new law, police must determine a person’s residency if they suspect they may be undocumented, schools must check students and parents’ immigration status and landlords cannot rent homes to undocumented immigrants.

In particular, Alabamians—including countless U.S. citizens and non-citizens who have permission from the federal government to remain in the United States—are subject to unlawful interrogations, searches, seizures, and arrests, which will result in racial profiling. This is because HB 56 mandates law enforcement officers to investigate the immigration status of any individual they stop, detain, or arrest when they have “reasonable suspicion” that the individual lacks immigration status. Individuals who may be perceived as “foreign” by state or local law enforcement agents will be in constant jeopardy of harassment and unlawfully prolonged detention and arrest by state law enforcement officers operating under HB 56’s new immigration enforcement mandates. And all Alabamians will be required to carry state-approved identity documentation in order to prevent lengthy investigations as to their status. These provisions violate the Fourth Amendment.

In addition to the potential illegal stops, public schools are also impacted by this bill. In particular, every public elementary and secondary school in this state, at the time of enrollment in kindergarten or any grade in such school, shall determine whether the student enrolling in public school was born outside the jurisdiction of the United States or is the child of an alien not lawfully present in the United States and qualifies for assignment to an English as Second Language class or other remedial program.
In response to this law being passed, the Hispanic Interest Coalition of Alabama filed on behalf of several organizations and representing organizations, including the Southern Poverty Law Center, has eight constitutional claims including claims under the Supremacy Clause (arguing that the state law is pre-empted); Fourth Amendment; Equal Protection Clause; Due Process Clause; First amendment claims including speech, assembly, and petition clauses, and the Contracts Clause. Their Complaint also includes two interesting Sixth Amendment claims:

“HB 56 violates the Confrontation Clause because a defendant would be prohibited from confronting the witness who prepared the federal government verification, and the state court is prohibited from considering any evidence except for the federal government verification.”

“HB 56’s criminal provisions violate the Compulsory Process Clause (as well as the Due Process Clause) because a defendant would be prohibited from presenting a defense on the issue of whether he or she possesses lawful immigration status.”
You can see the complaint here

Laws such as HB 56 prevent, not promote, the values that the U.S. was founded by immigrants who help make this a better country. By passing such strong, anti-immigrant measures, States are taking a stance that the U.S. is no longer the welcoming country that it once was. If immigration reform is to ever be realized, let us hope the Supreme Court will see that these state law measures violate the Constitution and that the Federal government should do what it takes to reform and make the system better.

The Immigration and Nationality Act (INA) permits the change of an individual's immigration status while in the United States from nonimmigrant or parolee (temporary) to immigrant (permanent) if the individual was inspected and admitted or paroled into the United States and is able to meet all required qualifications for a green card (permanent residence) in a particular category. The common term for a change to permanent status is “adjustment of status.” In order to conclude the process the couple must go through an interview before a USCIS official, establish that the case is bona fide, before obtaining a Green Card.

Many clients are hesitant to take an attorney with them, and are often confused as to whether one can even have an attorney present at the interview. Some officers make it difficult on lawyers and clients who are represented. A recent AILA meeting with the USCIS clarified a few points.

The following questions were raised by American Immigration Lawyers representatives: We have received reports that some field offices restrict the involvement of the attorney during the interview process. The USCIS Milwaukee Field Office has stated that it follows AFM §15.8, which explains that the attorney’s role at the interview is limited to advising his or her clients on points of law, and that the attorney may not respond to questions the interviewing officer has asked the applicant. The office has stated that after the interview, the attorney may follow-up with any concerns regarding the interview and interview questions, or may submit additional information in response to a Notice of Intent to Deny. While we understand the attorney may not answer any questions on behalf of the applicant, there are often times where it is not only appropriate, but helpful to the examiner for an attorney to help clarify a point of confusion, provide prepared documents on a legal issue, or explain a complicated procedural issue in the applicant’s immigration history that the applicant might not fully understand. What guidance, if any, in addition to the AFM, has been provided to USCIS examiners regarding the role of the attorney in the interview process?

Immigration Response: USCIS has spent a considerable amount of time training the ISOs on interview techniques. This training is provided at the field offices and at the ISO Basic training and includes information on the role of the attorney or representative in the interview. Also, as discussed at the meeting with AILA, AIC, and USCIS in April 2011, we welcome suggested language from AILA to potentially incorporate into any guidance USCIS creates regarding this topic.

Attorney Seating. We have been informed that during interview for immigration benefits, attorneys are sometimes instructed to sit in a corner of the room, behind or otherwise apart from the applicant. Examiners have remarked that this rule is to prevent attorneys from participating in the interview. Such a rule conflicts with the right to representation as provided under 8 CFR §292.5(b). Would Field Operations send clear guidance to the field offices stating that attorneys have a right to attend and represent their clients at interviews for immigration benefits, and should be permitted to sit next to their clients, or make other comparable arrangements if space does not easily permit, that would allow the attorney to properly observe the interview and provide appropriate legal assistance?

Immigration Response: Field Operations provided guidance to its offices regarding seating of attorneys during interviews in May 2010 and again in April 2011.
It is critical that USCIS respect the integrity of the attorney/client relationship. Attorneys and/or accredited representatives should, barring safety or security concerns, be permitted to sit next to their clients during interviews. In terms of safety and security, in directing seating during benefit interviews,

adjudicators should ensure that:

Officers have a full view of everyone in the room,

No one in the room, other than the officer, is seated in view of a government computer/monitor screen, and
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Egress is not blocked for any of those present in the interview room. Please understand that some interview rooms are not large enough to accommodate the applicant(s) and attorney all sitting in the same row. In these situations, an attorney may be asked to sit behind his or her client.

If you have retained an attorney, it is your right to have that attorney be present with you at the interview and provide you the best representation at that interview. A competent attorney should know his rights before the USCIS, in addition to knowing the law. USCIS are not always correct, it is our role to advocate for our clients.

Continue reading " Marriage Based Adjustment of Status Attorney - Can I have an Attorney present with me at the interview?" »

A California State Bar panel is considering whether an illegal immigrant who passed the exam to practice law should be admitted despite his status.

The case of Mexican-born Sergio Garcia could be the first reviewed by the panel since California began asking applicants about their immigration status in 2008, the Daily Journal reported Wednesday.

Garcia attended college in Chico and passed the Bar exam in July 2009. Since then, he has been waiting to see if he can be admitted even though he is an illegal immigrant. He now works as a paralegal.

Garcia was brought to the United States by his parents when he was 17 months old, said Erica Tomlinson, his immigration attorney. He has been sponsored for legal status by a relative, but the process could take another five to 15 years.

In 2008, California began asking applicants who are not U.S. citizens about their immigration status on their moral character determination application, said Diane Curtis, a spokeswoman for the State Bar of California.

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Recently, the USCIS Service Center Operations Directorate hosted an engagement with AILA representatives. USCIS addressed questions related to Requests for Evidence, the L-1 visa category, and court case decisions. The information below provides a review of the questions solicited by AILA regarding the increased denials in L1A cases and the responses provided by USCIS. We continue to fight and win many of the motions resulting in such erroneous denials.

Question: AILA members report receiving denials of L-1A “new office”petitions where service centers conclude that there is insufficient proof of consideration, or inadequate consideration, for the acquisition by one entity of another, notwithstanding the submission by the petitioner of evidence in the form of executed contracts, stock certificates, and other documentation showing the corporate transaction. Please instruct service centers that the financial arrangements involved in a corporate transaction are not a proper area of inquiry so long as there is other evidence of the creation of a qualifying corporate relationship between the foreign and domestic entities.

Immigration Service Answer:There may be circumstances in which it is necessary to request financial documentation to help establish a qualifying relationship. Such a determination must be made on a case-by-case basis. SCOPS will discuss this topic with the service centers. If there are examples where an I-129 L-1A petition was adjudicated improperly, please provide us with the receipt number, and we will review.

Question: AILA members report receiving denials of new office L-1 petitions because, in the view of the examiner, the petitioner has failed to demonstrate “[s]ufficient physical premises...” to satisfy the regulation at 8 CFR § 214.2(l)(3)(v)(A) or (vi)(A). Examiners are requiring a demonstration of sufficient space to house employees and operations at a point in the future, do not treat as satisfactory evidence that the new office will be located in a sublease or shared space location, and have denied petitions where photographs of the office location did not show any customers in photos of office space, or did not show “enough” furniture in photos because the space was new. Please instruct service centers that the “[s]ufficient physical premises”requirement is meant to be applied flexibly to take into account the actual “new office”needs of the petitioner, and are not meant to contemplate physical premises required at a point in the future.

Immigration Service Answer: While these documents typically will not be necessary in making a decision, there may be times when in fact they are necessary in the decision process. SCOPS will discuss this matter with the service centers. If AILA has examples where an I-129 L-1 new office petition was adjudicated improperly, please provide us with the receipt number, and we will review.

As long as this trends continues, we recommend to document all new L1A cases very carefully. Include strong business plans as well as reports to satisfy the need for the new office and minimize the risk of denials.

The issue of immigration is one of the most complex and politically difficult issues because there is so much passion on all sides. It literally goes to the very heart of what it means to be an American. I wanted to share this great post from AILA leadership site:

Discussions about immigration reform often focus on the issue of “undocumented” or “illegal” aliens. But fixing our broken immigration system is about more than the determining the fate of the estimated ten million people currently living and working and studying in the United States without papers. In the words of President Clinton, “It’s the Economy, Stupid.” Immigration reform would allow us to create a legal framework for who we want to have remain in our country, who we want to exclude, and to do so in a way that reflects our values and our interests. The bottom line, however, is that reform would benefit the bottom line. Reform would raise wages, decrease unemployment, and increase tax revenues. Who wouldn’t want that?

Currently, our immigration system hurts our nation’s economy. We want to invite investment in our economy, attract bright and talented people in our businesses, and to create a fair and level playing field for our workers. Our immigration system falls short of each of these goals.

As an immigration attorney, I have seen our policies directly hurt American businesses. Congress limits the number of highly-skilled and college-educated workers allowed into the United States from other countries. When the economy was booming in 2007 and 2008, the visas for the entire year were gone in less than one day. Even in the worst economic downturn since the Great Depression, our country still ran out of visas with eight months left before a new foreign worker could start.

Rather than protecting American workers, this policy hampers the creation of jobs in the US. Companies are forced to wait for months or years to hire highly talented and highly skilled candidates. Some of the world’s best and brightest college graduates are choosing jobs in Europe or Canada or Asia rather than the United States because those nation’s immigration policies provide a clearer path for either temporary work or permanent residency. Our outdated immigration policies also create incentives for outsourcing, as companies hire workers abroad that they can’t bring to the United States.

A recent study found that comprehensive immigration reform would add $1.5 trillion to our nation’s economic output over 10 years. Reform would also boost wages not only for the newly legalized workers but also for native-born employees. These higher wages would generate about $5 billion in additional tax revenue, above and beyond the cost of implementing the new policies.

In our current economic situation, we cannot afford to reject the clear benefits to our economy that immigration reform would bring us: higher wages, lower unemployment, and reduced deficits. Let’s not wait any longer.

A New York judge released Dominique Strauss-Kahn from house arrest Friday, after prosecutors presented evidence questioning the credibility of the hotel maid who accused the former International Monetary Fund chief of sexual assault.

The alleged victim, a 32-year-old immigrant from Guinea, admitted to prosecutors that she lied about the specifics of her whereabouts following the incident, the details of an asylum application and information she put on tax forms.

According to a New York Times report, the 32-year-old hotel maid may be linked to drug dealing and possible money laundering. The unidentified woman also lied to investigators about previously being raped in her native Guinea.

Asylum is relief for a foreign national to remain in the U.S. under legal status because the foreign national has suffered past persecution in his home country or country of last habitual residence, or because the foreign national has a well founded fear of future persecution in his home country or country of last habitual residence and such persecution is based on race, religion, nationality, political opinion or membership in a particular social group.

If she lied in the Asylum application, she could loose her current US status. The Asylum evidence in the file could be useful for Strauss-Kahn's defense lawyers. We will keep following this case:))