The most notorious is the Alabama law, known as the Beason-Hammon Alabama Taxpayer and Citizen Protection Act.  Even the name forces locals to believe they need to be protected from an alien population, such as Hispanics. By “alien,”we can include culturally alien persons. The Alabama law allows local enforcement to carry out the duties of federal officers in enforcing federal immigration laws, requiring police to check and verify the immigration status of any individual, whatever that means to such police agents.  Whether they know what to look for, the law allows them to arrest any individual when they have reasonable suspicion that person is here illegally. The person may not look Alabaman.  Or he may not sound like an Alabaman.  Needless to say, most Alabamans are not Hispanic or African-American or Asian, so, unless you are an Anglo person who speaks with a deep southern accent, you will probably be considered an illegal alien.

Even Mike Hale, a Sheriff in the largest county in the state of Alabama, a Republican, and a tea party favorite, states numerous reasons against the Alabama law.  For one, he acknowledges that his officers are not properly trained to determine what constitutes “reasonable suspicion” without taking into account a person’s race.  He also fears this law will negatively affect the ties officers have with the Latino community. However, those in favor of the law have a much different reason for enacting this law.  According to Senator Scott Beason of Alabama, the main reason is “jobs.”  In a recent PBS article and video, Senator Beason explains that Alabama has experienced an increase of illegal immigrants in the work force which is the reason for the state’s high unemployment rate.[1]

However, something is not adding up when we look at raw statistics. How is this statement possible when Hispanics make up only 3% of the state’s population and of that percentage 40% are under the age of 18.[2]  These individuals have not even entered the work force.  It is absurd to think that the work force is being overrun by illegal immigrants.  Even assuming that illegal immigrants are the reason for Alabama’s high unemployment rate, we need to take a look at which areas illegal immigrants are working in.  Illegal immigrants are not taking the most prestigious or desirable jobs in the U.S.  These individuals work in jobs that no American or person with legal status dreams of doing.  Jobs that offer long hours, poor working conditions, and little pay are not the type of positions Americans are flocking to get.

Birmingham News reported that the state’s construction business is losing jobs faster than any other state in the nation.[3]  “Construction employment in the Birmingham-Hoover metro declined from 24,900 in June to 23,800 in October,” according to the Associated General Contractors, an Arlington, Virginia trade group.[4] The agricultural industry has also experienced its own backlash after the enactment of the immigration law. Keith Smith, a potato farmer, reported to the Huffington Post that after most of his immigrant workers left, he hired Americans to fill the positions but it has not worked out because most show up late, work slower, and either are ready to quit after lunch or quit after one day.[5]

It is time for Alabama to take a take a good look at its situation and determine what is causing the state’s high unemployment rate and catastrophic economy.  Politicians need to stop making excuses and blaming the Hispanic population.  It bears repeating that Hispanics comprise only 3% of the state’s population, and of this percent, 40% are under the age of 18.  How can this Senator say, with all the confidence in the world, that the Hispanic population is the reason for Alabama’s high unemployment rate?  Most of the Hispanic population has not even entered the work force.  Politicians need to call it what it is, Alabama is making it easier for local enforcement to target the Hispanics in order to get votes instead of creating jobs.

(Contributing Writer:  Susana Reyes)

 It is important to understand that a permanent resident always runs a risk of detention when trying to re-enter the United States because inadmissibility laws may apply.  In general, the laws of inadmissibility do not apply to permanent residents.  However, sometimes they do.  An immigration official may not allow a permanent resident to return if that resident has 1) abandoned his status, 2) been outside the United States for more than 180 days, 3) been involved in illegal activities after leaving the country, 4) left the country during deportation proceedings, 5) committed certain criminal offenses, or 6) is trying to re-enter other than through an authorized port of entry.

Reason number five is what affects permanent residents more than anything.  In determining whether a resident is eligible to return, the immigration officer has access to a person’s criminal record. A permanent resident who committed a criminal offense, no matter how old or how small, can be considered inadmissible by the officer. A person can be denied entry into the United States for a crime he committed 20 years ago, even before he became a Lawful Permanent Resident.  A person can be denied legal entry into the country even though he has had resident status for many years. If an immigration official determines that the former crime is serious enough to deny re-entry, the official can do so and there is little the resident can do once faced with this situation except to ask for a hearing before an Immigration Judge.  This is a fact that most permanent residents are unaware of.  Although the resident may be on the verge of losing his permanent residence, he retains the right to have his day in court.

That is why it is important for permanent residents who plan to travel outside the United States and who have had a criminal conviction to consult with an attorney to learn what are the risks of their particular case.

(Contributing writer:  Susana Reyes)

Whilst immigration laws as they stand do support job creation and investment in the United States, this latest press release shows that the positive economic and employment impact of immigration is finally being appreciated.

“Start-Up America” has several implications for both immigrant and non-immigrant visa seekers. In this blog our focus will be on non-immigrant trade and investment visa seekers from countries with investment and trade treaties with the United States.  Among them, Canada and Mexico are our top trade partners in terms of actual trade volume/dollars, besides being members of the North America Free Trade Agreement, also known as NAFTA.

The Treaty Trader (E-1) visa is available to a person from a country that has a commerce treaty with the U.S., such as NAFTA. That person must be coming to the U.S. to carry on substantial trade between the U.S. and the treaty country. On the other hand, the Treaty Investor (E-2) must have plans to come to the U.S.  to develop and direct the operations of an enterprise in which he or she has invested, or is in the process of investing a substantial amount of capital. For both visa seekers, proof of intent to carry out substantial trade or to invest in the form of starting up businesses will be ascertained from copies of bank statements showing investment of money from the treaty country into the United States, articles of incorporation of the enterprise, and a business plan which provides details of the proposed business venture, its activities and how the visa seekers plans to direct the business, including a breakdown of employee needs. The ability of the visa seeker to direct the company is usually deduced from a showing that the non-immigrant visa seeker is the major shareholder of the enterprise. The E-1/ E2 visa is initially available for a period of 2 years, but may be extended.

There is no limit or specification on the type of business or trade that may be carried out by a person seeking an E-1 or E-2 visa. Generally, a business idea will be acceptable if it is not against the laws of the state in the U.S. where the enterprise is registered and in which business will be conducted.

Whilst the Start-Up America is not new, it certainly now draws focus on non-immigrants who will assist the United States out of its current economic and unemployment doldrums. Because there is such a need for the desired trade and investment of E1 and E2 visa seekers, and due to directives flowing from the announcement of the Start-Up America program, it can be expected that such visa applications will be processed with more of an open mind and with a greater view to granting visas.  For investors and attorneys, this is an exciting opportunity that should be taken advantage of.

Get an investor Visa

Many of the people that walk through our doors often share their experiences where ICE agents allegedly intimidated them into signing their departure before ever given the opportunity of consulting an attorney.  It is not hard to imagine that some of these people have possible claims of relief but are never given the opportunity to seek the advice of an attorney to determine whether they qualify for relief.  This relief may be a petition by a qualified relative who is a U.S. citizen or a lawful permanent resident.  Often, the individual has rights to get his green card due to an old family petition but the individual has been misinformed and believes he lost those rights. And the list goes on.

As well-versed an ICE official may be about deportation or removal, he is not trained in all phases of immigration law. A protection  letter from a competent immigration attorney can be of tremendous help in defining applicable law.  In addition, the letter is a document an individual can present to ICE officers or local officers.

There are several key components to the protection letter.  One is the language indicating the method of obtaining a green card.  This is helpful in situations where local enforcement stops you.  In their discretion, they may release you knowing you are in the process of getting the card.  What is most important however, is the language used to ensure that ICE officers know you are not going to sign anything without consulting your attorney.

Ensuring your day before an Immigration Judge allows you to consult a competent attorney in order to pursue your eligibility for relief.  Without this, you may never be sure if you signed your departure prematurely.  It is best you know your rights and when you do not, the letter of protection can state them for you.

(Contributing Writer:  Susana Reyes)

Por lo tanto, el tema de hoy lo enfocaré en el caso de Agustín Brown, un joven quien nació en México, de padre norteamericano.  El padre fue a México de vacaciones, conoció a la mamá de Agustín, se enamoraron, y el resultado de esta relación fue el nacimiento de este joven, quien cuenta con 22 años de edad. Su papá lo reconoció cuando nació y lo mantuvo hasta que el joven emigró a la unión norteamericana a la edad de 14 años cuando fue a vivir con su papá en Houston.

A pesar de haber llegado a mi oficina los 22 años de edad, Agustín todavía puede reclamar la ciudadanía norteamericana porque recibió su tarjeta de residencia antes de los 18 años, y esto sucedió después de 2001.

Quiero referirme a este caso porque se han presentado muchos cambios en las leyes de inmigración y se ha generado mucha confusión. Por lo tanto, las alternativas para jóvenes como Agustín dependen de ciertas circunstancias.  La primera alternativa, es la vía sencilla que utilizó Agustín porque la ley claramente requiere que Agustín entrara legalmente a los Estados Unidos.  En su caso, entró como residente permanente. La segunda, hubiera sido que el padre pidiera su pasaporte norteamericano por medio de un consulado estadounidense en México.  Sin embargo, para aquellos que nacieron antes de 1986, la situación cambia. En esos casos, se tuviera que comprobar que el padre de Agustín había vivido en los Estados Unidos por lo menos 5 años antes de la fecha de nacimiento de Agustín, dos (2) años de los cuales tenían que ser después que el papá cumpliera los 14 años de edad en la unión americana.

Lo curioso e interesante, es que por una ley que entró en vigencia en el 2000, Agustín, fue reconocido como ciudadano norteamericano al ser aprobado como residente permanente, lo cual hicimos sin tener que comprobar que su padre vivió en los Estados Unidos por 5 años antes de la fecha de nacimiento de Agustín.  La sección 309 del código de la ley de inmigración y nacionalidad fue aprobada para agilizar el proceso de convertir a niños como Agustín en ciudadanos de este país inmediatamente después de convertirse en residentes permanentes si tienen un padre/madre norteamericano. La ley también incluyó a hijos adoptados de ciudadanos norteamericanos, nacidos en los Estados Unidos o naturalizados.  Por lo tanto, cuando existen muchos obstáculos para traer a hijos menores de 18 años, quizás la mejor alternativa es que el padre/madre residente se naturalize y pida el pasaporte norteamericano de esos hijos que se encuentran todavía en el país de origen.

The only time that the physical presence is important is when an individual is already in removal proceedings, i.e. deportation, and is applying for the relief of cancellation of removal.

Cancellation of Removal and Adjustment of Status for Non-Legal Permanent Residents is a relief that can be sought when placed in removal proceedings.  In order to qualify for this relief, an individual must demonstrate the following:   1) physical presence in the United States for a continuous period of not less than 10 years;  2) has good moral character for those 10 years; and 3) is able to establish that removal from the United States would result in exceptional and extremely unusual hardship to their United States Citizen or Legal Permanent Resident spouse, parent, or child.

This may seem simple enough to prove but there exists a series of hurdles that may complicate a case.  One such hurdle, is the 10 year physical presence requirement because the 10 year presence is deemed to have stopped the moment the person is served the Notice to Appear (NTA).  The NTA is a one to two page document given to someone who has been required to appear in immigration court.  The following illustrates how presence is determine for purposes of cancellation of removal.

• Entered the United States on January 1, 2000
• Served Notice to Appear on January 1, 2009
• Court Hearing January 1, 2012

The person cannot apply for cancellation of removal because they were served the NTA at their 9 year physical presence in the United States.  Anytime after their NTA was served does not count.   There are also issues surrounding breaks in the physical presence of an individual like when an individual returns to their home country.  Physical presence is deemed to have been broken if an individual departs from the U.S. for any period in excess of 90 days.

Another complication that may arise from cancellation of removal cases is when the moral character of an individual is questioned.  There are certain crimes that automatically bar someone from seeking the relief of cancellation.  Some of those crimes are claiming U.S. citizen after September 30, 1996, are a habitual drunkard, gave false testimony when under oath to obtain a benefit under the Immigration and Nationality Act, or have been convicted of two or more gambling offense.  Other crimes are not an automatic bar but may still preclude individuals from establishing good moral character such as a DUI.

And still, the hardest element to prove is the extreme hardship to a U.S. Citizen or Legal Permanent spouse, parent, or child.  There is no set table as to what constitutes extreme hardship but a few cases have shed light on the term.  Some factors include the health, age, ability to work of the person.

These are only some of the hurdles that may arise in an individual’s case when applying for cancellation of reomoval.  If you are ever placed in removal proceedings and feel that you may qualify for cancellation, please contact a competent immigration law firm to guide you in the process and overcome any obstacle in your case.

(Collaborating writer:  Susana Reyes)

How you can help veterans reunite their families:  Link

It is not only our enlisted men and women who would benefit from Congress allowing a change of venue for persons who have an immediately available visa to apply for their permanent residence while in the United States. Such a law would greatly assist families throughout the United States to achieve family unity and security without leaving the country.

The largest percentage of immigration to the United States is from Mexico. Thousands are the beneficiaries of approved labor or family-based petitions for permanent residence. When a visa becomes available and they obtain an interview for lawful permanent residence, the interview is scheduled in the border town of Ciudad Juarez in Mexico. Often, due to them having some years of unlawful presence in the United States, they are barred from re-entering the United States, separating them from loved ones who remain behind, including young children and spouses, many of whom are United States citizens. Many of these spouses are active members of our armed forces who, by law, are prohibited from traveling to Mexico.

Thus begins the saga of families who are separated by these circumstances. For such undocumented spouses and children, the need to travel to Ciudad Juarez for the interview is dangerous. Ciudad Juarez is the epicenter of drug trafficking organization activity with widely published killings together with horrific graphics, in magazines such as Time Magazine. The U.S. Department of State has warned against any unnecessary travel there. The violence is perpetrated against citizens of Mexico also. U.S. spouses are quite rightly afraid for their spouses who have to travel to Mexico for interviews, and who are barred from re-entry into the U.S. In some cases, in order to preserve family unity, and in the interest of minor children who still require the influence of the barred parent, U.S. citizen children are moved to Mexico in order to be with their barred parent. This places the child in extreme peril of getting caught in the cross-fire of drug wars and subsequent recruitment into cartels. The D.T.O. violence and activity is widespread and not limited to one location in Mexico. The Department of State, in its last travel advisory, highlighted that the states of Tamaulipas, Michoacán, Sonora, Chihuahua, Coahuila, Sinaloa, Durango, Zacatecas, San Luis Potosi and Jalisco are especially dangerous.

The separation of predominantly U.S. citizen young children from their undocumented parents is not in the best interest of the United States. Inability of one parent to adjust whilst in the U.S. and often subsequent barring from the country leads to single parent homes. Studies have shown that children from single parent homes generally live below the poverty line. This economic disadvantage is associated with poor academic performance and behavior problems. A recurrent theme with juvenile delinquents and offenders is their coming from single parent homes. It is in the best interest of the U.S. if family units can stay together for the sake of U.S. citizen children. It will assist in raising the level of education in the country and greatly reduce the number of offenders. Lower crimes rates have been associated with greater country prosperity.

A change in venue for the undocumented family members of U.S. citizens and permanent residents to apply for adjustment of status and allowing them to pay a penalty fee is only in the interest of the United States. It ensures family stability for U.S. citizens, particularly for U.S. enlisted personnel. Such family stability and security is not isolated. Its positive effects will trickle into the economy and national security of the country.

See Part 1:  Link

Veronica was petitioned by Joseph, a U.S. citizen, who obtained an interview for her lawful permanent residence.  The interview, however, was scheduled at the U.S. Consulate in Ciudad Juarez, across the border from El Paso, which required that Joseph be present. Herein lay the conundrum. Joseph could not travel to Mexico although both were required to attend the interview. His enlisted status forbade him from traveling to Mexico or to any other foreign country for this purpose.

The plight of enlisted personnel like Joseph is reason enough for Congress to pass a law that will allow the families of enlisted personnel to get their interview inside of the United States. Joseph’s situation has had devastating implications across the board for enlisted U.S. citizens and legal residents who can’t travel abroad due to their enlisted status.

Congress should allow a change of venue for persons like Joseph, and Veronica, who would have an immediately available visa because she is married to a U.S. citizen. She would apply for adjustment of status, also an extremely beneficial advantage to the country. One striking reason is that it would greatly assist the economy. If Veronica, and persons in her position, paid $500 to $1,000 towards his or her adjustment of status while in the U.S., this could generate income much needed in light of our current debt crisis.

Many undocumented persons married to enlisted men or women do not file taxes not because of disregard for the law, but because they don’t have a valid social security number. Allowing them to adjust status in the U.S. after paying a fee would permit them to file their taxes confidently. Allowing them to legally work while their enlisted spouses serve our country will generate more stability for their families and create another revenue stream for the economy.

Barring Joseph from legalizing Veronica has implications for the U.S. because Joseph may be forced to turn to government assistance programs that are already overburdened and struggling for sustenance.

Congress needs to help our enlisted personnel to reunite their families in order to build the country. Now is an ideal time to allow them to get their families through the door of legality without leaving the U.S.

See part 2:  Link

Many things may happen during the time it takes to approve a petition, one being the death of the petitioner or principal beneficiary.  In such a case, what happens to the petition when the petitioner or principal beneficiary die before it is approved?

Darren Minke Photography

It has long been the law that did not allow the beneficiary to obtain approval of a petition if the petitioner died before the petition was approved.  Cancellation or revocation of an approved petition also occurred when the petitioner died, leaving the beneficiaries out in the cold.  This stance left many individuals with no other avenues to obtain lawful permanent residence, or green card.  Even worse, surviving widows and children could not draw survivors’ Social Security benefits for lack of a social security number because they had no “legal” status in the United States which allowed them to apply for a social security number.

To alleviate this limitation, Congress amended the Immigration and Nationality Act several years ago to allow reinstatement for humanitarian reasons of a revoked petition by reason of such death. In late 2009, Congress made further changes by amending section 204(l) of the Act, thus allowing the USCIS to approve a petition even if the petitioner is deceased.

Section 204(l) of the Act now allows the beneficiary or derivative beneficiary to continue to seek approval of a petition when the “qualifying relative” has died so long as the beneficiary or derivative beneficiary lived in the U.S. at the time of death and continues to reside in the U.S.  “Qualifying relative” encompasses those who before death were petitioners or principal beneficiaries of a petition.

In other words, in order to reap these new advantages of § 204(l), the alien beneficiary seeking the benefit must have resided in the U.S when the qualifying relative died, continue to reside in the U.S. on the date of the decision on the pending petition or application, and be a:

• beneficiary of a pending or approved immediate relative visa petition;
• principal and derivative beneficiary of a pending or approved family-based petition;
• derivatives of a pending or approved employment-based petition;
• beneficiary of a pending or approved refugee/asylee petition; or
• a derivative of a T or U visa nonimmigrant.

USCIS allows the alien to prove they were residents of the U.S. at the time of death even if they were not physically present at the time of the death of the “qualifying relative” and requires that only one beneficiary meet the residency requirement in order to approve the petition.

So exactly what does all this mean?  Under 204(l), if all elements are met, USCIS officers can now approve a pending petition even if the qualifying relative has died.

The law does not change the affidavit of support requirement for family based petitions nor does it change the requirements for qualification in an adjustment application.  The law merely offers a glimmer of hope to those petitions and application once doomed because of the death of the petitioner or principal beneficiary.  The effects of section 204(l) remains to be seen but at the moment the new law serves as a way to continue on the path of family reunification.

Darren Minke Photography

Contributing writer:  Susana Reyes

In the very least, in order to gain a return on the investment in these students (some of whom are offered U.S. scholarships), the United States should make temporary nonimmigrant work visas more accessible and available.

The usual route for many of these students, on completion of their program of study, is that they will do one year of work in their field of study as permitted by our laws, during which time, should they wish to stay and work further, they would have to secure sponsorship for an H-1B temporary work visa, or otherwise qualify under another visa category.

The current reality is that many employers do not fully understand the prerequisites for hiring foreign graduates and believe the process is difficult and expensive. To some extent, it is.  However, legal practitioners have the ability and the duty to demystify the process.

The H1-B visa is employer driven. It allows foreign graduates to work in the United States for a specific amount of time. It is supposed to give U.S. employers the opportunity to hire foreign professionals if a U.S. citizen or resident is not available.

One criticism of the visa – and the largest reason why employers shy away from it – is that it requires that the employee is paid the prevailing wage for the particular position and the area location of the job. This wage is set by the U.S. Department of Labor and it is often higher than prevailing local wages in order to attract U.S. workers. To complicate matters, the process also requires an intensive recruitment process to ensure that no U.S. citizen or resident is available for the position.  The third obstacle is the yearly cap of H-1B workers imposed by Congress which causes unreasonable delays between the recruitment time and the actual employment of foreign students who are recruited from U.S. universities.

Thus, the H1-B visa process can be a mystery for employers, and many employers avoid it because they feel the steps involved are insurmountable and burdensome.

On the part of the foreign student, there is some hope, however, on the horizon, in the form of the Start-Up Visa Act of 2011, if the bill can make it through Congress. Whilst it is largely geared towards entrepreneurs, there is some provision in it for foreign holders of U.S. graduate level degrees in science, technology, engineering, math, computer science, or other relevant academic disciplines. They would qualify for a StartUp Visa if they can show an annual income of at least $30,000 or assets of at least $60,000, as well as a U.S. investor who backs their business venture by at least $20,000.  After two years, their business must have created 3 new jobs and generate not less than $100,000 in revenue.

Until such innovations are a firm reality, it appears that immigration practitioners have the duty to demystify the H1-B visa process for employers. There are huge benefits to hiring foreign students who have graduated from U.S. universities which relate to diversifying the workplace. In addition to this, the current reality is that time, money, knowledge and expertise is invested in these students. Congress should create more opportunities for these foreign students. If not, their early departure from the United States will lead to the country’s falling behind in leading the way in innovation and global market domination.