Just When You Thought Your Old Conviction After a Jury Trial Would Leave You with a Permanent Inability to Seek Relief in Removal Proceedings, Think Again!

On February 28, 2014, the Board of Immigration Appeals issued a precedent decision opening new avenues of relief for many individuals with old criminal convictions they otherwise
thought would forever prevent them from seeking relief before an Immigration Judge.  See
Matter of Ezzat H. Abdelghany, 26 I&N Dec. 254 (BIA 2014).  This BIA Decision held that "[a] lawful permanent resident who is otherwise eligible for relief under former section
212(c) of the Act may apply for such relief in removal or deportation proceedings
without regard to whether the relevant conviction resulted from a plea agreement or a
trial and without regard to whether he or she was removable or deportable under the
law in effect when the conviction was entered".  Id.
Until this Decision was issued, those who were found guilty of a crime after a jury trial entered before April 24, 1996, were not eligible to apply for discretionary relief under former section 212(c) of the Act.  Former 212(c) relief is a section of the law that has since been repealed, but remains available to those in removal proceedings with a conviction that pre-dates April 24, 1996.  Now, even those who requested a jury trial and were then found guilty can apply for this relief in removal proceedings.  This new case not only assists those who are currently in removal proceedings, but also those who currently have an order of removal. 
If this applies to you, you need to speak with an experienced immigration attorney as soon as possible to discuss your options, whether you're currently in removal proceedings or you have already lost your green card as a result of an order of removal.  Please contact me directly at 404.949.8151
to schedule an appointment. 

Yasiel Puig’s Exceptional Yet Typical Immigrant Story

A story recently came out about Los Angeles Dodger star Yasiel Puig, detailing his defection from Cuba and immigration to the United States.  The account details how Puig escaped Cuba with the help of Los Zetas, one of the most well-known narco-trafficking organized crime groups in the world, how he was held captive in a shady hotel in Mexico and threatened with dismemberment by machete by the Zetas while the group negotiated a ransom with a corrupt businessman in the U.S.  The U.S. businessman purportedly arranged Puig’s defection with the help of the Zetas in exchange for twenty percent of all of Puig’s future earnings.
A couple of things about the story stood out to me.  First, the story of Puig is not news in the sense that this is typical of many people who immigrate to the U.S. from different countries every year.  Nearly everyone who tries to immigrate to the U.S. without authorization employs what are commonly known as “coyotes,” smugglers connected to organized crime groups (like the Zetas) who prey on people who are desperate to improve the lives of themselves and their families by risking everything to come to the U.S.  What happened to Yasiel Puig happens to many people every day, people are kidnapped, raped, tortured, killed or held for ransom.  This story is garnering so much attention is because it is about a person with exceptional baseball skills, but I sincerely hope that people realize this is not unique situation.
Second, I think the Puig story illustrates just how desperate people are to come to the U.S.  When you stop and think about it, how bad must it be in immigrants’ home countries that they are willing to risk life and limb to leave and seek even a sliver of opportunity?  Contrary to anti-immigrant belief, people generally do not come to the U.S. just to piss the anti-immigrant off personally.  People immigrate to the U.S. for many reasons: escape communism; avoid starvation; avoid torture and persecution; and to try and give their families a future.  If nothing else, I hope the Puig story helps everyone to look on immigration with an empathetic eye, understanding the truly human elements that spark people to seek better lives.

USCIS Announces new DACA Renewal Rules and Form . . . Are Coming Soon!

USCIS has finally posted an update on the renewal process for the Deferred Action for Childhood Arrivals program. The notice is preliminary and subject to change, but it does  it offers over half a million DACA recipients vital information about what they should do to prepare for the road ahead.
The update clarifies DACA renewal issues regarding adjudication procedure, evidence and timing. USCIS will release the updated DACA application form in late May.  No one may file a renewal before that date on the current form (other than those granted Deferred Action by ICE).  As it pertains to required evidence for the renewal, applicants will only be required to submit new documents pertaining to removal proceedings or criminal history that were not been previously submitted to USCIS. 
Because USCIS anticipates adjudicating renewal requests within 120 days, we recommend DACA recipients file for renewal approximately 120 days before the expiration date of their initial DACA grant, but no earlier than 150 days (five months) prior to expiration. USCIS states that it will not accept DACA applications filed more than 150 days in advance of a DACA expiration date.  USCIS states that it “may” provide an automatic extension of the original DACA grant, but appears to limit the automatic extension to individuals who file between 150 and 120 days before their DACA expiration date.
With the release of the updated DACA application form in late May, USCIS will finalize the details of the renewal process.

Good News - Potential Employment Authorization for Spouses of H-1B Workers


On April 7, 2014, the White House announced that “The Department of Homeland Security will soon publish several proposed rules that will make the United States more attractive to talented foreign entrepreneurs and other high-skill immigrants who will contribute substantially to the U.S. economy, create jobs, and enhance American innovative competitiveness.  These proposed regulations include rules authorizing employment for spouses of certain high-skill workers on H-1B visas, as well as enhancing opportunities for outstanding professors and researchers.”

This is big news for the spouses of H-1B employees who are in the United States.  Under current rules, spouses of H-1B workers are allowed to accompany their husband or wife but cannot work in the United States.  This lack of work authorization for spouses has long been a complaint of high-skilled H-1B employees, particularly as H-1B employment can last up to 6 years (and in certain cases, even longer).  Many talented workers are put off by the fact that their spouses will have to put their careers on hold during their time in the United States.  

In short, this is a welcome change that will indeed help America continue to attract the brightest and the best. 

Ignorance on Both Sides of the Debate

     With deportations at record levels, both sides of the immigration debate are blaming each other. Congress is accusing the president of ignoring the law, while the President and his advisers maintain their hands are tied because of Congress. Both sides are talking at each other when they should be talking to each other. Several quotes in a recent New York Times article are perfect examples of the ignorance that plagues those who should be the most informed on the issue and demonstrate why it is just so hard to get something done.

     This, from one of the more powerful Republican senators running off at the mouth demonstrating how ignorant he is on one of the more important economic issues of our day:
“The administration has carried out a dramatic nullification of federal law. Under the guise of setting ‘priorities’, the administration has determined that almost anyone in the world who can enter the United States is free to illegally live, work and claim benefits here as long as they are not caught committing a felony or other serious crime.” - Senator Jeff Sessions

     What is wrong with this guy? First, nullifying federal law…what! I know he went to law school a few decades back, but I don’t think he is fully familiar with the definition of nullification. There is nothing about setting enforcement priorities that violates the law, much less nullifies it. Under the Immigration and Nationality Act the executive branch has wide discretion in how it enforces the law. If Mr. Sessions doesn't like the way the executive branch is exercising its discretion then maybe he and his colleagues should change the law. Disagreement with a policy decision is one thing, but to label it nullification is a bit of a stretch. Second, when are people going to get it through their heads that undocumented people cannot avail themselves of the benefits of the welfare state? As I have mentioned in previous posts, there are some negative externalities associated with the social welfare system when it comes to the issue of immigration, but the proper forum for those issues is a debate about the social welfare system, not the immigration system. I hope that he doesn't actually believe this nonsense and it’s just political pandering…at least that wouldn't be as embarrassing.

Next one is from a White House domestic policy adviser:
“The president is concerned about the human cost of separating families, but it’s also true that you can’t just flip a switch and make it stop.” - Cecilia Muñoz

     Actually Ms. Munoz, the president could flip a switch and make it stop. He has the discretionary authority to defer enforcement action on cases for humanitarian reasons, whether he has the moral and political courage to actually do it has yet to be seen.  There is nothing humane about the removal of a person from the United States, especially when that person has lived most of their life here or has kids who were born here. If the president really wanted to stop all this madness he could simply tell ICE to stop placing people in removal proceedings that meet certain criteria. It is that simple and the switch can be flipped…all it takes is a bit of character and courage.


     I am still optimistic that we will see some sort of change in the law in the near future, but is it any wonder that we don’t have something yet when the very people who should be the most informed are this ignorant?

Asylum Backlog - Tips While You Wait


The most common question that clients ask when they are considering filing an application for asylum is how long the process takes.  The response to this question has changed over the years.  Most recently, however, my response has been:  I wish I knew.  Two or three years ago my estimate of 9-12 months was fairly accurate and consistent. However the processing times of recently filed asylum applications have ranged widely, some taking as little as several months for a decision and others have taken years.  Currently there is a documented backlog in affirmative asylum applications of around 40,000 cases and the numbers continue to increase.  A majority of these backlogged cases were filed last year alone.  


The main reason for the backlog is simply an issue of supply and demand. Beginning in Fiscal Year 2012, the number of credible fear and reasonable fear interviews, which take priority in scheduling over asylum interviews, began to increase exponentially. Meanwhile, affirmative asylum applications have increased as well. And while demand has increased, and theasylum offices are working to keep up with the supply by training new officers that can adjudicate casesthe demand still outweighs the supply.

Some tips if you are among those in the backlog:

1)
    If you get scheduled for an interview, try and avoid rescheduling;
2)
    If you have a serious need to expedite your case, you may submit a request to expedite with a proof of your need for it. It is possible for an asylum office to override their system and schedule an interview expeditiously if the situation warrants;
3)
    Any address changes must be made in writing to the asylum office where the case is pending, cannot be made online with regard to a pending I-589 application. Changes in address within the jurisdiction of your current asylum office does not stop the work authorization clock (However if the new address is under the jurisdiction of a different asylum office the system will automatically change the jurisdiction of the case to the new asylum office, and will stop the EAD clock);
4)
    Continue to collect any documents in support of your claim for asylum that you come across, or have the ability to obtain, while you wait for your interview and keep abreast of any possible changes in your country’s conditions and be prepared to address them at your interview, particularly if they could appear to have improved

It can be extremely frustrating and unsettling for an individual to make the difficult choice to flee their homes in pursuit of stability and security then have to wait for months and years to know whether they really are stable in the United StatesI often try and comfort applicants with the knowledge that they wouldbe eligible to file applications for employment authorization cards that will permit them to work, get driver’s licenses.  Also I have seen many clients have a change in life circumstances that open up different (read: faster) doors to immigrating to the U.S.  If you have a long pending asylum application and are wondering if you’ll ever be interviewed, you can take comfort in the fact that, at the very least, you are not alone.  

"SAVE" me. How USCIS Corrects Errors In Its Database to Permit Legal Foreign National to Obtain Driver's Licenses

If I have heard it once, I have heard it 50 times in the last year.  A foreign national is denied a driver's license at the Department of Driver's Services ("DDS") because their immigration status cannot be confirmed through the "SAVE" database.  SAVE is the Systematic Alien Verification for Entitlements program run and administered by USCIS. In Georgia, all public benefit applications, like a Driver's License, must be verified as properly given only to legal and documented foreign nationals.   Even though an applicant has presented a valid document, like a permanent resident card, work permit, or a valid visa and I-94 card, sometimes the "SAVE" database does not show the person as properly documented.  Usually, this is because of a USCIS error in their database.  Most times DDS tell the foreign national to "go to USCIS to "fix" the problem."  Not exactly the most helpful advise.  So, how does a person actually fix this problem in the USCIS database that is stopping them from getting a driver's license?

Here is a summary of the process to correct the "SAVE' database, courtesy of the USCIS's Denver Field Office.  After setting up an "Infopass" with your local USCIS office, you talk to the USCIS Infopass officer that calls your assigned appointment number. She or he will ask you for your "SAVE" number.  According to USCIS:
The SAVE Program requires that the DMV (or other benefit granting agency) provide applicants who are not verified with SAVE, after the agencies have followed all three verification steps, with a records correction fact sheet and a SAVE verification number. The fact sheet advises applicants on how to correct their records with USCIS and specifies that they can schedule an appointment using InfoPass. When the applicant/customer comes in with an issue related to a SAVE Program verification, we ask for the SAVE verification number. If the customer does not have a SAVE verification number, we provide the customer with a SAVE letter and ask them to go back to the DMV (or other benefit granting agency) to get the number. Once the customer provides us with the verification number, we contact SAVE regarding the verification using an internal helpline. In cases where SAVE advises that the customer was verified, SAVE tells us to have the customer go back to the DMV (or other benefit granting agency) to complete his or her application process. In cases where the SAVE Program could not verify the customer’s current immigration status, we have to order the A-file to identify and resolve the issue. Usually, it is a name or date of birth issue, which we can normally fix locally. It is important to note that USCIS does not correct information in SAVE. Rather, USCIS corrects information in an individual’s USCIS immigration record that can then be accessed by SAVE.
From experience, it can take 30-90 days to correct a SAVE database error.  

Should you have an issue with your Driver's License or any other public benefit for you are qualified, follow this guidance to get the USCIS database corrected, and return and get your Driver's License issued.   

Stop Blaming the Undocumented

I'm relatively new to the social media game so I'm still surprised by some of the nonsense that permeates the twittosphere. It's easy to see how public ignorance is perpetuated with all the obfuscation out there. Nowhere was this more apparent than on the Facebook page of a politician who shall remain nameless. Note - If you really want to know who it is, Google "Florida politician Iraq interrogation incident" and read up on him.

Anyway, he posted a picture to his page that showed some colorful text written on the back of a van. The text was in Spanish and urged people to sign up for the Affordable Care Act (also known as Obamacare); informing them that it was totally free. The post was accompanied by the following:

Unbelievable. Guess where Obamacare navigators are signing up enrollees now. Who needs amnesty when you can get free healthcare anyway?

There are so many things wrong with this that I don’t even know where to start. First, just because an advertisement or public announcement is in Spanish doesn't mean that its target is the undocumented immigrant community. Last time I checked you can still be a citizen and speak primarily Spanish. Second, if you are an undocumented immigrant or a lawful permanent resident within the first five years of your residency, you are not eligible for any means tested public benefit. For those that don’t believe me, take a look at the affidavit of affidavit of support that must be signed on behalf of any intending immigrant. Divorce won’t even wipe out that obligation!

Now if you point this out to anybody associated with the anti-immigrant crowd, the first response you’ll get will be something like, “…yeah, but even if they can’t get welfare, they have anchor babies and they get all kinds of welfare for them.” True, but the law does not distinguish between citizens who are “anchor babies” and those who are not…yet! I am no fan of the welfare state, but to attribute its negative externalities to the millions of undocumented immigrants in our country is intellectually dishonest.
  
If you want to hear more about this or any other immigration related topic, you can listen to @ckuck and @rockyrawcliffe discussing it here and here on @theimmhour. 


Termination of a Non-Immigrant Employee--An Employer's Duties and the Visa Holder's Options

Although we are in the midst of H-1B hiring season, not all of these H-1B workers will be successful in their new jobs.  We are frequently asked what obligation does an employer have when it terminates a foreign national employee like an H-1B visa holder, and what options are available to the foreign national employee if he is terminated.  While this is general guidance to employers in dealing with immigration matters during the downsizing process, employers terminating foreign employees should also consider arranging for immigration counsel to advise foreign employees on the consequences of termination as one of the services provided to workers being terminated.  There are many myths surrounding the termination of H-1B and other non-immigrant workers, and it is very important to understand the employers obligation, and to dispel the myths for the now former foreign worker employee.

The foreign national employees referred to here do not include lawful permanent residents or U.S. citizens. Foreign national non-immigrant workers usually fall under the H-1B, L, E, O, and TN temporary work visa categories. The most common non-immigrant work visa, H-1B, is used for an “alien who is coming to perform services in a specialty occupation”. L visas are used for intra-company transferees that enter the U.S. to render services “in a capacity that is managerial, executive, or involves specialized knowledge. E visas are used for “treaty traders and investors” as well as Australian specialty occupation workers. O-1 visas are used for foreign nationals who can demonstrate the sustained national or international acclaim and recognition for achievements in the science, education, business or athletics. TN visas are used for Canadian and Mexican citizens to engage in business activities at a professional level as listed in the North American Free Trade Agreement.

Non-immigrant work visas are generally issued for the specific employment with a particular employer. A foreign employee is authorized to remain in the United States as long as they are employed with the particular employer noted in the visa application. If the foreign employees are laid off, they immediately lose their visa status, and must immediately pursue one of four options outlined below.

The immigration laws define a “lay off” as an action taken by an employer to cause the loss of a worker’s employment. A lay off does not include:
  •  Loss of employment for inadequate performance;
  • A loss of employment for violation of workplace rules;
  • Voluntary departure or retirement;
  • The expiration of an employment grant or contract.
But, a "termination" can include all of these things, and other reasons for terminating an employee. 

In case of either a "lay off" or a "termination" the employer must comply with the affirmative duties under immigration law with respect to those foreign workers. For most employment-related visa types, the employer has an affirmative responsibility to notify the U.S. Citizenship and Immigration Service (USCIS) Service Center which approved the petition underlying the foreign national’s visa, when terminating a foreign worker’s employment. The employer’s salary payment obligation for H-1B visa holders under the immigration law ONLY ends when there is a bona-fide termination of employment AND the employer also notifies the USCIS.   The confirmed written notice to the USICS fulfills the requirements for bona-fide termination of employment.

These affirmative responsibilities are particularly important because employers that do not comply with these obligations violate the immigration rules and are subject to various penalties, including back wages, even if the employee is no longer working for the company under a voluntary separation.. We include some brief explanations of the affirmative responsibilities employers incur when laying off foreign national employees:

Laying off H-1B visa holders

The employer must offer to provide the H-1B workers return transportation to their home country at the employer’s expense.  This is an airfare cost only, and only for the foreign national employee. It is not for his spouse, children, home furnishing or dog.

The employer must notify the USCIS of the termination of foreign workers’ employment

Laying off other non immigrant foreign workers

 The employer must notify the USCIS of the termination of foreign workers’ employment


Options for Terminated Employees

The employer should also ensure that the foreign national worker understands his or her options upon termination.  Essentially, there exist four options in most cases for the foreign national employee:

  • The employee can leave the United States immediately.  Remember, there is no grace period currently in place for any non-immigrant work visa (H, L, E, O, TN) unless the employee has completed the fully authorized term of employment; 
  • The employee can file for a change of status to visitor visa status (B-2), with proof of intended departure date, verification of support pending departure, and a valid reason for remaining (e.g., packing household goods, etc.).  This application for change of status to visitor should occur prior to the expiration of any time period of severance, and is best filed while the employee is still employed.  This request to remain in the U.S. as a Visitor can be for up to six (6) months;
  • The employee can file to change employers and remain in that visa status.  This means, obviously, that the employee must already have an offer of employment from another employer.  The same process is in place that obtained the current non-immigrant status for the employee. The employee must also file this change of employer petition while still in lawful status (e.g. during a severance period or while still employed); and
  • The employee can enroll in or return to school as an F-1 Visa holder. This means the employee enrolls in a university to seek a degree, typically a higher degree, and seeks to change status to that of a student visa holder (F-1).  Obviously, there are serious costs associated with this option, as the employee must pay tuition and related expenses, and typically will not be allowed to work, unless the employee enrolls in a degree program that allows Curricular Practical Training (CPT).  Again, this change of status petition must be filed while the employee is still “in status,” as noted above.


Layoffs and terminations are difficult for all parties involved. Properly managed, both the employer and employee can come through this situation fully protected and compliant with all federal immigration laws.  If you would like further information about specific case scenarios or situations, please call our office or email us at ckuck@immigration.net to speak to one of experienced immigration attorneys. 


Asilo y Venezuela, Las Protestas NO Son Un Base, Por Si Misma, de Pedir Asilo

 Un abogado en Miami recientemente dijo en Univision Miami que todos los inmigrantes de Venezuela que están en los Estados Unidos, ya, a causa de las protestas y demonstraciones, pueden aplicar por asilo.  Esto es completamente falso!  Desaforadamente, muchos Venezolanos han sido engañados por este mal consejo.

No sea engañado! 
Aplicando por asilo en los Estados Unidos es un proceso complicado que nunca debe ser hecho sin consultar con un abogado con mucha experiencia en casos de asilo. Por ejemplo, si alguien ha estado en los estados unidos por más de un ano, tal persona no es elegible por asilo sin convencer a USCIS que su demora en aplicar era por una buena razón (en raros casos).  De hecho tal caso será negado y su caso será tirado al corte de inmigración.  Y, como muchos saben, los cortes de inmigración niegan la mayoría de casos de asilo. En el ano 2013, los cortes de inmigración solo aprobaron los 33% de los casos de asilo por Venezolanos.  

Entonces no cree todo lo que escuchas por la televisión.  Si, es verdad que una persona podrá obtener la residencia permanente basada que tal persona está sujeta a persecuciones en su país de origen.  Pero, la persona que está aplicando para el asilo deberá comprobar que los fundamentos de su aplicación son válidos. O sea, que esta persona ha sido la tarjeta de amenazas o/y de persecuciones. No que el país es generalmente peligroso y que hay ataques contra los protestantes.  

Consulta con un abogado con experiencia en casos de asilo, y entiende que aunque cualquier persona pueda aplicar por asilo, los que ganaran su caso son los que pueden comprobar persecución específica contra sí misma.