Deportation | Removal

by | Nov 28, 2014 | Visas

DEPORTATION / REMOVAL

Under pre-1996 immigration law, people who could prove that they have been residing continuously in the U.S. for at least seven years, had good moral character and would suffer extreme hardship if they were deported could qualify for suspension of deportation and a green card. They could win suspension of deportation by showing extreme hardship to themselves or to a close family member who was a U.S. citizen or permanent resident. However, you can no longer apply for suspension of deportation under the old immigration law unless you are from Guatemala or El Salvador.

Under the 1996 immigration law, you can apply for what is now called “cancellation of removal” and obtain a green card if you can prove that you have been living in the U.S. continuously for at least ten years, have good moral character, and that a close relative who is a U.S. citizen or a lawful permanent resident would suffer extreme hardship if you were deported or removed from the United States.

In order to qualify for cancellation of removal you need to wait another few years until you have been in the U.S. for at least 10 years. It is not enough to have been living in the U.S. for ten years, you have to prove it with documentation. You will have to present documents such as bank statements, rent receipts, utility bills, etc., for each year that you have been residing in the U.S.

Second, the fact that you have been paying income taxes each year helps to show that you have good moral character. Also, the fact that you have never been in trouble with the law helps to demonstrate your good moral character. Additionally, if you are involved in community organizations and activities that help the community, this will help to prove that you have good moral character.

Third, under the rules for cancellation of removal, the hardship to yourself if you had to return to your home country is no longer considered as a factor. Only the hardship to your U.S. citizen children or spouse would be considered as important. If your children are very young and are in good health, an immigration judge would probably find that they could return to your home country without suffering extreme and unusual hardship. Young children are thought to have an easier time adjusting to a new environment than older children. Older children who have already adjusted to the American school system, and can speak, read and write only in English and who do not know the language of the home country would suffer much more than younger children if forced to return to their parents’ home country. If you can prove that you would probably be killed if returned to your home country, this would be important only in so far as it impacts on your young children. Thus, the psychological effect of losing their parent and the financial impact of losing their main source of financial support would be considered. Of course, if the children were also in danger of being killed if they were returned to your home country, this would show extreme hardship.

As of June 24, 2002, INS had detained a total of 752 individuals on immigration violations since September 11th in connection with the investigation into the terrorist attacks. Of these, 81 are currently being detained. The rest have been released on bond pending resolution of their immigration charges after they were determined to have no links to the investigation or to terrorist organizations, or their immigration proceedings have been completed and they have been released or removed. Of the 81 who remain in USICE detention, 73 have had a removal (deportation) hearing. Thirty-eight have final orders of removal, and the USICE is trying to remove (deport) them as soon as possible.

As of May 29, 2002, 611 individuals detained by USICE have been subject to closed hearings pursuant to a directive issued by the Chief Immigration Judge on September 21, 2001.

However, most individuals in INS detention are not suspected of or charged with being involved in terrorism. Many are asylum applicants, minor children, permanent residents who have completed a criminal sentence and others charged with various immigration violations.

If USICE believes that you are not legally in the United States, USICE will serve you with a Notice to Appear, charging you with specific immigration violations and ordering you to appear in Immigration Court. Previously called deportation or exclusion proceedings, immigration court proceedings are now called removal proceedings. Once you appear before the Immigration Judge, the judge will determine whether you are removable (deportable). If you are determined to be removable from the U.S., you may request relief from removal (deportation), such as asylum, withholding of removal, cancellation of removal or voluntary departure. If you are a long-time permanent resident, and have a criminal conviction dating from before April 1996, you may also be eligible for 212(c) relief, which is a waiver of deportation.

If you are in removal proceedings, you have a right to be represented by an attorney at your own expense. You also have a right to a court-appointed interpreter, if you are unable to speak English fluently. You have a right to present evidence in your favor and to cross-examine witnesses.

Should you lose your case before the Immigration Judge, you have the right to appeal to the Board of Immigration Appeals (BIA), and may remain in the U.S. while the appeal is pending. If the BIA denies your case, you will be under a final order of removal (deportation), and USICE may then arrest and deport you. However, you will have 30 days from the date of the BIA decision to go into federal court for yet another appeal and to stay your deportation.

In order for USICE to deport someone, USICE must obtain a valid travel document and the home country must be willing to accept him or her. USICE has difficulty deporting nationals of certain countries, and thus those individuals may spend a great deal of time in USICE custody while under a final order of deportation, while USICE is trying to deport them. If an individual is in USICE custody for more than 90 days while under a final order of deportation and USICE is unable to deport him or her, that individual may apply for release.

If you have a final order of removal or deportation against you, local police may now arrest you on your removal or deportation order. This is a change from past practice, whereby only immigration officers could execute deportation orders. A new federal rule, effective August 23, 2002, permits local police officers to exercise Federal immigration enforcement authority, and arrest aliens on deportation orders.

Asylum

by | Nov 28, 2014 | Visas

ASYLUM

People who have a well-founded fear of persecution should they be returned to their home country, on account of their political opinion, religion, race (or ethnicity), nationality, or membership in a particular social group (such as their family), may claim asylum. One has only to show a reasonable possibility – which may be as low as a 10 percent possibility – that he or she will be persecuted if returned home. Persecution does not include violence or harm suffered just because one was in the wrong place at the wrong time. For example, if there is a civil war raging in a country, and one just happens to be shot, that is not considered persecution.

Recently, U.S. immigration law has provided for claims for asylum by women and homosexuals. In a highly publicized case, the Board of Immigration Appeals granted asylum to an African woman who had fled from her home country to escape from female genital mutilation, a ritual of her ethnic group, which would have been forced upon her by her family and her husband in an arranged marriage. In 1990, the Board of Immigration Appeals held that a gay man from Cuba had established a well-founded fear of persecution on account of his sexual orientation.

One cannot qualify for asylum if one has persecuted others, or if one has been convicted of an aggravated felony, or a particularly serious crime and is a danger to the community.

One must apply for asylum within one year of having arrived in the United States. If not, one must show that extraordinary circumstances caused the delay or that circumstances in one’s home country have changed, effecting one’s eligibility for asylum.

One may make either an affirmative asylum application, or one may make an application for asylum after having been placed in exclusion, deportation or removal proceedings, as relief from deportation or removal. If one makes an affirmative asylum application, one will first have an interview before a USCIS asylum officer. The asylum officer may either grant asylum, or refer the applicant to immigration court if the applicant is not in legal immigration status. Even if the applicant is not granted asylum by the asylum officer, he or she will have a full opportunity to prove his case before the immigration judge.

The 1996 immigration law created a new procedure for people arriving in the U.S. who lack proper documents. Arriving aliens are subject to expedited removal. Those who express either an intent to apply for asylum or a fear of persecution are referred by the inspecting immigration officer for a “credible fear” interview with a designated immigration officer. If the officer finds that the alien has a credible fear of persecution, he or she is referred for a hearing before the immigration judge.

People granted asylum may reside indefinitely in the United States. One year after being granted asylum, one becomes eligible to apply for permanent residency. Asylees who are applying for permanent residency are not subject to the public charge ground of inadmissibility.

Family & Marriage Petitions

by | Nov 28, 2014 | Visas

Family Immigration

Family sponsored immigrants are divided into two categories: 1) those who can immigrate to the U.S. and who are not limited numerically, and 2) those who must wait in a queue to immigrate to the U.S., because of the numerical limits placed on their category of family immigration. The total number of visas available for family immigration are 480,000 minus the number granted to immediate relatives plus unused employment based visas.
Immediate relatives of U.S. citizens are not limited numerically, and can apply right away for permanent residence. Immediate relatives of U.S. citizens include spouses, unmarried children under 21, and parents of U.S. citizens who are over the age of 21.

The other family-sponsored categories are all limited numerically, and include the following:
1) First preference: unmarried adult children over the age of 21 of U.S. citizens;
2) Second preference: spouses, minor children and unmarried sons and daughters of permanent residents;
3) Third preference: married adult children of U.S. citizens;
4) Fourth preference: brothers and sisters of adult U.S. citizens.

Those who have been in the U.S. in unlawful status on or after April 1, 1997 must have had their relative petition filed before April 30, 2001  in order to adjust to permanent residency within the United States. Alternatively, if the person was the beneficiary of another relative petition or a labor certification application filed before April 30, 2001, they may then make a completely different application and adjust to permanent residency, so long as they filed before April 30, 2001 either a labor certification application or a relative petition which was approvable when filed. You should consult an attorney about the details for substituting another application for one which was filed prior to April 30, 2001.

If they entered legally with a valid visa, and were inspected and admitted by an immigration officer, even if they have fallen out of status, an immediate relative of a U.S. citizen may adjust to permanent residency within the United States.

The Child Status Protection Act

Generally, children only qualify for sponsorship if they are under 21 years of age and unmarried (although there are separate categories for adult sons and daughters). Previously, children being sponsored by their parents for a greencard would no longer be eligible for permanent residency the day they turned 21, even if they had not received their greencards because of INS delays in processing their applications, or other factors beyond their control.

With the new Child Status Protection Act (CSPA), signed into law on August 6, 2002, this is no longer the situation. The CSPA protects the children of U.S. citizen parents, permanent residents and asylees. For purposes of determining eligibility for a greencard, the child’s age is determined on the date on which the relative petition is filed by a U.S. citizen parent. For example, if a U.S. citizen mother files a petition for her 18 year old daughter, the daughter will still be granted permanent residence even if a U.S. Consulate does not complete processing of the application for permanent residence until the daughter is 22 years old.

Second, if a minor child is being sponsored by a lawful permanent resident parent, and the parent later naturalizes to U.S. citizen, the child’s age is determined based upon the date of the parent’s naturalization. For example, if a permanent resident files a petition for a 17 year old son, and then naturalizes when the son is 20, the son will remain eligible for an immigrant visa even if the son has already turned 22 on the date of the visa application.

Third, if a U.S. citizen parent sponsors a married son or daughter, and the child later divorces, the child’s eligibility for immediate relative status would be determined based upon the child’s age on the date of the divorce. This would only apply if the child married very young, and then divorced before becoming 21 years old.

Fourth, the CSPA protects children of lawful permanent residents who have been sponsored by their parents, or who are accompanying or following to join immigrants sponsored by their family or employer, or who won the diversity lottery. In these cases, the age of the child is determined on the date an immigrant visa number becomes available (which is when a priority becomes current and there is an approved petition), minus the number of days the petition was pending. However, the child must apply for permanent residence within one year of the priority date becoming current and the approval of the petition.

Immigration Through Marriage For Battered Spouses And Children

Because of a concern that the path to permanent residency through marriage to U.S. citizens was being abused by desperate and dishonest aliens, the Immigration Marriage Fraud Amendments (IMFA) of 1986 created obstacles to obtaining permanent residence through marriage. To deter marriage fraud, it creates a two-year conditional residence status if the marriage is less than two years old at the time of the INS interview. Towards the end of the two-year period, both husband and wife have to jointly file to remove the condition, and change the alien’s status from conditional to permanent resident.
According to immigration law prior to 1990, if the marriage fell apart within the two years and the U.S. citizen spouse refused to cooperate in filing the joint petition, it was extremely difficult for the immigrant spouse to become a permanent resident. The law required the immigrant spouse to demonstrate that he or she was not at fault in the marriage.

The Immigration Act of 1990 provided that the alien spouse may change his or her conditional green card to a permanent green card without the help of the U.S. citizen spouse when one of the following applies: 1) The marriage has been legally terminated. The marriage was entered into in good faith and has been ended through divorce or annulment, regardless of which party was at fault; 2) Battered Spouse Waiver. During the marriage, the alien spouse was battered or subjected to extreme cruelty. The alien spouse must submit evidence of domestic violence, as well as any actions she or he took to protect herself or himself. For example, police complaints, court records, orders of protection, and hospital or doctor records will help show that the spouse was battered or subjected to extreme cruelty. Extreme mental cruelty is shown by an evaluation of a professional such as a psychologist, psychiatrist, or social worker; 3) Extreme hardship would result if the alien is deported.

In 1994, Congress enacted the Violence Against Women Act, allowing a spouse or child suffering abuse from a spouse or parent who is a lawful permanent resident or United States citizen to file an immigrant petition on his or her own without the help or agreement of the abuser. In that legislation, Congress also created a new form of suspension of deportation for abused spouses and children of lawful permanent residents or U.S. citizens. The prior law only helped the battered spouse after the conditional green card had been granted, by allowing her to file for the removal of the conditional status on her own. But the petitioning spouse could still refuse to file the initial petition or withdraw the petition before the issuance of the green card. The 1994 amendments now allow the battered spouse or child of either a US citizen or resident to file the petition herself, without the help of the spouse.

The spouse or child who is self-petitioning must reside in the U.S. at the time she or he applies for this benefit and must have resided in the U.S. with the U.S. citizen or lawful permanent resident. The spouse must show that she or he married the abusive spouse in good faith, and intended that they spend their lives together. Children who are self-petitioning do not need to prove the “good faith” nature of the marriage. It is important to note that the victim of domestic abuse, or the parent of the child victim, must be married to the abuser at the time of filing the self-petition. A divorce obtained upon filing will not affect the validity of the petition. Any change in the abuser’s immigration status, such as relinquishment/abandonment of the green card or deportation, will have no effect on the battered spouse’s self-petition. The abuser must be a citizen or permanent resident. The legal status of the abused spouse or her children is irrelevant. The act applies to a spouse or child who “has been battered by or has been the subject of extreme cruelty perpetrated by a USC or LPR spouse or parent”. Extreme cruelty includes violence or threats of violence. The self-petitioner may be a spouse who is suffering domestic abuse, a child suffering domestic abuse, or the parent of a child suffering domestic abuse. Children who are not suffering abuse may be part of the parent’s self-petition. The abuse must have taken place during the marriage. The self-petitioner must prove that he or she has “good moral character”. One cannot show good moral character if one has been convicted of a drug offense (other than a single offense of simple possession of 30 grams or less of marijuana), or has been convicted of an aggravated felony, or false testimony to obtain a benefit under the INA, or confinement in a jail for 180 days or more, or other offenses.

The self-petitioner must show extreme hardship to the applicant or child if deported. Hardship includes more than poverty. The factors include:
1) age of the person;
2) number of the person’s children and their ability to adjust in their native country;
3) serious illness that necessitates medical attention which is difficult or impossible to obtain in the foreign country;
4) person’s inability to find a job that pays an adequate salary or any job at all in the foreign country;
5) adverse psychological impact of deportation;
6) irreparable harm that may result from lack of educational opportunities.

For victims of domestic violence, the following factors would be considered:
1) the nature and extent of the physical and psychological effects of the battering or extreme cruelty;
2) the impact of the loss of access to the US courts and criminal justice system (including the ability to obtain and enforce orders of protection, criminal investigations and prosecutions, family law proceedings and court orders regarding child support, maintenance, child custody and visitation);
3) the self petitioner’s need for social, medical and mental health services which would not be available in the home country;
4) laws, customs and social practices that would penalize the petitioner as the victim of abuse;
5) the abuser’s ability to travel to the foreign country and the ability and willingness of the foreign authorities to protect the self-petitioner; and
6) the likelihood that the abuser’s family and friends or others acting on behalf of the abuser would physically or psychologically harm the self-petitioner or the self-petitioner’s child.

The Act also provided for suspension of deportation for the victims of domestic violence at the hands of a US citizen or permanent resident spouse or parent. Only people in deportation proceedings can apply for suspension of deportation. The abuser must be a U.S. citizen or permanent resident spouse or parent. The applicant must have been “battered or subjected to extreme cruelty in the United States” by the spouse or parent. The applicant must have been continuously residing in the United States for at least three years before filing the application. The applicant for suspension of deportation must be a spouse, a child suffering domestic abuse, or the parent of a child suffering domestic abuse. If a child is not suffering domestic abuse, but his or her parent is, it appears that the parent’s suspension application may not include her children. A person seeking suspension of deportation must show extreme hardship if deported. A person seeking suspension must also prove “good moral character” during the three year period required for suspension.

New Law Providing For Family Sponsorship In Cases Of The Death Of The Petitioner

The law now allows alternate family members of a petitioning alien to sign the affidavit of support required for green card approval. If the alien’s original sponsor dies while the application is pending and if the USCIS decides not to deny the petition for humanitarian reasons, the alien can find another family member to sign the affidavit of support. Under prior law, an alien’s green card application would be denied upon the death of the petitioning sponsor, even if there were sympathetic humanitarian concerns in his or her case. The law now provides that the expanded definition of sponsor shall apply with respect to deaths occurring before, on or after the date of enactment.

Families of victims of the terrorist attacks on the World Trade Center and the Pentagon whose immigrant or non-immigrant status was dependent on the victim’s status should not be concerned about facing immediate removal from the United States. The former INS Commissioner stated that, “The INS will exercise its discretion in a compassionate way toward families of victims during this time of mourning and readjustment.”

The immigration law provides the right to file a relative petition to widows and widowers who have been married to a U.S. citizen for at least two years prior to the citizen’s death. The USA Patriot Act expanded the law for those widowed as a direct result of the terrorist attacks of September 11th, without any regard to the length of the marriage. The widow(er) must not have been legally separated from the spouse at the time of the citizen’s death and must file a petition for immediate relative status within two years of the death, and must not have re-married. Any child of a U.S. citizen who was killed in one of the terrorist attacks of September 11th, may file a green card application within two years of the death of the parent, regardless of changes in age or marital status.

The spouses and children of permanent residents who died during the September 11th attacks may also file a relative petition and green card application based upon their deceased permanent resident relative. Survivors of employment-based immigrants also retain immigration benefits under this provision.

A grandparent may also receive immigration benefits if both parents of the grandchild died as a result of terrorism and if one of the parents was a U.S. citizen or national or a permanent resident.

Adoptions

by | Nov 28, 2014 | Visas

ADOPTION ABROAD AND US IMMIGRATION

People who are unable to have children, or who wish to adopt for other reasons, face great difficulties in finding U.S. born children to adopt. U.S. adoption agencies have experienced a steady decline in the number of children available for adoption. Americans are increasingly turning to international adoptions, from countries such as China, Russia, Romania, Korea and Ecuador.

However, there are also difficulties and uncertainties in adopting children from abroad. Adoptive parents may find international adoptions to be time-consuming and difficult in dealing with foreign bureaucracies and legal systems. Additionally, children adopted overseas are much more likely to carry tuberculosis than children born in the U.S. Many children adopted from Russia suffer from fetal alcohol syndrome. Adopted children from China are generally much healthier than those from other countries.

Law and government policies on adoption vary from country to country. For example, in 1992, China enacted an adoption law which centralized foreign adoptions and eliminated a lot of the confusion and corruption which existed at the local level. China effected a national adoption policy which treated all foreigners, regardless of their ethnic background or connection to China, the same as its own nationals. All U.S. citizens, single or married, who are more than 35 years old and childless are eligible to adopt a child with no pre-existing medical conditions.

In Korea, the adoption law acts to protect the interests of the child. To adopt a child from Korea, a couple must have been married for at least three years, and be between the ages of 25 and 44, although there are certain exceptions. Under Korean law, an abandoned child can only be adopted six months after a child has been registered with the Korean Children’s Fund (KCF), which maintains a list of all abandoned and missing children in order to help parents who are trying to find them. Adoption of children over 18 months old must be delayed for 12 months after registration with KCF.

Adoptions of children from Russia have increased in the past three years. The Ministry of Education has general oversight of foreign adoptions. The local court with jurisdiction over the child’s residence has authority to approve the individual adoption.

Certain other countries, however, have very restrictive laws on adoption or do not provide for adoption at all. Some countries which follow Islamic law, such as Afghanistan, Bahrain, Saudi Arabia and Kuwait, do not permit adoptions. In Israel, adoptions are strictly controlled by the Ministry of Social Welfare and the District Courts, and few children are available for adoption by foreigners.

In 1993, the Hague Conference on Private International Law proposed a multilateral treaty to protect the rights of internationally adopted children, called the Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption. It received unanimous approval from all national delegations, including the United States. It aimed to do the following: 1) ensure that an international adoption occurs only if it is in the child’s best interest; 2) establish a system of cooperation among nations to ensure their agreements are upheld, as well as to end the sale of children; and 3) ensure the recognition of intercountry adoptions which conform to the requirements of the Hague Convention. The United States became a signatory to the Hague Convention on July 4, 1993. However, the treaty has not been introduced into the Senate for ratification.

Under United States immigration law, in order to obtain immigration benefits for an adopted child, the petitioning parent must be a U.S. citizen or a permanent resident. However, only U.S. citizen parents can petition for an orphan.

Parents petitioning for an adopted child must show that they adopted the child while the child was under the age of 16. They must also show that they have had legal custody of the adopted child for two years and that the child has been residing with them for two years. 

The advantage of an orphan petition is that a U.S. citizen can bring a child into the U.S. immediately. There is no requirement that the child have lived with the parent for two years, and there is no requirement of two years of legal custody. However, in an orphan adoption, once the child is brought into the United States, the adoptive parents must comply with local state adoption rules and submit a home study before the orphan petition can be approved.

Professors & Researchers

by | Nov 28, 2014 | Visas

OUTSTANDING PROFESSORS AND RESEARCHERS

Outstanding professors and researchers may obtain permanent residency in the United States without going through the lengthy process of labor certification. To be considered outstanding, a professor or researcher must show that he or she is recognized internationally as outstanding in a specific academic area. The person must be coming to the U.S. for a tenure or tenure track position, or else for a comparable position at a university to conduct research. Alternatively, a researcher can qualify if he or she is coming to the U.S. to conduct research with a private employer if it is large enough and has documented accomplishments in the field. To qualify as an outstanding professor or researcher, one must have a sponsoring employer. To succeed, the applicant must provide extensive documentation of his or her prominence in their field, original scientific research, scholarly publications, articles about his or her work, and testimonials from colleagues in his or her field.

Section 245

by | Nov 28, 2014 | Visas

SECTION 245 (i)

The Legal Immigration and Family Equity Act of 2000 (LIFE Act) and LIFE Act Amendments, extended Section 245 (i) of the Immigration and Nationality Act from January 14, 1998 to April 30, 2001. Those who were eligible had until April 30, 2001 to file a labor certification application or immigrant petition. To be eligible under Section 245(i), an applicant had to prove that he or she was actually physically present in the U.S. on December 21, 2000.

Section 245(i) permits individuals who are out of status (or illegal) to adjust within the U.S. to permanent residence, by paying a penalty fee of $1,000.

To be eligible for adjustment, a foreigner must be immediately eligible for an immigrant visa through a family member or employer sponsorship, or through an investment. All qualified beneficiaries were “grandfathered” under Section 245(i) as long as they filed a relative petition, employment-based petition or labor certification application by April 30, 2001.

What does it mean to be “grandfathered” under Section 245(i)? According to agency memos issued on April 14, 1999 and June 10, 1999, the USCIS has adopted an “alien-based” reading of Section 245(i). It is the alien beneficiary of a visa petition or labor certification filed on or before April 30, 2001 who is grandfathered and thus able to adjust status under Section 245(i). Thus, as long as the alien is the beneficiary of a labor certification or visa petition filed by April 30, 2001, the alien may later on adjust status under a different labor certification or visa petition.

However, according to an Interim Rule issued on March 26, 2001, the family or employment-based petition filed by April 30, 2001, must be considered “approvable when filed”, in order for the alien to later use another petition under which to adjust status. According to the interim rule, “approvable when filed” means that the petition was properly filed, meritorious in fact and non-frivolous. For example, a visa petition is not approvable when filed if it is fraudulent or if the named beneficiary did not have, at the time of filing, the family or employment relationship that would support the issuance of an immigrant visa. For example, when the basis for grandfathering is a labor certification application, the application must be filed and accepted by a state department of labor to be considered “properly filed”. Additionally, aside from the beneficiary, derivative family members who are accompanying or following to join are considered grandfathered under Section 245(i). A beneficiary may be grandfathered even though a petition is later withdrawn, revoked or denied, as long as it was “approvable when filed”. Thus, if a petition is denied because of a change in circumstances, such as the petitioning employer going bankrupt or the death of the sponsoring relative, the petition is considered “approvable when filed”. On the other hand, if a petition is denied on the merits, the petition may not be considered “approvable when filed”.

If you already have a visa petition or labor certification application pending, and wish to substitute a new petition, or if no petition has ever been filed on your behalf, but you believe you may be eligible for relative or employer sponsorship, you should discuss your case with an immigration attorney.

Citizenship

by | Nov 28, 2014 | Visas

UNITED STATES CITIZENSHIP

U.S. citizenship has many benefits. U.S. citizens have the right to vote, the right to hold public office, and eligibility for certain jobs (for example, with the federal government). Additionally, U.S. citizens may not be deported for crimes, as are permanent residents. The United States allows dual citizenship, so you may be able to retain the citizenship of your home country, as long as your home country allows dual citizenship also.

You must be a lawful permanent resident for five years in order to apply for citizenship. In the case of spouses of U.S. citizens, you must have been a permanent resident for three years to apply for citizenship. In order to qualify for U.S. citizenship, you must show that you have five years of continuous residence in the U.S. (in the case of U.S. citizen spouses, it is three years) as well as good moral character. Certain criminal convictions may bar one from establishing good moral character. People with criminal convictions who apply for naturalization may even be placed in removal (deportation) proceedings. Additionally, those who have failed to file U.S. federal income tax returns or have failed to register for the Selective Service may be denied naturalization. If you have a criminal history, have failed to file income tax returns or failed to register for the Selective Service, you should consult an attorney before applying for citizenship.

Moreover, applicants for naturalization must pass an English literacy and U.S. history and government test. Three groups of people are exempt from the English language requirement: 1) those who are developmentally disabled or mentally impaired; 2) those who are over 50 years old and have been permanent residents for more than 20 years; and 3) those who are over 55 years old and have been permanent residents for more than 15 years. The INS may give an easier history and government test to applicants who are over 65 and have been permanent residents for more than 20 years.

The Child Citizenship Act of 2000 (CCA) allows certain foreign-born children who are residing in the U.S. as permanent residents to acquire citizenship automatically, without applying to USCIS. A child born outside the U.S. of two alien parents will automatically acquire U.S. citizenship if he or she is living in the U.S. as a permanent resident and the parents become naturalized U.S. citizens before the child’s 18th birthday. This also applies to adopted children, as long as the child is in the custody of his or her adoptive parents pursuant to a lawful admission for permanent residence. Additionally, if the parents have been legally separated and the parent having legal custody of the child naturalizes, the child will automatically become a U.S. citizen. Such children can directly apply for a U.S. passport and do not need to apply to the USCIS for a Certificate of Citizenship, nor do they have to apply for naturalization.

MILITARY SERVICE AND U.S. CITIZENSHIP

Did you know that if you are a male between the ages of 18 and 26, unless you are on a nonimmigrant visa, you are required to register with the Selective Service? Even illegal aliens are required to register with the Selective Service, as well as parolees, refugees and applicants for asylum. Of course, U.S. citizens and lawful permanent residents are also required to register.

You can register on-line at the Selective Service web site, www.sss.gov. Although you are required to register, that does not necessarily mean you will be drafted. If there is a draft, men who reach age 20 during the year in which inductions occur would be the first group called. If more men are needed, the call would continue up to those who are 21, and so forth.

If you fail to register with the Selective Service, you may be denied naturalization to U.S. citizenship. Additionally, failing to register is a crime, punishable by a fine of up to $250,000, imprisonment for up to five years or both.

While only men must register, both men and women can volunteer to serve in the U.S armed forces. About 37,000 immigrants currently are serving in the U.S. military. Another 13,000 immigrants are part of the military reserves, many of whom have been called up for active duty.

If you serve honorably in the U.S. armed forces for at least three years, you may be eligible for naturalization to U.S. citizenship. The U.S. armed forces include the army, navy, marines, air force, and coast guard. You will not be required to meet the physical presence and continuous residence requirements of naturalization.

The National Defense Authorization Act for FY 2004 contains a provision to speed the naturalization process for permanent residents serving in the military. The Act allows permanent residents to naturalize after serving one year in the military during peacetime, authorizes naturalization interviews and oath ceremonies to be performed abroad, waives naturalization fees for those in the military, enables permanent residents who are members of the Selected Reserves or the Ready Reserves to speed up their naturalization in times of war or hostile military operations, allows spouses, unmarried children and parents of those killed in military service to file or preserve already filed applications for permanent residence, and speeds up the process for granting posthumous citizenship to those killed in battle.

Detention

by | Nov 28, 2014 | Visas

MANDATORY DETENTION

The 1996 immigration law instituted harsh measures which required the detention of aliens without hope of bond or parole. The new provisions were not put into effect until October 9, 1998, when the Transition Period Custody Rules expired.Arriving aliens who are subject to expedited removal must be detained until they are removed from the United States, unless 1) parole is required to meet a medical emergency or legitimate law enforcement objective, or 2) the alien is referred for a full hearing in front of the Immigration Judge.

Arriving aliens requesting asylum are detained. If there is not enough space to detain an alien, and the alien is claiming asylum from a country other than Mexico or Canada, the alien may be required to wait in Mexico or Canada until his or her asylum claim is decided. Aliens requesting asylum may be paroled for humanitarian reasons.

Aliens completing criminal sentences will be taken into custody by INS and will generally remain detained throughout immigration court proceedings without hope of bond. The INS is required to detain all aliens chargeable as terrorists and almost all aliens who are chargeable as criminals. Mandatory detention does not apply to the following groups of aliens:
1) aliens who are removable or deportable for a single crime involving moral turpitude, if they were sentenced to less than one year;
2) aliens who are removable for a conviction for high-speed flight from an immigration check point; and
3) aliens who are removable for domestic violence, stalking and the abuse or neglect of children.

After being taken into custody by the INS, an alien may only be released if it is necessary to protect a witness, a person cooperating with an investigation, or a family member of such a person. To be released, the alien must also show that he or she would not pose a danger to persons or property and that he or she does not pose a flight risk.

Additionally, all aliens who have final orders of removal or deportation are subject to mandatory detention. This includes all aliens ordered removed, even if they have not been convicted of any crime. INS is required to remove or deport within 50 days all aliens under final orders of removal or deportation. However, if INS is unable to remove or deport any alien under a final order within 90 days, the alien should be released under an order of supervision. This provision for release, however, does not apply to aliens inadmissible on any ground, those who are deportable or removable on criminal or security grounds, those who are dangerous and those who are flight risks.

Moreover, aliens under final orders of exclusion must be detained if they have been convicted of an aggravated felony. Aliens placed into immigration court proceedings before April 1, 1997 who were ordered deported or excluded are only subject to mandatory detention if they are terrorists or are convicted of certain crimes. If not, they will be detained on a discretionary basis, and if they have a final order of deportation or exclusion, their detention is high priority to INS.

Thus, people who have been permanent residents for many years and who may have a family to support, will be subjected to mandatory detention without hope of bond or parole should they be convicted of a crime (with a few exceptions), even if it is only their first offense. Moreover, because of the change in policy towards asylum seekers, many people who have suffered persecution in their home countries are being detained throughout their immigration proceedings in the United States.

Business

by | Nov 28, 2014 | Visas

FORMS OF DOING BUSINESS IN THE U.S.

The United States of America prides itself on providing a free and fair environment for establishing and running a business. During the entire history of the U.S., immigrants from all over the world have played a key role in establishing and running successful businesses which not only help them achieve the American dream but also played a key role in the economy by providing jobs to U.S. workers. The U.S. Congress has enacted certain immigration laws that permit the temporary and permanent stay of business people in the U.S. However, the business should be a legal entity and in compliance with local, state and federal laws.

There are many ways of running a business. First, one may operate a business as a sole proprietorship if there is only one owner. The owner is personally liable for all the debts, taxes and liabilities of the business, as well as claims made against employees acting within the scope of their employment. The owner reports and pays taxes on the profits of the business on his or her individual income tax return.

A CORPORATE OFFICER, DIRECTOR, OR SHAREHOLDER IS USUALLY NOT PERSONALLY LIABLE FOR THE DEBTS OF THE CORPORATION

Second, a partnership is a business owned by two or more people. The partners usually have a written agreement. However, an oral agreement is enough to create a partnership. If there is no specific agreement between the partners on business issues, then the law of the particular state it is located in controls. Each partner can individually hire employees, borrow money, and perform any act to run the business. Each partner includes his or her share of the profits on his or her individual income tax return. Each partner is individually liable for the debts and taxes of the partnership.

Third, a limited partner, with one or more general partners, may form a limited partnership. A limited partner can invest in the partnership without incurring personal liability for the debts of the business. If the business fails, the limited partner only loses his or her capital investment. However, the limited partner cannot participate in managing or controlling the business.

Fourth, one may do business as a corporation. A corporation is considered a legal entity separate from the people who own or manage it. The corporation is a legal person, able to enter into contracts, incur debts and pay taxes. The corporation is taxed separately from the individuals who own it. A corporate officer, director, or shareholder is usually not personally liable for the debts of the corporation. This means that if you invest in a corporation, and the business does not do well, you will only lose the amount of money or the value of the property you contributed as stock. Creditors of the corporation cannot usually seize the corporate investor’s home, or other personal assets.

CREDITORS OF THE CORPORATION CANNOT USUALLY SEIZE THE CORPORATE INVESTOR’S HOME, OR OTHER PERSONAL ASSETS

There are some exceptions to the rule of limited liability for corporate officers, directors, and shareholders. For example, if a bank loans money to a new, small corporation, it may require the owners to use some of their personal assets as security for the debt. Additionally, if the corporation has failed to pay income, payroll or other taxes, the IRS will try to recover the unpaid taxes from responsible employees if they are unable to collect the taxes from the corporation.

Under New York law, the 10 largest shareholders of privately-held corporations are liable for the payment of wages due to the corporation’s employees. Another example of personal liability is when the owners of the corporation use it as a means to defraud third parties, or if they do something on behalf of the corporation which they are unauthorized to do, they can be held individually liable for any harm done to others.

TN Visas

by | Nov 28, 2014 | Visas

TN VISAS FOR CANADIAN AND MEXICAN CITIZENS

On October 16, 2008, the USCIS issued a new regulation extending the period of stay for TN visa holders from one year to three years.  TN visa holders may also request extensions of stay of three years.

The category “Professionals Under the North American Free Trade Agreement” is available only to citizens of Mexico and Canada. Under the North American Free Trade Agreement (NAFTA) a citizen of a NAFTA country may work as a professional in another NAFTA country provided that
1) the profession is on the NAFTA list,
2) the alien possesses the qualifications for that profession,
3) the job is a professional one and
4) the alien is going to work for a U.S. employer. The spouse and unmarried, minor children of the principal alien may accompany the alien to the U.S., but they are unable to accept employment in the United States. TN status is temporary.

Canadian citizens are not required to obtain a visa, but instead receive TN status with the Immigration Service at the port of entry. The TN status will only be granted if the period of stay is temporary. The requirements for Mexican citizens are more stringent. The prospective employer must file a labor condition application; and a petition with the USCIS, and after the petition has been approved, the alien must apply for a non-immigrant TN visa at a U.S. Embassy or Consulate in Mexico.

Requirements for Canadians and Mexicans wishing to renew their TN status are not the same. Applications for extension of stay are processed by the USCIS. Canadian citizens have two options. First, they may have their employer file a petition with the USCIS. This option does not require leaving the U.S. Second, Canadians may return to Canada to re-apply at the port of entry with the same documentation that is required for an original application. Mexican citizens must have their employers renew their labor condition application and file another petition with the USCIS in order to extend their stay.