Diane Guerrero’s Story of Parents Being Deported Represents Experience of Thousands of Children

ICE arrestActress Diane Guerrero (“Orange Is the New Black,” “Jane the Virgin”) recently described her traumatic experience, at age 14, of coming home to find that her parents had been picked up by U.S. immigration authorities. They were detained and ultimately deported. (See “Op-Ed ‘Orange is the New Black’ actress: My parents were deported.”)

She literally came home to an empty house, receiving no communication, much less help, from U.S. authorities. Only by relying on help from friends was she able to keep her life together and ultimately achieve the success that she did. (Many others aren’t so lucky.)

If that sounds like a script worthy of a movie, realize that it happens every day — no exaggeration. As described in the Huffington Post‘s article by Elise Foley, “Deportation Separated Thousands Of U.S.-Born Children From Parents In 2013,” Immigration and Customs Enforcement [ICE] last year carried out more than 72,000 deportations of parents who said they had U.S.-born children.”

That’s despite the supposedly active policy of “prosecutorial discretion,” under which ICE agents are expected to follow specific guidelines in choosing who to spend precious government resources on prosecuting, giving lower priority to cases where the undocumented immigrant is law-abiding and has ties to the U.S. such as U.S. citizen children and other family members.

In fact, Diane may have been lucky to escape U.S. government workers’ notice. The all-too-common scenario when a parent is deported is for the child to be placed into the foster care system, lose contact with the parents, and ultimately have the parents’ legal rights and relationship to them terminated. (See, “Thousands of Kids Lost From Parents In U.S. Deportation System,” by Seth Freed Wessler, Colorlines, November 2 2011.)

So, on top of using U.S. government resources to break up families, this misused exercise of discretion is costing the foster care system untold amounts. It’s a problem that could be solved without waiting for immigration reform, with more rational behavior by ICE in following its own guidelines, and attention to maintaining family ties within the foster care system. Let’s hope Diane Guerrero’s story, by putting a face on this crisis, will spur efforts in this direction.

Oh Where, Oh Where Are the O-1 Visas Going?

o letterGetting approval of any type of visa for temporary work in the U.S. involves providing stacks of paperwork to U.S. Citizenship and Immigration Services (USCIS), with the goal of proving that the applicant meets a strict set of legal criteria. That’s part of why people hire immigration attorneys — not only to interpret the law, but to help assemble, file, and keep track of all the documents in a client’s case.

So when even the attorneys are complaining that USCIS is raising the bar on the type and amount of documents required, and ultimately reducing the numbers of approvals, you know there’s a problem. That’s precisely what’s happening in the case of O-1 visas for outstanding workers in the sciences, arts, athletics, education, or business.

According to to an October 17, 2014 report by Matthew Blake of the San Francisco Daily Journal, immigration lawyers are concerned that, “over the past year, [USCIS] has made it more difficult for their clients to get work visas, speculating that the agency is accepting more petitions for scientists at the expense of entertainers, or more cautiously following visa rules with national immigration policy in flux.” Applicants are being asked to provide “detailed, multi=year work itineraries,” and “more evidence that they are extraordinary.”

Some lawyers met with USCIS over this issue, but were disappointed at the answers (or lack thereof.) The lawyers have since requested a “summit” with federal immigration officials.

Perhaps these lawyers’ actions will bring about a resolution such that prospective O-1s can get on with their lives and visa applications. But if you are a potential O-1 seeker — especially an athlete — you’d do well to consult an attorney with lots of recent experience in this subspecialty of immigration law.

Dispelling Misleading Info About Same-Sex Marriage and U.S. Immigration

ringsWith every state that legalizes gay marriage, it gets a little easier for binational couples across the U.S. to marry and obtain a green card on that basis.

But let’s get one thing clear: It’s not critical that the state where the couple live have legalized same-sex marriage, nor that they get married there in order to claim immigration benefits. Ever since last year’s Windsor decision by the U.S. Supreme Court, a same-sex marriage in ANY STATE OR COUNTRY WHERE IT’S LEGAL has been enough to support the non-citizen’s application for a green card. (See Nolo’s article, “Same-Sex Marriage Now a Basis for U.S. Lawful Permanent Residence (a Green Card)” for more on this.)

This simple truth makes it downright puzzling to see an article like “Worries lessen for Virginia gay immigrants, who can now marry” in the Washington Post, by Pamela Constable. If I didn’t already know better, I would have come away from the article thinking that the Virginia-based binational couples profiled were in an absolute trap until Virginia legalized same-sex marriage – that they were unable to get the foreign-born person a green card (lawful permanent residence) based on their relationship.

The article describes the situation of a Richmond couple, for example, one member of whom is from Paraguay, as follows: “because . . . the two men could not marry without starting over and moving to another state, they faced constant financial, legal, and emotional strains.”

But, but, but . . . they could’ve traveled to another state or country that allows same-sex marriage months ago, and held a wedding without doing anything close to “starting over!”

States vary in what they require of couples who want to marry there, of course. Nevertheless, in California, Hawaii, New Mexico, and most of the other states where same-sex marriage is legal, you can get married with no residency requirement and minimal or no waiting period, immediately after receiving your marriage license. (See Nolo’s “Chart: State Marriage License and Blood Test Requirements” for more information, as well as “Where Can We Marry?” by the organization Immigration Equality.)

Constable quotes a member of another binational couple profiled in the article as saying, “This news came just in the nick of time,” before the non-citizen’s work visa ran out. Guys, Virginia is a quick trip away from Maryland as well as Washington, DC. Neither impose any residency requirements before marrying, and their waiting requirements are a mere few days after getting the marriage license. I’ll bet they’ve got many lovely wedding venues, too!

The article does mention that some binational couples in Virginia have already married in DC or Maryland, but you’ve got to read pretty far down to catch that. And I get it that having to travel far from one’s home base and bring friends along, too, would be a royal pain. So the news from Virginia is definitely good for binational couples there – it’s just not as monumental as it sounds.

Diversity Visa Lottery Officially Open!

enter to winHave you entered the 2014 visa lottery yet? (Officially called DV-2016, based on the year in which visas will actually be awarded.) It’s one of the best opportunities that people with no previous ties to the United States (such as a family member or a job offer) have to get a U.S. green card (lawful permanent residence).

Registration just began, on October 1, 2014. It’s open to the same group of countries as last year — which means most of the countries in the world — with the exception of citizens of the following, who are already considered to be over-represented in U.S. immigration numbers (based on recent entry statistics) and are therefore NOT ELIGIBLE:

  • BANGLADESH
  • BRAZIL
  • CANADA
  • CHINA (mainland-born)
  • COLOMBIA
  • DOMINICAN REPUBLIC
  • ECUADOR
  • EL SALVADOR
  • HAITI,
  • INDIA
  • JAMAICA
  • MEXICO
  • NIGERIA
  • PAKISTAN
  • PERU
  • PHILIPPINES
  • SOUTH KOREA
  • UNITED KINGDOM (except Northern Ireland) and its dependent territories, and
  • VIETNAM.

You must, however, meet certain educational and other requirements in order to apply. See the State Department’s instructions for details.  Also realize that “winning” the lottery — that is, having your name selected — does not guarantee you a U.S. green card. In fact, the U.S. government always selects more names than it can actually grant green cards to, and only the applicants who can move through the system quickly and efficiently will succeed. See the “Diversity Visa Lottery Green Cards” page of Nolo’s website for details. And good luck!

We’re All Affected by Cutoff of Investor Visas for Chinese Nationals

iStock_000004626357SmallAs described in Nolo’s update, “EB-5 Visas for Chinese Nationals Become Temporarily Unavailable for the First Time,” investors from China used up their 7% share of the 10,000 visas allotted in the investor-visa category in 2014, and the State Department is apparently ending its policy of letting them take the extra visas left over from other countries.

That’s a problem if you’re a national of China who was hoping to obtain a U.S. green card (lawful permanent residence) by making a minimum $500,000 investment in a U.S. company (category EB-5).

But as explained by attorney Jim Butler in his article in the San Francisco Daily Journal, “Immigrant investor visas threatened,” the fact that China hit the limit this year could also be a problem for the U.S. economy.

EB-5 visa applicants don’t typically start their own little businesses. Instead, they look to streamline the process by going through agents and middlemen who arrange investments in large projects, most commonly real-estate developments. Hotels, restaurants, night clubs, and senior living facilities in the U.S. have all been major recipients of Chinese investment money. The last Marriott or Hilton you stayed in may have been the result of a Chinese citizen’s wish to obtain a U.S. green card.

Will other countries take up the slack? Not much, if they haven’t so far. Butler says, “China is where the program is best understood, where a sophisticated system of marketing agents is available to help American developers find investors, and where the population has the largest interest in U.S. immigration and the willingness to pay for it.”

So, the next Marriott or Hilton you were hoping to stay in may just be a hole in the ground until and unless someone takes steps to fix this! And why shouldn’t they fix it, given the shot in the economic arm such investments provide? But the State Department’s policy reversal seems to indicate that someone up there is thinking more about the letter of the law than economic common sense.

Need to Find Relative Arrested by Immigration? See Online Detainee Locator

usmexicoSometimes what’s going in in the headlines becomes all too personal. That’s what happened for me recently, when a friend called to say that her cleaning woman from El Salvador was in a panic, having received word that her sisters had been arrested by immigration authorities after crossing the border into Texas. They’re apparently part of the flood of young people fleeing countries beset by violence, attempting to cross the Mexican border into the United States.

The first question then becomes, “Where are they?”

Back when I was actively practicing immigration law, this question could take days of calling detention centers and desperately begging information out of disinterested guards and officials. But now there’s an “Online Detainee Locator” provided by Immigration and Customs Enforcement (ICE).

Would it work?

At first, no. (Probably not too surprising — data entry may not be the first thing on the to-do list after an immigrant is arrested.) But within about 15 hours, voila — we entered a name and birth date and received the name of the detention facility where one sister was being held, as well as a phone number for reaching that facility. The U.S.-based sister was able to call the facility and get more information about the status of her sister’s case.

Whether the online system is always this workable, I can’t say. It’s easy to imagine situations where the name might be misspelled, or a birth date taken down inaccurately, leading to a complete info void.

And an even more difficult aspect of the system is that it’s mostly in English. Yes, you can choose other languages from a dropdown menu when you first perform the search, but as far as I could tell, this doesn’t lead to any different screens when it’s time for the results.

Still, it was immensely satisfying to see the name pop up and know that, as alarming as the news of the arrest was, the sister hadn’t just disappeared into the system. Now, if Congress would only come up with an intelligent and humane way to deal with this influx.

Want to Know Who’s Actually Getting DACA Approval?

Graduation-5502U.S. Citizenship and Immigration Services (USCIS) just published its first-ever report summarizing the “Characteristics of Individuals Requesting and Approved for Deferred Action for Childhood Arrivals (DACA).”

The report supplies demographic information about people who requested DACA between August 2012 to September 2013 and were approved by January 2014, in these categories:

  •  age range
  • gender
  • country of birth
  • marital status
  • state of residence

Citizens of Mexico are, to no one’s surprise, the largest pool of applicants by far, followed by El Salvador, Honduras, and Guatemala. But plenty of other countries’ citizens applied, as well. Even the bottom four countries on the list Poland,  Nicaragua, Nigeria, and Guyana, had over 1,000 applicants each.

As for age, the majority are 19 and under, followed closely by the 20 to 24 age group. This isn’t too surprising either, given the age-related requirements for DACA (see Nolo’s article on, “Who Qualifies for Deferred Action as an Immigrant Student or Graduate (DACA).”) There was no clear winner between number of male and female applicants and DACA recipients.

And you get no points for guessing which state most applicants applied from: California, of course! Texas a close second.

 

Nifty Calculator for Figuring Out When to Renew DACA Status

Happy Young Hispanic Boy with Backpack Ready for School.If you have DACA (Deferred Action for Childhood Arrivals) status in the U.S., which lasts for two years at a time, you may have heard that renewals are now possible — and encouraged, if you don’t want to lose your work permit and start accruing “unlawful status.”

For details on how to renew, see Nolo’s update, “DACA Program Now Open for Renewals; Plus New Form I-821D.”

Timing is crucial. If you apply more than 150 days before your status expires, U.S. Citizenship and Immigration Services (USCIS) will reject and return the application to you. But if apply fewer than 120 days before your status expires, USCIS may not have time to process and make a decision on your application, and you could lose your job and end up with a gap in status (assuming you’re eventually approved).

Have you ever tried counting out days on a calendar? It’s a pain. That’s why applicants might be grateful to see that the National Immigration Law Center (NILC) has come up with a handy calculator that figures out exactly the best window of time in which to apply. Just click the “THIS TOOL” link, enter the expiration date on your work permit (EAD), and the appropriate dates will pop up.

 

When Lawyers for the Other Side Reveal Your Immigration Status

briefcaseLawyers tend to take very seriously their duty to keep their own client’s confidential information — otherwise known as secrets — to themselves.

But guess what: They get a little fuzzier on the question of whether that duty extends to the clients on the other side of a case, for example in a divorce or other civil case, or in a criminal case.

And in a particularly ugly example of how this can play out, the State of Washington’s Latino/a Bar Association (LBAW) has been investigating cases of “immigration retaliation” — in which an attorney “harasses, coerces, or intimidates another person using that person’s actual or perceived immigration status.”

This comes from an article called, “The Unethical Use of Immigration Status in Civil Matters,” by M. Lorena Gonzales and Daniel Ford, in the March, 2014 issue of NYLawyer.

Put in starker terms, immigration retaliation encompasses actions like notifying immigration enforcement authorities that an undocumented person is expected to arrive at a certain courthouse on a certain date; or that a woman participating in the prosecution of a domestic violence case may have no legal status. (“May” being the operative term here — the article discusses cases where the U.S. authorities, after being “tipped off,” wrongly detain the immigrant.)

Thankfully for immigrants in the State of Washington, the state bar association issued a formal ethics opinion several years ago prohibiting lawyers from threatening to report someone to the immigration authorities in order to “gain an advantage in a civil matter.”

A fat lot of good that opinion seems to have done since then, but to drive the point home, the LBAW got the Washington State Supreme Court to issue a formal comment in 2013. That comment prohibits lawyers from making inquiries into or assertions about someone’s immigration status for purposes of intimidation, coercion, or obstruction of justice.

I wonder what’s going on in the other 49 states?

In the meantime, this is a good opportunity to remind immigrants and their counsel of the availability of the U visa, which can provide temporary lawful immigration status to non-citizens assisting law enforcement.

Justin Bieber’s Immigration Woes. Again. (Sorry.)

Demonstrating for Justin BieberJustin, please tell me you didn’t get into legal trouble again.

I say that not because I’m in a moralizing mood, and not because I’m worried about what kind of example you’re setting for your fresh-faced, adoring fans.

No, I say that for one, much simpler reason.

I thought I was done writing about whether your various run-ins with U.S. law enforcement make you, as a non-citizen visa holder, deportable. Intellectually and emotionally, I am over it.

But now readers are asking, “So, is he deportable this time? The LAPD are going after him for attempted robbery! How ‘bout it? ”

Alright, here goes.

Justin’s latest “oops” was apparently grabbing a woman’s cell phone in order to erase photos that he suspected she had taken of him. (‘Cause who wouldn’t want to snap photos of the Biebs?)

If that doesn’t sound like robbery to you, read Nolo editor Micah Schwartzach’s analysis, “Breaking Down Bieber’s Alleged Attempted Robbery.”

Noncitizens of the U.S. can be deported if they commit certain types of crimes, found in Section 237 of the Immigration and Nationality Act (I.N.A.). Although some crimes are named on that list, attempted robbery isn’t one of them (nor is regular robbery.)

However, his lawyers would also want to look at whether the robbery conviction (if it indeed happens, and depending on the details) meets any of the following criteria for deportability found in the I.N.A.:

  • a crime involving moral turpitude that was committed within five years ) after the date of U.S. admission and is punishable by a sentence of at least one year
  • one of two or more crimes involving moral turpitude that took place at any time after U.S. admission, where the two crimes did not arise out of a single scheme of misconduct, or
  • an aggravated felony committed at any time after U.S. admission.

As explained further in the links provided above, the short answer is that, once again, he’s probably not deportable. Unless, that is, he gets a one-year sentence for grabbing a cell phone. Stay tuned!

Wait, no, don’t stay tuned to hear it from me. That’s it. My last blog on Justin Bieber. I swear it.