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.

California’s Missteps in Designing Drivers’ Licenses for the Undocumented

freewayNeed an example of the ambiguous, half-recognized place that undocumented persons hold in the U.S. today? Look no farther than reports of California officials’ recent efforts to come up with a design for a drivers’ license, to be available to undocumented residents of this state under the terms of a new law passed last year.

The designers were, in essence, tasked with creating a card that would be distinctly different from the drivers’ license carried by ordinary residents—which, in the absence of a national identity document, is often seen as the practical equivalent to a national identity document—but not a card that screams, “Illegal alien!” to anyone who might then be prompted toward discrimination and harassment.

The first try unfortunately failed to pass muster with the Department of Homeland Security (DHS). The feds deemed California’s card design, which had the code “DP” (for “driver’s privilege” rather than “driver’s license”) on the front, and the words “This card is not acceptable for official federal purposes” on the back, to be too subtle. They want the latter wording moved to the front.

So, it’s back to the drawing board for the designers. I don’t envy them this task. They’re creating a card that represents layers of possible meaning, including, “I have an acknowledged place in this state, I have passed the driving exam, my rights have been recognized in other ways (such as that to attend public schools and be fairly treated by employers), but by the way, I don’t have lawful immigration status.”

Immigration reform, anyone?

Bizarre New Enforcement Practice — Arresting Departing Nationals of Mexico

ICE arrestI nearly drove my car off the road yesterday listening to NPR’s report on “The Curious Practice Of Bringing Immigrants Back — To Deport Them.” This is truly something new in the world of immigration enforcement.

U.S. Customs and Border Protection officers are not only questioning people coming into the U.S., but addressing questions in Spanish to those driving or riding buses out of the U.S. into Mexico.

Their main goal is apparently to check for evidence of drug trafficking, such as transporting large sums of illegally obtained money. But apparently CBP officials have decided that, while they’re at it, they might as well arrest a few folks who were living in the U.S. without documents — even ones who’d committed no crimes and were minutes away from returning to Mexico anyway!

No one interviewed for the report, regardless of political affiliation, thought this was anything more than a waste of money and time. It’s especially bizarre at a time when — due to the government’s limited resources — the administration has specifically instructed immigration officials to follow a policy of “prosecutorial discretion,” focusing on deporting only those people who present the greatest risk to U.S. society.

And there’s been plenty of political talk of promoting “self-deportation,” too, which it appears some of the departing Mexicans were in the very process of doing.

Hard to say whether this new arrest pattern is misguided, mean-spirited, or simply motivated by some local CBP officers’ wish to get their arrest numbers up and then call it a day.

Do the Signers of the “Deport Justin Bieber” Petition Really Want the White House to Have Such Power?

whitehouseAs widely reported, the petition to the White House to deport pop-singer Justin Bieber, which garnered over 273,00 signatures, recently received an official response. The Administration said, in relevant part, that:

The We the People terms of participation state that, “to avoid the appearance of improper influence, the White House may decline to address certain procurement, law enforcement, adjudicatory, or similar matters properly within the jurisdiction of federal departments or agencies, federal courts, or state and local government in its response to a petition.

According to the Washington Post article on the topic by Helena Andrews, the bottom line here is that “the buck has officially been passed.”

No, the buck has not been passed. The buck was never with the White House in the first place. There is simply nothing in U.S. immigration law that allows the White House (or any other law enforcement authority for that matter), to deport a non-citizen simply because that person “is . . . a terrible influence on our nations [sic.] youth” and the “people” of the U.S. “would like to remove [him] from our society.”

Before the U.S. deports someone, that person has to have done something that matches one of the grounds of deportability set out in the Immigration and Nationality Act. Just a little something called the “rule of law” in our democracy.

And the White House itself wouldn’t be the one to initiate the removal proceedings — that’s the job of the Department of Homeland Security. DHS is, to be sure, an Executive Branch agency — but again, the White House’s basic policy is to not go meddling in the  jurisdiction of such departments merely because a tiny portion of the U.S. population put their names on a petition.

That’s not to say that Bieber’s recent antics and run-ins with the police and U.S. border officials haven’t skated dangerously close to making him deportable. (For more on that, see my earlier blogs,  “Justin Bieber: “Stuck in the Moment” of a Pending Removal Proceeding,” “Oh, and Justin Bieber’s Alleged Assault on a Limo Driver Probably Won’t Get Him Deported, Either,” and “The Justin Bieber Immigration Chronicles, Continued.”)

But if non-Beliebers feel that Justin should be deported for those actions, then putting pressure on Congress to make the immigration laws even harsher than they already are would be the appropriate route. The idea that a petition to the White House could result in someone’s deportation, however, without reference to the legal grounds for it, is just plain scary.

Why Give Birth in the U.S. When a Surrogate Can Do It For You?!

pacifierIt was only a matter of time, really. First, there was “birth tourism,” in which people from around the world who are interested in gaining a foothold in the U.S. arrange to enter as tourists and have a child here — their own little U.S. citizen “anchor baby.”  (See details in my earlier blog, on “Anchor Babies in the News.”)

Now, some parents are avoiding that nerve-wracking plane ride while pregnant, and simply arranging to have surrogate women in the U.S. give birth and cede their parental rights to them. For real. You can read about it in California Lawyer magazine.

This strategy doesn’t work in every U.S. state (because many state legislatures have made surrogacy contracts illegal or unenforceable), but it works in California, which is plenty convenient for the many Asian couples going this route.

I do need to take issue with one statement in the article on “Having a Citizen Baby,” however. It says that, “At $100,000 to $200,000–which includes legal fees, insurance, medical care, and $30,000 to $45,000 for the surrogate–hiring a surrogate is still much cheaper than taking another fast track to legal residency: paying $500,000 or more for an entrepreneur visa.”

The surrogacy route is no “fast track” to legal residency, other than for the baby, who wasn’t exactly worried about immigrating to the U.S. in the first place. Mom and dad still must wait 21 years outside the U.S. before gaining any rights here (also described in my earlier blog post). The entrepreneur or investor visa, by contrast, allows parents and children to enter the U.S. right away.

But the surrogacy route offers certainty for at least one member of the family, and doesn’t carry the risk that the business upon which the investor visa was based will fail within the  first two years–in which case green card eligibility is lost.