The American Institute in Taiwan may see start seeing fewer requests for B-1 and B-2 tourist visas, thanks to a new policy announced by the U.S. Department of Homeland Security (DHS). Citizens of Taiwan are now eligible to participate in the Visa Waiver Program (VWP), starting on November 1, 2012.

The VWP allows citizens of 37 countries to travel to the U.S. for up to 90 days at a time for purposes of business or tourism. Instead of applying for a visa in advance, which requires showing up for a personal interview and providing extensive documents, VWP travelers simply apply for authorization through what’s known as the Electronic System for Travel Authorization (ESTA).

The VWP is not without its disadvantages, however. For example, you cannot apply to extend your VWP stay, but must leave the U.S. within the allotted 90-day period. For further details, see Nolo’s article, “Who Can Visit the U.S. Under the Visa Waiver Program (VWP).”

The U.S. government predicted that about 1.04 million people would apply for DACA deferred action (for undocumented foreign-born persons who arrived in the U.S. as children) in the first year of the program, according to a Huffington Post report. Thus far, only about 80,000 people have applied, according to a story by immigration blogger Matthew Kolken. What’s more, the intial flood of applications has already turned into a trickle.

What’s going on? It may be that concerns over the risks of applying or the outcome of the election are at work.

For analysis of those topics, see the following articles on Nolo’s website:

• “Risks and Downsides of Applying for DACA“
• “Who Shouldn’t Apply for DACA Deferred Action“
• “Should I Wait Until After the 2012 Election to Apply for DACA?“

Another important step, if you’re considering applying for DACA, would be to consult with an experienced immigration lawyer. The good thing about having waited this long is that lawyers are learning more about the application process every day, and are in ongoing communication with the immigration authorities about how the program is being implemented and how the eligibility rules are being interpreted.

Today’s the day (October 2, 2012) to enter the annual Diversity Visa Lottery (DV-2014)! That is, if you’re from one of the eligible countries and have the proper educational or work background, as described in “Do You Meet the Education or Work Experience Requirements of the Diversity Visa Program?”

Entries can be made only online, via the State Department’s lottery page. The final day for registering is November 3, 2012 at noon Eastern time.

Registration is free, so don’t be fooled by scam artists wanting to charge money to help you enter! Also be sure to read the articles on the “Diversity Visa Lottery Green Cards” page of Nolo’s website, which will not only provide further information on this topic in plain English, but help you understand what happens if your name is drawn as a “winner.” You’ll need to act quickly in order to turn that winning slot into an actual green card.

No less a news source than The New York Times has entered into the public debate about how best to describe foreign-born people living in the U.S. without permission. (See “Is ‘Illegal Immigrant’ the Right Description?,” by Margaret Sullivan.)

At last count, close to 300 people had entered comments on this article, representing every opinion from “Illegal alien is short, sweet and concise” and “A criminal is a criminal” to “Bigots and xenophobes happily use the term in their efforts to disparage, dehumanize, and condemn” and “Being inside the US without proper documentation is not an illegal act. Even less, the person that is doing it.”

I’ll put my two cents worth of legal insights on this matter here — and try to steer clear of thoughts on overall U.S. immigration policy.

1) Being in the U.S. without permission, whether due to an illegal entry or having overstayed a visa, is not a crime. It’s a civil violation. That may sound like a distinction without a difference, but you have only to look at the comments themselves to see how many people make a quick leap from “illegal” to “criminal.” A friend of mine who taught grade school once told me that some of her students expressed the opinion that border crossers should be shot on sight, because they were criminals. That suggests to me that the word “illegal” is being thrown around too loosely. (For the record, crossing the border without authorization is in fact a federal misdemeanor, under Title 8 Section 1325 of the U.S. Code, but the potential punishment is a fine of between $50 and $250 and/or a maximum of six months in jail — certainly not the death penalty).

2) The starkness of the word “illegal” implies that it’s easy to judge who has a right to be in the United States. It’s not. The complexities of immigration law have given rise to many gray areas. For example, the whole system of applying for asylum as a means of gaining protection from persecution in one’s home country presupposes that the person is already in the United States. But how are you supposed to get to the U.S., particularly if you’re, say, a Guatemalan peasant whose chances of gaining a U.S. entry visa are just about nil? Countless such people have entered the U.S. without permission and applied for asylum, and the U.S. has, where appropriate, granted their requests. Until their applications were accepted for processing, they could only be called “illegal” under the prevailing terminology — and yet, had they been arrested and placed in deportation proceedings, the law would have given them every right to apply for asylum as a defense. I don’t believe that such people are who most of the U.S. public think of when they hear the word “illegal,” but such cases are swept up into this overly broad term.

As another example of the gray area, I spent years of my practice as an immigration lawyer helping prepare applications for family members of U.S. lawful permanent residents who were waiting unlawfully in the U.S. for a visa to become available to them. Annual limits on the number of available family-based green cards mean that if you’re, say, the 22-year old daughter of a green card holder, you’re looking at an eight-year wait before you can legally enter or remain in the United States and join your perfectly legal family there. (The wait is much longer for family members from Mexico.) But because of legal bars to reentry that punish people for unlawful status, leaving the U.S. would have actually been the worst thing many such family members could have done — and the immigration authorities, recognizing this conundrum, actually assured immigration lawyers that they would hold off on enforcement activities against such family members. Yet without another word for them, they too are part of this “illegal alien” population.

Here on the Nolo site, we try to use the word “undocumented” whenever possible. It may not be perfect, but at least it recognizes that the person’s status may not be fixed. An “undocumented” person may, for more reasons than the public realizes, someday become “documented” under U.S. law.

Wondering whether you can enter the United States green card (diversity visa) lottery this year? The U.S. Department of State (DOS) just published the instructions, which includes this year’s list of eligible and non-eligible countries. As you may know, the visa lottery is open only to natives of countries whose citizens are the least represented when it comes to U.S. immigration, so the list changes annually.

For DV-2014, here’s the list of countries whose natives are not eligible to register:

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

If you don’t see your country’s name on the list, and you meet the other eligibility requirements (described at “Winning a Green Card Through the Visa Lottery“), you are free to submit a registration, which you can do between noon on October 2, 2012, and noon on Saturday, November 3, 2012. (These are Eastern Daylight Time (EDT) (GMT-4).) Last year’s country list included Guatemala, but not this year’s!

A recent case out of the Third Circuit Court of Appeals, called HECTOR DURAN-PICHARDO, Petitioner v. ATTORNEY GENERAL OF THE UNITED STATES, is a good reminder of why attending and passing your naturalization interview (for U.S. citizenship) is not enough by itself. You’ve got to actually complete the oath ceremony before you will be considered a U.S. citizen — and receive the benefits and protections that come with that status.

Mr. Duran-Pichardo, originally from the Dominican Republic, became a U.S. lawful permanent resident in 1981. He applied for naturalization in 1997, and attended his naturalization interview in 1998.  Apparently, he passed the examination, though he was given only a document stating that the “INS will notify you later of the final decision on your application.”

The trouble arose when the INS never got around to sending him that “decision,” much less an appointment for his oath ceremony. Mr. Duran-Picardo tried to call the agency many times, but says he ultimately was told that all or part of his naturalization file had been lost. At that point, he seems to have given up.

That was a bad idea, especially in light of Mr. Duran-Pichardo’s later activities: In 2008 (nearly ten years later), he pled guilty to conspiracy to distribute and possess narcotics and possession with intent to distribute cocaine. The sentence was 51 months’ imprisonment.

Later in 2008, the U.S. government began removal proceedings against Mr. Duran-Pichardo, alleging that he was deportable both due to the controlled substance violation and as an aggravated felon. In his defense, he claimed that he was either a U.S. citizen or should have been, given that the U.S. government itself was at fault in failing to finalize his naturalization application.

That argument got him nowhere. As is typical in cases where the U.S. immigration bureaucracy is at fault, it takes no responsibility for the consequences. This also illustrates the severe immigration consequences of any type of drug crime.

This case might not create much sympathy or worry for other U.S. citizenship applicants who think, “No problem, I’m not planning to sell drugs.” Nevertheless it’s an important reminder of the need to track the scheduling of your citizenship oath ceremony, and attend it when scheduled. Far less severe actions than a drug crime can make a person deportable — for example, see my article, “Can I Really Be Deported for Failing to Advise USCIS of My Change of Address?” What’s more, you need to maintain your eligibility for citizenship right up to the day of the oath ceremony. The longer it gets put off, the greater the risk that something will happen to affect your eligibility.

It’s August 15th, the forms have been created and the procedures announced.

Now all U.S. Citizenship and Immigration Services (USCIS)  has to do is deal with the anticipated flood of applications for “deferred action” from young undocumented immigrant students and graduates in the United States. This temporary status will give them protection against deportation and a work permit. Up to 1.7 million people may qualify for the program, and news reports describe excitement as many prepare to apply.

Given USCIS’s history of slow action on applications, however, I wouldn’t advise these students to look for an immediate job — maybe not even a holiday temp job. For one thing, all applicants must undergo background checks, in which they’re called in for fingerprinting and the results are run through an FBI database. That alone typically adds weeks to any immigration application process. (But let’s hope I’ll be pleasantly surprised.)

For more information on the deferred action eligibility and application procedures, see Nolo’s articles, “Who Qualifies for Deferred Action as an Immigrant Student or Graduate,” and  “Deferred Action for Young Immigrants: Application Process.”

According to MSN‘s rather tabloid-y “Movie News,” Actress Rachel Weisz “now admits she applied for [U.S.] citizenship to ensure she would not be stripped of her permanent residence status if she decided to move back to Britain.”

Shock and horror! Okay, it’s not exactly a showstopper of an “admission.” In fact, it sounds to me like Ms. Weisz is getting better legal advice than some green card holders, who operate according to various myths like, “I can keep my green card as long as I visit the U.S. every six months.”

The truth of the matter is that once a person receives U.S. lawful permanent residence (a green card), that person is expected to actually reside, otherwise known as live, in the United States. If a green card holder’s main home is in another country, it doesn’t really matter how much time the person spends there — the U.S. authorities can deny reentry to the U.S. and cancel the green card on grounds of abandonment of residence.

So, ironically, becoming a U.S. citizen will allow Rachel Weisz to spend less time in the United States. But don’t worry — having recently spent $11.5 million on a New York penthouse to share with new husband Daniel Craig, Ms. Weisz will probably be spending plenty of time here.

For details on abandonment of residence, see the articles on Nolo’s website under, “After Getting Your Green Card: How to Keep It.”

When I first started writing about immigration law matters for Nolo, my editor was always after me for overusing the word “should.” You “should” get a receipt notice from the Immigration Service Center, I would say; the immigration authorities “should” process your application within several weeks; you “should” be called in for an interview.

The trouble was, telling readers that any of these things “will” happen flies in the face of reality, both then and now. A recent “success story” by California attorney Carl Shusterman provides a great illustration of why. As you can see from the article (“Success Story: Appeal Granted After Misplaced File and Misinformation” — scroll down to item five), some of the bureaucratic craziness that this applicant had to put up with included:

• USCIS denying a waiver request with no mention of, and therefore no evidence that the agency had considered, the facts of the case and the evidence submitted
• a denial letter that said on one side that the applicant could appeal — while saying on the other side that she could not
• USCIS misplacing her case file after she had submitted an appeal, and
• a year-long wait for transfer of the file to the appropriate office.

Fortunately, the story has a happy ending: The file was finally located and the waiver granted. But the frustration, and long hours of legal work that must have gone into this were no doubt intense — and well known to anyone who practices immigration law. It’s part of why I got out of active law practice. And it’s a big part of why any immigration applicant should think seriously about hiring an experienced attorney.

Being a U.S. citizen comes with the right to a U.S. passport, right? Yes, but . . . what many passport applicants don’t realize is that proving your citizenship, and therefore your right to a passport, is up to you. What’s more, passport denial is sometimes used as a way to enforce other U.S. laws.

If you are applying for your first U.S. passport, the required form (DS-11) will ask you for proof of your citizenship, and suggest documents that you should provide.  Even after you’ve done so, the U.S. Passport Agency may ask for more. Let’s say, for instance, that you were born at home on the U.S. side of the Mexican border (rather than in a hospital, which would have created a U.S. birth certificate for you), and then were raised in Mexico. To prove that you’re a citizen, the Passport Agency may want to see your medical records, any relevant other public records having to do with your family, evidence of your parents’ residence in the U.S., your siblings’ birth certificates, and so on.

As for when a passport may be denied for law enforcement purposes: As of 2010, the U.S. Passport Agency checks the FBI database whenever it processes a passport application (new or renewal). If you have an outstanding warrant in any county in the United States, a federal warrant of arrest, a federal or state criminal court order, a prohibition on leaving the U.S. (or the jurisdiction of the court) as a condition of parole or probation, or a request for extradition on your record, you will not qualify for a passport until you have cleared the issue up.

Another question that may arise is whether the passport you are trying to renew, or your underlying U.S. citizenship, were obtained fraudulently. If such evidence comes up; for example, if your certificate of naturalization has been cancelled by a federal court; you will not be given a new passport. Negative evidence may also come up in the context of a suspicious situation that the Passport Agency is monitoring. For example, the U.S. government has stated within the past year that Texas has a “fraudulent midwife problem.” Thus the Passport Agency keeps a list of midwives suspected of providing  false evidence that people were born in the United States.

In addition, passport applicants who owe child support in amounts over $2,500 can expect to see their passports denied. For details on this, see Nolo’s article, “Passport Denial for Failure to Pay Child Support. “