What Will Happen If Dozens of Immigration Judges Retire?

Swimming pool at VIP villas, Antalya, TurkeyAccording to a recent report by Laura Wides-Munoz for ABC News, nearly half of the nation’s 220 immigration judges (IJs) will be eligible for retirement next year, in 2014.

I’ve got to confess, my first reaction upon reading that was to think “Phew, I know of one or two judges who should have found themselves a sunny beach in Florida years ago.” (More on that, I shall not say.)

But apparently, clearing away deadwood comes at a price. Wides-Munoz identifies a number of foreseeable problems if even the average number of judges retire next year (which would be 11), and quotes the president of the National Association of Immigration Judges as saying that the increasing difficulty of the job may push that number up higher.

It’s a burnout job. IJs deal with a complex law, a high number of unrepresented noncitizens, a lack of support staff to deal with an often overwhelming caseload, the emotional toll of issuing what may be life-or-death decisions, and so on.

The main issue to do with coming retirements that Wides-Munoz  discusses is the inevitable increased delay for hearings to be scheduled and conclude.  (Many hearings last for more than one session.) This will lead to deserving cases being harder to present convincingly, and undeserving cases consuming resources if the noncitizen is in detention.

Another possible issue is that, even in the best-case scenario, in which many of the vacant positions are filled (which doesn’t look likely to happen quickly), the immigration courts will be increasingly populated by judges who don’t really understand immigration law all that well. Sure, the government will pick qualified candidates, but most immigration practitioners specialize in one area, and may be unfamiliar with others.

So, I officially withdraw my initial reaction. Don’t go! Retirement is overrated! Excessive sun exposure is dangerous!

How Much SHOULD a Diplomat’s Maid Be Paid?

illegal contractIf you’ve been following the headlines about the deputy consul general from India, Devyani Khobragade, whose arrest in New York over having submitted false documents to the U.S. government regarding the amount she was paying her housekeeper is sparking an international incident, you may have wondered: How much SHOULD she, by law, have been paying her maid?

If all that went by too fast, here’s a little more background: The deputy consul came to the U.S. on a diplomatic visa called an A-1. This visa allows its holders to bring along domestic staff from their home country — on the condition that they pay them the higher of:

  • the prevailing wage in that region, or
  • the federal or state minimum wage.

(Read more about this visa on the State Department’s page describing “Visas for Diplomats and Foreign Government Officials.”)

Ms. Khobragade brought a housekeeper along, and despite her apparent promises to the U.S. government that she would pay her housekeeper $4,500 a month, allegedly paid her a mere $573 a month, for work far in excess of 40 hours per week.

So, back to the original question regarding appropriate payment. For starters, the deputy consul obviously should have paid the amount promised in the visa application on behalf of the housekeeper, namely $4,500 a month. Making false statements on U.S. immigration applications is grounds for becoming inadmissible, that is, unable to receive future U.S. visas or immigration benefits.

As for the minimum the deputy consul should have offered, one must determine this by going to the Department of Labor’s “Foreign Labor Certification Data Center” website. For the New York Metro area, and the position of “Maids and Housekeeping Cleaners,” my search came up with a minimum figure of $10.32 per hour or $21,466 a year, which works out to $1,789 per month. Since that figure is higher than the federal minimum wage of $7.25 per hour, that’s what the housekeeper likely should have received at the very least — less than the amount originally promised, but far more than the amount apparently paid!

Obviously there are major questions about the way this case was handled, with an arrest outside the deputy consul’s daughter’s school, and alleged strip searches (looking for what?! the missing wages?). But setting that aside, should the deputy consul be allowed to claim diplomatic immunity to avoid meeting basic (and not overly generous) U.S. immigration and labor laws?

According to journalist Sandip Roy, India’s diplomats have a history of flouting U.S. labor laws. Roy concludes, “As consular staff member representing India abroad, Ms Khobragade enjoys many rights. The right to a domestic help at cut-rate wages however is not one of them.”

How Will You Know When USCIS Declares a Snow Day?

whitehousesnowWhen local schools are closed due to snow, you will usually hear it announced it on local radio and TV stations (and you can hear the cheers from around the neighborhood).

But how do you find out whether the office of U.S. Citizenship and Immigration Services (USCIS) at which you are scheduled to attend an interview or provide your biometrics has been closed due to bad (sometimes called “inclement”) weather? Sometimes the media may mention the closure of federal buildings, but it’s best not to count on this as your sole source of information.

If you have a lawyer, and he or she is a member of the American Immigration Lawyers’ Association (AILA), your lawyer will likely receive an email with any notifications of USCIS office closings.

If you don’t have a lawyer working on your immigration case, however, you may need to do a little research on your own if the weather is looking bad. USCIS does not make any attempt to reach out to people individually — trying to call or even email the thousands of people who are scheduled for appointments on a given day would probably take well into that night!

USCIS will reschedule non-INFOPASS appointments due to its own closure automatically, but that’s done by letter, and could take weeks. (If you made an INFOPASS appointment to visit a USCIS office, however, you’ll need to go online and reschedule that one yourself.)

The most reliable source of such information is on the “Field Office Closings” page of the USCIS website. On most days, it will simply say (in the top paragraph under the date) “All offices are open on schedule today.” On other days, however, this page will state which of USCIS’s offices nationwide are closed. According to a USCIS spokesperson whom I contacted, they also make an effort to advise people via social media, including the USCIS Facebook page and Twitter.

If in doubt, you could also try calling the National Customer Service Center at 800-375-5283.

If you are still in doubt, do your best to make it to your appointment. Failure to do so could result in weeks of delay at best, and possible denial of your application for immigration benefits.

Immigration Scammers Love the Uncertainty About Immigration Reform

man tearing up agreementFollowing up on recent stories about the lawsuit against so-called “American Legal Services” for defrauding immigrants (discussed in my previous blog, “This Is News: Actual Enforcement Against Shady Immigration Consultants!”), the East Bay Express produced an interesting story titled “The American Immigration Nightmare.”

It gave broader coverage to the problem of sham lawyers and consultants defrauding undocumented immigrants in the East Bay and beyond, with promises of remedies that either don’t exist or aren’t available to the person seeking assistance.

The most alarming aspect of the story was the following: “‘I anticipate the amount of immigration-consulting fraud will go up dramatically,’ said [Oakland City Attorney Justin] Nishioka, noting the White House’s recent renewed efforts to enact immigration reforms.”

Scammers love uncertainty. They prey on people’s fear that if they don’t act quickly, they’ll miss the boat, or at least fall to the back of the line. Given the power of the rumor mill, this blog probably won’t reach the people it needs to, but let me say right here: Immigration reform has NOT passed (and probably won’t until 2014 if at all), there is no new way to get a green card yet, and you should never give money to someone you haven’t thoroughly checked out!

This Is News: Actual Enforcement Against Shady Immigration Consultants!

oakland courtIn today’s news piece, “Judge: Co. Owes $15M in Botched Immigration Forms,” NBC Bay Area states that the Oakland City Attorney has obtained a $15.1  million court judgment against a fraudulent immigration consulting  business, so-called “American Legal Services.” This company’s actions — we can’t call them legal services, because there seems not to have been a single attorney on staff — are said to have resulted in many Oakland families who were seeking immigration help losing vast amounts of money or winding up in removal (deportation) proceedings.

This story is both surprising and not. The “not surprising” part is that immigrants and their families are prey for unscrupulous fraudsters. That’s been going on for years.

Every immigration attorney has had clients come to them after their case was botched by someone who had no idea what they were doing, but pretended otherwise and charged a lot of money. Many use the name “notario,” because in the Spanish-speaking community, it implies someone with actual training, while in the U.S., it just means someone who’s a notary public — that is, can confirm your signature using a rubber stamp.

The surprising part is that someone is actually doing something about it! Immigrants are seemingly so low on the list of societal priorities that such issues often go unaddressed by enforcement authorities — even when all the evidence is right in front of their faces.

I once had a case where a client paid a fraudster to put a green card stamp in her passport (a stamp which he’d somehow acquired straight from U.S. immigration authorities). You’d think that would have been seen as a serious matter by anyone within the immigration system. But when I pointed it out to the attorney for the Department of Homeland Security, and urged him to go after the guy, he shrugged. As far as I know, that was the end of it.

But let’s hope the Oakland court judgement is a sign of more enforcement to come. If you’ve been harmed by a fraudulent immigration service provider, you can add to the push for further enforcement by reporting it to the police, district attorney’s office, and state bar association. And if you’re seeking immigration services, see “How to Avoid a Sleazy Immigration Lawyer” for more information.

Foreign Student Numbers Recovered Since 9/11

Graduation-5502One of the unpredictable consequences of the September 11, 2001 terrorist attacks on the U.S. was that the number of foreign students coming to the U.S. plummeted — and remained low for several years thereafter. The reason was, in no small part, rumors indicating that many of the hijackers had come to the U.S. on student visas.

Only one of them did, actually, as detailed by FactCheck.org. The rest of the 19 hijackers mostly used business or tourist visas. But that fact did not slow down efforts to add security checks to the student visa application process and to the monitoring of students after arrival in the U.S. — efforts which went a little haywire and led, for a time, to massive delays, denials, and discouragement facing would-be foreign students.

Why should we care? Well, there’s the fact that foreign students tend to learn about the U.S. and adjust their preexisting stereotypes, — and vice versa as they meet U.S. students — potentially leading to greater worldwide understanding.

Foreign students also contribute financially, starting, but not ending, with their payments of tuition (out-of-state, in many cases). See this report from the American Immigration Council: “Record Number of International Students Add $24 billion to U.S. Economy.”

Also, the “bait and switch” aspects of American immigration law have always bothered me. We offer various visas and benefits, but then frequently treat the people who would like to take advantage of them as criminals, regardless of whether they’ve done the slightest thing to warrant suspicion.

In any case, things seem to have calmed down a bit, and statistics collected by the Institute of International Education show that, since approximately 2007, the numbers of foreign students in the U.S. have steadily risen. In 2013, the U.S. reached a record 819,644 foreign students, most of them from China, India, and South Korea. See the “Open Doors Data” portal for details.

And if you’re interested in studying in the U.S., the Nolo site offers a wealth of information in its “Student and Exchange Visitor Visas” section.

Check Your Passport BEFORE Submitting Form N-400 Naturalization Application

airplanePicture this: You fill out Form N-400, the application for U.S. citizenship. On one of the questions, you’re asked to list all your trips outside the U.S. for the past five years. “That’s easy, I haven’t taken any trips for at least five years,” you think, and enter “N/A” in this section.

The day of your interview arrives. You go over the list of what you need to bring to the interview. It includes the passport of your home county. You dig through your possessions until you finally find the passport, and rush to your interivew.

Everything at the interview is going well. Your spoken and written English are fine, and you’ve memorized the history and government questions and easily pass this part of the test. Then the U.S. Citizenship and Immigration Services (USCIS) examiner opens your passport. “Hmm, there’s a visa stamp showing that you HAVE traveled outside the U.S. in the last five years,” she notices.

Uh oh. This is exactly the situation faced by an applicant with whom I reasonably spoke — a careful, professional person, whose memory had just happened to lapse slightly when it came to the matter of recent travel. And now the applicant was facing a USCIS examiner who was suddenly suspicious about the discrepancy between what was written on the N-400 application and what the passport showed.

Fortunately, after some embarrassed explanation, this applicant was able to convince the examiner that the undisclosed travel was a mere oversight, and obtained approval for U.S. citizenship. But not every applicant is going to meet a similarly understanding examiner.

The lesson here is simple: No matter how good you think your memory, check your passport and any other official documents concerning matters to be entered on your N-400 application for U.S. citizenship. For more information on the application process, see the book, Becoming a U.S. Citizen: A Guide to the Law, Exam & Interview (N0lo).

It’s National Hug Your Immigration Lawyer Day!

mexican immWell, no, it’s not really. (But with all the national days on the calendar, who’s checking?)

And immigration lawyers are one group that deserves more appreciation than it gets, in a world where lawyers consistently rank at the bottom of the public opinion scales.

Here are some reasons to give a little love to this country’s immigration lawyers (the good ones, anyway — there are some bad ones out there, too):

  • They’re not getting rich off their work. Immigration lawyers usually work as solo practitioners, which means paying a lot of office overhead in return for payments of flat fees or low hourly rates, at amounts that reflect their clients’ typical lack of ability to pay big bucks. (And forget chasing down payment if the judge orders the client deported!) Noodling around online, all the surveys I found put immigration lawyers’ salaries in the $70,000 range — which would be considered peanuts by most attorneys. It’s less if the attorneys work at a nonprofit organization.
  • They do a lot of volunteer work. Huge numbers of immigrants cannot afford even an hour of a lawyer’s fees, yet are desperately in need of representation, for example with cases for asylum (because they’ve fled persecution in another country) or  deportation defense. The U.S. government provides no funding at all to help with this. (There is no immigration equivalent to the “public defender” program for U.S. criminal cases.) So immigration lawyers, often with the coordination and help of perpetually underfunded immigration-service nonprofits, attempt to pick up the slack.
  • They’re grappling with the most complex body of law on the books. For real. As is often repeated, it’s more complicated than the tax code. And it’s treated as a political football, with clauses added and subtracted with every new Congress or President.
  • They can do everything right and still have the case go wrong. I don’t want to point fingers, but . . . well, yes I do want to point fingers. The entire immigration bureaucracy, including the State Department and U.S. Citizenship and Immigration Services, is a morass of paperwork, process, and inconsistency. Ask any immigration lawyer, and you’ll get tales of frustration — delays and lost files or checks, demands for documents that are legally irrelevant, denials that made no sense or were based on bias or lack of cultural awareness, and so on. These can be difficult to explain to clients, who’ve paid their fees and expect to see some results — or who even believe that the attorneys are somehow in league with the U.S. government.
  • They occasionally pull off miracles. Every time I attend an immigration lawyer’s conference, I hear some story of a lawyer who went to bat on a case I would have thought was a sure loser — and won. That kind of spirit and optimism is hard to maintain, and makes a big difference for other immigrants down the line.

Need I say more? Actually, I have said more, about the important process of choosing, hiring, or firing an immigration attorney.

Got Immigration Court Oct. 18? BE THERE!

traffic_lightAs you may have heard, the U.S. federal government shutdown has been brought to an end (at least for this year). We can probably expect that immigration-related operations by the Department of Homeland Security and U.S. Citizenship and Immigration Services will pick up slowly, with some delays as workers who were furloughed get back to the piles on their desks.

In the case of Immigration Court proceedings, however (which are run by the Department of Justice), things are already moving quickly. While court hearings that were scheduled for today (October 17, 2013) in non-detained cases will not go forward, anyone with a hearing set for tomorrow, October 18, 2013, needs to be there! If you haven’t heard from your attorney about this, give him or her a call.

The “EOIR Operations for October 17, 2013” page of the Department of Justice website provides details.EEOIR Operations for October 17, 2013OIR Operations for October 17, 2013

California Lawmakers Take Practical Approach to Treatment of Undocumented Immigrants

sanjoseAn estimated two-million plus undocumented immigrants live, work, study, and otherwise make their home in California.

So perhaps it’s fitting that the California legislature recently passed a number of bills (subsequently signed by Governor Jerry Brown) that seem designed to make sure that, as long as they’re here, the undocumented are not treated in ways that are either grossly unfair or lead to unfortunate or dangerous unintended consequences.

Here’s a brief summary of the new laws (click the links for details):

  • AB 4, which forbids law enforcement officials from detaining noncitizens beyond their release date on the basis of a U.S. Immigration and Customs Enforcement (ICE) hold, unless the person has actually been convicted of one of various crimes or meets certain specified conditions. (This seems designed to put a stop to the expense and absurdity of local law enforcement agencies serving as detention units for the federal government by holding undocumented immigrants even if the criminal charges against them were dismissed or were minor in nature.)
  • AB 35, which says that no one can charge fees for serving people applying for the immigration program known as “Deferred Action for Childhood Arrivals” (or DACA) unless they are either immigration consultants, attorneys, notaries public, or organizations that have received accreditation from the U.S. Board of Immigration Appeals (B.I.A.); and even those who have received such accreditation cannot engage in price gouging.
  • AB 60, which makes undocumented California residents eligible for a drivers’ license upon providing satisfactory proof of identity and state residency. The license will contain a notation stating that it “does not establish eligibility for employment, voter registration, or public benefits,” and will contain the initials “DP” (Drivers Privilege) instead of “DL” (Drivers’ License).
  • AB 524, which specifies that threatening to report the immigration status or suspected immigration status of an person or family may be considered an inducement of fear sufficient to constitute extortion, and thus punishable under the California Penal Code.
  • AB 1024, which allows undocumented persons to be admitted to the California State Bar Association as attorneys, and therefore to practice law in this state.
  • AB 1159, which attempts to crack down on the practice of immigration law without a license, by imposing financial penalties on people who pose as attorneys, in particular by calling themselves “notarios” or other terms which have a more elevated meaning in other countries. The law specifies that the proceeds shall be used to help people damaged by such con artists, as well as to provide free legal advice concerning federal immigration reform.
  • SB 141, which requires community colleges and universities within the California state system to charge in-state, resident tuition to U.S. citizens who live in a foreign country because their parent or guardian was deported or voluntarily departed from the U. S., so long as they will be entering in their first year as matriculated students, can demonstrate financial need, lived in California immediately before moving abroad, attended a secondary school in California for at least three years, and intend to establish residency in California.
  • SB 150, which authorizes community college districts to charge only in-state, resident tuition to certain special part-time students, namely high schoolers who would benefit from advanced scholastic or vocational work, if they are non-citizens in financial need, or students from other states who had to move due to Hurricane Katrina.
  • SB 666, which creates criminal and civil penalties for attorneys and businesses that retaliate against employees and others on the basis of citizenship and immigration status or who report or threaten to report the suspected immigration status of a witness or party to a lawsuit because the person exercises a right related to employment.

In related news, San Francisco’s Board of Supervisors recently passed an ordinance prohibiting law enforcement officials from holding for deportation noncitizens who have not been convicted of felonies or deemed public safety risks. (It’s called the “Due Process Ordinance for All on Civil Immigration Detainers.”) Mayor Lee is expected to sign it.