A Few Immigrants, at Least, Will Now Get Free Immigration Lawyers

crackIn a country where we’re used to the idea that criminal defendants who can’t afford a lawyer are entitled to one at government expense, people are often surprised to hear that noncitizens placed into deportation (removal) proceedings don’t have the same basic due process rights. The Immigration and Nationality Act says that noncitizens in removal proceedings may be represented by counsel, but at no expense to the government.

It’s  certainly not that noncitizens don’t need representation — Department of Justice statistics show that an average of half the people in removal proceedings don’t have a lawyer. The exact figure was 56% for the year 2012.

And given that even a spokesperson for the immigration bureaucracy once said, “Immigration law is a mystery and a mastery of obfuscation, and the lawyers who can figure it out are worth their weight in gold,” (Immigration (INS) spokeswoman Karen Kraushaar, quoted by the Washington Post on April 24, 2001), it would be absurd to presume that these immigrants don’t need legal help.

For anyone who might argue that people in removal proceedings deserve to leave the U.S. anyway, take note of studies such as that done in March, 2012 by the Vera Institute of Justice, a nonprofit group, showing that 40% of unaccompanied noncitizen children might qualify for statuses that would exempt them from deportation.

The law on representation for noncitizens  is at last, however, evolving. In a federal court decision called Franco-Gonzalez v. Holder, the judge ordered Immigration and Customs Enforcement (ICE), the U.S. Attorney General, and the Executive Office of Immigration Review (EOIR) to provide legal representation to immigrant detainees with mental disabilities who are facing deportation.

The case concerned a green card applicant who had an I.Q. below 55 and the cognitive abilities of a young child, but who had been arrested after getting into the middle of a fight between rival gangs. While the immigration judge found him incompetent to face proceedings, the lack of a right to free representation put him into legal limbo, and he sat in detention for nearly five years.

This right to counsel is obviously quite limited, and will take some time to fully implement. However, if you know someone facing deportation, or in detention, who has limited mental abilities, get in touch with an immigration lawyer or a nonprofit charitable organization serving immigrants.

Checked Your Diversity Visa Lottery Results Yet?

Tickets in a basketThe results of the “DV-2014″ Diversity Visa Lottery (also called the “Green Card Lottery”) are now available, as of May 1, 2013, from the U.S. State Department. Winners will not receive any calls, emails, or other communications advising them — they need to go online and check the results themselves. (In fact, if you’ve received any calls or emails claiming you’ve won, it’s probably a scam, so watch out!)

For detailed instructions on finding out whether you have won, see the “How Will You Know If You Have Been Selected for the DV Lottery?” article on Nolo’s website. And if you have won, you’ll need to act quickly, so be sure to read, “How to Read the Diversity Visa Lottery Cutoff Numbers on the DOS Visa Bulletin” and other articles on the “Diversity Visa Lottery Green Cards” page of the Nolo website.

If you didn’t win this time around, I’d like to wish you better luck next year — except that there may not be a next year. The current, Senate version of proposed comprehensive immigration reform would eliminate the DV lottery in favor of other grounds of immigration eligibility.

 

Yes, Tamerlan, You Narrowly Missed Being Deported for Domestic Violence

A couple of people who read my recent blog called “Tamerlan Tsarnaev’s “Battered Dream” Was Self Inflicted” wanted more information on whether and under what circumstances an immigrant can be removed from the U.S. (deported) for committing domestic violence. (As you’ll see in that blog, the alleged older Boston Marathon bomber was apparently arrested in 2009 arrest for assaulting his girlfriend, though the charges were ultimately dismissed.)

The short answer is that, so long as the person was actually convicted, U.S. immigration laws come down hard on domestic violence crimes. The person may be deported under any of a number of sections of the federal immigration statutes, and likely barred from returning to the U.S. for a good long time, perhaps permanently. For more information, see this new article on the Nolo website: “Is an Immigrant Convicted of Domestic Violence Deportable?

Tamerlan Tsarnaev’s “Battered Dream” Was Self Inflicted

flagThe New York Times, in the grand tradition of exploring the psychological drama behind criminal behavior, recently tried to make hay out of alleged Boston Marathon bomber Tamerlan Tsarnaev’s “stalled” application for U.S. citizenship.

In “A Battered Dream, Then a Violent Path,” writers Deborah Sontag, David M. Herszenhorn, and Serge F. Kovaleski assert that being barred from the 2010 national Tournament of Champions because the 23-year-old Tsarnaev was not a U.S. citizen was “a blow the immigrant boxer could not withstand.”

Okay, let’s back up here. Why wasn’t Tsarnaev a U.S. citizen already? A green card holder (which Tsarnaev was) can apply to naturalize at age 18, after spending at least five years in the United States. According to a CNN timeline, Tsarnaev entered the U.S. in 2003. So if he’d wanted to apply for citizenship before 2010 — a prudent thing to do for anyone pursuing opportunities within the U.S. — one would think he could have.

The NYT article says that Tsarnaev still had a year to wait (until 2011) before being eligible to apply to naturalize, though it unfortunately doesn’t explain why. Meanwhile, the L.A. Times suggests that Tsarnaev may have made a 2009  bid for citizenship. It states that Toronto-based photographer and scientist Johannes Hirn published a photo essay called ‘Will Box for Passport’ showing the young man training for the U.S. Olympic team and stating that he “hoped to become a naturalized U.S. citizen by earning a place on the team.”

True, that’s not exactly conclusive evidence of an application. If boxing his way to citizenship was Tsarnaev’s hope, he probably should have spoken to a lawyer first. Joining the Olympic team is not a prerequisite for citizenship. Submitting an application on Form N-400 and passing a test and interview, as well as showing good moral character, is.

But if Tsarnaev had submitted an N-400 in 2009, it could easily have been denied; perhaps for lack of good moral character. Tsarnaev had a 2009 arrest on his record, for — speaking of battered dreams — domestic abuse and battery, after allegedly assaulting his girlfriend. The charges were ultimately dismissed, so they wouldn’t have had any direct legal affect on his application for citizenship. But Tsarnaev would have had to disclose the arrest on his N-400 application, and it wouldn’t exactly have bolstered the “good moral character” that was his obligation to show.

The New York Times article goes on to state that Tsarnaev submitted a citizenship application a couple of years later, in September of 2012. It refers to that application as having been “stalled” — though the seven months he’d waited by the time of his death is hardly out of the ordinary. Many immigrants wait a year or more after submitting Form N-400 to be called in for their citizenship interview. The average time in the Boston office is five months, as anyone can check on the following website:
https://egov.uscis.gov/cris/Dashboard/ProcTimes.do

The New York Times and other reports state, however, that Tsarnaev’s N-400 filing led to investigations in 2013 by federal law enforcement agencies, curious about his travels to Russia and warnings about him that came straight from Russian security agencies. So if his activities in Russia were as suspicious as they seem to have been, a “stalled” application for citizenship was the least of his worries — Tsarnaev should have been worried about deportation from the U.S. on criminal grounds. (See the “Crimes and U.S. Immigration” page of Nolo’s website.)

All in all, the facts surrounding Tsarnaev’s bid for U.S. citizenship are a bit thin. But the one thing that seems clear is that this is, at best, a minor case of an immigrant being stymied by the system. The worst hurdles Tsarnaev apparently faced were a boxing tournament that was only open to U.S. citizens and an opportunity for citizenship that was only a matter of months away — if he hadn’t messed things up.

Proposed Immigration Bill Still Needs Provision for Gay and Lesbian Couples

double_rainbowThe current Senate draft of a comprehensive immigration reform bill contains provisions to help undocumented farmworkers and students, as well as would-be immigrants whose merits earn them a significant number of points — but nothing for gay and lesbians.

In particular, the draft doesn’t address the problem of gay and lesbian couples who are legally married under the laws of the particular U.S. state or foreign country where they registered or held a  ceremony, but nevertheless continue to be denied a marriage-based green card for the noncitizen spouse under U.S. immigration law. (The legal reason for that is the federal Defense of Marriage Act, or DOMA, which is awaiting an opinion from the U.S. Supreme Court.)

What’s the harm in this? According to testimony to the Senate Committee by Laura Lichter, President of the American Immigration Lawyers Association (AILA), “more than 36,000 couples are affected by this form of discrimination, and nearly half of them are households raising children.” Lichter added that, “Many gay and lesbian Americans in binational relationships have aging parents and must make difficult decisions between managing their parents’ health or remaining with their partners. . . Many Fortune 500 companies have lost skilled Americans to foreign competitors because of this issue . . . For many, the limited options mean having to choose between unconscionable separation, a life without lawful immigration status, or relocating the entire family outside the U.S.”

The bill may may yet address such issues, however, according to reports from CQ Roll Call, via San Francisco’s Immigrant Legal Resource Center. The draft Senate bill is currently being scrutinized and marked up by the Senate Judiciary Committee. Several Democrats on the committee have stated that they intend to introduce amendments allowing U.S. citizens to petition for (sponsor) same-sex partners for visas in the same manner that they are legally allowed to utilize for opposite-sex spouses under existing law.

Whether those amendments will survive the entire process of turning the bill into law, however, is in doubt. Some experts believe that they will be removed again in the course of negotiations, in order to ensure the passage of the bill as a whole. Stay tuned . . . .

And by the way, the legal situation is a bit different for couples in which one has undergone sex reassignment surgery, as described in Nolo’s Q&A, “Can a transgender spouse obtain a green card based on marriage to a U.S. citizen?

Are You “Extraordinary” Enough for an EB-1A Green Card?

turbanEveryone likes to think they’re something special.

But could you prove to the satisfaction of a U.S. immigration official that your abilities in the sciences, arts, education, business, or athletics, are so extraordinary that they’ve been publicly recognized, and resulted in a period of sustained national or international acclaim?

The payoff is big. Noncitizens of the U.S. who can prove this may qualify for a green card as a priority worker (EB-1A), which doesn’t even require an employer to petition for (sponsor) you.

Just satisfying the documentation requirements calls for extraordinary persistence and patience, however. Applicants need to come up with items like proof of box office success or high salary, letters of recommendation from professional peers, articles about their work published in the media or professional journals, evidence that they’ve been invited to judge others’ work, scholarly articles that they’ve written, and all-around proof that they’ve made original, unique contributions to their field.

Who actually succeeds at this? A mere two-thirds of the people who apply, unfortunately. NBC News gives us a picture of some of the successful applicants in its recent article, “To get green cards, these immigrants must prove they are extraordinary.” Naturally, NBC tried to profile some colorful characters, including a Harvard-trained scientist from India whose research into stem cells could lead to disease cures and a vintage-style burlesque performer from Canada whose “unique contributions” have helped turn this type of dance (in her description, somewhere between ballet and a striptease) into an art form.

Before you buy heels and feathers and sign up for dance classes, however, realize that “burlesque performer” is practically unheard of as a path to success in the EB-1 category. In fact, the fact that this applicant was approved is doubly impressive when you realize that the immigration service centers refuse to view or listen to electronic materials such as CDs or videos, and aren’t allowed to check websites such as YouTube. (It’s against their policy, according to an AILA/SCOPS Teleconference of March 27, 2013). I’m sure they didn’t even peek at her videos.

Watch Out for Fake USCIS Phone Calls Asking for Your Personal Information!

phoneThe American Immigration Lawyers Association (AILA) has received reports of a new phone scam, in which callers pose as officers of U.S. Citizenship and Immigration Services.  (For attorneys: This comes from AILA InfoNet Doc. No. 12071935 (posted Apr. 8, 2013).)

The callers have apparently done a bit of research beforehand, so that they know the person’s name and address, and that the person is a noncitizen of the United States. (This type of information wouldn’t be hard to find by stealing someone’s mail or Googling them, for instance.)

The caller then claims that USCIS has found discrepancies (inconsistent information) in the person’s immigration files. and asks for personal immigration data such as an I-94 number, “A” number, or visa control number. This is not data you should share with anyone, as it can be used to get more of your personal information from USCIS or potentially to create false immigration documents in your name.

But it gets worse. The caller next tells the noncitizen that USCIS charges a penalty for such discrepancies. The fake officer instructs the person to send an amount of money, via Western Union, to a certain address (not, of course, an authorized USCIS address).

If you receive any call from anyone stating that he or she is from USCIS, be wary. The agency rarely calls anyone — it tends to rely more on written communications. This is especially true if you are represented by any attorney, in which case USCIS would normally direct all such inquiries to the attorney rather than to you. Be sure to ask for the caller’s name, department, and a phone number at which you can call back. If you don’t have an attorney, call the main USCIS information line (1-800-375-5283) to check whether you were contacted by an actual USCIS officer.

If you did receive a suspicious call, talk to your attorney if you have one. Also report it to law enforcement authorities, in particular the FBI, and to the Federal Trade Commission’s Bureau of Consumer Protection.

Applause for the AP’s Decision to Drop the Term “Illegal Immigrant”

The L.A. Times and New York Times are considering changes to their use of the sweeping and imprecise term “illegal immigrant” in light of the recent Associated Press (AP) style decision to drop it.

Fox News, on the other hand, has reacted to AP’s move with suspicion and an article stating that AP is “under scrutiny” for its choice and “being accused of trying to influence the immigration debate.” (Accused by whom, exactly? Clever use of passive tense there, Fox people.)

For my two cents on the matter, see this earlier blog on “Should the Media Use the Term Illegal Alien?

DACA Applicants Getting Creative With Proving Presence in the U.S.

favoritesIt’s not always easy to prove your location for a particular period of time, much less where you were on a particular day. But those are exactly the challenges faced by young people applying for a work permit and temporary permission to remain in the U.S. under the Deferred Action for Childhood Arrivals (DACA) program.

To be DACA-eligible, they need to prove two types of presence in the United States:

  • continuous residence since June 15, 2007 up to one’s DACA application date (excluding brief, casual, and innocent departures), and
  • physical presence in the U.S. on June 15, 2012, and also at the time of applying for deferred action.

The standard advice from lawyers like me is to come up with things like school, employment, and dental records. But trust the younger, Internet savvy applicants to come up with more creative forms of evidence, such as:

  • Facebook check-ins
  • Tweets
  • Traffic and speeding tickets
  • Netflix records, and
  • Restaurant receipts.

The good news is, U.S. Citizenship and Immigration Services (USCIS) seems to be just fine with considering these unusual forms of proof. It’s all detailed in this article from ABC News: “Unusual DACA Documentation Includes Speeding Tickets, Netflix, and Facebook.”

For more information on DACA eligibility and application requirements, see the “Deferred Action for Childhood Arrivals (DACA)” section of Nolo’s website.

Countdown to Filing Time for New H-1Bs!

traffic_lightEvery year, U.S. Citizenship and Immigration Services (USCIS) opens up the filing period during which employers can submit petitions for new H-1B workers . . . and every year, the window of opportunity closes very soon after. This year, USCIS will begin accepting petitions for workers who are subject to the fiscal year (FY) 2014 cap on Monday, April 1, 2013.

The reason this timing is so important is that only  65,000 new H-1B visas (or status changes) can be given out per year, unless the worker falls into an exempt category. And of those 65,000, up to 6,800 are set aside for H-1B applicants under the U.S.-Chile and U.S.-Singapore Free Trade Agreements.

The most important exemption from this cap applies to the first 20,000 H-1B petitions filed for workers who have U.S. master’s degree or higher. Other widely used exemptions are available to H-1B applicants who will work at either institutions of higher education or related or affiliated nonprofit entities, nonprofit research organizations, or governmental research organizations.

Even with the exemptions, there is stiff competition for those 65,000 spots — more demand than supply. In fact, USCIS expects to receive more than 65,000 petitions within less than a week, by April 5, 2013. The agency will notify the public as soon as it has received 65,000 petitions subject to the cap, and reject petitions submitted afterward. For any petitions that come in over the 65,000 but before USCIS’s announcement cutting off filings, USCIS plans to use a lottery system to select which ones will be processed.

USCIS is also making a temporary change to its premium processing service. Petitioners may still request premium processing, but they won’t receive a USCIS decision within the normal 15-day period. Instead, USCIS will begin counting the 15-day promised speedy processing period starting on April 15.

One of the most important topics to consider if you are hoping to petition for or get a job as an H-1B worker is whether the cap will be an issue, or whether some exemption or alternative is available. For details on this, see Nolo’s article, “When the H-1Bs Run Out: Alternative Visas and Strategies.”

And for the USCIS press release on this topic and other information on H-1B visas, see http://www.uscis.gov/h-1b_count.