The Governor's request was directed to Department of Homeland Security, Secretary Janet Napolitano. In his request, Governor McDonnell asked Napolitano to develop and implement a program which would determine how state officers are to be selected, trained, and supervised. Ostensibly, there would need to be some federal oversight on how specific immigration enforcement would be practiced.
The Governor's initial intent is to focus on aliens who are engaged in serious criminal activities, such as major drug offenses, murder, manslaughter, rape, robbery and kidnapping. Governor McDonnell, however, has extended his intent to DUI offenses as well. The rational for this may be related to the recent death of a nun in a Virginia crash, which involved an illegal alien of Honduran descent that had two prior DUI convictions and had been released pending deportation proceedings. The alien had lived in United States since he was nine years old.
Some police departments have been reluctant to support such a measure as they are concerned that such requirements for immigration enforcement would undermine the ability of local police to work within immigrant communities. Local authorities are concerned that victims of crimes would be reluctant to report crimes that had been committed, or to cooperate in the investigations, out of a fear of deportation.
Ultimately, as local authorities become more involved in identifying and enforcing immigration issues and laws, the way in which a local defense attorney will have to approach a case will change. Traditionally, certain crimes would cause more concern over federal immigration enforcement than others, however, if local police forces are able to intervene in cases as small as a first time DUI, defense counsels will have to re-evaluate some of the advice that they have traditionally given concerning potential immigration consequences of guilty pleas and findings.
If you would like more information on immigration, please feel free to visit us on the web at http://portnerandshure.com our immigration attorneys are available for a free legal consultation and provide you with the assistance that you need.
]]>The prevailing misconception set forth publicly by many talking heads is that providing undocumented aliens with a path to legal status would threaten the jobs of many low-skilled American laborers. This study debunks that theory, instead asserting that the legalization of the undocumented currently in the U.S. would actually benefit the low-skilled American workforce. "With increases in low-skilled immigration, the U.S. economy would expand, creating more jobs in higher-skilled areas. Over time, some U.S. workers now in low-paying jobs would move up the occupational ladder."
An added benefit of legalization would be an increase in the welfare of the American household. The Cato Institute report concludes that "allowing low-skilled workers to enter the country legally would boost the welfare of U.S. households by 0.57 percent of the GNP."
Conversely, an increase in border enforcement would not have the presumed effect of creating more low-wage job opportunities for Americans. Instead, the effect of heightened enforcement would result in making the undocumented aliens remaining in the U.S. a more valuable commodity. "A principal effect is that it [enforcement] raises the wages of the illegal immigrants who remain in the United States, in effect transferring income from legal residents of the United States to illegal immigrants."
Similarly, the effect of increased enforcement on the American household would be a negative one. "A policy that reduces the number of low-skilled immigrant workers by 28.6 percent compared to projected levels would reduce U.S. household welfare by 0.5 percent, or $80 billion."
What I find interesting about the Cato Institute's report is that it's release coincides with the Obama administration's recent shift toward increased enforcement over reform. It seems that an immigration reform program that could substantially increase tax revenue by allowing the estimated 8.3 million undocumented workers a path to legal status would be attractive to the current administration. Unfortunately, the policy decisions made by the administration thus far have done nothing but continue to enforce the broken immigration laws that have created this issue in the first place. Hopefully, reports like the one released by the Cato Institute will continue to dispel the notions that immigration reform will harm the economy, and pave the way to reform of the immigration system.
For answers to your immigration questions, please visit our website at www.portnerandshure.com.
]]>When the underlying marriage has remained intact, this process is fairly simple. Complications arise when marital trouble prevents the immigrant from jointly filing the I-751 Petition with their spouse. Immigration regulations allow an immigrant who has received a final order of divorce to seek a waiver of the joint filing requirement. However, immigrants who are either separated or who are in ongoing divorce proceedings are not eligible for a waiver of the joint filing requirement.
Earlier this year, USCIS issued a memo clarifying what options are available for conditional residents are in a failing marriage but have not received a final order of divorce. If a Petition is filed that seeks a divorce waiver, but a final decree of divorce hasn't been made yet, USCIS has instructed its officers to issue a Request for Evidence (RFE) with a response period of 87 days. The idea behind the 87 day response period is to allow the conditional resident time to finalize a divorce if divorce proceedings have already been initiated. If a final order of divorce has not been obtained in this period, the conditional residence of the immigrant is terminated, and the case may be set for deportation proceedings. Even during deportation proceedings, if the immigrant is able to finalize a divorce, the I-751 Petition will be adjudicated on it's merits.
The other option available to conditional residents in divorce proceedings is simply to wait to file the I-751 Petition until a final order of divorce has been made. USCIS will generally excuse late filing if it can be proven that divorce proceedings were ongoing at the time that conditional residence expired.
If you are a conditional resident and are planning on filing an I-751 Petition, please contact our office for assistance.
]]>Since calculating the applicable age of the son or daughter of a green card holder can be somewhat complicated, I will use an example to explain. Suppose that Person A's green card holding parent files an I-130 Petition on their behalf in December of 2002. Person A is 19 years and 1 month old at the time of filing. The I-130 Petition filed on behalf of Person A is approved in August of 2005. However, Person A's priority date for when an I-485 green card application can be filed does not become current until June of 2007. In June of 2007, Person A is 23 years and 8 months old.
To determine whether or not Person A will still be considered a child for immigration purposes, the amount of time it took for an approval to be rendered must be subtracted by Person A's current age. Here, Person A is 23 years and 8 months old, and the I-130 Petition filed on his behalf was pending for 2 years and 9 months (i.e. the time between the December 2002 filing and August 2005 approval). Under this set of facts, Person A will be considered 20 years and 11 months old, and hence will be considered a child for immigration purposes if Person A has remained unmarried.
However, if Person A were 19 years and 2 months old at the time of filing, Person A would be considered 21 years old under immigration laws, and hence not be considered a child. Under this scenario, Person A would be shifted from the 2A family preference category to the 2B category, and would likely have to wait longer to file an I-485 green card application.
If you have questions about the Child Status Protection Act, and are interested in obtaining a green card, please consult our website.
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Prior to 2002, a family-based green card application had to be granted before the applicant's 21st birthday in order for the applicant to be considered a 'child' under immigration laws. In practice, applicants would frequently 'age-out,' meaning that they would file an I-130 petition as a child, and then lose this designation as they endured lengthy delays in the processing of their petitions by USCIS. Loss of this designation would slide applicants who were considered a 'child' of a U.S. citizen from the immediate preference category into the first preference category, and children of green card holders from the 2A preference category into the 2B preference category.
The passage of the CSPA in 2002 has essentially solved the aging-out issue. As applied to U.S. citizen petitioners, the law now locks in the age of the applicant at the time of filing the I-130 petition, as opposed to the age at the time of adjudication of the green card application. For example, if a petition was filed on behalf of the 20 year old son of a U.S. citizen, he would maintain his position as an immediate preference relative regardless of how long USCIS took during processing. The process is a bit more complicated for children of green card holders, as the age at the time of filing isn't necessarily locked in. The age that determines the applicant's preference category is calculated by subtracting the number of days the application was pending from the age of the applicant on the date the priority date became current.
Another benefit of the CSPA is that it allows applicants to upgrade their classification. For example, if a green card holder files a petition on behalf of their child, and the petitioner becomes a U.S. citizen during processing, the applicant is upgraded from the 2A preference category to the immediate relative category.
An important note about the CSPA is that it locks in only the age of the applicant, and not marital status. If an applicant gets married at any time during the processing of a petition or application, they will automatically lose their designation as a child.
If you are interested in obtaining a green card through family relation, please visit our website.
]]>There are two types of K visas: the K-1 visa for fiances of U.S. citizens, and the K-3 visa for spouses of U.S. citizens. There are a few noteworthy differences in the processes for obtaining a K-1 or a K-3 visa. First, the K-3 visa requires that the U.S. citizen spouse submit an I-130 petition in the U.S. before filing for the K-3 visa. The K-1 visa doesn't require an I-130 petition to be submitted at any time. Second, the duration of validity of the K-1 visa is only 90 days, as opposed to the K-3 visa which permits presence in the U.S. for a period of 2 years. The K-1 visa also requires that a fiancee must marry their U.S. citizen petitioner within 90 days of entry into the U.S.
The elements of proof for a successful K visa application are essentially the same, regardless of if a K-1 visa or a K-3 visa is being sought. The three elements that any K visa application must satisfy are proof that the petitioner is a U.S. citizen, proof of marriage to the beneficiary (or proof of intent to marry if a K-1 application) and proof that the immigrant has met his/her significant lover at least once over the last 2 years. K visa applicants should be sure to save evidence of a meeting when they visit their significant other, like photographs, plane tickets, receipts and other types of documentation.
If you are a U.S. citizen and are interested in starting the process to obtain a green card for your spouse, visit this website for more information.
]]>Law makers did reach a compromise which will benefit some illegal immigrants. Illegal immigrants who already have a license may renew. The licenses will be marked "not acceptable for federal purposes", meaning they cannot be used to board airplanes. This compromise still leaves Maryland in the minority among states on this issue. Additionally, Maryland allows illegal immigrants with a tax id to apply for a "driving privilege card". This is not accepted federally.
This change will impact illegal immigrants charged criminally with driving without a license. Previously, many jurisdictions in Maryland were willing to dismiss the charge if a meeting was scheduled with MVA. Since no more meetings can be scheduled these cases will no longer end in a simple dismissal. An attorney should be consulted since jail time is now a consideration in these criminal cases.
]]>DHS can detain an alien if they are a citizen of another country who does not have the right to be in the U.S. Certain aliens are subject to mandatory detention and can't be released on bond. Aliens in that group include those who were convicted of a removable offense and terrorism suspects among others. Aliens that are eligible for release on bond are generally those who have overstayed visas, missed deadlines in filing applications or violated the terms of their visas.
When an alien is taken into detention, it is required that he/she be given a document called a notice to appear (NTA) within 48 hours. This document should provide the charges against the alien and the facts in support of those charges. At some point soon after being taken into custody, a detention officer should be assigned to the alien. The detention officer is an important person in this process, as he/she has the discretion to release the alien on their own recognizance without setting a bond amount. Initially, there are two ways to secure the release of an alien. The first way would be by persuading the dentention officer to release the alien, which would involve a demonstration that the alien is not a risk to society and that the alien is likely to appear at future hearings. The second option would be to pay the initial bond amount, which also should be set some time shortly after detention. The minimum amount that can be set is $1,500.
If you are unable to secure the release of the alien through the detention officer, and unwilling to pay the initial bond amount, then a bond redetermination hearing can be requested. The request, and documents in support of the request, should be sent to the immigration court with jurisdiction over the alien in detention. At this hearing, evidence should be presented showing that the alien is not a threat to society, and is likely to appear at future immigration proceedings. Examples of valuable types of evidence are letters from friends and relatives, proof that the alien has a history of appearing at prior immigration proceedings, demonstrations of community involvement and any documents that tend to show good character on the part of the alien.
If you or a relative of yours has been detained and is eligible for release, please contact the law firm of Portner & Shure for more information.
]]>The Des Moines Register's review of the IPC study makes one key point that is worthy of discussion. When discussing the impact of this study on potential immigration reform, the article stated that any discussion on reform should be based on facts and not fears. It seems to me that many who are focal on the political front regarding immigration reform are inclined to purvey a theme of fear of the unknown. The simple, black and white view of immigration reform that is commonly disbursed is that foreigners come to the U.S. and take jobs and money out of the pockets of American citizens. Reality, however, indicates that the answers on domestic unemployment and on the impact of immigration on the U.S. are much more complex in nature. More than anything else, it is my hope that any action taken to reform the immigration system be based on fact and reality rather than by blanket assumptions that are widely unsubstantiated.
For information on specific immigration law issues and on how to obtain immigration benefits, please consult our website.
]]>The study examines several factors before making its findings. The primary method used by the study is determining what the immigration levels are in areas of high unemployment, and what the unemployment rates are in areas with high levels of immigration. Many would suspect that areas with high unemployment rates would be flooded with immigrants. However, the study revealed that unemployment rates were virtually the same when comparing areas with high amounts of immigration to areas with low amounts of immigration. Similarly, the study showed that areas that were experiencing high unemployment rates, namely rural and industrial urban communities, had low levels of immigrants within their population.
I believe that a study like the one described above is very important. Vocal opponents of immigration reform often cite a general fear that immigrants will come to the U.S. and steal jobs from American citizens. However, the individuals making this argument often have little in the way of evidence to support claims that immigrants are putting American citizens out of work. I am not surprised that when a study was actually conducted, the results revealed little to no connection between immigration and unemployment.
For more information, I recommend reading the study that I provided a link to above. For general immigration information, please visit our website.
]]>The VTVPA is relevant to immigration law because within its contents, the U Visa was created. The U Visa allows victims of certain crimes, mostly violent or sexual in nature, to secure legal status in the U.S. New regulations clarifying the VTVPA have made it possible for U Visa holders to apply for a green card once their U Visa is granted. Unlike most other types of visas, illegal entrants are also eligible to receive the benefits of a U Visa provided that they meet the necessary requirements.
There are four requirements that must be met in order for an individual to receive a U Visa, which are provided below:
1. The applicant must show that they have suffered substantial physical or mental abuse as a result of criminal activity;
2. The applicant must possess knowledge concerning the criminal activity that they were the victim of;
3. The applicant must have been helpful or is willing to be helpful to law enforcement officials in their investigation of the criminal activity;
4. The criminal act committed against the applicant must have occurred within U.S. territory.
The two elements that must be clearly documented are suffering of physical/mental abuse and willingness to help law enforcement. Physical/mental suffering is generally proven by submitting medical records to document injuries or mental health issues related to the violent or sexual act. Helpfulness to law enforcement officials is proven by submitting police documentation of the victim's communication with law enforcement, and in some cases, affidavits submitted by the officer(s) assigned to work on the victim's case.
An interim final rule, passed on December 8, 2008, has now made it possible for U Visa holders to apply for a green card solely on the basis of their U Visa. Prior to the interim final rule's passage, Congress had demonstrated an intent to allow U Visa holders to apply for green cards. However, because the Department of Homeland Security had not drafted specific regulations describing how a U Visa holder may apply for a green card, the intent of Congress to allow U Visa holders to apply for green cards had not been fulfilled. The December 2008 interim final rule has provided that all U Visa holders that have resided continuously in the U.S. for 3 years prior to filing their I-485 adjustment application are eligible to receive a green card
For more information on securing a green card, or for general immigration information, please consult this website.
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Recently, I have found that I am encountering more and more clients that are having complications with removing the conditions from their conditional green card. The specific situation that has come up a number of times is that spouses are having marital problems with their significant other, and are unsure whether or not they will be able to file a joint petition to remove conditions. The key point of law to remember in these situations is that a waiver of the joint filing requirement can only be sought if a final order of divorce or annulment has been made. If the marital parties are merely separated, a waiver based on divorce can't be granted.
Thus, the situation that has been arising more frequently is that the conditional resident can't seek a waiver because they do not have a final divorce from their spouse, and they are unsure of whether they will be able to file a joint petition because their spouse might refuse to sign. The only advice that can be given to a conditional resident in this situation is that they must take a hard look at their relationship, and decide whether or not there is any chance for reconciliation. If the conditional resident truly believes that their marriage can be salvaged, then they should discuss the petition with their significant other immediately and determine if the significant other is willing to sign. If the conditional resident sees no chance for reconciliation, they they should commence the divorce process as soon as possible, as they will only be able to seek a waiver if the divorce is finalized before their conditional green card expires.
For more information regarding conditional residence, click here.
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