IMMIGRATIONEVERYTHING YOU WANT TO KNOW ABOUT IMMIGRATION – SORT OF

CITIZENSHIP – WHEN THE US IS LIKE A CLUB, YOU HAVE TO KNOW SOMEBODY TO GET IN

There are essentially four ways to become a U.S. Citizen You are born in the U.S.

You are born to a U.S. citizen parent or your parent became a citizen before you turned 21

You are adopted by a U.S. Citizen

You are naturalized (This is the one we will be talking about today)

IMMIGRANT V. NON-IMMIGRANT

Anyone in the U.S. who is not a Citizen is either an Immigrant or a Non-Immigrant Immigrants - Legal Permanent Residents (aka Green Card Holders)

Non-Immigrants – Students, Temporary Workers, Visitors

How Does A Person Become a Legal Permanent Resident? Only a citizen or an LPR can do a petition

They can only petition for a spouse, parent, child, or sibling

Some can obtain their card inside the U.S. and Some have to finish outside the U.S.

Some can obtain their card immediately

Some wait 2, 5, 10, or 20 years depending on who the petitioner is

When can the LPR Naturalize?

3 or 5 years depending on who petitioned for them

Must pass a test

HOW CAN IMMIGRATION MATTERS COME INTO YOUR PRACTICE

Padilla v. Kentucky

Violence Against Women Act and/or U-visa

Impact of Sponsoring an Immigrant.

Juvenile Visa

PADILLA V. KENTUCKY: WHY IT MATTERS

On March 31, the Supreme Court issued its momentous Sixth Amendment right to counsel decision in Padilla v. Kentucky, 599 U.S. 356 (2010).

The Court held that, in light of the severity of deportation and the reality that immigration consequences of criminal convictions are inextricably linked to the criminal proceedings, the Sixth Amendment requires defense counsel to provide affirmative, competent advice to a noncitizen defendant regarding the immigration consequences of a guilty plea, and, absent such advice, a noncitizen may raise a claim of ineffective assistance of counsel.

PADILLA V. KENTUCKY: INEFFECTIVE ASSISTANCE OF COUNSEL

The Sixth Amendment requires affirmative, competent advice regarding immigration consequences;

non-advice (silence) is insufficient (ineffective). In reaching its holding, the Court expressly rejected limiting immigration-related IAC claims to cases involving misadvise. It thus made clear that a defense lawyer’s silence regarding immigration consequences of a guilty plea constitutes IAC.

Even where the deportation consequences of a particular plea are unclear or uncertain, a criminal defense attorney must still advise a noncitizen client regarding the possibility of adverse immigration consequences

But does the attorney have to specifically advise on the exact consequence or is it enough to generally say, “there can be adverse immigration consequences”?

WHAT EVERY CRIMINAL LAWYER SHOULD KNOW ABOUT IMMIGRATION

Aggravated Felony – Disqualify someone from many forms of relief Murder, Rape, Sex Abuse of Minor, Trafficking (drugs or guns), Laundering, Ransom, Child

Pornography, RICO, Theft or Burglary if sentence is 1 year or more, and more

Crime Involving Moral Turpitude “CIMT” – INA §212(a)(2)(A)(i)(1); 8 U.S.C. § 1182(a)(2)(A)(i)(I)

Convictions of These Types of Offenses Make an (Non)Immigrant INADMISSIBLE

INVOLVING MORAL TURPITUDE NOT INVOLVING MORAL TURPITUDE

Assault 1st or 2nd, Child/Spouse Abuse, Kidnapping, Murder, Robbery, Incest, Prostitution or Soliciting, Rape, Failure to Register as Sex Offender, Arson, Burglary, Fraud, Shoplifting, False Stmt to Police, Obstruction of Justice, Leaving Scene of Accident, Possession/Receipt of Stolen , and others

Assault 3rd if no violence involved, Dom.Violence (if no violence), DUI, Failure to Register as Sex Offender (statute has to be intent not forget), Statutory Rape, Burglary 2nd,False Stmt (must look at statute), Breaking and

Entering, Drug Offenses, and others

WHAT EVERY CRIMINAL LAWYER SHOULD KNOW ABOUT IMMIGRATION

IF the crime is a CIMT, there is a rule called “The Petty Offense Exception”:

A conviction is considered a petty offense: “if the maximum penalty possible for the crime of which the alien was convicted…did not exceed imprisonment for one year AND if the alien was convicted of such crime, the alien was not sentenced to a term of imprisonment in excess of 6 months (regardless of the extent to which the sentence was ultimately executed.” INA § 212(a)(2)(A)(ii)(II).

Also, you get one freebie marijuana possession IF… It is “a single offense involving possession for one’s own use of 30 grams or less of

marijuana.” INA § 237(a)(2)(B)(i)

There is no freebie for conviction of drug paraphernalia or any other types of drugs

TRANSLATION FOR CRIMINAL LAWYERS

1. NEGOTIATE, NEGOTIATE, NEGOTIATE!!!

2. WHEN IN DOUBT CALL AN IMMIGRATION LAWYER

3. TAKE IT TO TRIAL or GET IN WRITING or on the record client understands consequences of plea.

4. LASTLY, don’t let (non)-immigrants pay bonds when there is or likely to be a ICE hold…makes it EXTREMELY hard to get an immigration bond. Varies by city and county. Police can hold for ICE for up to 48 hrs. 8 C.F.R.§ 287.7

FAMILY LAW – DIVORCE, DEPENDENCY,ETC

Violence Against Women Act “VAWA”

1. Victim (male or female) of battery or extreme cruelty committed by U.S. Citizen spouse, former spouse, parent, or child; or committed by LPR spouse, parent.

2. However, if divorced MUST file within 2 years of divorce being finalized.

3. Processing time is much faster.

4. If approved, can immediately apply to be LPR

U-visa: 3 Part Application Process

1. Non-immigrant is the victim of a violent crime, ie. Murder, Felony Assault, Domestic Violence, Rape, Prostitution, Incest, Peonage, Perjury, Obstruction of Justice

2. Police or Prosecutor signs a form stating the person is/was helpful in the investigation, arrest, and/or prosecution of someone.

3. Victim over 21 may include spouse or child under 21; Victim under 21 may include parent, sibling under 18, spouse, and/or child under 21

4. Right now…4 yrs to get approval

5. 3 yrs after approval may apply to be LPR

FAMILY LAW – DIVORCE, DEPENDENCY, ETC

SPECIAL JUVENILE IMMIGRANT VISA – 8 U.S.C. § 1101(a)(27)(J)

1. Obtain a state court order (dependency, divorce/custody, guardianship) that contains the following language: the minor was abandoned, abused, or neglected, reunification with one or both parents is not possible, and it is in the child’s best interest not to be returned to their home country.

2. Apply for the juvenile visa. If approved, apply to be an LPR.

3. If they obtain status this way, they CANNOT petition for a parent.

4. Changes since migrant child surge starting in 2014.

FAMILY LAW – DIVORCE, DEPENDENCY, ETC

The Form I-864 Affidavit of Support is a legally enforceable contract, meaning that either the government or the sponsored immigrant can take the sponsor to court if the sponsor fails to provide adequate support to the immigrant

Sponsor of LPR is financially responsible for their support for 40 quarters (10 years) or until the LPR naturalizes or leaves the U.S. or dies.

Divorce does not end the obligation

When the government sues the sponsor, it can collect enough money to reimburse any public agencies that have given public benefits to the immigrant. When the immigrant sues, he or she can collect enough money to bring his or her income up to 125% of the amount listed in the U.S. government’s Poverty Guidelines.

Does not include covering the immigrants debts or bills.

EMPLOYMENT BASED IMMIGRATION

First Preference – Persons of Extraordinary Ability – EB1

Second Preference – Members of Professions Holding Advanced Degrees or Aliens of Exceptional Ability – EB2

Third Preference – Professionals, Skilled , and Other Workers – EB3

People in these categories are seeking to permanently live in the U.S.

Their ability to immigrate depends on the visas available in their category.

FIRST PREFERENCE – EB-1PERSONS OF EXTRAORDINARY ABILITY

Does not require a labor certification.

High bar for entry into this category because foreign national must demonstrate “sustained national or international acclaim” in the field.

The field can be within the sciences, arts, education, business or athletics. Outstanding Professors and Researchers - recognize internationally, 3 yrs experience, AND seek tenure

Multi-national Executives & Managers – good for multi-national companys; E/ee must spend one yr abroad

Movie stars, Acclaimed Writers/Researchers, Olympic Athletes, Prof. Tennis & Golf Players

The Alien must also be seeking entry to continue work in his or her area of extraordinary ability.

No job offer is required for this category.

But how does one prove “extra-ordinary ability”

EB-1, PROVING EXTRAORDINARY ABILITY

One-time achievement (ex) major internationally recognized award (Nobel Prize)

OR

Documentation of any 3 of the following: (best to show ALL you can)

Receipt of Lesser Nationally or internationally prizes or awards;

Membership in an association in the field for which classification is sought which requires outstanding achievement of its members, as judged by recognized national or international experts;

Published material about the person in professional or major trade publication or other major media;

Participation as a Judge of the work of others;

Evidence of original scientific scholastic or artistic athletic or business-related contributions of major significance;

Authorship of scholarly articles in the field;

Artistic exhibitions or showcases;

Performances in a leading or critical role for organizations or establishments that have a distinguished reputation;

High Salary or remuneration in relation to others in the field;

Commercial success in the performing arts.

SECOND PREFERENCE – EB-2MEMBERS OF PROFESSIONS HOLDING

ADVANCED DEGREES OR EXCEPTIONAL ABILITY

Advanced Degree

A degree above a Bachelor’s Degree.

USCIS uses a system called Electronic Database for Global Education (EDGE) created by the American Association of Collegiate Registrars and Admissions Officers (AACRAO) to determine the validity of foreign education.

(Typically the minimum job requirements would be a Masters Degree or Above)

However, a Bachelor’s Degree with Five years of experience can equate to an Advanced Degree for the purposes of an EB-2 filing.

Exceptional Ability

A degree of expertise significantly above that ordinarily encountered.

Can be proven through 3 of the following:

Degree relating to area of exceptional ability;

Letter from Current or former employer showing at least 10 years of experience;

License to practice profession;

Person has commanded a salary or remuneration demonstrating exceptional ability;

Membership in a professional association;

Recognition for achievements and significant contributions to the industry or to a field by peers governmental entities or professional or business organizations.

EB-2, WAIVER REQUIRED

National Interest Waiver

This provision was enacted as part of the Immigration Act of 1990.

A labor certification is not required for this category of filing.

However, it is difficult to meet the standards because the following is required: 1) National Interest waivers are granted to those who have demonstrated exceptional ability and

2) Show that their employment would benefit the nation.

One must prove that the benefit to the nation is national in scope.

THIRD PREFERENCE – EB-3PROFESSIONAL, SKILLED, & OTHER WORKERS

Schedule A - A Shortage occupation recognized by the US Department of Labor. At present this applies to Professional Nurses and Physical Therapists.

Application for labor certification NOT necessary.

OR

Employer claims can’t find a USC or LPR who meets minimum requirements.

A labor certification involves submitting application to Department of Labor and proving you can’t find a minimally qualified employee.

It is a laborious process which involves advertising in the Sunday paper (two ads), on the state workforce agency and 3 other forms of recruitment for professional workers. There are time periods to which you must adhere. Once the labor certification is filed it will take 6-8 months prior to approval. You may also receive an audit where you have to prove your recruitment.

Can be filed for Professionals or Skilled Workers (with Skilled Workers less recruitment methods must be used).

Once the Department of Labor has approved the labor certification, you may file the I-140 application for immigrant worker with USCIS.

NON-IMMIGRANT EMPLOYMENT BASED CATEGORIES

It literally means that you do not intend to immigrate to the U.S.

You intend to come to the United States for a temporary period (which could last years) and then return to your home country.

We typically do not use the term visa because a visa is an entry document allowing you entry into the United States.

Instead we refer to the term status because we are concerned with the status you are in while in the United States. In certain circumstances individuals can change from one status to another.

Also, we do not use the words “work visa” because that is not an actual visa type. To obtain work authorization through a non-immigrant category you must find an appropriate category that fits with the nationality and education and skill-set of the applicant.

TYPES OF NON-IMMIGRANT VISAS

Students – F (exchange student), J (student at university, M (vocational)

Outstanding Ability – O-1

Athlete/Entertainers – P-1

Specialty Occupations – H1-B

Visitor (Business or Pleasure) B-1/B-2

Only for Australians – E-3

Intra-company Transfer Employees – L1

Trade NAFTA list of Occupations -TN

Treaty Trader/Treaty Investors –E-1/E-2

THE UNDOCUMENTED PERSON

A person who is without legal status.

They either entered without inspection “EWI” or have overstayed a visa.

There are extremely limited options for these individuals to change their status.

Options: If they overstay their visa and later marry a US Citizen/L.P.R. then they can change their status: Uvisa, VAWA, Juvenile Visa, Asylum (NONE are easy)

In specific circumstances an undocumented person who is married to a US Citizen or LPR may be able to obtain a 601A hardship waiver showing extreme hardship to the US citizen/LPR spouse which may allow them to change their status. This person completes their process OUTSIDE the U.S. at the U.S. Consulate in their

country

AND NOW THIS….

“…Give me your tired, your poor,

Your huddled masses yearning to breathe

free,

The wretched refuse of your teeming shore.

Send these, the homeless, tempest-tossed

to me,

I lift my lamp beside the golden door!”

Excerpt for “New Colossus” by Emma

Lazarus