Indiana Immigration Law Blog

Governor Pence Signs In-State Tuition Bill For Some Undocumented Aliens

2013-05-07T13:25:00.000-07:00

Gov. Mike Pence signed into law today SB 207, which allows undocumented alien students who were enrolled in universities and colleges in Indiana prior to July 1, 2011 to receive in-state tuition benefits. A 2011 immigration reform law passed by the General Assembly barred undocumented alien students from receiving in-state tuition benefits. Gov. Pence's office released the following statement upon signing SB 207:

"Hoosiers believe in the rule of law and in compassion. The legislation I signed today gives a handful of young women and men who have already enrolled in college the opportunity to finish what they started," said Pence. "I am grateful to the members of both parties for their willingness to address this situation in a manner that reflects Hoosier values."

The enactment of Senate Enrolled Act 207 will allow approximately 200-300 undocumented students who had enrolled in an Indiana state college or university prior to July 1, 2011 to pay in-state tuition rates. Under this law, those students are now exempt from provisions governing in-state tuition rates in Public Law 171-2011, passed during the legislative session in 2011. SEA 207 passed the Senate with a vote of 35-15 and the House with a vote of 70-30.

Senators Jean Leising (R), Carlin Yoder (R) and Earline Rogers (D) authored the legislation. Frank Mrvan (D), Greg Taylor (D), John Broden (D) and Lonnie Randolph (D) co-authored it. Representatives Rebecca Kubacki (R) sponsored and Mara Candelaria-Reardon (D) co-sponsored the legislation.

More Details Released On Senate Immigration Reform Legislation

2013-04-17T19:16:00.001-07:00

Registered Provisional Immigrant Status Provides 10-Year Path To Legalization
Senate sponsors of a comprehensive immigration reform proposal have provided more details on their plan to allow millions of currently undocumented aliens to apply for a provisional immigrant status that would put them on a 10-year path to adjust status to lawful permanent resident status. The provisional immigrant status program can only be initiated after the Department of Homeland Security has submitted a comprehensive border security strategy within 180 days of the passage of the legislation. Provisional immigrant status will be available to aliens who have resided in the United States prior to December 31, 2011 and have remained in the U.S. continuously, except for the following categories of ineligible aliens:

Convicted of an aggravated felony;
Convicted of a felony;
Convicted of three or more misdemeanors;
Convicted of an offense under foreign law;
Unlawfully voted; and
Inadmissible for criminal, national security, public health or morality grounds.

Spouses and children of persons in registered provision immigrant (RPI) status can be petitioned as derivative beneficiaries of a principal applicant as long as they are physically present in the U.S. at the time of the filing of the principal's petition. Applicants will be required to pay a $500 penalty fee, in addition to other applicable fees and assessed taxes required to pay for the cost of processing the application. An alien granted RPI status will be eligible to work for any U.S. employer.

The legislation provides the RPI benefit to aliens who were previously present in the U.S. before December 31, 2011 and were deported for non-criminal reasons if they are the spouse or the parent of a U.S. citizen or lawful permanent resident, or a childhood arrival who is eligible for the DREAM Act. Such persons will be allowed to apply for legal re-entry into the U.S. in RPI status.

A one-year application period for RPI status will be provided, which may be extended by DHS for an additional one year. Individuals with removal orders and those in removal proceedings will be eligible to apply for RPI status. An alien's initial RPI status will be a for a term of six years so long as the immigrant does not commit any acts that would render the alien deportable. Another $500 penalty will be assessed to renew the alien's status. No person in RPI status will be eligible to receive any federal means-tested public benefit. RPIs will not be eligible for the premium assistance tax credit provided under federal law or taxpayer-funded subsidies or credits to buy health insurance under the Affordable Care Act.

After an alien has remained in RPI status continuously for a 10-year period, the alien may apply for lawful permanent resident status so long as he or she has:

maintained continuous physical presence in the country;
paid all applicable taxes during their RPI status;
worked in the U.S. regularly;
demonstrated knowledge of U.S. civics and the English language;
all persons currently waiting for family and immigrant green card applications as of the date of the enactment of the law have had their priority date become current; and
a $1,000 fee is paid.

A separate path is provided for DREAM Act and Agricultural Program beneficiaries, who will be eligible for green cards within five years. DREAM Act children will be eligible for citizenship immediately after they become lawful permanent residents.

Eliminates Backlog Of Family And Employment-Based Immigration Cases
A key sticking point with proposal to provide a path to legalization for aliens presently in the country without authorization has been the concern that such a plan would allow unlawful aliens to jump in line ahead of immigrants who play by the rules and immigrate to this country legally. To assuage those concerns, the Senate sponsors are proposing to shorten the current backlog of family and employment-based immigration cases.

The four current preference categories for family-based immigrants will be collapsed into just two categories. The "immediate relative" definition, which currently provides immediate immigrant visas for spouses, children and parents of U.S. citizens, would be expanded to include the spouses and children of lawful permanent residents. The plan should shorten considerably the current wait time for unmarried adult children and married children. The existing category for married children, however, would be amended to include only sons and daughters who are under the age of 31. The Diversity Visa program for awarding lawful permanent residents by a lottery annually to eligible applicants would be eliminated.

The current numerical limit for employment-based immigrants in the following categories is eliminated: derivative beneficiaries of employment-based immigrants; aliens of extraordinary ability in the sciences, arts, education, business or athletics; outstanding professors and researchers; multinational executives and managers; doctoral degree holders in any field; and certain physicians.

The legislation allocates 40 percent of the worldwide level of employment-based visas to : 1) members of the professions holding advanced degrees or their equivalent whose services are sought in the sciences, arts, professions, or business by an employer in the United States (including certain aliens with foreign medical degrees) and 2) aliens who have earned a master’s degree or higher in a field of science, technology, engineering or mathematics from an accredited U.S. institution of higher education and have an offer of employment in a related field and the qualifying degree was earned in the five years immediately before the petition was filed.

The legislation increases the percentage of employment visas for skilled workers, professionals, and other professionals to 40 percent, maintains the percentage of employment visas for certain special immigrants to 10 percent and maintains visas for those who foster employment creation to 10 percent.

There is also a new visa category for entrepreneurs that would supplement the current EB-5 alien investor category for alien entrepreneurs who want to immigrate to the U.S. to start up their own businesses.

H-1B Visa Program Expanded
The annual numerical cap of H-1B non-immigrant visas would be increased from 65,000 to 110,000. The current preference for persons with advanced degrees will be increased from 20,000 to 25,000. In future years, the cap could be increased as high as 180,000. The legislation is supposed to include protections to ensure that wagesdoesn't undercut wages currently paid to American workers. In addition, spouses of H-1B workers will automatically be allowed work authorization if their country of origin offers reciprocal benefits. A 60-day transition period will be provided to allow workers to change jobs. In addition, H-1B dependent employers will be hit with higher fees and be required to pay their H-1B workers significantly higher wages. Companies which primarily rely on foreign workers for their U.S. workforce will be prohibited from obtaining additional H-1B visas. H-1B employers will also be required to advertise job openings to American workers before hiring H-1B applicants.

W-Visa Category For Low-Skilled Workers
A new W-Visa category will create opportunities for American employers to hire non-immigrant alien unskilled workers for temporary work. Employers offering jobs in this category would be required to be registered to offer registered positions deemed eligible. Spouses and children of the non-immigrant workers would be allowed to accompany eligible non-immigrant workers. W-Visa holders would be issued initial visas for a period of up to three years, which could be renewed for an additional 3-year period. Wages must be paid based on the prevailing wage rate or the rate paid to employees of similar experience and qualification. The annual cap would begin at 20,000 in the first year and be gradually increased to 75,000 over a four-year period.

Agricultural Jobs
Under a new program, undocument agricultural workers in the U.S. would be allowed to obtain legal status through the issuance of an agricultural card after paying a $400 fine. In addition, a new agricultural guest worker program would be established that would replace the existing H-2A program.

Employment Verification
Over the next five years, all employers would be required to utilize E-Verify system as a condition to hiring workers. All non-citizen workers will be required to produce their photo matching biometric work authorization card.

Out-Of-State Tuitition Waiver For Some Undocumented Aliens Advances

2013-04-16T06:06:00.000-07:00

SB 207 would waive out-of-state tuition for undocumented aliens who were enrolled at a public education institution prior to July 1, 2011. Yesterday, the Indiana House of Representatives approved the bill on a 70-23 vote after it was approved by the Senate on a 35-15 vote earlier this session. An immigration enforcement law approved by the General Assembly in 2011 required such persons to pay out-of-state tuition just like other alien students who enter the country legally on F-1 student visas to study at American universities and colleges. Advocates of the measure argue that it unfairly treats the children of aliens who were brought to the U.S. by their parents and have spent most of their life living in the U.S.

H-1B Cap For FY 2014 Already Reached

2013-04-09T10:40:00.001-07:00

For the first time since 2008, USCIS announced that it had reached the fiscal year cap on filings for H-1B petitions during the period of the first week of filings in April for petitions with starting employment dates on or after October 1, 2013, the first day of the new fiscal year. USCIS says it received 124,000 petitions during the first week of April. On April 7, the agency used a lottery system to determine which of 65,000 petitions for the general category and 20,000 allotted under the advanced degree exemption limit would be processed for approval. The advanced degree petitions were processed through the lottery system first. Any advanced degree petitions not chosen through the initial lottery were thrown in with the remaining filed petitions to fill the 65,000 openings. USCIS is rejecting and returning all remaining petitions not chosen through the lottery, along with the filing fees. Please note that petitions filed on behalf of current H-1B workers are not subject to the cap.

Federal Judge Permanently Enjoins Enforcement Of Two Provision's Of Indiana's Immigration Enforcement Law

2013-03-29T10:15:00.002-07:00

U.S. Federal District Court Judge Sarah Evans Barker has permanently barred the state of Indiana from enforcing two provisions of a law enacted by the Indiana General Assembly in response to what state lawmakers viewed as lax enforcement of the nation's immigration laws by the federal government. Judge Barker had earlier temporarily restrained the state from enforcing two provisions: 1) a provision authorizing law enforcement officers to arrest undocumented aliens under certain conditions; and 2) a provision barring the use of a consular identification card as a valid form of identification. Judge Barker's order today permanently bars enforcement of these two provisions.

Section 20 of the law in question allowed law enforcement officers to, among other things, arrest a person if an immigration court had issued a removal order against the person, the Department of Homeland Security had issued a Notice of Action or detainer against the person, or if there was probable cause to believe the person had been indicted for or convicted of one or more aggravated felonies. Judge Barker's order found that Section 20 authorizes the warrantless arrest of persons for matters of conduct that are not crimes, thereby contravening the Fourth Amendment to the United States Constitution.

Many undocumented aliens will be perplexed by this ruling based on their past experiences. That's because local law enforcement officials arrest undocumented aliens for minor traffic or criminal offenses all the time in Indiana and detain them under so-called ICE holds. When a family member or friend attempts to bail the person out of jail, they often learn that the person cannot be released because ICE has placed a hold on the person's release after being notified the person was in custody by the local law enforcement agency which made the arrest. The person winds up sitting in jail until ICE officers pick them up and take them to another facility for processing to determine if any further immigration action should be taken against them, something that is supposed to occur within 48 hours of the time the person would otherwise be allowed to be released from jail. This often takes longer, particularly if the person is arrested over a holiday or weekend. In either case, the person is being detained based on a suspicion of violating an immigration law. Non-enforcement of this provision of the state law will have no practical impact in many instances as long as the federal government's current "ICE hold" policy continues to be enforced.

As to the barring of the use of consular identification cards, Judge Barker determined that the state had no rationally-based interest in prohibiting their use and the enforcement of the law would violate substantive due process rights. Judge Barker also dismissed the plaintiffs' civil rights claims, noting that their claims against the City of Indianapolis were not yet ripe for adjudication because they faced no hardship, immediate injury or prejudice during the pendency of their lawsuit.

Indiana Legislation Advances To Allow In-State Tuitition For Some Undocumented Students

2013-02-27T09:38:00.001-08:00

A state immigration enforcement law passed by the Indiana General Assembly in 2011 bars undocumented alien students from receiving the benefit of in-state tuition rates at public universities and colleges. A bill making its way through the legislature this year would make an exception for those undocumented students who were enrolled in educational institutions on or before July 1, 2011. SB 207 cleared the Indiana Senate by a vote of 35-15 yesterday and now moves to the House of Representatives for consideration. You can track the progress of SB 207 by clicking here. Note that international students who entered the U.S. on F-1 student visas will still be subject to the out-of-state tuition rates applicable to non-resident students at state colleges and universities. SB 207 will only apply to undocumented aliens who were residing in Indiana and enrolled in an educational institution on or before July 1, 2011.

An interesting challenge will be confronted as thousands of Indiana undocumented aliens who entered the U.S. as children are approved for deferred action under a new program implemented last year by USCIS. Under deferred action status, these individuals will be permitted to legally obtain work authorization and obtain driver's licenses in Indiana. Although the federal regulations authorizing the deferred action program emphasizes that approved beneficiaries do not obtain legal immigration status and may still be subject to removal from the country under appropriate circumstances, it does confer a quasi-legal status on them to remain in the U.S. legally and work here. This will present a situation where you have a large class of residents living and working within the state legally for lengthy periods of time but who would be required to pay out-of-state tuition to attend the state's colleges and universities.

ICE Releasing Some Detainees Due To Budget Concerns

2013-02-27T09:14:00.000-08:00

As the federal government approaches a deadline for mandatory budget cuts on March 1, 2013 under a previously-enacted budget sequestration act, ICE announced yesterday that it has released some individuals currently being detained for immigration-related violation. Here's the statement:

"As fiscal uncertainty remains over the continuing resolution and possible sequestration, ICE has reviewed its detained population to ensure detention levels stay within ICE’s current budget. Over the last week, ICE has reviewed several hundred cases and placed these individuals on methods of supervision less costly than detention. All of these individuals remain in removal proceedings. Priority for detention remains on serious criminal offenders and other individuals who pose a significant threat to public safety.”

It's unclear at this point which detention facilities these individuals are being released and the total numbers being released. The statement cautions that persons released will continue to remain in removal proceedings.

Obama Immigration Reform Plan Floated

2013-02-17T13:54:00.000-08:00

The Obama administration has leaked some details of an immigration reform plan it may ask Congress to act upon which would provide a path to legalization for many of the estimated 11 million undocumented aliens in the United States. According to details leaked to the media, the plan would create what is referred to as a "Lawful Prospective Visa," which would be offered to undocumented aliens immediately who satisfy certain criteria, if they can pass a criminal background check after submitting biometric information and paying filing fees. Undocumented aliens would be ineligible for the new visa category if they: have been convicted of crimes that carried a one-year prison sentence; have committed three different crimes that resulted in a total of 90 days in jail; or have committed an offense abroad that would render the person removable if it had been committed in the U.S.

A person granted a prospective visa would become eligible to apply for permanent resident status after a period of eight years if the person learns English and U.S. history and pays any back taxes owed to the government. That is similar to a plan supported by former President George W. Bush, which failed to pass Congress in 2007. A person who obtains lawful permanent resident status under this program would be eligible to apply for naturalization after five years as a permanent resident. Increased border security and a phased-in requirement that all employers utilize E-verify to determine an employee's legal status are said to be part of the plan, along with creation of a tamper-proof social security card.

Earlier this year, a bipartisan group of senators proposed a comprehensive immigration proposal they intend to push during the current legislative session. Some of those senators reacted negatively to the plan floated by the Obama White House because it does not provide for increased border control to stem the flow of undocumented aliens into the country, a precondition some backers of immigration reform insist upon before supporting any plan.

New Immigration Reform Proposal Could Offer Path To Legalized Status For Millions Of Undocumented Aliens

2013-01-29T07:23:00.002-08:00

A bipartisan group of senators are introducing an immigration reform package that the American Immigration Lawyers Association is heralding as "an incredible step forward." The legislation will provide a path to citizenship to millions of undocumented aliens, conditioned upon changes being made to secure the nation's borders and stricter enforcement of visa overstays according to the proponents. The proposal would require apprehension of "every unauthorized entrant." I'm still awaiting further information on the proposal's specifics, but the sponsors of it provide four pillars upon which it is based:

Create a tough but fair path to citizenship for unauthorized immigrants currently living in the United States that is contingent upon securing our borders and tracking whether legal immigrants have left the country when required;
Reform our legal immigration system to better recognize the importance of characteristics that will help build the American economy and strengthen American families;
Create an effective employment verification system that will prevent identity theft and end the hiring of future unauthorized workers; and,
Establish an improved process for admitting future workers to serve our nation’s workforce needs, while simultaneously protecting all workers.

New Rule Will Allow Family Unity During Hardship Waiver Process

2013-01-02T11:33:00.001-08:00

For immediate relatives of U.S. citizens who are not eligible to adjust status in the United States due to unlawful presence and who are required to apply for an immigrant visa abroad, it is necessary to obtain a hardship waiver in order to avoid the 3 and 10-year time bars for re-entry to the U.S. that were triggered when they departed the country to appear for their immigrant visa interview. A newly-published rule by the Department of Homeland Security will provide much needed relief. Currently, immediate relatives (spouse and children) have been required to wait outside the country months and sometimes a year or more while their hardship waivers were being adjudicated. Under the new rule, which will take effect on March 4, 2013, immediate relatives will be allowed to apply for a provisional hardship waiver prior to scheduling their immigrant visa appointment at a U.S. consulate.

“The law is designed to avoid extreme hardship to U.S. citizens, which is precisely what this rule achieves,” USCIS Director Mayorkas said. “The change will have a significant impact on American families by greatly reducing the time family members are separated from those they rely upon.” In order to qualify to apply for a provisional waiver, an applicant must be: an immediate relative; inadmissible only due to unlawful presence in the country; and demonstrate that denial of the waiver would result in extreme hardship to his or her U.S. citizen spouse or parent. If the provisional hardship waiver is granted, the alien will still be required to depart the country for their scheduled immigrant visa hearing. If the consulate determines the alien is eligible for an immigrant visa during his or her interview and the provisionally-approved hardship waiver is affirmed, the alien will be able to be issued an immigrant visa immediately.

Class Action Lawsuit Filed Against Indianapolis H-1B Staffing Company

2012-12-20T10:27:00.003-08:00

A class action lawsuit has been filed in the federal district court for the Southern District of Indiana against two affiliated health care staffing companies, Access Therapies and RN Staff, Inc. d/b/a Rehability Care, accusing the companies of engaging in a scheme to defraud their H-1B employees of their wages. The lawsuit alleges the companies do not pay their H-1B employees for "project work" or during "non-productive/benched time." "Rather, upon starting employment, these employees receive no pay until they themselves (or the Defendants) find a paid healthcare staffing project from a third party that satisfies the Defendants' compensation standards," the complaint states. "Moreover, once a paid healthcare staffing project ends, Defendants do not pay H-IB employees until another paid project is found and started." The lawsuit alleges the employers violate the H-1B certifications they make to the government as a condition to employing foreign workers, and it breaches employment contracts it requires all of its H-1B employees to sign as a condition to employment.

Rituraj Singh Panwar, a native of India, is the plaintiff who originated the class action lawsuit. According to the lawsuit, Panwar contacted a recruiter at Access Therapies about potential employment as a physical therapist in the United States as he was completing his graduate study work in the United States on a student visa. Panwar says he was assured that "one of Access Therapies' many therapeutic openings in the New York area" would be provided to him if he entered into a contract with the company under which it agreed to sponsor him for an H-1B visa. The recruiter e-mailed Panwar an employment agreement he was required to sign. Under the agreement, Rehability Care would agree to pay Panwar "net pay" of between $800-$1,000 per week and a housing allowance of between $400-$600 during his first three months of employment. The contract included a liquidated damages provision that required the employee to pay the employer $20,000 if he or she failed to remain employed by the company for a minimum of two years.

After Panwar returned a signed written contract to the company's recruiter, the recruiter demanded that he pay the company $1,500 for the filing fee associated with his H-1B visa application. Panwar told the recruiter he could only afford to pay $750 according to the complaint, which the recruiter agreed to accept. Rehability Care subsequently submitted a Labor Condition Application to the Department of Labor and filed an I-129 petition with USCIS in order to secure an H-1B visa for Panwar, although Panwar alleges the company never provided him a copy of the LCA it filed on his behalf as is required by DOL regulations. The complaint alleges that Rehability Care represented to the government that it would pay Panwar the prevailing wage rate of between $66,477 to $94,182 per year. The recruiter later informed Panwar that his H-1B had been approved and encouraged him to continue studying for his physical therapy license exam. The recruiter told Panwar that the company had no obligation to pay Panwar until his license had been approved despite federal regulations which required the company to pay him as soon as "he first makes himself available for work or otherwise comes under the control of the employer, such as by waiting for an assignment . . . or studying for a licensing exam."

Panwar continued to demand a job assignment and pay for the next several months. According to the complaint, the recruiter threatened to revoke his H-1B visa if he didn't stop demanding an assignment and payment of wages as provided under his employment agreement. Approximately seven months after his H-1B visa had been approved, Panwar finally was provided employment working for a third party and began receiving weekly paychecks. He was paid about $21 per hour for working approximately 35 hours per week, well below the $800 to $1,000 per week he had been promised under the contract and well below the prevailing wage rate for a physical therapist. The complaint alleges Panwar has not been paid for non-productive time or been reimbursed for the license fee he was ordered by the company to pay.

After Panwar initiated legal action against his employer, the complaint alleges that a recruiter employed by Access Therapies began threatening to revoke his H-1B visa. The company terminated Panwar a few days later according to the lawsuit.

In seeking class action status for his complaint, Panwar references the Department of Labor's online wage library for Foreign Labor Certification as proof that Access Therapies has filed over 300 LCAs and RN Staff has filed over 100 LCAs in the past year alone in support of H-1B applications. The complaint states that it believe Panwar is among hundreds, if not thousands, of possible employees with potential claims against Access Therapies and RN Staff. The lawsuit accuses the defendants of engaging in violations of the Racketeer and Influenced and Corrupt Organization Act ("RICO"), violations of the Forced Labor and Trafficking With Respect to Forced Labor Act, anti-retaliation provisions of the Fair Labor Standards Act, Indiana's Wage Claim statute and breach of employment contract.

This class action lawsuit is a reminder to all prospective H-1B employees to never sign a contract with a prospective employer before first having it reviewed by an attorney. Most H-1B employers which employ H-1B employees directly will not ask their employees to sign written contracts; however, staffing companies which rely on third party employers to place their H-1B employees like the ones involved here seem to require them as a matter of doing business before they will agree to sponsor them. These staffing companies appear to operate as if they believe the H-1B rules and regulations applicable to the employment of foreign workers do not apply to them, and state courts often seem ill-equipped to understand the nuances required of the federal laws and regulations when asked to determine liability in breach of contract claims brought under state law based upon the one-sided contracts drafted by these H-1B employers.

By way of disclosure, this blog's author has represented several employees who have been sued by either Access Therapies or RN Staff in the Marion Superior Court in Indianapolis, the court which has jurisdiction to hear all disputes arising under the employment contracts the companies enter into with its employees. I've found that these companies together have filed more than 70 lawsuits against former employees in the Marion Superior Court over the past several years. Many of the defendant employees ignore the lawsuits and are later haunted to learn that they have default judgments entered against them for amounts totaling in the tens of thousands of dollars which wreck their credit record. If you have a dispute with your H-1B employer, you are urged to contact an attorney to make sure you understand your rights and be prepared to defend against any lawsuit brought against you. You may have counter-claims you can assert against your employer. For example, Indiana law allows an employee to recover up to three times the amount of unpaid wages owed to them by their employer, plus recovery of their attorney's fees. If your H-1B employer has failed to pay you the prevailing wage rate or for the time you've been benched or are otherwise awaiting a job assignment, you have a right even under state law in Indiana to recover your unpaid wages, plus damages and attorney's fees. You also have the right, with or without an attorney, to file a complaint with the Department of Labor against your employer.

Whatever you choose to do, please don't just sit on your rights. One former employee of Access Therapies learned the hard way the consequences of failing to retain counsel to represent her in a breach of contract claim the company brought against her until after the court had entered a default judgment against her for a whopping $34,787.82. Despite the former employee's unfamiliarity with the American legal system, neither the Marion Co. Superior Court Judge Heather Welch nor the Indiana Court of Appeals would cut her any slack. Based on what few facts are provided in the Court's opinion, it appears that the former employee, Sucharita Ananthaneni, had left the company after working for the company for a brief period of time but before the term of her contract had ended. The Court of Appeals noted confusion in the term of the contract Access Therapies included in the record as to whether it was for a term of 18 months or 2 years. The Court's opinion in Anathaneni v. Access Therapies reads, in part:

Access’s complaint speaks both of an eighteen-month and of a two-year initial term of employment; the employment agreement Access attached as Exhibit A provides for an eighteen-month term. Ananthaneni claims the duration was "open." Difficulty in determining other underlying facts arises because Access disagrees with the "Statement of Facts" section of Ananthaneni’s brief but fails to recite separate facts of its own, and Ananthaneni cites to documents that the trial court found inadmissible.

The Court's opinion states that included in Access Therapies' damages were the expenses it had paid for Ananthaneni's H-1B filing fees and attorney's fees for filing the petition, even though federal law specifically bars the employer from recovering those costs from the employee. The Court of Appeals denied her motion to set aside a default judgment entered against her because she failed to timely file her appeal. In this case, the employee wound up being ordered to pay back all of the money she had been paid to work for the company and then some perhaps, an outcome that is an outrage on its face. I'm representing one employee who is being sued by Access Therapies for $15,000 even though he never worked a single day for the company or paid a dime. It's hard to believe this sort of thing could happen in the United States of America to any employee in this day and age, but it's happening right here in Indianapolis, Indiana to foreign workers over and over again. The U.S. Department of Labor has received dozens of complaints against Access Therapies from its former H-1B workers. An administrative law judge in 2010 found the company liable for numerous violations of the H-1B regulations, and ordered it to pay a substantial fine in excess of $200,000 and pay back wages totaling more than $1 million to more than 60 affected employees. The company has appealed the ALJ's decision.

Childhood Arrivals Granted Deferred Action Could Obtain Indiana Driver's Licenses

2012-09-16T10:42:00.003-07:00

The recent announcement by the Department of Homeland Security that it would grant deferred action status to certain undocumented aliens who arrived in the U.S. on or before June 15, 2007 before they reached the age of 16 could make it possible for many of Indiana's undocumented aliens to obtain a driver's license. Childhood arrivals who qualify for deferred action will be granted temporary authorization to work, subject to renewal after two years. Questions have arisen since the announcement was made as to whether deferred action status will permit persons who otherwise entered the country without inspection to obtain an Indiana driver's license. Federal officials have made clear that the granting of deferred action status to a person does not equate to granting them legal status in the U.S. Deferred action is a discretionary determination to defer action of an individual who is otherwise removable from the country under federal law because they entered the country without inspection and failed to depart. Deferred action also does not provide a path to permanent resident status or citizenship.

The Indiana Bureau of Motor Vehicles has posed the question to the Indiana Attorney General's Office for an official legal opinion as to whether Indiana law will permit childhood arrivals granted deferred action status to obtain a driver's license, however, a quick interpretation of Indiana's current statutory law indicates they will be allowed to obtain a driver's license. I.C. 9-24-9-2.5 requires driver's license applicants to produce documentary evidence of their legal presence in the United States. It includes citizens, permanent residents, asylees, refugees, aliens lawfully admitted as temporary residents, those holding a valid non-immigrant visa and those granted temporary protected status, among others. Subsection (9) of the statute specifically includes an applicant who "has approved deferred action status," which is the status being conferred on the qualifying childhood arrivals. Several states were quick to announce their intention to deny driver's licenses to childhood arrivals granted deferred action status, including Arizona, Nebraska and Texas. Unless the Indiana General Assembly revises the current law, childhood arrivals granted deferred action should be allowed to apply for an Indiana driver's license.

UPDATE: The BMV has confirmed to me that it will issue a driver's license to any person granted deferred action by USCIS, which includes the early childhood arrivals now permitted to apply for deferred action status if they arrived in the U.S. on or before June 15, 2007.

Important Update For Deferred Action On Childhood Arrivals

2012-08-03T15:41:00.000-07:00

The Department of Homeland Security will begin accepting applications for deferred action consideration of undocumented aliens who were brought to the United States as children starting August 15, 2012. The filing fee, including employment authorization and biometrics, will be $465.00. You may be eligible for this benefit if you can satisfy the following requirements:

Were under the age of 31 as of June 15, 2012;
Came to the United States before reaching your 16th birthday;
Have continuously resided in the United States since June 15, 2007, up to the present time;
Were physically present in the United States on June 15, 2012, and at the time of making your request for consideration of deferred action with USCIS;
Entered without inspection before June 15, 2012, or your lawful immigration status expired as of June 15, 2012;
Are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and;
Have not been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.

This benefit does not confer an immigration status on an otherwise undocumented alien; rather, it permits an applicant to remain in the U.S. for a deferred period of up to two years, subject to renewal, and to obtain work authorization while placed in deferred action status. Deferred action is a discretionary determination to defer action of an individual who is otherwise removable from the country under federal law because they entered the country without inspection and failed to depart. Even if you have already been placed in removal proceedings, you may be eligible for this benefit. Deferred action will not excuse previously accrued unlawful presence in the country; however, if your case is deferred, you will not accrue further unlawful presence during the period of deferred action. Deferred action also does not provide a path to permanent resident status or citizenship. Until Congress adopts the Dream Act , deferred action cannot be used as a path to legal status. If you are granted deferred status, you are not permitted to travel outside the country and re-enter unless you have applied and obtained advance parole for your travel.

This is an important benefit potentially affecting a large number of undocumented aliens currently present in the U.S. You are highly encouraged to obtain the advice and assistance of an attorney before applying for this benefit. Feel free to contact me at gwelsh@welshatlaw.com for more information and assistance.

2012-06-25T17:12:00.001-07:00

Arizona Gov. Jan Brewer declared victory today because the Supreme Court upheld one aspect of her state's law to crack down on illegal immigration. A closer look at the Court's opinion in the case, however, clearly shows that it reasserts and affirms the federal government's supremacy under the U.S. Constitution to make and enforce a uniform, national immigration law. States will not be permitted to pass laws that poke and prod the federal government into enforcing aspects of federal immigration laws it chooses to ignore or to only selectively enforce. Instead, the Court recognizes "broad discretion" whether and how to enforce immigration laws. That "broad discretion" was underscored when word leaked out soon after today's ruling that the Department of Homeland Security will no longer honor its current agreement with the state of Arizona to check the immigration status of persons lawfully detained by law enforcement officers for other purposes, the "so-called 287(g) agreements." That discretionary decision undermines the one victory the state of Arizona obtained under today's ruling.

The Arizona law contained an immigration status check provision that required local law enforcement to check with ICE to determine a person's status where reasonable suspicion exists that the person is an alien and is unlawfully present in the United States after a person has been the subject of "a lawful stop, detention or arrest." This was the only provision of the Arizona law that the Court upheld today, noting that Arizona's law provided that law enforcement officers were prohibited from considering the person's race or national origin in enforcing it. Under existing agreements with state and local governments, ICE officials already agree to check a person's immigration status after they are taken into the legal custody of state or local law enforcement officials. If ICE determines that further action is warranted, it will request the state or local law enforcement agency to place a hold on the individual's release in order for custody of such detained persons to be transferred to ICE officials for further processing in accordance with federal law, a process that is supposed to occur within 48 hours. No sooner had today's decision been handed down than the Department of Homeland Security signaled that it would no longer honor its 287(g) agreement with Arizona officials, a move that could render that provision of the law meaningless.

Federal preemption in the area of immigration enforcement resulted in the Court striking down three major provisions of Arizona's law as unconstitutional, including:

A provision making it a crime not to carry valid immigration documents establishing a person's lawful presence in the country.
A provision making it a crime to apply for a job in Arizona unless a person has valid documents establishing their right to accept employment in the United States.
A provision allowing warrantless arrests of persons who state and local law enforcement officials have probable cause to believe has committed an offense that would cause the person to be removable from the country.

This third provision concerning warrantless arrests is very similar to a provision included in an immigration enforcement law enacted by Indiana last year. A federal district court has already enjoined enforcement of this provision, and it will likely meet a similar fate in the federal courts as Arizona's law in light of today's decision. The same federal district court has also enjoined enforcement of a separate provision of Indiana's law that prohibits the use of consular IDs for identification purposes. Today's decision did not address that issue, but it is unlikely to pass muster either.

Last year, the Supreme Court upheld a separate Arizona law that requires employers within the state to participate in E-Verify, a program that allows the federal government to confirm that a person applying to accept employment is legally authorized to do so. That state law penalizes non-complying businesses with the loss of business licenses. Indiana's immigration enforcement law subjects Indiana employers to tax penalties if they employ aliens lacking employment authorization unless the employers utilize E-Verify to determine the employee's status. Indiana's law also requires all state and local government agencies to utilize E-Verify, as well as businesses that contract with state or local agencies. Indiana's law also created new crimes for false identity statements and for persons engaged in trafficking of illegal aliens. The fate of these provisions of Indiana's immigration enforcement law is less clear after today's sweeping ruling recognizing federal preemption in immigration enforcement

Important Benefit For Young Persons Unlawfully Present In The US

2012-06-15T08:30:00.001-07:00

Today, Secretary of Homeland Security Janet Napolitano announced a new benefit of great importance to persons who are not older than 30 years of age and who were brought to the U.S. unlawfully before they reached the age of 16. Those who satisfy the criteria set out in this new policy will be afforded deferred action for a period of two years, subject to renewal, on efforts to remove them from the country or entering into removal proceedings. More importantly, the Department of Homeland Security will provide work authorization to individuals who qualify for this benefit. Under the new directive announced today, individuals who demonstrate that they meet the following criteria will be eligible for an exercise of deferred action on a case by case basis:

Entered the U.S. before the age of 16
Have continuously resided in the U.S. for at least 5 years and are present as of today's announcement
Are currently in school, have graduated from high school, have obtained a GED or are honorably discharged veterans of the armed forces
Have not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses or otherwise pose a threat to national security or pubic safety
Are not above the age of 30

While this policy takes effect immediately, implementation of the application process for eligible beneficiaries is not expected to be completed for another sixty days. Please contact an immigration attorney to learn more about this policy. You can reach me at gwelsh@welshatlaw.com or call my office at 317/684-0099. If you believe you may be eligible for this benefit, you would be wise to meet with a qualified attorney to begin documenting your eligibility so you are prepared to apply when the policy is implemented in the next two months. While this proposal is not as comprehensive as the Dream Act proposed by Congress, it still provides an important benefit to young people who were brought to the U.S. unlawfully through no choice of their own. It is also important to understand that this benefit does not grant a person permanent resident status or a path to citizenship. Legislation, such as the Dream Act, will still need to be passed by Congress to provide a permanent solution for affected individuals.

H-1B Workers Must Know Their Rights

2012-05-24T11:09:00.000-07:00

In my practice of immigration and employment law, I am encountering with greater frequency H-1B employers who are abusing the H-1B non-immigrant work visa program by not abiding by the U.S. Department of Labor rules governing the employment of this category of temporary workers. It is essential that H-1B employees understand their legal rights and not allow their employers to disobey the rules they have agreed to abide by as a condition to employing them.

The H-1B visa is limited to skilled workers who help fill a void in the American labor force for which there has been determined to be a shortage of available workers. Employers who sponsor alien employees for H-1B visas must not only establish that the alien employees possess the necessary level of education and credentials required to performed a particular skilled occupation, they must also agree to pay their H-1B employees the prevailing wage rate for that particular skilled occupation in the area where the employer intends to employ the H-1B worker. The employer is required to complete a Labor Condition Application ("LCA") that is filed with the U.S. Department of Labor. The LCA identifies the name of the proposed employee, the skilled occupation to be performed by the employee, as well as the location where the employee will be working and the prevailing wage rate for the proposed job the employee will fill. As an H-1B employee, you have the right to obtain a copy of the LCA your employer filed on your behalf as part of the visa approval process.

The wage you are paid by your H-1B employer should reflect the same wage the employer is paying to its other employees with similar qualifications and experience. You are also entitled to receive the same fringe benefits that your employer offers to its other employees. More importantly, your employer is not permitted to reduce your pay due to lack of work or otherwise refuse to compensate you for your unproductive time. If the employer is no longer able to employ you at the wage provided on your LCA as a full-time employee, then the employer should cancel your H-1B visa and pay for your return trip back to your native country, or provide you the opportunity to transfer to another employer willing to sponsor you as an H-1B employee.

When accepting employment with an H-1B employer, be very careful about signing any written contracts that provide a liquidated damages clause or other liabilities that you are obligated to pay your employer in the event you terminate your employment before the expiration date of your work authorization. Your employer is not allowed to charge you for the filing fees, administrative fees, attorney's fees or other fees associated with the filing of your petition. The employer is also not permitted to impose a penalty on you for ending your employment prior to an agreed upon date. The employer must afford you the same working conditions (e.g., hours, shifts and vacation) as it does its other employees. An employer is not permitted to threaten, intimidate or threaten you with termination when you invoke your rights.

Your H-1B employer is required to begin paying you the prevailing wage rate as soon as you enter the country on your H-1B visa and "enter into employment," which occurs as soon as the employee first makes him/herself available for work or comes under the control of the employee. For example, if you are required to undergo orientation or training before you begin performing work tasks, the employer is required to begin paying you. If you are required to study for a licensing exam before you can begin work, your employer is still required to pay you. Under no circumstances should the employer fail to begin paying you later than 30 days after you enter the United States on an approved H-1B visa or within 60 days of the date listed on your approval notice that you are eligible to begin work, whichever is earlier.

Employers may relocate you to a new location or job site after you enter into employment. Federal regulations, however, require your employer to complete a new LCA for your change in employment status to ensure that your pay is at least the prevailing wage rate. You have a right to obtain a copy of the updated LCA your employer has filed with the U.S. Department of Labor.

It is important that you understand your rights. If you believe your employer is violating your rights, there are remedies you can pursue through the filing of formal complaints with the U.S. Department of Labor. You may also have separate claims against your employer for unpaid wages under an applicable federal or state law. You are highly encouraged to contact an attorney to learn more about your rights.

Temporary Protected Status Extended For El Salvadorans

2012-01-11T13:21:00.000-08:00

USCIS announced that the temporary protected status extended to certain aliens from El Salvador who are residing in the United States has been extended for an additional 18-month period. TPS has been available to certain Salvardorans residing in the U.S. since a series of earthquakes hit the country more than 10 years ago. The 60-day registration period for the TPS benefit is open from January 9, 2012 to March 9, 2012. Persons eligible for TPS designation who would otherwise be deemed unlawfully present are allowed to remain in the U.S. and obtain temporary work authorization through September 9, 2013. TPS is not a substitute for permanent resident status in the United States.

Persons who are already registered are permitted to re-register and extend their employment authorization. If you are an El Salvador national who has never registered for the TPS benefit, you should inquire with an attorney to determine if you may be eligible to enroll for the benefit as a late registrant. Persons eligible for late registration include the following persons who would have been eligible originally, including:

Nonimmigrants or persons who have been granted voluntary departure status or any relief from removal;
A person who has an application for change of status, adjustment of status, asylum, voluntary departure, or any relief from removal which is pending or subject to further review or appeal;
The Applicant is a parolee or has a pending request for reparole; or
The applicant is a spouse or child of an alien currently eligible to be a TPS registrant.

Supreme Court Ruling Provides Relief For Some Otherwise Deportable Permanent Residents

2012-01-07T14:20:00.000-08:00

An incongruous application of a statutory provision allowing the Board of Immigration Appeals (BIA) to grant discretionary relief to lawful permanent residents who had been convicted of deportable crimes meant that relief available to lawful permanent residents who had departed the country and placed in removal proceedings upon re-entry was not always available to some convicted LPRs placed in removal proceedings while still in the United States. The Supreme Court in Judulang v. Holder struck down the BIA's rule for granting § 212(c) relief only if the Department of Homeland Security (DHS) charged them with a ground of deportability that had a comparable ground of inadmissibility. Instead, a unanimous Supreme Court will require the BIA to adopt a new rule that is not "arbitrary and capricious."

There are two categories of lawful permanent residents who could be affected by this ruling:

1. LPRs charged with deportability based on a pre-1996 guilty plea that also triggers inadmissibility. A person charged with an aggravated felony (crime of violence), for example, may have been able to obtain relief from inadmissibility under the former rule applied by the BIA but would not have been eligible for relief for the same crime in a deportation proceeding. Presumably, a new approach would allow the same treatment of the deportable LPR as the inadmissible LPR.

2. Individuals charged with deportability based on a pre Judulang should allow LPRs to apply for §212(c) discretionary relief for criminal convictions that are not excludable offense but are grounds for deportation.

As a consequence of the Judulang decision, individuals currently in removal proceedings may now request §212(c) relief. Cases already on appeal could be remanded to an immigration court for a §212(c) hearing. Those with final orders may be able to have their cases reopened or reconsidered based on the Judulang decision.

Revised Waiver Process Will Benefit Unlawfully Present Spouses And Children

2012-01-06T21:24:00.000-08:00

USCIS this week announced proposed rule changes that would eliminate the requirement that unlawfully present spouses of U.S. citizens and their children depart the United States to adjust to lawful permanent resident status and await adjudication of their hardship waiver before they can be reunited with their U.S. citizen spouses. Under the proposed rule change, unlawfully present spouses and their children will be allowed to remain in the U.S. while they apply for a provisional waiver of their unlawful presence. If the provisional waiver is granted, the spouse and their children will then depart the U.S. to apply for their immigrant visa abroad, which will allow them to return to the U.S. after a much shorter period of time. This change will avoid the disruption that these families suffer from lengthy wait periods they currently experience while waiting for approval of a waiver of their unlawful presence in the U.S. The American Immigration Lawyers Association spoke of the benefits of this rule change to countless numbers of families:

"Although this is just a small part of dealing with the dysfunction of our immigration system, it represents a significant change in process for many individuals," said Eleanor Pelta, president of AILA. "It's a move that will be less destructive to families and bring about a fairer and more streamlined waiver process. Right now people who have accumulated unlawful presence in the U.S. who leave the country to apply for a green card have to wait abroad, often for months or years.

"This adjustment to the rule is important," Pelta added, "because it will literally save lives. Unfortunately, most waiver applications are filed in Ciudad Juarez on the U.S.-Mexico border, an extremely dangerous city these days, and more than one applicant has been murdered or seriously harmed while waiting there."

In 2011, USCIS processed about 23,000 hardship waiver applications, more than 70% of which were approved. The waivers allow aliens who have accumulated unlawful presence in the U.S. to avoid three and ten-year time bars on their re-entry into the U.S. following their departure to apply for an immigrant visa. Despite the high approval rate, many unlawfully present spouses decide against applying for an immigrant visa because of the many months and sometimes years they are forced to wait outside the U.S. while their hardship waiver is being adjudicated. The emotional strain from the long separation and the fear of their waivers being turned down leads millions of unlawfully present aliens, who would otherwise be eligible to become legal permanent residents, remaining in the U.S. in an unlawful presence for many years. Some critics have accused the Obama administration of changing the rules to provide "backdoor amnesty" to millions of illegal aliens. The proposed rule change, however, will only benefit family members of U.S. citizen spouses.

A USCIS announcement explains how the proposed process for obtaining hardship waivers will differ from the current process:

Currently, U.S. citizens who petition for their spouses and children to become legal immigrants to the United States must petition for a visa, and in some circumstances, if the spouse or child has accrued more than 180 days of unlawful presence in the U.S., that spouse or child must also petition for a waiver of a ground of inadmissibility in order to have his or her visa application processed. The proposed process does not change the requirements for obtaining a visa or the standards for obtaining a waiver. Nor does it change the requirement that the spouse or child of a U.S. citizen ultimately depart the United States to have his or her visa application processed at a consulate abroad. The only change contemplated by this proposal is that the spouse or child would be able to apply for a waiver with USCIS in the U.S. and receive a provisional decision on that waiver before departing the U.S. for consular processing of their immigrant visa applications. Currently, applicants can only file for a waiver after having been determined inadmissible by the U.S. consular officer and must wait abroad for a decision, which significantly adds to the processing time for their case. The proposal limits the extent to which the process forces the lengthy separation of families.

The proposed rule change will be published in the coming months. Applications for provisional waivers issued stateside will not be accepted until a final rule is published, hopefully later this year.

Beware Of Immigration Websites

2011-09-20T12:26:00.000-07:00

The USCIS has a warning to the public about immigration websites on the Internet pretending to be official websites that assist you in completing immigration forms. Applicants are paying fees they believe are actually going to pay their filing fees when in fact they are being pocketed by the website's operators. From a USCIS press release:

Some private websites that charge to prepare immigration forms mimic the look and feel of official government sites, leading users to mistakenly believe they are dealing directly with the government and paying USCIS fees. Many copycat sites add to the confusion by charging applicants the same amount for preparing an immigration form that USCIS charges for filing that same form.

As a result, some applicants have sent forms to USCIS without submitting the filing fees. These applicants mistakenly believed they had paid the USCIS filing fee when they paid the private firm for preparing the forms.

Obama Administration To Drop Removal Efforts Against Students

2011-08-18T16:02:00.000-07:00

If you are a student in the United States and you are present here unlawfully, there may be good news for you. The Obama administration announced a new policy withholding removal proceedings against students who were brought to the U.S. as children and know no other home than their American home. It also includes military veterans and the spouses of military personnel. According to a statement released by DHS Secretary Janet Napolitano in a letter to Sen. Richard Durbin (D-IL) and other senators, DHS has "initiated an interagency working group to execute a case-by-case review of all individuals currently in removal proceedings to ensure that they constitute our highest priorities." Sen. Durbin claims the new policy will effectively protect all of the persons that would have been protected from removal by the DREAM Act, a congressional proposal to provide a path of citizenship to persons who have been in the country since they were young children and are enrolled as students.

In June, ICE Director John Morton issued a memorandum setting forth the priorities the agency would follow in pursuing removal actions against persons present in the U.S. unlawfully. The guidelines encouraged agency officers to exercise prosecutorial discretion to drop removal proceedings against persons who had been in the country since they were children and had no serious criminal convictions, or what are described as "low priority"cases. The agency has shifted its focus to removing unlawful aliens who have committed serious crimes or are deemed a threat to national security, which are classified as "high priority" cases. The Obama administration is still urging Congress to pass the DREAM Act, although the country's continuing high unemployment and slow economic growth suggest the likelihood of that happening in the current legislative environment is highly unlikely.

Indianapolis Notario Sentenced For Unauthorized Practice Of Law

2011-08-05T13:17:00.000-07:00

An Indianapolis woman who performed immigration services to immigrants in Indianapolis' Hispanic community has been sentenced by a Marion Co. Superior Court judge for income tax evasion and the unauthorized practice of law. M. Esther Barber, also known as Maria Esther Tapia Cuevas, advertised her services under the title of "Notario" for a business she operated under the name Asociacion Civica Mexicana De Indiana, Inc. The Indiana Attorney General's Office has brought a separate action against Barber for the unauthorized practice of law under Indiana's Deceptive Consumer Practices Act.

Individuals like Barber often mislead Hispanic consumers about their credentials by using the "notario" title that is often confused with a "notario publico," a Spanish title for an attorney with specialized training. Barber pleaded guilty to two Class D felony counts of income tax evasion and a Class B misdemeanor for practicing law without a license. Barber received no jail sentence for her crimes; instead, she will be required to serve only 40 hours of community service. The Attorney General also contends that Barber owes the state Department of Revenue $58,194 in unpaid taxes.

If you question whether a person is licensed to practice law in Indiana, you can access Indiana's Roll of Attorneys by clicking here and typing in the person's last name to confirm they are a licensed attorney in good standing with the state of Indiana. Note that a "notario" or notary public is only licensed to administer oaths and witness the execution of documents. They are not authorized to provide legal advice to you.

More Than Two Dozen Indicted For Marriage Fraud Scam

2011-07-28T10:21:00.000-07:00

A California immigration consultant and 13 other individuals have been indicted by the U.S. government for an elaborate immigration fraud scheme in which foreign nationals from Russia and Eastern European countries paid thousands of dollars to American citizens to enter into sham marriages in order to immigrate to the United States according to a press released issued by the Department of Homeland Security this week. Foreign nationals paid up to $20,000 to American citizen sponsors to enter into sham marriages with the assistance of Sergey Potepalov, a 55-year-old immigration consultant from Citrus Heights, California.

U.S. Attorney Ben Wagner said, "The indictment in this case alleges that Mr. Potepalov essentially built a business out of phony marriages between U.S. citizens and persons who sought citizenship." Potepalov aided the U.S. citizens in getting fiance' visas to allow the foreign nationals to enter the U.S. for the purpose of entering into sham marriages. All of the petitions were ultimately denied according to the press release.

You should note that Potepalov acted as a consultant and not as a licensed attorney. It is illegal to practice law without a license. The state of Indiana has shut down at least two individuals operating in Indiana as a "notario publico", giving Spanish-speaking clients the impression they were attorneys who could assist them with their immigration petitions when they in fact were only licensed as a notary public, which authorizes the person to do no more than administer oaths and witness the signing of legal documents. A "notario publico" is a Spanish-languish term for attorneys with special credentials. American lawyers do not carry the title of "notario publico."

In an unrelated case closer to home, a 35-year-old Mishawaka, Indiana man was sentenced to 42 months in prison for his role in running a sophisticated fraudulent document scam. Alejandro Gonzalez-Garcia ran a nationwide organization with 19 cells in 11 states that produced high-quality false identification cards for undocumented aliens. The ring manufactured phony counterfeit resident alien cards and social security cards that they sold for $150 to $200 a piece. The government also accused the organized crime ring of carrying out violent acts to drive competitors out of the territories in which they were operating.

Warning About Indiana's New Immigration Enforcement Law And Motor Vehicle Forfeiture

2011-07-27T19:13:00.000-07:00

I've heard some rumblings that some local law enforcement agencies may be using Indiana's new immigration enforcement law to impound vehicles of persons suspected of being unlawful aliens after they are taken into custody for minor traffic violations and advising the owners the vehicles are subject to civil forfeiture. While it is true the new law allows law enforcement agencies to impound vehicles that are being used to traffic in unlawful aliens for financial gain, my interpretation of the new law does not permit law enforcement to seize any vehicle in which an unlawful alien is riding at the time he or she is arrested for an offense unrelated to alien trafficking.

Many aliens complain that they are stopped in some jurisdictions by police for no apparent traffic law violation other than driving while having the appearance of being an alien. They typically wind up being cited for driving without a valid driver's license as opposed to a traffic offense for which a police officer might have had probable cause for making a stop. After being taken into custody, the police will typically notify ICE if they suspect the person is unlawfully present, at which point ICE will place a hold on the person, which will prevent their release even after posting bond for the traffic offense for which the person is arrested. ICE is required to take a person being held by a local law enforcement agency into custody for questioning within 48 hours, excluding weekends and holidays.

If you are arrested under similar circumstances and advised that the motor vehicle that you were operating or in which you were a passenger at the time of your arrest is being impounded and subject to civil forfeiture, please get in touch with an attorney immediately to seek relief from what I consider to be an unlawful taking of your property. Never accept the law enforcement agency's claim that they have a right to seize your vehicle without first consulting an attorney for advice.

7th Circuit: Illinois Domestic Violence Repeat Conviction Deemed "Aggravated Felony" Supporting Removal Of Permanent Resident

2011-07-25T10:03:00.000-07:00

Under 18 U.S.C. 16(a), a conviction for an "aggravated felony" is an offense that can result in the cancellation of a person's permanent resident status and their removal from the country. The 7th Circuit Court of Appeals recently held that a permanent resident's second conviction for domestic violence under Illinois' domestic battery statute constituted an "aggravated felony", which meant he was not eligible for the cancellation of the removal proceedings against him.

Jaimie De Leon Castellanos had been a permanent resident of the United States since 1988 after his arrival from Guatemala in 1981. De Leon has worked in the United States, married and fathered three children. In 1984, De Leon pleaded guilty to domestic battery after he was arrested for grabbing his wife by the neck, holding a knife to her, striking her and refusing to allow her to call the police. A year later, De Leon was again arrested, charged and convicted of domestic battery against his wife. Because of his prior conviction, his misdemeanor battery charge was elevated to a felony and he was sentenced to one year in prison.

The Department of Homeland Security initiated proceeding to revoke De Leon's permanent resident status and remove him from the country. The government's petition against him noted that he had two convictions for crimes involving moral turpitude, in addition to his felony domestic battery conviction. De Leon conceded he was removable because of his conviction for crimes involving moral turpitude, but he denied he had been convicted of an "aggravated felony." Although the convictions for crimes for moral turpitude are grounds for removal, a person can petition to cancel removal proceedings if it is proven the person had no prior convictions for an "aggravated felony." An immigration judge disagreed and concluded he had been convicted of an "aggravated felony", and the Board of Immigration Appeals affirmed the IJ's decision but on a more limited basis. It found that he had been convicted of a "crime of violence" rather than an aggravated felony in general.

On appeal, De Leon argued that his second conviction for domestic battery did not involve a crime of violence because it was not necessary under the state statute to prove he had used, attempted to use or threatened the use of physical force. The 7th Circuit Court of Appeals disagreed and held that his battery conviction necessarily involved causing bodily harm to his wife and was, therefore, a crime of violence. The court contrasted its decision in this case with another case (Flores v. Ashcroft, 350 F.3d 666 (7th Cir. 2003)it had decided involving Indiana's battery statute, (I.C. 35-42-2-1), because it permitted a person to be convicted based on "slight offensive contact, such as tossing a paper airplane that causes a paper cut or a snowball that causes minor pain." The Supreme Court held in Johnson v. United States (2010) that a state statute for battery that does not include as an element the use of physical force cannot be categorically considered a crime of violence. The court noted that De Leon's second Illinois conviction for domestic battery was for "intentionally causing bodily harm to his wife."

Contrast this decision with the recent New York decision involving a man convicted of killing his wife where the court rejected the government's effort to block a long-time permanent resident from becoming a naturalized citizen after he had served time for his manslaughter conviction and to revoke his permanent resident status. In that case, the court took into consideration the fact that the permanent resident was a veteran of the Vietnam War who had suffered from post traumatic distress at the time he killed his wife and had subsequently demonstrated that he had been a person of good moral character by obtaining an education while in prison and being a good citizen following his release from prison for the statutory period for demonstrating good moral character prior to his application for naturalization.