As immigration attorneys, we hear many different stories every day, sometimes to the point of saying that “no one could make this stuff up”. We see people who are upright, decent people who work hard, want to follow the laws, pay their taxes and contribute in a very positive way to American society.

We also see people who were brought to the US as children and who don’t learn they are not legal until they register for college; people who falsified documents to be able to enter under someone else’s passport, bought fake green cards, or filed inappropriate immigration paperwork just to receive a work permit; people who pay someone to marry them in order to get a green card; or come to the US with lawful permanent resident status, only to be involved in criminal activities.

Hopefully, these profiles will allow the reader to better understand the people, their motivations, and the immigration process, so that real changes can be made to the current immigration system we now have.

The profiles are meant for illustrative purposes only. Real names and events are not used. Rather, the information is based on composites of numerous situations.

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Every week I spend some time with my daughter and her mother, and give them money as I can. My girlfriend doesn’t work, and I only make about $10,000 dollars a year, so it has been hard to keep everything going.

After a recent trip to Jamaica to visit my aunt, I was stopped at the airport and questioned by immigration officers. They questioned me about my arrest and “no contest” plea to possession of less than 20 grams of marijuana, and my arrests for armed burglary and intent to sell drugs. I explained that the armed burglary and intent to sell charges were dropped. Another appointment for deferred inspection was scheduled for me to report to them to produce documents concerning all of my arrests.

When I got to the appointment, I was not allowed to go home. Instead, I was sent to a detention center and put into removal proceedings. After a preliminary hearing with the judge, government attorney, and my attorney, a final hearing was scheduled for about a month later.

Eligible for Cancellation of Removal?

My lawyer said he would file an application for Cancellation of Removal, which if I won, would allow me to be able to stay in the US with my family. At the final court hearing, it was revealed that I had not been truthful in my Cancellation of Removal application when I stated neither I, nor any of my family, had received government assistance. In fact, Medicaid paid the medical costs for the birth of my child. When my tax returns were reviewed, it was also revealed that I had falsely claimed dependents in order to receive a large refund and there were some years I did not file taxes, but should have.

All of my family is here and all of them are citizens. Although I love my aunt and have been to Jamaica 4 or 5 times to visit her, I don’t want to leave at this point. I am 29 now, and want to work hard for my little girl and see her grow up.

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I was actually detained by Immigration in 1993, and advised me I was in deportation proceedings, which meant I would have to go to see a judge about my status and whether or not I could remain in the US. However, because I was always moving, I never received the paperwork advising me of the exact time and place of the court. Years later, I learned that the case had been “administratively closed” since I was not personally served with the notice to go to court, and they did not have my address.

Cancellation of Removal for Non-Permanent Residents – Arrests

Fourteen years later, I was arrested again by Immigration, and put in deportation proceedings again. By then, I had married a Mexican lady who was also here illegally. Although we met in the US, we wanted to be able to have our family at the wedding, so a few years ago we went back home, and then paid a “coyote” to get us back across the border. It took two years to have my first preliminary hearing (Master hearing), and then over the next several months, I had three other Master hearings before a final, or Individual hearing, was scheduled. The hearing was canceled, and then rescheduled, but this hearing had to be canceled as well, so that my final day in court occurred five years after my second arrest by Immigration authorities and 18 years after my first arrest.

My wife did not testify, because she was afraid to go to court, and our son was too young, so I did not want him to be in court. I explained my situation to the judge; that basically, I came to America for a better life; to work and be able to provide for my family. I paid federal income taxes every year, and one time, when I was out of work, I got a business license and started my own company. For a short period of time, we received Medicaid and food stamps.

I never committed a serious crime, but I have had about ten traffic tickets over the years. If I can, I want to stay here. We are renting a house; I have three cars, (fully paid for), and I want my US citizen child to go to school in the United States.

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In a nutshell, it is perfectly legal to apply for a green card through marriage knowing you”ll receive an immigration benefit, provided that the primary reason for the marital relationship was specifically based on mutual love and affection. It is only unlawful where acquiring an immigration status is the only true purpose of the marital relationship.

Applying for a green card through marriage to a U.S. citizen
If you and your husband or wife were lucky enough to fall in love and then choose to reap the lawful benefits of this country’s magnificent immigration system, you may apply for a green card through marriage. If the marriage is to a US citizen, the foreign national spouse is, for immigration purposes, an “immediate relative” and a visa (green card) is immediately available. If your husband or wife is a lawful permanent resident, that is, if they are not a U.S. citizen, but rather they have a green card, the rules are slightly different as you will see further below.

Even where a foreign national gets married to a US citizen while in removal (deportation) proceedings, the regulations offers an opportunity for proving there is a valid and genuine relationship. There is, of course, a heightened level of suspicion in these cases, but if you can demonstrate by clear and convincing proof that you have a bona fide (valid) relationship you can still get a green card and avoid being ordered removed by an immigration judge.

Alright, now that you’ve learned that your lawful green card marriage to a U.S. citizen should be regarded as a very positive thing indeed, let’s turn more specifically to applying for a green card through marriage permanent resident.

The 3 Steps to Acquiring a Green Card Through Marriage to a Permanent Resident

1. The Department of Homeland Security/USCIS approves the immigrant visa petition you submit for your foreign national spouse.

2. A spousal immigrant visa must be available for your husband or wife (listed on the State Department’s visa bulletin).

3. Should your husband or wife not be in the U.S. at the time the petition is actually approved and an immigrant visa is available, your husband or wife would be advised to visit to the United States Consulate in order to complete processing the immigrant visa. In the event your better half is actually lawfully within the U.S. at the time the visa petition is approved and an immigrant visa is available, they could opt to apply for their green card by adjusting status.

Confused? Let’s take a moment to recap the rules for applying for a green card through marriage to a permanent resident. If you’re a permanent resident (i.e., a green card holder) and your spousal petition is approved, your foreign national husband or wife would be advised via the National Visa Center/ Department of State whenever a visa becomes available. Should your foreign national spouse be outside the U .S. when you receive the approval notice, they will need to visit the U.S. consulate to finish their visa processing. However, there are some cases in which your spouse may have additional options when you’ve applied for a green card through marriage. For example, if any approvable petition was submitted on their behalf as a direct or derivative beneficiary prior to April 30, 2001, they could possibly benefit pursuant to INA § 245(i). Remember to seek the advice of one of our Bradenton Immigration lawyers to discuss the issue in further detail.

In most cases where a visa number is not currently available, you will have to be patient until one is available. Be aware that your husband or wife may have to leave the U.S. to avoid unlawfully overstaying and accumulating unlawful presence time.

A word about conditional status: If you are granted a green card through marriage and you’re married less than 24 months you’ll be issued what’s referred to as conditional permanent residency status and your green card will be valid for only two years. In these circumstances you must submit a petition to remove these conditions within ninety days of the second anniversary of acquiring conditional status.

Warning: If you are thinking about getting a green card through marriage and you got married only to acquire an immigration benefit then we’re sorry tell you that you’ve got what is referred to in immigration law a “sham marriage” and you’re simply not eligible to obtain any benefit whatsoever. To submit an application on such circumstances is a criminal offense.

Good News: But the good news is that if you wish to apply to obtain a green card through marriage based upon the traditional values of love and affection, you should not be worried in any way. The U.S. boasts a long-standing immigration policy of welcoming legally married foreign nationals as lawful permanent residents.

Please contact us to assist you in applying for a green card through marriage.

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In an article by Howard Fischer of Capitol Media Services, it was reported that Gov. Jan Brewer and top Republican leaders lashed out Tuesday at the League of Arizona Cities and Towns for its lawsuit challenging a new law designed to crack down on illegal immigrants getting public benefits.

“At a time when Arizona is suffering from budget deficits of unprecedented proportions and the state is struggling to meet the basic needs of its citizens, it is outrageous and shocking that the League of Cities and Towns would challenge legislation designed to protect the very entities that it was intended for,” the governor said. Brewer said Arizona voters have shown several times, starting with the 2004 election, that they do not want taxpayer money going to help those in the country illegally. She said changes approved by lawmakers in an August special session will plug holes in that law.” …Attorneys for the cities say the law is flawed because the language about illegal immigration was not enacted in a separate bill of its own, but included in a larger measure dealing with the state budget. That, the lawsuit claims, makes the maneuver unconstitutional. House Speaker Kirk Adams, R-Mesa, said that requiring cities to do more to crack down on services to illegal immigrants is related to the budget. See “GOP blasts league of cities for suit vs. immigrant law” published 11/25/2009.

New G-28 Attorney Representation Form

Attorneys should note that a new G-28 form has been approved by the USCIS. While the old form can be used “until further notice” and filings will not be rejected for failure to use the new form, attorneys and others using the G-28 should begin making the change.

H1B visas for current season about to go off.

Due to the cap on H1B specialty workers visa for nonimmigrants being exceeded in recent years, the result was a shortfall in filings for FY 2010. However, lately there has been a rapid increase and it is believed that H1Bs for FY 2010 will soon go off. Employers with current needs should act quickly and it is not too early to start planning for the FY2011 filing season which begins on April 1, 2010.

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For detailed information about the effect of the shutdown, see http://www.aila.org/content/default.aspx?docid=35062.

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While I am not opposed to administrative policies furthering the interests of judicial economy, this particular policy infringes the rights and duties of immigration judges in making decisions.

THE NEW IMMIGRATION POLICY REGULATING HOW IMMIGRATION JUDGES MAY GRANT CONTINUANCES

The Operating Policies and Procedures Memorandum 17-01 amending the 13-01 policy seeks to regulate how and when immigration judges may grant continuances. The new policy influences, at least subtly, how judges grant continuances by “requiring” that they provide a clear reason as to why they grant particular motions to continue proceedings. This policy further provides that the immigration judges should not be providing continuances in some case in order to help reduce the huge back log of around 600,000 cases. Again, I do believe that it is critically important for immigration judges use continuances appropriately and a warranted for good cause (or mandated by case law), but tampering with an independent judiciary is not a desirable policy.

This policy, while suggestive, will nonetheless fetters the independence of the judiciary. I see the unintended impact of the new policy as mandating, albeit subtly, immigration judges on what and when to grant continuances and the length of time they should adjourn proceedings. This may genuinely influence the independent discretion of immigration judges in granting a motion for continuance for a good cause as determined solely by the judge and case law, and not by arbitrary policy. The immigration judge’s decision should not be influenced by any particular person, policy or body to assure the fairness of the case. Immigration judges while not Article III judges should be independent. And, this independence should not be undermined or influenced by arbitrary policy.

One of our country’s founders, Alexander Hamilton, argued for the complete, unfettered independence of the judiciary. But here, the new DOJ-OPPM policy provides guidelines for granting certain continuances such as, but not limited to, continuances to obtain legal counsel. The policy also provides that the immigration judges should only grant one continuance to avoid delays in the removal hearing process.

The role of immigration judges is, or should be to uphold fairness and justice at all times. The policy guidelines further states that continuances for obtaining legal representation should only be granted for an particular length of time. In my opinion, this is arbitrary and unfair. Legal representation is essential to justice and judges should have wide discretion in providing for whatever length of time they see fit on a case-by-case basis. In this respect alone the policy is very unfair to the poor of the society who frequently have trouble obtaining low cost or pro bono representation—hence fundamental fairness and equality is conspicuously absent.

Moreover, the new policy discusses continuances for attorney preparation, continuances of merits hearing and continuous requested by DHS. This strongly suggests that immigration judges, when deciding on motions that touch these issues, should only be granted in limited circumstances. As such, the court’s discretion is being interfered with and hence justice is being breached.

I am not advocating that attorneys should be free to waste the court’s time but rather that immigration judges should be free to render their decisions with unbridled discretion on a case-by-case basis. With regard to the adjournment of cases which have already been set for hearing the new policy provides for the immigration court not to adjourn a particular matter absent circumstances that relates to illness or death of family members, etc.

This prohibition of adjournments interferes with the immigration judge’s discretion to adjourn any matter they consider as having merit. The policy of limiting continuance and prohibiting adjournments on particular matters will unavoidably lead to unfairness, and justice will suffer.

The new policy appreciably hampers immigration judges in the performance of their duties. And, it will inevitably have the effect of paralysing the independence of immigration judges by fettering their right and obligation to make decisions on their own free of unwarranted administrative influence.

The principles of the importance of an independent judiciary was best addressed by Montesquieu in the separation of powers and the spirit of the law where he stated “…for a judiciary to be independent from the limbs of the arms of the government need to separate their powers and only deal with powers which have been granted in order to function and achieve their purpose.”

Conclusion
Independent immigration judges are fundamental to justice. One cannot exist without the other. The new policy seeking to restrict judges in grating continuance and adjournments in removal hearings should be rescinded.

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Peter Loughlin commented that, “The current wave of immigrants at the border is primarily coming from Mexico, Guatemala, Honduras, and El Salvador. Many are unaccompanied children-alone and terrified. It’s hard to fathom the level of fear and despair that these little ones are going through.”

He went on to say, “It is notable that these countries, Mexico, Guatemala, Honduras, and El Salvador, known collectively as the Northern Triangle, are plagued with unspeakable violence and brutality associated with the drug trade, cartels and gangs.” Thomas Goldman, co-author of “Asylum Granted,” was also quick to point out, “Many are coming to seek refuge in the United States fleeing from persecution and human trafficking. They deserve protection under current U.S. law and International treaties.”

“While there are some viable arguments for stronger border control, “Loughlin said, “the bottom line issue here is that for those persons who are legitimately escaping trafficking and suffering persecution, they should not be arbitrarily turned away. Simply casting them away ‘en masse’ is unthinkable.”

Some critics have alleged that the current mass migration from the Northern Triangle is being encouraged because of President Obama’s liberal enforcement policies, but in truth there is little evidence in support of this position. Tom and Peter were quick to dismiss this assertion pointing out that both children and adults have been fleeing not only to the United States, but to many other South American nations as well. “It is persecution and suffering that is luring them to seek a safe harbor, not the Obama administration’s policies.”

The Goldman and Loughlin Law Firm have five offices throughout Central and Southwest Florida. The firm is not limited to defending asylum applicants, but also includes: Deportation and Removal Defense, Green Card and Family Visas, Business and Employment Visas and U.S. Citizenship. The success of their US Immigration Team has helped thousands to realize the freedom and/or legal status.
With more than 50 years of combined legal experience, Tom and Peter have been admitted to practice before the Supreme Court of the United States of America, the Court of Appeals, Board of Immigration Appeals, Immigration Court and to represent clients at immigration interviews. Their latest book, “Asylum Granted,” covers a broad range of various forms of immigration relief—not just asylum.

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While cries for legalization are even heard in street protests as well as in Congress, the fact is that it is easier for some illegal immigrants to obtain permission to work and to obtain a green card than it is for legal immigrants.

How is this so? Well, let’s take a person who comes to the United States unlawfully and without inspection by boat to Miami or St. Thomas, and then files an application for political asylum. In 150 days, an employment authorization document can be issued permitting the individual to work in the United States, and, permanent residence can eventually be granted if the refugee is granted asylum. After five years they may file for and become a U.S. citizen.

Contrast this scenario with a business investor from another country who wants to live and work in the United States, and is able to invest money in our economy and pay his or her own way while in this country. For example, some foreign nationals apply for an EB-5 visa by investing a minimum of $500,000 to $1,000,000 or more in a qualified business. Others, who own an ongoing business in their home country may invest money in establishing a viable branch office in the U.S. and obtain an L-1visa—also a potential track to obtaining lawful permanent residence status, that is, a green card.

If the foreign national does not have sufficient funds to, in effect, buy a visa (and potentially a green card), or does not have an ongoing business in the home country, another very popular business investor visa is the E-2 visa. With this visa, they are able to purchase or start a new business in the United States and live and work here for an indefinite period of time. However, this type of visa will not allow the investor to ever apply for permanent residence. As wonderful as the business investor visas can be, they are not without problems.

While at a restaurant recently, talking to the owner, he mentioned an unpleasant experience he had with the U.S. consular office in his home country of Germany. He and his wife were renewing their E-2 visa, which is required periodically in order assure that the business is still viable and, at least potentially helpful to the U.S. economy. To do so, he had to temporarily close the restaurant in order to return to his home country because the business requires his management and presence. He took his renewal application (four to five inches thick) to one of the examiners’ windows where he spoke with two US immigration officers to “resell” them on the continued viability of his business.

This was not an easy process. The restaurant owner and his wife have been running this business in the U.S. for 10 years. They and their children have effectively made the U.S. their home. All of their money is tied up in the business. Yet, all could be lost in a matter of minutes in this interview.

One officer listened while another reviewed the documentation. According to the owner, the attitude of the officers was somewhat confrontational with questions like, “How do you make so much money with so few employees.” The owners felt a sense of hostility and suspicion towards them although they have worked hard to establish and expand their business and have certainly contributed to the U.S. economy.

What the restaurant owner may not have realized was that he was fortunate that the officers took the time to be prepared during the interview. We have, on occasion, had clients of Goldman & Loughlin go to the interview only to discover the officer had not taken the time to review the application and supporting documentation. While such incidents are admittedly rare, it should never happen to anyone—particularly hard working investors who have taken the time and effort to come to the U.S. lawfully and contribute to the community and economy of this nation.

Getting back now to our point about the contrast between illegal and legal aliens. A process that allows refugees to come to America and receive permanent status, and potentially, US citizenship is just and noble. Many of these people are destitute, have no education and no ability to support themselves. Yet, through persistence and help from family, friends and the US government, a new life with all of the benefits of living in America can be started.

The call is being made, however, to provide a path to permanent residence not only to refugees, but to anyone who has been able to make it across our borders and avoid detection. (The PC way of saying this is that there should be an undocumented workers program.)

If Congress ever develops the political will to move ahead with immigration reform, attention must be paid to those who have come here legally as well as illegally. We, as a country, need to identify people who have the education and skills to help our economy grow and offer visas to encourage this class of foreign national to enter the U.S. as well. After all, due to the downturn in our economy, the ever-expanding opportunities for jobs in other countries such as India and China, over regulation of businesses and burdensome tax laws in the United States, educated and/or highly skilled engineers, mathematicians, scientists and health care professionals have a variety of other attractive options.

Congress should continue to allow America to be a safe haven for refugees from around the world, and reform immigration laws in a realistic and humane way. However, it is imperative for our country to find solutions for immigrants who come here legally. We need to find ways to attract investors and other foreign nationals rather than discourage them from applying for visas.

The good news is that our new-found friend and superb restaurateur was granted his visa and we will be able to continue to enjoy his great cuisine!

The post Business Visas: Legal Aliens Help Support the U.S. Economy appeared first on Immigration Law Firm with offices throughout Florida.

Typically when the officer evaluated the application he/she would take into account the applicants financial status. Tax returns, sometimes pay stubs would suffice to make sure the individual sponsoring the applicant would not become a ‘public charge’.

The Law states Section 212(a)(4) of the INA: Any alien who, in the opinion of the consular officer at the time of application for a visa, or in the opinion of the Attorney General at the time of application for admission or adjustment of status, is likely at any time to become a public charge is inadmissible[…] In determining whether an alien is excludable under this paragraph, the consular officer or the Attorney General shall at a minimum consider the alien’s-(I) age; (II) health; (III) family status; (IV) assets, resources, and financial status; and (V) education and skills . . . .”

It is this determination that the proposed rule addresses with what appears to be emphasis on not just the financials but the overall merits of the individual.

This proposed rule change will affect thousands who either were recipients of TANF, received food stamps (SNAP), are very ill or elderly, used Medicaid, are not employable or received public housing (Section 8) within the prior 4 years of filing. These factors are now considered highly negative for applicants. In fact DHS proposes the person be considered a potential public charge if they have used 1 or more of these government services. This does not only apply to change of status seekers, but also people seeking admission in non-immigrant categories e.g B1 or B-2 VISA holders.

As it stands the DHS also proposes a public charge bond (min $10,000) for those inadmissible based on public charge. This proposed rule change is currently in the 60 day comment period before final consideration.

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