Share

Immigration

Monday, February 12, 2018

How to Get A Provisional Unlawful Presence Waiver


Under current law, many immigrants are required to travel abroad and apply for an immigrant visa from their home country before they can return and become lawful permanent residents of the U.S.  Immigrants in the United States illegally, however, may be barred from returning to the United States for either three years or ten years under Section 212(a)(9)(B) of the Immigration and Nationality Act.  

To avoid this bar, these foreign nationals must obtain a waiver of their unlawful presence when applying for an immigrant visa.  Seeking a waiver can lead to a Catch-22, however—leaving the U.
Read more . . .


Sunday, January 7, 2018

Should Employers Enroll in E-Verify? Pros and Cons

The U.S. Citizenship and Immigration Services, in partnership with the Social Security Administration (SSA), offers E-Verify to help employers instantly determine an employee's eligibility to work.  Initial confirmations and "Tentative Non Confirmations" are available in as little as three to five seconds.

The voluntary Internet-based program works by comparing the information from an employee’s Form I-9, Employment Eligibility Verification, with Department of Homeland Security and Social Security Administration records.  Instead of simply retaining I-9s on file in their own offices, employers who enroll in E-Verify must enter the I-9s of all new hires into the program's database.

There are both advantages and disadvantages to using E-Verify.  Employers must weigh each and its relevance to their circumstances.

Five Benefits of Signing Up for E-Verify

 • While E-Verify is generally voluntary, some states require employers to use E-Verify, and it is mandatory for some federal government contracts.

 • E-Verify could become mandatory nationwide.  Adopting it earlier affords employers more time to become familiar with it and adapt.

 • E-Verify helps companies avoid hiring and training a person who turns out to be ineligible to work.  It can eliminate "No Match" letters from the SSA notifying an employer that an employee's reported social security number does not match government records.

• If an employer hires foreign nationals who recently received a degree in science, technology, engineering, or mathematics, enrolling in E-Verify may make those workers eligible to work an additional 17 months without the employer having to file H-1B petitions on their behalf

•Although using E-Verify does not provide a "safe harbor" from prosecution, it creates a "rebuttable presumption" that the employer has not violated section 274A(a)(1)(A) of the Immigration and Nationality Act ("Unlawful Employment of Aliens").

Five Drawbacks of Signing Up for E-Verify

 • E-Verify is not entirely free.  Employers must allot time and resources to training and supervising staff to use the system and deal with the results of queries.  

 • E-Verify makes mistakes, issuing Tentative or Final Non-Confirmations for workers who are authorized to work, or stating “Employment Authorized” for workers who are not.

 • Tentative Non-Confirmations open employers up to new legal risks.  For example, employees have sued employers for discrimination for not providing proper notice and instructions for contesting a Tentative Non-Confirmation.

 • E-Verify can lead to liability for privacy and discrimination violations.  Federal and state laws require the safeguarding of I-9 information.  Employers must make sure that their staff does not intentionally or accidentally misuse E-Verify data.

 • Because the government can use E-Verify to mine data, it may find employers' hiring mistakes that otherwise would not have been discovered.  For example, employers enrolled in E-Verify must complete and submit I-9 forms by the third business day after a new hire's first day of work.  Consistently missing this deadline could trigger an I-9 inspection and fine.  Employers who are not submitting I-9s to E-Verify might never be caught in a slight delay in completing them.

 If you have encountered any of these issues in your past or current use of the E-Verify system, you would be best served by discussing the problems with an immigration law attorney as soon as possible.


Monday, October 16, 2017

Master Calendar Hearings

The first stage in the removal (deportation) of a foreign national is a Notice to Appear (NTA) at a Master Calendar Hearing.  The purpose of the hearing is not to reach a final decision on removal, but to obtain basic information about the case and create a schedule for it to proceed.  It also is an opportunity for the court to outline all of the legal rights available to the foreign national, including the right to answer charges, present evidence, examine witnesses and, if the respondent lacks counsel, make use of any free or low-cost legal service providers who may be available.

The Notice to Appear contains the date, time and location of the hearing, usually at least ten days later.  A fo

reign national (the "respondent") who receives a notice must attend in person, with or without an attorney.  Failure to attend, or even showing up late, can result in denial of an application and deportation "in absentia."  The respondent should bring the Notice to Appear and any official identification documents.  Family members can attend.

The Notice to Appear also contains allegations about the respondent's illegal status in the United States.  The respondent, with the help of an attorney if possible, should examine these allegations carefully and be prepared to deny them and correct any inaccuracies.

The Master Calendar Hearing itself is brief, though it may take hours for a case to be called.  When the respondent's name and Alien Registration Number are announced, the respondent and counsel, if any, appear before an Immigration Court Judge.  The court will generally provide an interpreter, if needed.

The judge may ask for basic information, such as name, address, and the languages the respondent speaks.  The judge then reviews the charges.  The respondent can deny some or all of the government's allegations and point out any factual errors regarding names, dates, places, or other details.  The respondent can designate—or refuse to designate— a "country of removal," i.e. where to be sent if deported.

The respondent can also state the basis of a claim for relief from removal from the United States.  These may include:

  • Asylum based on persecution in the immigrant's home country. 
  • Marriage to a US citizen.
  • Cancellation of removal for qualifying lawful permanent and non-permanent residents.
  • Adjustment of status from non-immigrant to a lawful permanent resident.
  • Voluntary departure.

At the conclusion of the hearing, the judge gives the respondent a deadline for submitting further applications or documents.  The judge may schedule another Master Calendar hearing for the case, or set a date for an individual hearing on the merits.  The respondent may ask for more time to retain an attorney, submit documents, or prepare for the next hearing.

If you have been notified that you will be subject to a Master Calendar hearing and are at risk of deportation it is imperative to hire an experienced immigration law attorney to protect your rights.


Monday, June 26, 2017

Obtaining U.S. Citizenship Through a Grandparent

The Immigration and Naturalization Act provides that children born outside the U.S. are automatically U.S. Citizens if one of their parents is a U.S. citizen.  There are, however, a number of exceptions.  

To transmit citizenship to a child, the parent must not only be a U.S. citizen but must also meet a physical presence requirement.  The parent must have resided in the U.S. or one of its possessions for at least five years, and for two of the five, the parent must have been at least 14 years old.

If a child is not eligible because a U.S. citizen parent failed to meet the physical presence requirement, the child can still receive citizenship through the physical presence of a grandparent.  There are three basic requirements:

1.  The child is the offspring of parent who is a U.S. citizen, whether by naturalization or birth.

2.  The child is under the age of 18 and in the custody of the U.S. citizen parent.

3.  The child's U.S. citizen grandparent was physically present in the U.S. or its possessions for at least five years, for two of which the grandparent was at least 14 years old.

As with the U.S. citizen parent, the calculation of the total time of physical presence can include periods when the grandparent was not a U.S. citizen.

If the grandparent is dead, the provision is still available.  All that is required is that the grandparent was a U.S. citizen and met the physical presence requirements at the time of his or her death.

Parents seeking to use the grandparent provision for a child must file a form N-600K with the United States Citizenship and Immigration Services prior to the child's eighteenth birthday and attend an appointment in person with the child.  If the parent has died, the child's grandparent or legal guardian can apply within five years of the parent's death.

If you or your loved one is trying to obtain U.S. citizenship through a grandparent, you should seek the advice of a seasoned immigration attorney to achieve the best possible result.


Monday, April 24, 2017

Immigration Bonds

Non-citizens believed to be in the country illegally can be taken into custody and held by the Department of Homeland Security’s (DHS) Immigration and Customs Enforcement (ICE) branch. Just like in the criminal law system, detainees may be given the option to post a bond and be released from detention while they await judgment.

A bond is a monetary promise that the detainee will comply with the government’s demands and show up when required if they are released from custody. A bond is not a fine; it does not put an end to the issue at hand, it merely allows the detainee to live at home rather than in government custody while his or her case is processed.

Whether a bond is available and how much it will be depends on several factors. The minimum amount ICE can set for a bond is $1,500, but it can be set at a much higher rate as well. ICE will take into consideration the length of time the detainee has lived in the United States, whether he or she has family in the United States, the detainee’s employment history and criminal record, and whether the detainee has any past immigration law violations. There is no way to predict exactly what amount ICE will set a bond at, but an experienced attorney can provide a likely range.

If the detainee thinks his or her bond is too high, he or she can appeal ICE’s decision to a judge. Once the bond is finalized, it can only be challenged if the detainee’s circumstances change. For example, if the detainee has a criminal charge pending when bond is set that is later dismissed, the detainee can ask that bond be lowered.

While it is the detainee that might be challenging the bond amount, the detainee is not usually the one paying the bond. Immigration bonds must be paid by someone who is in the country legally. This can be a relative, friend or professional bondsman; it doesn’t matter as long as the person can prove he or she is in the country legally and can provide the government with a cashier’s check in the bond amount.

If all the government’s conditions are met, the bond money is returned to the lender at the close of the case. It does not matter if the detainee wins the case and gets to stay in the United States or loses and is deported; if the detainee always appeared when required by ICE, the bond money is returned.

If you or your loved one is involved in an immigration matter requiring a bond, contact an experienced attorney today.


Monday, March 13, 2017

What are the restrictions on an H2A visa?

 

The H2A visa is available for employers to bring in foreign nationals in order to fill temporary agricultural jobs. A prospective employer must make an application on the employee’s behalf by filling out form I-129. In order to obtain an H2A visa, the employer must be able to stipulate that the position to be filled is temporary or seasonal in nature and that there are not sufficient American citizens willing, able, and qualified to perform the temporary work. Furthermore, the employment of foreign nationals must not adversely affect the wages or working conditions of American workers. In addition, the petitioner must be in possession of a temporary labor certification from the U.S. Department of Labor.

The issuance of H2A visas is limited to nationals from 68 approved countries.  An individual may stay in the United States and work under the temporary visa only for the period of time authorized in the employer’s temporary labor certification, which varies from one employer to another.  If the need for employees is greater than anticipated, an employer may apply for an extension for his or her employees under the H2A program. Each extension lasts one year and the maximum stay permitted under this classification is three years. After this, in order to reapply for H2A status, an individual must leave the United States for 3 uninterrupted months before being allowed to return to work in the United States.  Employers are responsible for providing adequate housing for the workers and to provide transportation to and from the workers’ home countries. There is no cap on the number of H2A visas available annually or on the number of H2A visas allowed for any particular country.

H2A recipients are not residents and they are not immigrants.  There is no path to a green card with a H2A visa. Recipients are required to work during their stay. If their employment ends for any reason, their visa expires. They may leave the country and return, but only if authorized by their employer. If they desire to bring family members with them into this country, they must apply separately for an H4 visa. Family members who are recipients of such H4 visas, however, are not permitted to work during their stay in the United States.

It is not only desirable, but also necessary, to consult with an experienced immigration attorney well versed in the complexities of immigration law before submitting an application. Without such assistance, it is extremely difficult to fully understand the limitations and restrictions on any type of visa.


Monday, February 6, 2017

An Overview of Non-Immigrant Visas

Below is a list of all the various types of non-immigrant visas:

H-1B: Temporary professional workers for a specialty occupation

           with at least a 4 year bachelor’s degree. Maximum stay of 6 years,

           but can lead to permanent residency.

H-2B: Seasonal workers permitted to enter the country for a short time

           to fill a need when American labor is unavailable.

H-4: Spouses and children of H-1B and H-2B immigrants are permitted

        to enter the country under an H-4 visa but are not allowed to work.

K-1: For the fiancé[e] of a U.S. citizen where the marriage will occur within 90 days.

K-3: For the spouse of a U.S. citizen while the application for a green card is pending.

L-1A/B: An international company with an existing presence in the United States

              may transfer a foreign employee to a local office with one of these visas.

             The L-1A is for executives, and the L-1B is for individuals with specialized knowledge.

             Spouse and children of employee may enter the U.S. on an L-2 but may not work.

O-1: Limited to individuals with extraordinary ability in arts, science, education, business,

        or athletics, with a record of great achievement and indisputably at the top of their field.

O-2: Assistants to O-1 visa holders in artistic or athletic events.

O-3: For the spouses and children of an O-1 or O-2 visa holder.

R-1: Religious workers entering the country on a temporary basis

R-2: For spouses and children of those entering the country with an R-1 visa.

TN-1/2: For Canadian (TN-1) and Mexican (TN-2) nationals to work in specific occupations

              These visas have strict educational requirements. The spouses and dependents of these

              individuals must apply for TD visas to enter the country.

A-1/2/3: For diplomats, government officials, their families and attendants.

B-1: For individuals entering the United States who are briefly visiting for business purposes.

B-2: For individuals briefly visiting the United States for pleasure -- also called tourist visas.

C: For travelers passing through the United States who don’t intend to enter the United States.

F-1: For individuals engaged in a full course of study at a U.S. institution -- also called student

        visas. Individuals are not permitted to work when in the country on this visa. Spouses and

        children of F-1 visa recipients must apply for F-2 visas to enter the country.

J-1: For individuals participating in visitor exchange programs. Spouses and children of J-1

       recipients must apply for J-2 visas to enter the country.

Q-1: Participants in international cultural exchange programs apply for this visa.

T: A person who has been a victim of human trafficking who cooperates with law enforcement

    in the investigation and prosecution of human trafficking is eligible for this visa.

U: This visa is for victims of criminal activities who seek police protection from

     a qualifying crime.


Monday, December 5, 2016

Immigration Issues in Intercountry Adoption

When a child is adopted from a foreign country, that child must go through the immigration process through the United States Customs and Immigration Service like any other person. The child must be eligible for adoption under the Immigration and Naturalization Act. If a child is adopted from another country and is deemed ineligible, that child will not be permitted to immigrate to the United States. A child under the age of 16 who has resided with his or her adoptive parents for two years may apply for entry under an I-130 petition. This is rarely utilized because of the requirement that the adoptive parent live abroad for two years. Most adoptions are done through one of two processes depending on the country of origin of the child being adopted.

If the child being adopted is from a country that is a party to the Hague Convention, the prospective parents must seek adoption through an approved service provider. They will have to fill out form I-800A to determine whether they are eligible to adopt a child from a foreign country. They will be fingerprinted and undergo a background check and a home study.  The child’s country of origin will then examine your credentials and match you with a child. This process can take months or years. At this point, the prospective parents will meet with the child and decide whether or not to continue the adoption process. The prospective parents must then fill out form I-800 to confirm that the child is eligible to immigrate to the United States, and form DS-260 to request that the child be permitted to immigrate. If everything is in order, the US Consulate will provide a letter confirming the child will be permitted to immigrate to the US. At that time, the adoption process must be completed in the child’s country of origin and prospective parents will receive a copy of the child’s birth certificate, the Hague Adoption Certificate, and an IH-3 visa. If the adoption process will be completed in the United States, the child will be issued an IH-4 visa until the time the adoption process is completed and the parents must also complete form N-600.

In countries which were not parties to the Hague Convention, the process is simpler. The child must be an orphan, or the surviving parent(s) must be unable to care for the child and acknowledge their abandonment of their parental rights in writing. The prospective parents must file form I-600 and apply for an IR-3 or IR-4 visa.


Monday, November 7, 2016

If My Spouse is in the United States Legally, Can I Enter As Well?

Public policy in the United States is to keep families together, and the rules of immigration are designed to encourage this to a great extent. Generally, the spouse of a person who is in the United States legally may stay in the country for as long as the spouse is permitted to stay. The spouse of a US citizen may apply for a green card upon marriage. Prior to marriage, a citizen’s fiancé may apply for a K-1 visa which is valid for 90 days before the wedding. A K-1 applicant’s children may also stay in the country under the K-2 designation.

Just about every type of non-immigrant visa has a counterpart for the individual’s spouse. An F-2 visa is designated for the spouse and children of an F-1 student visa holder. An H-4 visa is for the family of a person in the United States on an H-1B, H-2B, or H-3 foreign worker visa. Religious workers who enter the country on an R-1 visa can obtain permission for their dependent spouses and children to enter through the R-2 visa. The commonality among all these is that these visas are designed for non-immigrants who expect to stay in the United States for an extended period of time. These spousal visas do not exist for those who are traveling for a short-term stay. Both spouses must apply separately for B-2 tourist visas.

Simply because a spouse or dependent child is permitted into the country prior does not mean that the spouse or child can participate in every activity the spouse partakes of. Many temporary non-immigrant visas, for example, permit an individual to work. An O-1 visa holder is allowed into the country specifically to perform a specialized task for which he or she has extraordinary ability. The O-1 visa holder’s spouse may enter the country under an O-3 visa, but may not seek employment. This places a financial burden on the O-1 visa holder and makes it impractical for his or her spouse and children to come to the United States. Depending on the specific type of visa, other restrictions may exist on an applicant’s ability to travel or engage in a course of study. Only an experienced immigration attorney can confirm the restrictions on each specific visa.


Monday, October 10, 2016

Overview of the Diversity Visa Program

Since 1995, people hoping to move to the United States could opt to enter a lottery to receive an immigrant visa through the Diversity Visa program. Every year, 55,000 people are selected to receive immigrant visas by lottery. The list of countries whose citizens are eligible for the diversity visa lottery changes from year to year based on trends from the previous five years. The point of the lottery is to diversify the immigrant population in the United States by selecting applicants from countries with low immigration rates. Applicants from no single country may receive more than 7% of the visas distributed.

In order to qualify for the lottery, an individual must be a natural citizen of the country from which he or she is applying. The individual must also have the equivalent of a high school education and the equivalent of two years work experience in the last five years. Not every job qualifies. The Department of State is looking for individuals working jobs that require some sort of training or specialized knowledge. Engineers, doctors, and lawyers, teachers, electricians, plumbers, and carpenters are likely to qualify while taxi drivers, door men, janitors, and fast food workers are not.

The application itself must be completed electronically through the Department of State. There are no application fees. No paper entries or late entries will be considered. Applications are usually due every year in October. Only one submission can be made per person each year. If an individual is married, both spouses are permitted to submit entries. Once an individual qualifies and submits an application, the winners of the lottery are random and there is no way to increase the odds of being selected.

If an individual is selected, that person must undergo an interview to confirm his or her eligibility. This process may occur in the United States if the applicant is present, or at a US consulate or embassy. The applicant should bring proof that he or she meets all eligibility requirements and records relating to birth, marriage, any prior deportations, criminal records, and records of military service where applicable. If an applicant’s family situation has changed since the application, for example, if the applicant has gotten married or had a child, this must also be discussed in the interview. If the interview does not uncover any additional problems or concerns, the applicant will receive an immigrant visa.


Monday, August 22, 2016

Refugee Status in the United States

A person may request entry into the United States as a refugee if he or she is located outside of the United States, can demonstrate that he or she is facing persecution due to race, religion, nationality, political opinion, or membership in a particular social group, is not firmly resettled in another country, and is otherwise admissible to the United States.

In order to begin the process to apply for refugee status, an individual must first be referred to the US Refugee Admissions Program. Having a family member admitted to the United States as a refugee may help the determination. Immediate family members, including spouses and unmarried children under the age of twenty one, can be included in the application. Same sex partners who are unmarried may link their applications and ask to be resettled in the same geographic area. There are no fees to apply for entry to the United States as a refugee. Refugees have a right to expedited processing if they are facing an acute medical or protection problem. Once an individual or family is approved, they will receive a medical examination, a cultural orientation, and a loan for travel expenses.

Refugees are permitted to work immediately upon entering the United States. They must apply for a green card within one year of their entry, but are excused from paying application fees as well as fees for fingerprinting and biometrics. Refugees are permitted to travel abroad, but to reenter the United States, they must first obtain a Refugee Travel Document. If a refugee returns to the country from which he or she originally fled, the refugee must explain the reason for his or her return and how he or she was able to escape persecution. If these travel restrictions are not met, he or she may not be permitted to reenter the United States. Refugees have all the rights of American citizens including the right to free speech, free exercise of religion, freedom of assembly, freedom from unreasonable searches and seizures and self-incrimination, the right to own property, the right to an education and access to housing, the right to petition the courts for relief, and the right to public assistance where appropriate.


Archived Posts

2018
2017
2016
December
November
October
September
August
July
June
May
April
March
February
January
2015
December
November
October
September
August
July
June
May
April
March
February
January
2014
December
November
October
September
August
July
June
May
April
March
February
January
2013
2012

← Newer12 3 4 Older →


Serving Southeastern Wisconsin, with offices in Milwaukee and West Bend, Affliated Attorneys, LLC represent clients throughout Milwaukee County, Washington County, Waukesha County, Dodge County, Ozaukee County, Racine County, Sheboygan County, Jefferson County, Fond du Lac County and Walworth County.



© 2018 Affiliated Attorneys LLC | Disclaimer
1126 South 70th Street, Suite N405, Milwaukee, WI 53214
| Phone: 414-277-9088
530 Walnut Street, Suite 1, West Bend, WI 53095
| Phone: 262-306-9222
314 Niagara Avenue, Suite 4, Sheboygan, WI 53081
| Phone: 920-395-6094
2314 North Grandview Blvd, Suite 200, Waukesha, WI 53188
| Phone: 262-306-9222

Personal Bankruptcy | Family Law | Divorce | Estate Planning | Pet Trusts | Deportation Defense | Permanent Residency | U.S. Citizenship | Probate & Estate Administration | Guardianships | Elder Law / Medicaid Planning | Residential Real Estate

Attorney Website Design by
Amicus Creative