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Immigration

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.


Monday, July 18, 2016

What Documents Do I Need to Travel Outside the United States?

Most citizens of the United States are allowed to leave this country freely. The restrictions on entering the destination country, however, are determined by that country. If a visa is required for travel, one must be obtained. If other documents are required, a traveler can find out by contacting the embassy of the destination country. Each country has its own unique requirements for entry with which all visitors must comply. Airlines may have their own requirements, so travelers should check with them as well.

A person’s right to return to the United States requires proper documentation. If a traveler is undocumented, he or she will be not be permitted entry into the United States. Lawful permanent residents should carry their green card for re-entry. They should also bring a foreign passport, national ID, or U.S. driver’s license to confirm their identity, and form I-131, with supporting documents and applicable fees. A customs official will speak with each traveler to determine whether or not his or her stay outside the country violated the terms of residency. If the customs official feels that the traveler has abandoned his or her residence in the United States, the traveler’s status as a permanent resident may be revoked. A customs official may ask questions concerning a traveler’s community and family ties in the United States, about the individual’s work, property ownership, filing of income taxes, or residence. If the stay abroad was for longer than one year, a re-entry permit, form I-131, may be required. Brief trips will not affect a person’s status, but trips of 6 months or more may affect a person’s ability to become a naturalized citizen and may require form N-470 to correct.

Those who do not hold a green card may still be permitted to travel outside of the United States, depending on the type of visa they hold. Those who have an F-1 or M-1 student visa will be able to travel if the trip is for fewer than 5 months, and if their SEVIS form I-20 is up to date and endorsed for travel by the student’s designated school official. Many non-permanent residents, such as K-1 visa holders, are not allowed to travel abroad. For some, the line is blurred. For those who are in the country on a U Visa, international travel is permitted, but should only be engaged in if absolutely necessary as a traveler might miss important USCIS mailings or attempts at communication from law enforcement agencies. If a traveler has previously overstayed a visa before leaving the United States, or if any other condition of residency has been violated, that individual may be denied re-entry. It is important to consult with an experienced immigration attorney before international travel to avoid problems at the border.


Monday, June 20, 2016

Costs Associated with Dying Without a Will

When someone dies without a will, it is known as dying intestate.  In such cases, state law (of the state in which the person resides) governs how the person's estate is administered. In most states, the individual's assets are split -- with one third of the estate going to the spouse and all surviving children splitting the rest. For people who leave behind large estates, unless they have established trusts or other tax avoidance protections, there may be a tremendous tax liability, including both estate and inheritance tax.

For just about everyone, the cost of having a will prepared by a skilled and knowledgeable attorney is negligible when compared to the cost of dying intestate,  since there are a number of serious consequences involved in dying without a proper will in place.

Legal Consequences

The larger your estate, the more catastrophic the consequences of dying intestate will be. If you die without a will, the freedom to decide how your property will be divided will be taken from you and the state in which you reside will divide your assets.

Not only will you not be able to decide on the distribution of your property, but a stranger will be making personal, familial decisions. This may be divisive among your family members; instead of leaving your loved ones in peace, you may leave them engaged in bitter disputes over a family heirloom or even a simple memento. This can be especially true in situations where there are children from a previous marriage.

Tax Consequences

In addition to the legal and personal problems associated with dying intestate, the tax results can be severe as well. This is particularly true for clients who have not consulted with an estate planning attorney in order to protect themselves through tax avoidance methods. Both the state and federal governments can tax the transfer of property and an inheritance tax may be imposed on the property you have left to your heirs.

The most effective way to avoid all of these negative tax consequences is to create a will with a competent attorney. Your lawyer will help you to choose a proper executor (the person who will administer your estate, distribute your property and pay your debts), and will assist you in finding ways to limit your tax liability. There are several ways your attorney can help you to do this:

  • By gifting some of those you want to inherit before you die
  • By creating one or several trusts
  • By purchasing a life insurance policy
  • By buying investments in your loved one's name

These methods will ensure that your loved ones receive the assets you desire them to have, while simultaneously protecting them from possibly enormous tax burdens after you pass.

For those who have no family, dying without a will can be even more troublesome and costly, since their entire fortunes can be left to the state. If a genealogical search doesn't turn up any blood relatives, all of your assets will be claimed by the government. This means that any individual, group, organization or charity you wished to endow will receive nothing.

It is never easy to think of one's own mortality, but it is even more painful to contemplate leaving a messy, uncomfortable situation behind when you pass. By engaging the services of an excellent estate planning attorney, who will help you fashion a legally binding, precisely designed document,  you can make sure that your loved ones are well taken care of and that your final wishes are respected and implemented.


Monday, June 6, 2016

The Effects of a Contagious Disease on Immigration

Fear of an Ebola outbreak in the United States renewed the debate over how open the country should be to people who are sick. Some people are prevented from immigrating to the United States because they are infected with a contagious disease, but illness is not typically the reason people are denied legal status.

All people who wish to immigrate to the United States (and people currently in the United States who want to adjust their status to permanent resident) must undergo a medical examination by a doctor certified by the U.S. Centers for Disease Control (CDC). Thinking about the medical exam often causes applicants undue stress because very few people are in perfect health. The United States does not, however, turn people away for minor issues such as the common cold.

The CDC is in charge of determining which diseases prevent people from being able to immigrate. Checking their website is the best way to learn which illnesses are currently considered disqualifying.

People who fail the medical exam because they have a disease that is on the CDC’s list are not permanently banned from entering the United States. Some of the diseases on the list can be cured, so reapplication after treatment is possible. Applicants who fail the medical examination can also apply for a waiver.

Waivers are granted on a case by case basis. The CDC reviews the waiver application and the applicant’s medical records, then makes a recommendation to the Department of Homeland Security, which makes the final decision. If the waiver is approved, the person is allowed to come to the United States.

It is important to keep in mind that the medical examination is just one small part of the application process. It is rare for applicants who are otherwise eligible to be denied entry to the country or a chance of status based on illness alone.

An experienced immigration attorney can help an applicant determine if they are likely to have difficulty passing the medical examination and what options are available if the applicant does fail the exam.


Monday, May 2, 2016

Is Birth Tourism a Shortcut to Citizenship?

Ever since the post-Civil War adoption of the 14th Amendment to the Constitution, all persons born on American soil have been automatically granted citizenship. This policy was common sense in the era it was adopted, a time when international travel was cumbersome and relatively rare, but today its wisdom is being questioned. Is birthright citizenship being abused by people who want to short-circuit America’s labyrinthine immigration law?

The Citizenship Clause of the 14th Amendment states:

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”

From the moment it was adopted, this clause has motivated foreigners to give birth in America. For many years the number of these birth-tourists were limited by the nature of travel, but in today’s world, where air travel drastically cuts down the time it takes to get from one country to another, the path to citizenship guaranteed by the 14th Amendment is well-trod.

Stories abound of pregnant women visiting the U.S. on tourist visas who stay long enough to have their children, get American birth certificates and passports for them, then go back to their native countries, American tot in tow. The Chinese film industry even made a popular romantic comedy about the practice

Having a child that is an American citizen does not, however, guarantee that the child will grow up in America, or allow the family of the child to stay in this country indefinitely. Unless the parents have legal status in the United States, the entire family must return to their home country. It is not until an American-born baby is 21 that they are able to come to the United States and stay without being in school or having to show that they have a legal guardian here.

Once they reach the age of majority, the birthright citizen can enjoy the full benefits of citizenship, and can even sponsor his or her parents’ applications for citizenship.  It is important to remember that having an American-born child is a way to short-cut the system, but will likely take at least 21 years to capitalize on the investment.. In most cases applying for citizenship through other means will be just as fast.


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