Wednesday, November 24, 2010

Seattle Immigration Lawyer | Bribery of a Public Official is Not an Aggravated Felony Under INA

As immigration attorneys and other immigration law watchers know, the definition of “aggravated felony” under the Immigration and Nationality Act (“INA”) is ever-changing. Last month was no exception. In a decision that represented a victory for the narrow definition crowd, the Board of Immigration Officials (“BIA”) recently ruled in favor of an Austrian lawful permanent resident who was convicted of bribery of a public official under federal law, for which he was sentenced to 36 months of imprisonment. Matter of Chrysanth George Gruenangerl, 25 I&N Dec. 351 (BIA 2010).

In September, an Immigration Judge (“IJ”) had found Mr. Gruenangerl removable as an alien convicted of an aggravated felony, specifically, because his offense related to “commercial bribery” under INA Sect. 101(a)(43)(R). Mr. Gruenangerl appealed, and the BIA ruled that bribery of a public official under 18 USC Sect. 201(b)(1)(A)(2006) is not an offense “relating to” commercial bribery and thus not an aggravated felony under the INA.

By way of background, according to the indictment, Mr. Gruenangerl had promised to pay a portion of a finder’s fee to a US Forest Service employee that he expected to receive for the sale of a new gondola at a ski resort, if the employee would tell the ski resort in a report that it needed to replace its gondola.

In its analysis of the crime charged, 18 USC Sect. 201(b)(1)(A), which prohibits “[b]ribery of public officials and witnesses,” the BIA found that “the essence of the offense is the corrupt intent to influence official action.” In contrast, it held that commercial bribery “focuses on influencing action in the private sector involving the breach of the duty of fidelity.”

The BIA actually disagreed with Mr. Gruenangerl’s argument that the Fifth Circuit (where his case arose) has taken a restrictive approach to the phrase “relating to” which would require that the offense he was charged with be described in the immigration statute as a crime of commercial bribery. In fact, the BIA pointed out that both it and the Fifth Circuit had consistently held the phrase has an expansive meaning, especially when used with a general term. Nonetheless, and no doubt to the government’s chagrin, the BIA did not find the phrase “relating to” so encompassing that it includes convictions under 18 USC Sect. 201 for bribery involving public officials in order to influence official action.

Citing Perrin v. United States, 444 US 37 (1979), the BIA pointed out that Congress’s decision to use only the narrow term “commercial bribery” in the immigration statute reflected its awareness that the generic definition of “bribery” included a broad range of conduct, including violations of State commercial bribery statutes.

Disagreeing with the IJ , the BIA held that Sect. 101(a)(43)(R) is a generic provision of the Act, which requires the categorical approach since it lacks specific circumstances on how the offender committed the crime on a specific occasion. Employing such an approach, the BIA found that Mr. Gruenangerl’s crime is not an aggravated felony because the criminal statute does not facially define an offense sufficiently related to commercial bribery.

The BIA also criticized the IJ for his use of the modified categorical approach, where he considered the facts of the case and determined that the alien’s purpose in committing the offense was to obtain financial gain and therefore was commercial in nature. The BIA held that given that the essence of the criminal statute here was the intent to influence official action, the alien’s particular purpose did not somehow transform the offense into one “relating to” commercial bribery of someone in the private sector.

Of course, Mr. Gruenangerl’s battle is not over. The BIA reversed the IJ’s finding of removability (based on aggravated felony) and remanded to determine whether he is removable as an alien convicted of a crime involving moral turpitude. (In dicta, the BIA said that the crime did involve moral turpitude, but the factual issue of whether he committed the offense within five years of the date he was admitted to the U.S. remained.)

Wednesday, November 17, 2010

Seattle Immigration Lawyer | Employment Preferences Continued

Picking up where I left off last in discussing the Third Preference category, the subcategory of “Professionals” includes not only attorneys, doctors, engineers, teachers and architects, but also, generally anyone who has a degree and who is working in a field related to their education and/or experience background.

To qualify for the subcategory of “Skilled workers,” an immigrant must have at least two years of training or experience (no university degree required). As of November 2010, the priority date for “Professionals” and “Skilled workers” was January 22, 2005, meaning that if you have a priority date before 1/8/05, you are eligible for a visa number. (However, the wait is even longer for immigrants from China, India, or Mexico.)

The subcategory entitled “Unskilled workers” is for jobs that typically require fewer than two years of training or experience. Not surprisingly, since very few green cards are given for unskilled workers (only 10,000 available per year), the current priority date is April 1, 2003. (However, there is an even longer wait for immigrants from India or Mexico.) A
common mistake that immigrants make when applying under the “Unskilled worker” subcategory is that just because this subcategory requires less than two years of training or experience does not mean that the immigrant’s qualifications do not have to match the actual job requirements—they still do.

Fourth Preference (EB-4): “Special immigrants,” including certain religious workers, employees of U.S. foreign service posts, retired employees of international organizations, alien minors who are wards of courts in the U.S., and certain other classes of persons. (Labor Cert. is NOT required.)

Fifth Preference (EB-5): Business investors who invest $1m or $500,000 (if the investment is made in a targeted employment area) in a new business that employs at least 10 full-time U.S. workers. (Labor Cert. is NOT required.)

Tuesday, October 26, 2010

Seattle Immigration Lawyer | Employment-Based Visa Preferences

Returning to my series on obtaining a green card based on a job offer, when deciding whether to apply for an immigrant visa you must determine which employment-based preference category you fall into.

The first three employment-based immigrant visa preferences are as follows:

First Preference (EB-1): Persons of extraordinary ability in the sciences, arts, education, business or athletics; outstanding professors or researchers; and multinational executives and managers. (No Labor Cert. required.)

First Preference is known as the category for “priority” workers. Needless to say, the vast majority of immigrants do not meet the criteria. However, if you think you might qualify under this preference you should consult an experienced immigration attorney to make sure you meet the criteria and assist you with the visa petition—each subcategory within First Preference has its own specific requirements.

As of this month, the priority date for First Preference is current no matter where you are from, meaning there are currently enough visa numbers under this preference to meet the applicant demand. This is typical for the First Preference, though it’s not unusual for there to be a backlog for immigrants from China, India, Mexico or the Philippines, even under this preference.

Second Preference (EB-2): Professionals holding advanced degrees or persons with exceptional ability in the arts, sciences, or business. (Labor Cert. required, unless you obtain a national interest waiver. A national interest waiver may be given when the immigrant’s presence in the U.S. would benefit the U.S. in the future. The positive impact that you will have to show must be national in scope. This is a hard waiver to obtain and you should definitely consult with an experienced immigration attorney to assist you.)

The Second Preference also has specific requirements for its subcategories. In general, the Second Preference is for those who are immigrating to the U.S. in order to work full-time in their field and who have an offer for permanent employment from a U.S. employer.

Now, the exceptional ability subcategory of the Second Preference is a little easier to qualify for than the subcategory of the same name for First Preference. Here, if you can demonstrate national acclaim over a period of time that’s enough.

As of this month, the priority date for Second Preference is current (unless you are from China or India), meaning there are currently enough visa numbers under this preference to meet the applicant demand.

Third Preference (EB-3): Professionals, skilled workers, and other workers (also called “unskilled workers). (Labor Cert. required.) Most immigrants will fit into one of these subcategories, which I will discuss in my next post, along with the Fourth and Fifth Preference categories.

Saturday, October 16, 2010

Seattle Immigration Lawyer | Asylum Granted For My Client!

This spring, I took on an asylum case that I had some concerns about but was confident that there would be a positive outcome eventually. I worked hard with the client to assemble a strong application with as much documentary evidence as possible, prepared the client for the interview and attended the interview with the client. Yesterday, I received a letter from USCIS stating that my client's application for asylum was granted. I called her immediately to let her know and she said it was the happiest day of her life. The application was granted in record time...I received the determination letter just 25 days from the asylum interview. Typically, it takes at least a few months, and sometimes a year or more, from the date of the interview for a determination. And, that is not including if the determination is against your client and the case is referred to an Immigration Judge for removal proceedings.

Fortunately, in this case, my client doesn't have to go through the nerve-wracking asylum process anymore. The world of difference that my client's status as an asylee will make in her life is almost indescribable. I could not be happier for her and her family.

Wednesday, October 13, 2010

Seattle Immigration Lawyer | Eligibility for a Green Card through Employment

My last Seattle Immigration Lawyer Blog post provided an introduction to the rather daunting process of obtaining a green card through employment. This post will go a little deeper into the eligibility requirements. Before you consider this route, you must have these two things going for you: a job offer from a U.S. employer (there are limited exceptions, including if you possess exceptional abilities or your work is in the national interest), and the employer must be generous enough to sponsor you.

If you have both of these, you are very fortunate indeed. With some more luck, and if you do not make any missteps, you may be successful in eventually getting your green card, which will allow your spouse and any unmarried children under 21 to also be eligible for a green card, assuming they are all admissible to the U.S. (And, after 5 years of having your green card, you will be eligible to apply for naturalization as a citizen.)

If your employer has a legal department (or outside counsel) that will be doing the labor certification process, that’s wonderful. If not, you should not embark on this process without representation. Consult with an experienced Seattle immigration lawyer because the rules are very strict and complex; they have also changed since a totally new system for labor certification was introduced in 2005 known as PERM.

Now, when an employer “sponsors” an immigrant, this entails going through labor certification, which essentially requires the employer to advertise and interview U.S. workers for the very job that you have been offered and reject all of these other candidates on lawful grounds. Of course, there is a lot more to the labor certification process that I will discuss later, including getting a prevailing wage determination from the state, writing a very carefully crafted job description, following a strict timeline, submitting financial records, following different advertising requirements depending on the job, etc. This is why an experienced immigration lawyer should be handling the process.

The good thing for the employer is that while Department of Labor rules require employers to pay for the labor certification process, including attorneys’ fees (though many do not follow this rule), the employer is not a financial sponsor of you, can always withdraw its green card petition for you, and, of course, is always free to fire you. The thing that makes many employers nervous, besides simply the time and money involved, is that they will have to provide financial records to USCIS; however, this is only to make sure the business can afford to hire you.

As far as the offer of employment, it must be for a full-time and permanent or indefinite period. The job must be in the U.S. from an employer permanently located in the U.S. In addition, and this is crucial, you need to have a background that matches the qualifications for the job. This is the most important factor for the government; it is not whether you have more skills than other candidates, or whether the employer likes you more. And, of course, if labor certification is required, the result of the required recruitment process—ironically, undertaken after you have been offered the job—must be that there are no U.S. workers qualified for the job offered.

In my next post, I will finally discuss the five employment-based immigrant visa preferences—anyone wishing to obtain a green card based on their job must apply under one of the preference categories.

Friday, October 8, 2010

Seattle Immigration Lawyer | Intro to Getting a Green Card Through Employment

This will be the first of several blog posts covering employment-based immigrant visas—the route to a green card through employment. Only 140,000 immigrant visas are made available per year for immigrants, along with their spouses and children, who wish to immigrate based on their job skills. On top of that, there is a quota that limits every country to seven percent of the available green cards every year. (There is no quota for immediate relatives of U.S. citizens.) And, several categories (known as “preferences”) of employment-based immigrant visa petitions require that the sponsoring employer file a labor certification application with the U.S. Department of Labor (“DOL”) before filing a visa petition. As I will discuss later, some preferences require an employer sponsor while others permit the immigrant to self-petition.

Make no mistake, acquiring permanent residency through a job is a long process—in fact, it often takes years. If your goal is to obtain a green card through your job or offer of employment, there is rarely anything to be gained from waiting to begin the process. An experienced immigration attorney can advise you or your employer, based on your specific circumstances, as to which visa petition to file, where to file (in the U.S. or abroad), on the labor certification process (if applicable), and in designing an immigration strategy to keep you in lawful status throughout the long process, so you remain eligible for a green card.

If the visa preference you are applying under requires labor certification, then this is the first step. Assuming the certification is granted by DOL, the next step is to file the immigrant visa petition with USCIS. Once USCIS approves the immigrant visa petition, the Department of State still must issue an immigrant visa number to you in order for you to qualify to apply to adjust your status to permanent resident. Sometimes it takes years from when USCIS approves your visa petition to when you are issued an immigrant visa number. Recall that, by law, the number of immigrant visas for each country is restricted—thus if your country of origin is one in which there are a lot of other people applying for U.S. immigrant visas then you will be waiting longer. An immigration attorney can advise you on the delays to expect and in formulating a visa strategy.

Also, for some preferences, the availability of an immigrant visa number depends on the priority date. In this context, the priority date is determined by your country of birth and the preference you are applying under. Once your priority date is current, there is no waiting period. For cases where labor certification is required, your priority date is set by that process. For the EB-1/National Interest Waiver preference, the priority date is when the I-140 immigrant worker visa petition was received by USCIS. To check whether your priority date is current, look at the monthly Visa Bulletin issued by the State Department.

Stay tuned for my next few Seattle Immigration Lawyer Blog posts, which will look at labor certification and the different employment visa preferences.

Sunday, October 3, 2010

Seattle Immigration Lawyer | Permanent Residents Convicted of Crimes

A good immigration attorney should know how to obtain a waiver for his or her client from deportation when the client has been unfortunate enough to be convicted of a crime. Even though a client may be deportable based on the criminal conviction, qualifying lawful permanent residents (LPR) may be eligible for the LPR cancellation of removal waiver (INA 240A(a)), and keep their LPR status. The time to apply for this waiver is when you are in removal proceedings. The Immigration Judge has the discretion to deny the waiver even if the client meets the statutory requirements.

Here’s the statutory test: removal may be canceled if the alien—(1) has been an alien lawfully admitted for permanent residence for not less than 5 years; (2) has resided in the US continuously for 7 years after having been admitted in any status; and, (3) has not been convicted of any aggravated felony.

Assuming the first two requirements are not at issue, the key issue is whether the conviction qualifies as an “aggravated felony” as defined by the federal immigration statute, INA 1101(a)(a)(43). It is crucial to understand that many misdemeanors are “aggravated felonies” under immigration law and not all felonies are “aggravated felonies.” If you are shopping for an immigration lawyer and he or she does not know this, do not even think about hiring that attorney.

When an immigration attorney analyzes your conviction, there is no substitute for a close reading of the statutory definition and current court decisions, as offenses are reclassified frequently by federal appeals courts. They are not all obvious; in fact, sometimes even clients that have served long prison sentences may still be eligible for cancellation of removal. Some of the more popular aggravated felonies are crimes of violence, theft offenses, and fraud. Some of the offenses listed in the statute specify monetary amounts of funds stolen, the term of imprisonment served, or, the term of imprisonment that the offense is punishable by—notice the distinction here. Also, a good immigration attorney will consider the possibility of reopening a client's criminal court case, as any changes will be binding on the Immigration Court.

Now, just because you pass the aggravated felony test does not mean you are safe from deportation due to a criminal conviction. Coming up, I will discuss how to tell if a conviction qualifies as a “crime involving moral turpitude,” which can also be grounds for deportation of an LPR.

Friday, October 1, 2010

Seattle Immigration Lawyer | The Marriage Route to Getting a Green Card Cont’d – Living in the U.S. and Married to a LPR

I have used the last three postings of the Seattle Immigration Lawyer Blog to discuss this popular topic and after this current posting it will be time to move on. In this last scenario, if the immigrant spouse is living in the U.S. and married to a U.S. LPR, the LPR files the visa petition with USCIS, which goes into the now familiar “lockbox.” When the immigrant spouse’s priority date is current, or close to that time, the petition will hopefully be approved.

But, here is where it really gets ugly. The immigrant spouse living in the U.S. who is married to a U.S. LPR may be trapped because the only way he or she can stay in the U.S. and adjust status (apply for a green card) is if he or she has been in status, that is legally living in the U.S., this whole time, and not working illegally. (There is an exception if you started the process when earlier laws governed. As always, you should consult with an experienced immigration attorney to determine if any exceptions apply to you.)

As an immigration lawyer, and simply as a person with at least some common sense, I think this is quite frankly, unfair. After all, it could take years before your priority date is current. (Or not, it depends on the backlog. As of Sept. 2010, the priority date for 2A was 1/1/2010. But, for example, just last year there was a backlog of around 5 years.) One option is to leave the U.S. before staying illegally for 6 months, wait for the priority date to become current and go through the consular processing system abroad.

However, as is often the case, the spouse has been living out of status in the U.S., which could trigger a bar on re-entry to the U.S. (there are various bars, the main two are: 3 year bar for those unlawfully present for 180 days after 4/1/97; 10 year bar for those unlawfully present for 365 days after 4/1/97).

Another option would be to stay in the U.S., out of status, and hope to adjust status once the priority date is current, but the immigrant spouse would be vulnerable to removal the whole time, which is not a pleasant way to live, and, of course, illegal.

Yet another option would be to leave the U.S. after staying longer than 6 months out of status, but less than a year, so the 3 year inadmissibility bar applies but not the 10 year. Whether this is crazy or not depends on the waiting period, and the processing times for your consulate.

Of course, ideally, the U.S. LPR spouse will become naturalized, which will allow you to upgrade the application and do away with the “lockbox”. I can’t think of a good reason to wait until your U.S. LPR spouse is a citizen before filing the green card application. If your spouse becomes a citizen, that’s wonderful, you can upgrade the petition then, but you might as well get in line right away.

Wednesday, September 29, 2010

Seattle Immigration Lawyer | The Marriage Route to Getting a Green Card Continued – Living Abroad and Married to U.S. LPR

As any decent immigration lawyer will tell you, it’s easier to get your green card if you are married to a U.S. citizen rather than a U.S. lawful permanent resident. But, in writing my immigration lawyer posts on obtaining a green card, I want to cover as many options as possible. So, in the case of an immigrant living outside of the U.S. who is married to a U.S. lawful permanent resident (LPR) spouse, as usual, the U.S. spouse starts the process by mailing the visa petition (I-130) to USCIS.

Now, here comes the bad part. A visa petition from a U.S. LPR spouse goes into the USCIS so-called “lockbox”, which will eventually pass it along to the USCIS office for the U.S. LPR’s location. But the petition will stay “locked up” until close to the date that the immigrant spouse’s priority date is current.

So, what’s a priority date? Well, a priority date is the date that your relative, in this case, your loving spouse, started your immigrant process by filing a petition on your behalf. (As with any time you submit immigration documents to the federal government, you should ALWAYS send them registered mail return receipt requested, or express mail or similar with receipt confirmation. The date on the confirmation receipt is the priority date!)

To determine when your priority date is current you, or your immigration attorney, will have to look at and keep checking on the infamous Visa Bulletins, which are published every month by the State Department, and are available online. The bulletins state the immigrant visa cutoff date for each visa preference. Spouses of U.S. LPRs are 2nd preference (2A). The cutoff dates simply indicate which priority dates in each preference category are being processed by the State Dept. since immigrants with those dates are now eligible for an immigrant visa. For example, for Sept. 2010, for preference 2A, the cutoff date is 1/1/2010. That means that if your priority date is before 1/1/2010 than you will receive an appointment in the next few months if you are an immigrant living abroad, or if you’re in the U.S., you’ll be able to submit the next part of your application. If your priority date is, for example, 2/1/2010, then you will have to keep waiting.

Now, back to the petition being “locked up”. Hopefully, USCIS will approve the visa petition. Only when the petition is approved and the priority date is current can the immigrant spouse apply for lawful permanent residence through the consular processing system. At the consulate interview, with any luck, the immigrant visa will be approved and the immigrant spouse must go to the U.S. and claim permanent residence within six months. Unfortunately, the immigrant spouse has to wait outside of the U.S. until the consular processing is through. That means waiting until the priority date is current and you have your interview. That could take years depending on the backlog. As always, you should consult with an experienced immigration attorney for details on your specific circumstances.

Tuesday, September 28, 2010

Seattle Immigration Lawyer | The Marriage Route to Getting a Green Card, Continued - Living Abroad and Married to U.S. Citizen

In the case of an immigrant living abroad who is married to a U.S. citizen there are two possible routes to getting a green card. First, the traditional method is for the U.S. citizen spouse to file the visa petition (I-130) with USCIS. Assuming USCIS approves the petition, the immigrant will go through consular processing abroad. Hopefully, the immigrant spouse will be approved for the visa, which he or she must use within 6 months to go to the U.S. and claim permanent residence, or conditional residence. This process typically takes at least a year.

Second, there is an alternative, more expensive option that is sometimes faster, depending on the speed of the particular USCIS processing office. (You should consult with an immigration attorney in making this decision.) The U.S. citizen spouse can send in the visa petition to USCIS and once he or she receives a receipt notice from USCIS, the U.S. citizen spouse can file a separate fiancé visa petition (Form I-129F). Yes, you read that right. A fiancé visa petition, even though you are already married. Once USCIS approves the fiancé petition, the immigrant spouse then proceeds through the consular processing system abroad. At the consular interview, the consulate will hopefully approve the immigrant for a fiancé visa (K-3). The immigrant spouse can travel to the U.S. using the K-3 and once in the U.S. can file for adjustment of status with USCIS. Following what will be at least several months of waiting, both spouses will attend an interview and hopefully the immigrant will be approved for permanent residence. Whichever route you decide to take, an experienced immigration lawyer can guide you through the process and minimize administrative delays.

Stay tuned for my next article, which will cover how to obtain a green card for an immigrant living in the U.S. who is married to a U.S. LPR, and for an immigrant living abroad who is married to a U.S. LPR.

Monday, September 27, 2010

Seattle Immigration Lawyer | The Marriage Route to Getting a Green Card

In my last two Seattle immigration lawyer posts, I wrote about the asylum route to a green card. A more common path to obtaining a green card is through marriage to a U.S. citizen or a U.S. green card holder (officially called a lawful permanent resident, which is known in immigration lingo as an “LPR”). What follows is only a brief overview of the process but it should provide a taste of what to expect. (You should of course consult with an immigration lawyer regarding your specific situation.) You will see that it is much easier, and, more importantly, much faster, if the petitioning spouse is a U.S. citizen. This is because there is no waiting period for immediate relatives of U.S. citizens (which include spouses, parents, and unmarried children under 21).

Before I run through a few scenarios to describe the process, you should know that some immigrants are simply not eligible for adjustment of status (becoming a permanent residence). In a future article, I will discuss some of the grounds for inadmissibility and whether waivers exist for them. For now, readers should be aware that there are a plethora of these grounds, some obvious, such as if your last entry to the U.S. was illegal, and others less obvious, and you will want to figure out if one applies to you. If one does, you’ll definitely want to consult with an experienced immigration attorney about your particular case.

Regardless of your situation, the U.S. citizen or LPR spouse will need to prepare the visa petition. This includes: the Form I-130, Petition for Alien Relative; Form G-325A, Biographic Information (one form for each spouse); photos of the petitioner (U.S. citizen or LPR) and beneficiary (immigrant); proof that petitioner is U.S. citizen or LPR; proof of a valid marriage, including a marriage certificate, and if there’s a previous marriage for either spouse proof that it was terminated; and filing fee of $355.

Living In U.S. & Married to U.S. Citizen

Now, in the case of an immigrant already living in the U.S. and married to a U.S. citizen, the U.S. citizen, as in all of these cases, starts the ball rolling. In this situation, the U.S. citizen submits the visa petition (see I-130 and other documents above) simultaneously with the immigrant spouse’s permanent resident application (Form I-485). Note that I-485 is filed at a different location than the I-130, so read the instructions! (Reading the instructions for any immigration form is a must, along with making sure that you have the most up to date version.) The I-485 will include, among other documentation, a medical report and an affidavit of support (Form I-864).

Once USCIS receives the I-130 and I-485, the immigrant will receive a fingerprint appointment notice, and then an interview appointment notice. Since both the U.S. citizen and immigrant spouse are in the U.S. in this scenario, both must be at the interview. The key issue at the interview is proving that the marriage is not a sham. The intricacies of proving a bona fide marriage will be the subject of a future article. Hopefully, the application for permanent residence will be granted at the interview. (Note that a conditional residence will be granted if the marriage has been for less than 2 years by the time the interview occurs.)

Stay tuned for my next article that will cover how to get a green card for an immigrant living abroad who is married to a U.S. citizen.