With the Supreme Court's DOMA decision in US v. Windsor hot off the press yesterday, Homeland Security Secretary Janet Napolitano issued this welcome statement:

“I applaud today’s Supreme Court decision in United States v. Windsor holding that the Defense of Marriage Act (DOMA) is unconstitutional. This discriminatory law denied thousands of legally married same-sex couples many important federal benefits, including immigration benefits.  I am pleased the Court agreed with the Administration’s position that DOMA’s restrictions violate the Constitution. Working with our federal partners, including the Department of Justice, we will implement today's decision so that all married couples will be treated equally and fairly in the administration of our immigration laws."

The advocacy group Immigration Equality has posted great information already on how this decision will impact immigration benefits for same-sex couples.  Click here for more!  

 

Big Changes Ahead For America’s Immigration System

Beating President Obama to the punch, today the bi-partisan “Gang of Eight” Senators released their “Bipartisan Framework for Comprehensive Immigration Reform.”  This is the first serious effort at comprehensive immigration reform since Congress’ failed attempt in 2007 under President George W. Bush. The Senators describe the framework as based on “four basic legislative pillars”:

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

Basically, the bipartisan framework recognizes the severe, longstanding flaws in our immigration system, which for too long has ignore reality and stunted our country’s economic growth, and, as a solution, it calls for strict enforcement combined with a long pathway for undocumented or out of status immigrants to “earn” their citizenship.  

Speaking on a conservative talk radio show last week, Marco Rubio (R-FL), a Republican Senator in the bipartisan group, said “the security component is a trigger,” nothing else will happen until the workplace security and visa tracking components are in place and there is “some level of significant operational control of the border.”  No doubt, that will be a source of much debate as this fight unfolds.

Here are some highlights from the proposal:

-          Completion of an entry-exit system that tracks whether all persons entering the U.S. on temporary visas via airports and seaports have left the country as require by law

-          Require undocumented or out of status people to register with the government, which will include passing a background check and paying a fine and back taxes, in order to earn “probationary legal status,” which will allow them to live and work legally in the U.S., but, like other non-immigrant visa categories, they will be prevented from accessing federal public benefits [this sounds to me like it would be a kind of “deferred action” status that immigrants here could pay for, essentially]; those with serious criminal backgrounds or who are a national security threat will be subject to deportation and “illegal immigrants who have committed serious crimes [will] face immediate deportation”

-          Once the enforcement measures in the legislation are completed, those with probationary legal status “will be required to go to the back of the line of prospective immigrants, pass an additional background check, pay taxes, learn English and civics, demonstrate a history of work in the United States, and current employment, among other requirements, in order to earn the opportunity to apply for lawful permanent residency [a green card].” 

-          Those who came to the U.S. as minors “will not face the same requirements as other individuals in order to earn a path to citizenship” [this appears to bode well for DACA applicants and perhaps a wider pool of DREAMERs]

-          Agricultural workers “who commit to the long term stability of our national’s agricultural industries will be treated differently than the rest of the undocumented population…”  they will earn a path to citizenship under a new agricultural worker program  [it sounds like finally a temporary guest worker program is going to be considered; the question is, will it be one designed by agribusiness for agribusiness, or will it be a fair program that protects employee rights and prevents abuse by employers?]

-          Immigrants who have a received PhD or Master’s degree in science, technology, engineering, or math from an American university will be awarded a green card!!!

-          Undocumented workers who have succeeded in the workplace and contributed to their communities over many years could earn green cards!

Of course, this is only a framework, filled with broad brush strokes, and tomorrow President Obama will unveil his own proposal for comprehensive immigration reform.  But, I think it’s a fabulous starting point.  It shows that finally at least some members of Congress realize that we can’t ignore the reality of at least 11 million undocumented people, many of whom this country relies on for its agricultural needs, many of whom came illegally as minors, and many of whom we have already educated but don’t allow to fully participate in our economy.  Not to mention our perverse current policy of kicking out immigrants after they have received world-class higher education here.     

I sincerely hope that this is a harbinger of good things to come.  And, I believe that this bipartisan effort is a direct result of the pummeling that Republicans suffered at the polls in the 2012 re-election of Obama.  It appears that at least some members of the GOP have had a come-to-Jesus moment, and, some like Sen. McCain, have had a come-back-to-Jesus moment, since he used to be on board with comprehensive immigration reform before running for president.  However, perhaps the most important player in this fight is Sen. Marco Rubio.  The question is whether he can convince enough Republicans to come with him or at least not stop him.               

Prosecutorial Discretion Demystified

As many people have heard by now, the Director of Immigration and Customs Enforcement (ICE) issued two new memoranda in June of this year encouraging the expanded use of prosecutorial discretion by ICE officers, agents, and attorneys in all phases of civil immigration enforcement. In a nutshell, the new policy is aimed at moving prosecutorial discretion exercised by immigration enforcement officials away from an ad hoc system to a system that focuses government resources on only pursuing high priority cases—criminal aliens, national security threats, repeat immigration violators, and recent border entrants—and setting aside, closing or not initiating cases that are low priority.

The rationale is that government spending on cases that fall outside the enforcement priorities actually hinders the government’s public safety mission by clogging the immigration court dockets and diverting resources away from high priority individuals.

 

These memoranda announce substantial and, in my opinion, very positive positive policy changes that all immigrants—and their advocates—should be aware of. However, it has also confused many immigrants and citizens alike.

 

First of all, this new policy does not confer any lawful status on any non-citizen. Thus it is a far cry from amnesty. It will merely result in an indefinite reprieve for certain individuals who are already facing deportation but who are a low enforcement priority.

 

Second, there is no affirmative right created by this policy. In other words, someone who is undocumented cannot apply for the exercise of discretion. In fact, if you are undocumented or out of status and you surrender yourself and seek prosecutorial discretion it is very likely you will be placed in removal proceedings where you run a serious risk of being deported. In order to benefit from this policy you must be in removal proceedings already, or be very close to being placed in removal proceedings, for prosecutorial discretion to even apply.

Third, there is no enforceable right to appeal a negative prosecutorial discretion decision, though a good immigration lawyer should be able to utilize an informal appeal process by going up the chain of command within the enforcing agency.

Fourth, depending on the case, there could be a potential benefit linked to the exercise of prosecutorial discretion, such as the availability of employment authorization.

Now, in order to implement these new priorities, on August 18, 2011, the Department of Homeland Security (DHS) announced a review of all pending removal cases in order to identify those cases that reflect a high enforcement priority for DHS. Drum roll please. According to DHS, the highest enforcement priorities, meaning those that should generally be pursued in an accelerated manner involve a noncitizen:

• who is a suspected terrorist or national security risk;
• who has a conviction for—

- a felony or multiple misdemeanors,
illegal entry, re-entry, or immigration fraud, or
a misdemeanor violation involving—
- violence, threats, or assault,
- sexual abuse or exploitation,
- driving under the influence of alcohol or drugs,
- flight from the scene of an accident,
- drug distribution or trafficking, or
- other significant threat to public safety;

who is a gang member, human rights violator, or other clear threat to public safety;

who entered the country illegally or violated the terms of their admission with the last 3 years;

who has previously been removed from the country;

who has been found by an immigration officer or immigration judge to have committed immigration fraud; or

who otherwise has an egregious record of immigration violations.

In contrast, the lowest priority cases—those that should be carefully considered for prosecutorial discretion on a case-by-case basis, involve a noncitizen:

who is a member in good standing of the U.S. military, honorably discharged veteran, or the spouse or child of such member or veteran;

who is a child, has been in the U.S. for more than 5 years, and is either in school or has successfully completed high school;

who came to the U.S. under the age of 16, has been in the U.S. for more than 5 years, has completed high school, and is now pursuing or has successfully completed higher education in the U.S. [yes, this is targeting Dream Act kids]

who is over the age of 65 and has been present in the U.S. for more than 10 years;

who is a victim of domestic violence in the U.S., human trafficking to the U.S.; or of any other serious crime in the U.S. [this is a particularly big deal];

who has been a lawful permanent resident for 10 years or more and has a single, minor conviction for a non-violent offense;

who suffers from a serious mental or physical condition that would require significant mental or detention resources; or

who has a very long-term presence in the U.S., has an immediate family member who is a U.S. citizen, and has established compelling ties and made compelling contributions to the U.S.

In addition to these enforcement priorities, one of the big two prosecutorial discretion memos that came out over the summer makes clear that it is generally against ICE policy to initiate removal proceedings against victims or witnesses to a crime, or to "remove individuals in the midst of a legitimate effort to protect their civil rights or civil liberties."  The language used here is expansive and is designed to protect those involved in labor, housing or similar disputes that are being fought outside of court.  This will hopfeully go a long way to removing the fear of retaliation and removal that noncitizens face when deciding whether or not to speak up and defend their rights.

Noncitizens who are in removal proceedings or who are worried they are about to be placed in removal proceedings should talk with their immigration lawyer about the possibility of prosecutorial discretion, among other options. Often, it will be a last resort, but it may still be better than the alternative—if the alternative is deportation.

　

How are Non-citizens Detained by ICE?

The most typical route starts when the non-citizen—this could be an undocumented person, a person with a valid or expired temporary visa or a green gard holder—is already in federal or local law enforcement custody. For instance, the non-citizen was just recently arrested on criminal charges and taken to the county jail, or maybe he or she was already convicted and was serving a sentence. ICE regularly visits jails and interviews inmates to see if they are deportable aliens. The non-citizen may not know he or she is even talking to an ICE officer when they are interviewed!

You may have heard that your loved one had an “ICE hold” placed on him or her when they were in state or federal prison. What is going on? When ICE finds a non-citizen whom the agency thinks is deportable, ICE will issue a notice, called a “detainer” to the state or federal prison officials, requesting that the prison officials notify ICE if they intend to release the detained alien or to hold the person for ICE. It is ICE’s way of telling another law enforcement agency that ICE wants to arrest and remove an alien that another law enforcement agency has in its custody.

For a detainer to be valid, it must be issued while the alien is still in custody. Once the alien has served his or her criminal sentence or paid the criminal court bond for his or her release, if a detainer has been issued, the state or federal prison officials must hold the alien for up to 48 hours (excluding Saturdays, Sundays and holidays) for ICE to come and assume custody of the alien. If ICE does not come to pick up the alien within 48 hours, he or she must go free!

Unfortunately, many state and county officials either don’t know about the 48-hour rule (which is a federal regulation (8 CFR 287.7(d)), or, worse, they deliberately ignore it! If that appears to be the case, you should seek the help of a competent immigration attorney to enforce the 48-hour rule.

Tips for Improving Your Chances of Getting Cleared by US Customs at an Airport

1) Be honest, upfront, and polite with the Customs & Border Protection (CBP) agents. They are trained to detect when you are lying so don’t even try, it will only hurt you. Being upfront with the agents is especially in your interest because during the admission process at the border/point of entry they are the only people who can help you. You have no right to an attorney during this time. The CBP agents have a certain amount of discretion and you want to make sure that they will feel inclined to exercise it with you, if necessary, to admit you to the US.

2) Make sure you bring detailed documents with you to present to the CBP. This means more than simply your visa. Most importantly, non-immigrant visitors need to show reasonable ties and equities to and in their home country. This means you need to have documentation showing employment, family, and social ties to a residence abroad, and adequate financing arrangements to carry out the purpose of your visit.

If you are traveling to the US for an employer, make sure you have a letter from the employer detailing the purpose of your visit and the activities you will engage in during the visit. Remember, the burden is on you to prove that you are not inadmissible to the US. (No criminal convictions, prior immigration law violations, etc.) In general, this means you need to show that you have proper documentation and the requisite intent for the type of visa for which you applied. Common sense applies here. For example, if you are coming to the US for a three-day conference on a B-1 visa but your return ticket isn’t until 90 days later, you can expect that this will raise a red flag for CBP.

3) Make sure that you have a good phone number for the employer sponsoring you or the employer’s immigration attorney, or, if visiting family or friends, then the family meeting you, or your own immigration attorney. It’s best to have both a regular phone number and cell number for one or more of these people. CBP may call them to help answer questions that the agents have about your situation. Having the phone number of someone who is knowledgeable about your situation and available can make the difference between having to withdraw your application for admission and fly back to your country of origin the same day or being admitted to the US.

4) If you are offered the choice to voluntarily withdraw your application for admission because CBP does not believe you are telling the truth or you do not have proper documentation and they are unable to contact anyone that can clarify your situation (and you do not have a credible fear of returning to your own country or an asylum claim), it is always preferable to accept this offer rather than force CBP to use the alternative, which is expedited removal.

If you have committed visa fraud, and/or made misrepresentations starting back with the US consulate in your home country--this does not apply to asylum cases--then you can expect that CBP will order an expedited removal. This means you will be returned to your home country (or country of last embarkation) with no hearing and a permanent bar from returning to the US. (If CBP issues an expedited removal order for simply lack of documentation, there is only a five-year bar to returning.) In most cases, you will be put on the next flight back, using your return ticket if possible. The air carrier is liable to the US government to return anyone who is inadmissible, so most likely you will be sent back on the same carrier, or a code share partner. And, even though the carrier must fly you back, it will certainly look to you to pay the cost of the ticket.

An important note about the expedited removal power: an expedited removal order under INA 212(a)(6)(C) is for fraud and misrepresentation, and results in a LIFETIME bar from re-entry to the US. An expedited removal order issued under INA 212(a)(7) is for lack of documentation and results in a 5 year bar to re-entry. Not surprisingly, it is much harder to get a waiver to return to the US if you were removed under the (a)(6) ground than (a)(7).

The bottom line is that the best way to improve your chances of getting cleared by US Customs at the airport is to make sure you are traveling on the correct visa, bring copies of the appropriate documentation with you, bring phone numbers for contacts in the US who are available to speak to CBP to address any problems that may arise, and, above all, be honest!

If you have any concerns about you or a family member traveling to the US, consider consulting with an immigration attorney that is knowledgeable about CBP procedures. Advance planning can go a long way to improve the chances of CBP clearing you or your family member and admitting them to the US.

Also, frequent international travelers—non-citizens and US citizens alike—should apply for the CBP’s Global Entry program, which allows you to enter the US using automated kiosks at the airport.

The Religious Worker Path to a Green Card

If you work for a recognized religious organization, either as a minister or a religious worker, you might qualify for a green card as a special immigrant. You can apply for your green card as a minister or religious worker from inside the U.S.—if you are in lawful status and not working without authorization—or from abroad. You start the process by filing an I-360 petition on your own or through your employer. Whether you or your employer files the petition, the prospective U.S. employer must submit certain documentary evidence, including an attestation showing that certain requirements have been met regarding the organization, its history of filing this type of petition and the position and salary.

Now, the immigration regulations define a “minister” as someone who is fully authorized by a religious denomination to conduct religious activities, such as a minister, priest, rabbi, imam, ordained deacon, or Buddhist monk. A “religious worker” is defined as someone who is in a religious vocation or occupation and is authorized to perform normal religious duties, such as religious instructors, religious counselors, missionaries, religious broadcasters, workers in religious hospitals and cantors. Purely non-religious workers and volunteers are not included in this definition. Over the years the regulations defining religious occupations have changed and there has been litigation over varying interpretations. Someone attempting to immigrate under this category would be well advised to consult with an immigration attorney about their specific circumstances.

To qualify for a green card as a minister or religious worker, for at least 2 years immediately before filing the visa petition, you must have been a member of a religious denomination that has a bona fide, nonprofit, religious organization in the U.S.

Also, you must be seeking to come to the U.S. to work full time (35 hours) in a paid position, purely to carry on your vocation as a minister or to work for a bona fide, nonprofit religious organization in the U.S. or its affiliate in the U.S.

Finally, you must have been working as a minister or religious worker—abroad or lawfully in the U.S.—for at least 2 years immediately prior to filing the visa petition. (There can be breaks in the 2-year period but only in certain situations. And, unauthorized employment during the 2-year period stops the 2-years from accruing but it can be restarted again.)

Because of a recent court decision, immigrants can no longer file both the visa petition for a special immigrant visa as a religious worker and the green card application at the same time. This applies specifically to the religious worker classification. Currently, any green card application (I-485) that is based on a special immigrant petition (I-360) for a special immigrant religious worker must be filed only after you have an approved I-360 petition.

In addition, currently, all religious workers (not ministers) must enter the U.S. with a valid immigrant visa or adjust to permanent resident status (have an approved I-485) before September 30, 2012. This date might be extended in the future, but this is the current law.

Seattle Immigration Lawyer | Are Immigration Benefits Available to Same-Sex Spouses?

One question that I have been asked as an immigration attorney is: what is the best way for a same-sex couple—when one person is a US citizen—to get married and live together in the US? Like the answer to many legal questions, the answer is not clear. The issue of how same-sex couples are treated under our immigration laws is currently being litigated and will probably have to be decided by the U.S. Supreme Court in the next several years. As of right now, the immigration laws in the U.S. only recognize marriage as being between a man and a woman. This is still true despite the fact that in February of this year, the Obama Administration announced that the federal law defining marriage this way (D.O.M.A.) is unconstitutional.

Therefore, with this uncertainty in mind, it would be very risky for same-sex married couples to affirmatively seek immigration benefits based on their marriage. At the same time, it might be risky for same-sex couples to get married marry if the immigration status of one of them is dependent on that person maintaining a foreign residence, i.e., in the case of a non-immigrant visa holder.

Caveats aside, theoretically, an unmarried, same-sex couple could contemplate moving to a U.S. state that recognizes and issues marriage licenses to same-sex couples (currently: Massachusetts, Connecticut, Iowa, Vermont, New Hampshire, and D.C.) and then seeking adjustment of status to that of a permanent resident based on the state-recognized marriage. Of course, like any other marriage- based application, they would have to show that it was a bona fide marriage entered into not merely for immigration benefits.

However, the safest option right now would probably be to wait for the law to change before filing any immigration application based on a same-sex marriage. Same-sex partners should speak with an immigration attorney before filing any immigration application and before getting married. It might well be worth exploring other non-marriage-based visa options for traveling and living in the U.S. temporarily or permanently. And, in cases where marriage to a partner who is in a foreign country is contemplated, it is often best if the U.S. citizen partner consults with an immigration attorney first, on his or her own, without involving the foreign-based partner.

It's Good to Be an Immigration Lawyer

Last Friday was a great day. That evening, I rode the Amtrak from Portland to Seattle, heading back from the American Immigration Lawyers Association’s Northwest Conference, newly invigorated from two days of classes crammed with the latest immigration law information. AILA conferences are truly a must for immigration lawyers who need to stay up-to-date on constantly changing and complex laws, policies, and practices. I attended the family-based immigration classes, which covered a wide array of topics, such as the latest in waivers and consular processing, international adoption, asylum and cancellation of removal.

David Leopold, president of AILA, gave a rousing speech during the conference lunch on Friday that was a call to arms for immigration attorneys and anyone who believes in protecting and fighting for the rights of immigrants to lobby for real immigration reform that is about actual solutions—not merely more enforcement. There was also promising mention of the so-called “Utah Solution,” which is a compromise plan that might pave the way for positive federal reform. One of the most effective things advocates can do, David suggested, is to talk around the dinner table, and to neighbors and friends about the need for solution-based reform since so many people, voters and politicians alike, simply don’t understand how existing immigration laws work, or, more accurately, don’t work.

The conference made me proud to be part of a knowledgeable group of lawyers from both the nonprofit and for-profit sector who are truly dedicated to working together to help unite families and make it easier for immigrant entrepreneurs to help build our economy. It only reaffirmed my feeling lately that I have found my calling.

Visa Backlog Expected to Go Down For Spouses & Children!

I have heard from a reliable source in Seattle earlier this week that the State Department backlog for the Family 2A preference category--spouses and children of permanent residents--will likely be going down very soon. This is a big deal. Currently, as of the February 2011 Visa Bulletin, there is a three (3) year wait for green card holders who are applying for their spouses and children (under 21). If this changes, and the backlog starts to be cleared up, we will start seeing much faster processing times for family-based visa petitions, meaning that families will not have to wait as long as they were expecting in order to be reunited.

According to the same source, the number of visas available for the Family 2B preference category--unmarried sons and daughters (21 years of age or older)--will be increasing but processing times will not be as fast as the Family 2A. Currently, as of the February 2011 Visa Bulletin, there is a nearly eight (8) year wait for this category. Any improvement would obviously be welcomed.

So, green card holders who are waiting for their priority date to become current or who are considering applying for their loved ones to join them should watch the Visa Bulletin closely for signs of movement. The March bulletin should be published in the next several days. Here is the link to check: http://www.travel.state.gov/visa/bulletin/bulletin_1360.html

Seattle Immigration Lawyer | Forcing DHS to Act, a Brief Look at Mandamus Actions

In general, a “mandamus” is a written order issued by a court commanding a lower court or government officer to perform mandatory or purely ministerial duties correctly. In the immigration context, a person may file a mandamus petition in federal district court to force a DHS officer or other agency officer to perform a nondiscretionary duty, such as ordering USCIS to adjudicate an application or petition that has been unreasonably delayed (28 U.S.C. §1361).

In one mandamus action that was granted, the court ordered the INS to adjust a diversity lottery applicant prior to the end of the fiscal year. In another mandamus action, the court denied the USCIS’s motion to dismiss a mandamus petition that was brought to compel adjudication of an adjustment of status application, and the court rejected the government’s claim that the time that USCIS and the FBI take to complete the name check is per se reasonable. In an example of a case where mandamus was denied, one court held that a 3-year delay in an adjustment of status was not so extraordinary that it required court intervention.

In a mandamus action, the petitioner must show:

(1) a clear and certain claim;

(2) that the duty owed is ministerial and so plainly described as to be free from doubt; and,

(3) that no other adequate remedy is available.

(Belegradek v. Gonzales, 523 F.Supp.2d 1364 (N.D. Ga. 2007)).

According to the nonprofit advocacy group, the American Immigration Council,* the following tips should be considered when bringing a mandamus action:

(i) Request that the court order USCIS to adjudicate the application within a certain time frame, such as 30 or 60 days (otherwise the court may not impose any deadline!);

(ii) Request that the court maintain jurisdiction over the action after granting mandamus relief (so that, if necessary, you can return to the same court to seek enforcement of its order without having to bring a new action), or alternatively, request that the court require USCIS to provide the court with periodic progress updates; and,

(iii) If you know or suspect that security checks are causing the delay, name the FBI as well as USCIS in the petition so that the court has jurisdiction over both agencies.

If you think that your immigration application is taking too long, it is worth asking an experienced immigration attorney about the possibility of bringing a mandamus action in federal court. Sometimes your only option is to sue an agency in order to force it to do its job.

*I have paraphrased the three suggestions above from the American Immigration Council. See http://www.legalactioncenter.org/clearinghouse/litigation-issue-pages/mandamus. I have no affiliation with this nonprofit.

How a Divorce Can Hurt Your Immigration Case

Three of the most common times when a divorce can negatively impact a person’s immigration case are: (1) when someone is waiting for their green card (a.k.a. applying to adjust their status); (2) when someone is trying to change a conditional residence status to permanent residence status; and (3) when someone is waiting on their naturalization (citizenship) application.

First, if an immigrant is married to a U.S. citizen and applies for a green card, but divorces the U.S. citizen before the green card is approved, the immigrant will no longer be eligible for a green card. The only exception is when the U.S. citizen spouse was abusive.

Second, as you may know, if an immigrant obtains a green card based on a marriage to a U.S. citizen, and that marriage occurred within the last two years, the green card is conditional and expires after two years. In order to remove the condition, the immigrant and the U.S. citizen spouse must file a petition (Form I-751) within 90 days before the card expires. (The petition must be accompanied by supporting documentation showing that the marriage is not a sham. USCIS will either: approve the petition; request additional evidence; refer the case for an interview; or, deny the petition and refer it to an Immigration Judge.) The petition must be filed jointly; however, if the couple is divorced, the immigrant will file the petition him or herself and seek a waiver of the joint filing requirement, which is only granted if: (a) the marriage was entered into in good faith but was legally terminated; (b) the immigrant’s deportation would cause the immigrant extreme hardship beyond the normal hardship of someone who is deported; or, (c) the marriage was entered into in good faith but the immigrant was abused by the U.S. spouse.

If you are applying for a waiver it is highly recommended that you hire an immigration attorney since this is not a routine application but rather it requires submitting substantial documentary evidence. It is also important to note that the couple can still file the petition jointly if they are separated or their divorce is not yet finalized. But, if the couple files a joint petition and their divorce is finalized before the USCIS has rendered a decision then the petition will be denied and the immigrant will have to file a new petition with a waiver request.

Third, divorce can negatively affect an immigrant trying to naturalize based on a U.S. citizen spouse. For example, in a recent California federal district court case, the plaintiff had applied for naturalization based on his U.S. citizen wife after he had been a lawful permanent resident for three years. However, while his naturalization application was pending, the plaintiff divorced his wife. The court found that the plaintiff was not eligible for naturalization because as a result of the divorce, the 5-year residency requirement for naturalization applied instead of the 3-year residency requirement after becoming a lawful permanent resident. Alenazi v. USCIS No. 09-cv-2053 (S.D. Cal. October 12, 2010).

As you can see, the timing of a divorce can have real consequences in immigration proceedings, which are best dealt with by planning ahead and consulting with a knowledgeable immigration attorney.

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.)

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.)

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.

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.

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.

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.

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.