Immigration Visa Lawyer Blog

Immigration reform that benefits students and other youths who came to the United States as children has made its way around the U.S. Congress recently, but it remains a dream for many. Youths who arrived here without documentation, or who overstayed a visa, frequently did so while under the care of parents or guardians. Many of them have no memory of their "home" country and do not speak the language. Sending them to a country they do not know strikes a fundamental chord of injustice for many people. As the country moves towards this year's presidential election, this may become an ever-more frequent subject of debate, and more than a few politicians may present proposals. A new proposal from Senator Marco Rubio of Florida offers a possible alternative set of reforms, but it has its critics.

The Development, Relief, and Education for Alien Minors (DREAM) Act passed the U.S. House of Representatives in 2010, but it did not pass the Senate. It would have given a path to legal permanent residence for people who arrived in the U.S. as minors and who completed a degree at a four-year college or higher, or who served at least four years in the military without dishonorable discharge. The law would therefore encourage undocumented immigrants to attend school or serve in the Armed Forces. Several states now offer in-state tuition to undocumented youths who want to attend state colleges or universities, but those students still have no specific path the legal residence or citizenship.

Senator Rubio touts his proposal as a "conservative alternative to the DREAM Act" and says that it honors two of America's "legacies:" as a "nation of laws" and as a "nation of immigrants." The proposal, according to the Associated Press, would still allow undocumented immigrant youths to attend college or get jobs, but would not give them a specific path to permanent residence or citizenship. Under the proposal, undocumented immigrants who entered the United States as children would be able to apply for nonimmigrant visas in order to go to school or work. They could also obtain driver's licenses. They would be able to adjust status to that of a permanent resident if they have an independent basis for doing so, such as a job or marriage, but this specific nonimmigrant visa would not give them such a basis.

Continue reading "Republicans in Congress Have Alternative Immigration Reform Proposal" »

Impatient with the current state of immigration discussions in Congress, some high-tech companies have started their own programs to support undocumented children and young adults who want to attend college and legally build careers in the United States. Tech companies have also lobbied Congress to allow more legal immigration, explicitly stating that to do so will allow America to remain competitive globally. They are pushing for Congress to enact the DREAM Act, legislation that would have offered a path to legal status for certain youths, but which failed to pass in 2010.

A group of technology companies known as the Silicon Valley Leadership Group is lobbying Congress for immigration reform. The news is currently dominated by the highly controversial Cyber Intelligence Sharing and Protection Act (CISPA) and other pending bills that deal with technological privacy, security, and intellectual property issues. Immigration plays a role in these discussions, since the tech companies want as many highly-educated and motivated youths studying technology in the United States as possible. Allowing as broad a base of students as possible to study in the U.S. and then stay here for jobs after they graduate, these companies argue, will improve America's competitiveness with other countries.

Members of Congress have introduced various versions of the Development, Relief, and Education for Alien Minors (DREAM) Act since 2001. It passed the House of Representatives by a slim margin in December 2010, but the Senate failed to pass it during that session. The bill, had it become law, would have given certain qualified undocumented youths an opportunity to gain permanent residence. Youth who spent two years serving in the military or enrolled at a four-year college could obtain temporary residency valid for six years. If they completed a degree program or served at least another two years of honorable military service during those six years, they could obtain permanent residence. Congress has not considered a similar bill since 2010.

Continue reading "Tech Companies Promote Immigration Reform in Meetings with Congress" »

A disconnect between modern technology and American immigration and nationality law has emerged in Israel, where an American citizen living in Tel Aviv has abandoned her efforts to obtain U.S. citizenship for her twin daughters. The U.S. Department of State denied her application because of a law that applies to children born to a U.S. citizen "out of wedlock." The case illustrates the often chaotic set of laws that determining who may become a United States citizen by virtue of birth.

Ellie Lavi, a Chicago native, conceived her two-and-a-half year-old daughters through in vitro fertilization at a clinic in Israel, using both a donor sperm and egg. The clinic implanted her with the fertilized egg, and she carried the twins to term. She does not know who the donors are, and therefore she cannot prove if either of them are, or were, United States citizens. The State Department has therefore refused to grant U.S. citizenship to the twins, viewing the sperm and egg donors as the "parents." Based on that perceived biological relationship, the twins have no legal link to the United States.

The basic nationality law of the United States holds that anyone born on U.S. soil is a natural-born citizen, regardless of the immigration status of the child's parents. This includes not only children born in U.S. hospitals, but children born in airplanes flying over U.S. territory. Children born abroad who are adopted by U.S. citizens can obtain citizenship through the adoption. Children born abroad to U.S. citizen parents can also obtain citizenship, but the laws can be complicated, and they depend greatly on the the parents' immigration and marital status.

Continue reading "Children of U.S. Citizen Living Abroad Denied Citizenship on Technological Grounds" »

Lawyers for the late John Demjanjuk, the Ukrainian-born convicted Nazi war criminal, have petitioned the Sixth Circuit Court of Appeals in Cincinnati to restore his citizenship. As we reported in this Immigration Visa Lawyer Blog, an Ohio immigration judge declined to restore Demjanjuk's citizenship in late 2011 after a German court convicted him as accessory to the murders of 27,900 Jews at three prison camps in Poland and Germany during World War II. The 91 year-old Demjanjuk died on March 17, 2012 in a nursing home in Germany, where he was awaiting the appeal of his conviction. His lawyers now argue that the government withheld documents that would have helped his immigration case.

The brief, filed on behalf of Demjanjuk's estate on April 12, appeals the December 2011 refusal to reinstate his citizenship by denying a Rule 60 motion. Rule 60 of the Federal Rules of Civil Procedure allows a court to correct or vacate a prior order based, among other grounds, on newly-discovered evidence that was not previously available. Demjanjuk's lawyers allege that the government violated its discovery obligations and committed fraud on the court by failing to reveal relevant documents, pursuant both to Demjanjuk's discovery requests and prior court sanctions. This deprived Demjanjuk's lawyers of materials needed to mount his defense. Documents from the mid-1980's, declassified by the FBI in 2010 or 2011, reportedly described some of the critical evidence used against Demjanjuk as likely forgeries of the KGB. Demjanjuk's lawyers claim to have found hundreds of recently-declassified files containing material, exculpatory documents.

Demjanjuk faced prosecution for his involvement in the Holocaust for several decades in multiple countries. He first immigrated to the United States in 1952, and became a naturalized citizen in 1958. The U.S. revoked his citizenship in 1981 based on evidence that he provided false or misleading information on immigration applications regarding his past involvement with the Nazi Party. An Israeli court sentenced him to death in 1988 after witnesses identified him as "Ivan the Terrible," an infamous guard at the Sobibor and Treblinka death camps. That sentence was overturned in 1993 based on evidence that government officials withheld evidence, and that witnesses mistook Demjanjuk for a different guard. Demjanjuk returned to the United States.

Another prosecution, commenced in Germany in 2001, alleged that Demjanjuk served as a guard during World War II at the Majdanek and Sobibor camps in Poland and the Flossenburg camp in Germany. The United States deported Demjanjuk to Germany in 2009, and he was convicted on 27,900 counts of accessory to murder in May 2011. He appealed his conviction and five-year prison sentence, but the court did not rule before his death.

Continue reading "Lawyers for Deceased War Criminal Ask Ohio Appeals Court to Reinstate Citizenship" »

A traffic stop by a Michigan State Police (MSP) officer in Livonia has led to an internal investigation due to allegations of racial profiling and harassment. The officer allegedly interrogated a naturalized U.S. citizen about his immigration status, then arrested him and detained him for several hours. The American Civil Liberties Union (ACLU) of Michigan called for an investigation, which the MSP has agreed to conduct. The incident primarily concerns issues of racial profiling, but it potentially has implications for immigrant populations and minorities nationwide who face more and more scrutiny from law enforcement, regardless of their immigration status.

On February 8, 2011, a MSP officer stopped Tiburcio Briceno, a naturalized American citizen originally from Mexico, who was driving a van registered to his employer. The officer told Briceno he had run a red light, but never gave Briceno a ticket. According to an ACLU press release, the officer proceeded to interrogate Briceno about his immigration status. Briceno's English is limited, and he claims the officer did not accept the validity of his Michigan chauffeur's license. The officer contacted Customs and Border Patrol (CBP) and ordered Briceno out of his vehicle. The officer allegedly handcuffed Briceno and told him he would be deported. Briceno's vehicle was impounded, and he was taken to another location to await the CBP officers. Briceno says that he repeatedly told the officer he was a citizen and tried to show his social security card, but the officer would not look at it. CBP officers arrived and released Briceno when they confirmed that he was telling the truth. The ordeal lasted several hours.

The ACLU of Michigan took on Briceno's case and sent a letter to the MSP in late March urging an investigation of the incident, as well as a written apology to Briceno. The organization accuses the officer of singling out Briceno because of his race and lack of English proficiency. It also notes that Briceno's story is far from unique, as similar incidents occur all over the country to people based on their appearance or accent. In some states, particularly Alabama and Arizona, statutes require law enforcement to inquire about a person's immigration status if they have "probable cause" to believe the person might be undocumented. This Immigration Visa Lawyer Blog reported on the arrest of a German citizen in Alabama, who happened to be an executive with Mercedes-Benz visiting the company's Tuscaloosa plant, much to the state's embarrassment.

Continue reading "Michigan Investigates an Alleged Racial Profiling Incident Affecting a Naturalized Citizen" »

The Service Employees International Union (SEIU), a labor union that represents workers in various service-related occupations, filed a complaint with the United Nations' International Labor Office (ILO) against the United States government. The complaint centers around HB 56, the controversial immigration law passed by the Alabama Legislature last year. The SEIU alleges that the law denies civil rights and freedom of association to immigrants and minorities in Alabama, and it accuses the federal government of failing to establish an effective national policy on immigration. SEIU representatives filed the complaint with the Committee on Freedom of Association in the ILO's office in Geneva, Switzerland, and announced it in conjunction with a meeting with Daimler AG executives in Berlin. The SEIU urged the company, which operates a plant in Alabama, to publicly oppose the law.

HB 56 is described as the toughest immigration law at the state level in the country. Alabama's governor signed it into law in June 2011. The law requires state and local police to inquire about a person's immigration status if they have "reasonable suspicion" that the person is undocumented. This has brought up numerous concerns over racial profiling and harassment. HB 56 prohibits anyone from transporting an undocumented immigrant, denies government benefits to undocumented immigrants, and prevents undocumented immigrants from enforcing contracts and other rights in court.

The ILO is a Nobel Peace Prize-winning agency of the United Nations headquartered in Geneva. It deals with international labor standards, both in establishing standards and investigating alleged violations. It can adopt conventions, which countries can ratify, thus establishing a binding international labor standard. In most cases, it issues "recommendations," which lack binding legal force.

The complaint filed by the SEIU and its allies alleges that the U.S. government wrongfully allowed Alabama to infringe on the rights of trade unions and workers with HB 56. It focuses on three major costs to unions and workers: general civil rights violations against undocumented immigrants, "the climate of fear" that goes beyond undocumented immigrants to affect most racial minorities in the state, and the negative impact on union organizing and enforcement of existing agreements.

The U.S. reportedly has not ratified the ILO conventions that would give it full jurisdiction over the complaint. The U.S. is a member of the ILO, however, so the complaint asks the ILO to investigate possible violations of its conventions and offer remedies that might not be available through the domestic litigation process.

Continue reading "Coalition of Unions and Civil Rights Groups File Complaint Against Alabama Immigration Law with United Nations" »

The USCIS began accepting H-1B visa petitions for the 2013 fiscal year on April 2, 2012. To date, more than 17,400 cap subject H-1B visa petitions have been received by the USCIS, filed on behalf of temporary workers in a specially occupation. In addition, more than 8,200 petitions for persons holding a master's degree from a college or university in the United States have been receipted into the USCIS processing system.

When will the cap be reached?

While there is no way to accurately predict a date on which the H-1B visa cap will be reached under current economic conditions, which seems to take two steps forward and one step back from month to month, it is not inconceivable that the H-1B cap could be reached in August or a soon as July of this year.

Reaching the cap much sooner than in 2012 (late November) and 2011 (December) is much more likely this year in part because of two discernible patterns. First, there is a spike in H-1B visa petitions on the first day of filing eligibility. Here, the spike in petitions received between April 2, 2012 and today demonstrates a remarkable increase over last year, at which time only 5,900 cap cases and 4,500 master's cap cases were reached.
Secondly, for the past two years, there has been a dramatic increase in H-1B cap cases filed as soon as the master's cap is reached and at the time when it appears that regular cap visas are also becoming scarce. This is because people who qualify for the master's cap, who file after the master's cap is reached, are placed into the regular cap quota. Finally, every year when it appears that the regular cap will soon be reached; there is a dramatic upswing in visa petitions received by the USCIS due to people who seek to file last minute.

What should I do if I want to apply for a cap-subject H-1B Visa?
Our advice to you is to file as soon as possible. You do not want to wait until the last minute in order to obtain your visa under the cap. The quota usage is unpredictable, and waiting could jeopardize your case.

Continue reading "2013 H-1B Visa Cap: Petitions more than double over early April 2012" »

Immigration and Customs Enforcement (ICE) conducted a six-day sweep last week that it called a "Cross Check" enforcement operation. This is reportedly part of the agency's prioritization, at the behest of the White House, of undocumented immigrants with extensive or violent criminal records, those deemed a threat to public safety or national security, and alleged repeat violators of immigration laws. The agency arrested 3,168 people nationwide, representing 116 nationalities. Officials described the people arrested as "criminal aliens," "immigration fugitives," "illegal re-entrants," "sexual predators," and "gang members." This was ICE's third "Cross Check" operation. A sweep in May 2011 resulted in 2,442 arrests, and another in September 2011 led to 2,901 arrests.

According to ICE, over 1,900 ICE agents from various offices within the agency participated in the sweep. All twenty-four field offices in the agency's Enforcement and Removal Operations (ERO) took part, along with various federal, state, and local "law enforcement partners." In addition to all fifty states, agents made arrests in the District of Columbia, Puerto Rico, the U.S. Virgin Islands, the Northern Mariana Islands, and Guam. ICE states that 2,834 people, or about eighty-nine percent of those arrested, had prior convictions. Thirty-four percent, or 1,063 people, had multiple convictions. Forty-seven percent, or 1,477 people had convictions for violent felonies like murder, manslaughter, assault with a deadly weapon, child abuse, and drug trafficking. About five percent of the total, 149 people, are registered sex offenders.

It appears as though most of the people arrested had active arrest warrants from local, state, or federal authorities, or had active or pending removal proceedings. ICE reports that its own National Fugitive Operations Program spearheaded the operation, using its records of criminal and immigration fugitives. Of the total number of arrestees, 334 did not have criminal convictions. ICE's own reports on the sweep do not indicate how many individuals had multiple grounds for inclusion on the sweep list, or specifically what grounds put those 334 people on the list.

In Ohio, ICE agents arrested sixty-three people around the state. Twenty-two arrests were made in Columbus. According to local news station 10TV, the arrested people mostly come from Central America, along with a few people from Iraq, Canada, and Great Britain.

Michigan saw sixty-seven arrests, including twenty-one in the Detroit metropolitan area. The Detroit Free Press reports that ICE arrested a group consisting of mostly men from Mexico, several Central American and Caribbean countries, Iraq, Lebanon, Bosnia and Herzegovina, Ghana, and the United Kingdom.

Continue reading "Over 3,100 Arrested, Including 63 in Ohio and 67 in Michigan, in Nationwide ICE Immigration Sweep" »

Immigration and Customs Enforcement (ICE), the federal agency that investigates and enforces immigration laws and regulations, announced on April 3 that it will allow certain Syrian students present in the United States to obtain employment authorization for a limited time. The agency will suspend the usual regulatory limitations for qualifying students. The suspension will apply to students who were legally present in the U.S. on a F-1 visa on April 3, 2012. Eligible students must be enrolled in an educational institution certified by the Student and Exchange Visitor Program maintained by ICE. ICE estimates that 514 Syrian students are enrolled in U.S. schools at present. ICE's announcement is separate from, but closely related to, the announcement by U.S. Citizenship and Immigration Services (USCIS) that Syrians in the U.S. may obtain Temporary Protected Status.

Students who qualify for employment authorization under this suspension may maintain their F-1 status while working a heightened number of hours during school sessions. Students normally authorized to work only twenty hours per week in an on-campus job may be able to expand their work hours. Students may also reduce their load of classes to allow for additional work time. Undergraduate students must maintain at least six semester hours per term to maintain their F-1 status. Graduate students must maintain three semester hours. F-1 students in high school or below may obtain employment authorization, but must maintain the regular course load. F-2 dependents, including spouses and children, will not receive any employment eligibility under this suspension.

ICE cites civil unrest in Syria, which has persisted since March 2011, as the reason for granting this suspension. The "extraordinary and temporary conditions" in Syria prevent students from returning there safely. The situation reportedly began when protesters demanding political reform met a government crackdown, leading to ongoing violence. Most of the violence appears to involve attacks by the Syrian army and security forces on civilian populations. The American Red Cross reports that the conflict has trapped thousands of people in their homes and turned thousands more into refugees. At least 9,000 people have died, including over 600 children. The Syrian government faces widespread international condemnation and economic sanctions, but has not yet relented.

A news release issued by ICE on April 3 states that the Student and Exchange Visitor Program wants to ensure Syrian students can maintain their financial stability while here in the U.S. Many of the Syrian students relied on assistance from family members back home or the Syrian government. Instability and international economic sanctions prevent much of the financial assistance from leaving Syria. Many students are therefore experiencing considerable financial stress.

Continue reading "ICE Offers Employment Authorization to Some Syrian Students Due to Civil Unrest" »

The United States Supreme Court has granted certiorari to review Moncrieffe v. Holder, US 5th Cir. 11/08/2011 No. 10-60826, a case involving whether a state conviction for marijuana possession that is equivalent to a felony under federal law is an "aggravated felony" under the immigration law, even if the conviction could fall within the federal misdemeanor exception for minor drug offenses. A foreign national convicted of an aggravated felony is grounds for removal from the United States.

This case involves a foreign national who pled guilty to possession of marijuana with intent to distribute under Georgia law § 16-13-30(j) in 2008. The Department of Homeland Security (DHS) charged him with being removable from the U.S. due to the conviction on the basis that the conviction is a felony under the Controlled Substances Act (CSA), 21 U.S.C. § 841(b)(4), and an aggravated felony under Immigration and Nationality Act (INA), 8 U.S.C. § 1227(a)(2)(B). The Immigration Judge (IJ) ruled that the state conviction was comparable to a federal felony and that he was removable as an aggravated felon.

Moncrieffe appealed the case to the Board of Immigration Appeals (BIA) arguing that the crime should not be considered an aggravated felony because the Georgia law punishes acts that are equivalent to misdemeanors under the CSA. Moncrieffe argued that the Georgia law involving distribution of "a small amount of marijuana for no remuneration" is only a misdemeanor under federal law because the charging document and the Georgia conviction did not specify how much marijuana he possessed. Thus, Moncrieffe argued that the prosecution did not prove there was remuneration of more than a small amount of marijuana, so the conviction should be considered a federal misdemeanor. The BIA did not agree, and it upheld the IJ's ruling.

Moncrieffe appealed the conviction to the U.S. Fifth Circuit Court of Appeals. The court acknowledged that the Circuits are split on this issue. The court noted that the Sixth Circuit has ruled that the amount of marijuana is not an element prosecutors must establish for conviction under the federal felony provision. Therefore, according to the Sixth Circuit, the felony provision of the federal statute is the default provision, and the misdemeanor provision is merely a mitigating sentencing provision.

The court also noted that the Second and Third Circuits take a different view, focusing on the doctrine of "least culpable offense," meaning that only the minimum criminal conduct necessary to sustain a conviction under a given statute is relevant

The court recognized published Fifth Circuit case law as precedent, and the court upheld Moncrieffe's conviction. This split between the Circuits may be resolved once the Supreme Court hears the case.

Secretary of Homeland Security Janet Napolitano and the U.S. Citizenship and Immigration Services have made temporary protected status (TPS) available to Syrian nationals effective March 29, 2012. This means that Syrians, who were in the United States as of March 29, 2012, are eligible to stay in the United States for eighteen months and can receive a work authorization document allowing them to work in the US through September 30, 2013. Attorneys from the Law Firm of Shihab & Associates will make themselves available to all persons who have questions regarding this form of humanitarian relief.

Time Frames and Deadlines for TPS

Persons who wish to obtain TPS must apply between March 29, 2012 and September 25, 2012. If an application for TPS is not received by the September 25 deadline, the application will be rejected by the USCIS.

Entry Date and Physical Presence Requirements for TPS

Only those Syrians who entered the United States on or before March 29, 2012 are eligible for TPS. Additionally, the applicant must demonstrate continuous physical presence in the United States after entry to remain eligible for TPS. The USCIS has stated that short and incidental exits from the United States will not break the physical presence requirement. This is in recognition that the violence and turmoil in Syria may necessitate short periods of travel in and out of the US to attend to matters pertaining to the protection of persons and property. It is highly recommended that applicants for TPS obtain an advance parole document before traveling outside of the US in order to notify the USCIS of the applicant's intent and need for travel.

Visa Status Requirements for TPS

TPS is available for all Syrians regardless of visa status. TPS is supplementary to whatever visa status a person holds at the time of filing for TPS and Syrians are encouraged to maintain their alternate visa status while at the same time applying for TPS. Even people who have overstayed previous visas or who have entered without inspection are eligible for TPS. Immigration status violations are not a bar to receiving TPS. It is recommended that applicants consult with an attorney regarding the effects of TPS on a currently held visa status or lack of visa status prior to applying.
TPS is a temporary visa status and at the end of the TPS designation period, TPS holders will revert back to whatever visa status they possessed prior to TPS. Therefore it is highly recommended that TPS applicants maintain their underlying visa status if at all possible while on TPS.

Nationality Requirements for TPS for Syrians

The designation for Syrian TPS is intended as a humanitarian relief for Syrian nationals. However, persons who do not possess a nationality, and who last habitually resided in Syria may apply.

Continue reading "Syrians Now Eligible for Temporary Protected Status (TPS)" »