Immigration Visa Lawyer Blog

In a well reasoned order handed down by Judge Susan R. Bolton of the United States District Court for the District of Arizona, the most unreasonable, atrocious and unconstitutional aspects of Arizona's Senate Bill 1070 were blocked, or rather, enjoined from taking effect with the remainder of the legislation on July 29, 2010. In what almost certainly will set the stage for an appeals process culminating in review of state government's power to supplement federal law in the area of immigration, Arizona has appealed this ruling to the United States Circuit Court for the Ninth Circuit. If the Ninth Circuit rules on the matter before the end of the year, the case could be heard by the Supreme Court of the United States in its next session, and possibly decided within a year from now.

While the most egregious aspects of SB1070 have been strategically excised from the whole of the bill by the order of Judge Bolton, the bill ultimately stands and the remaining portions went into effect July 29, 2010. Because the process for enjoining and appealing this bill as well as its ramifications may not be entirely clear, I have briefly summarized the judge's legal opinion and the effects that this ruling has on SB1070 in board terms. As a reminder, this attorney and the Law Firm of Shihab & Associates has offered the following aspects of Arizona law for the purposes of public discussion and discourse only. This lawyer does not suggest nor insinuate that he is licensed practice civil or criminal law in the state of Arizona.

Summary

Senate Bill 1070 took effect in Arizona on July 29, 2010. Judge Susan Bolton only blocked certain parts of the bill from taking effect with the rest of the bill. Such a legal challenge and outcome was fully anticipated by the drafters of SB1070, who made certain aspects of the bill severable, or able to be separated, without destroying the entire bill. The US Department of Justice, the adversary to SB1070 in this instance, specifically chose certain aspects of the bill to challenge, leaving other aspects unopposed. Some of the most important aspects of SB1070 that remain in effect or fully enforceable by officers in Arizona are as follows:

• Provision allowing residents of the state to sue any state official or agency that restricts enforcement of federal immigration law to any extent less than the maximum allowed by federal law;
• Creating a crime for stopping a vehicle to pick up day laborers if the stopping creates an impediment to normal movement of traffic;
• Creating crimes for intentionally or knowingly employing unauthorized aliens; and
• Transporting or encouraging unlawfully present aliens to come to Arizona.

Interestingly, law enforcement officers and public employees are caught in a catch 22 situation regarding their role in Arizona's immigration scheme. Specifically, all agencies of the State of Arizona are required to carry out federal law in regard to federal immigration rules or risk being sued. However, it is reasonable to believe that most employees of the state of Arizona are not experts in Federal Immigration law, leaving such agencies and employees potentially open to suit for actions they do not know are unlawful.

The following are aspects of the bill that have been enjoined, or stopped from enforcement, by the federal court:

• Requirement that under reasonable suspicion of unlawful presence in the United States, that police officers make a reasonable efforts to ascertain the immigration status of the person, and ascertain the immigration status of a person upon release from arrest;
• Creation of a crime for failure to apply for or carry immigration papers;
• Create a crime for an unauthorized alien to solicit, apply for or perform work; and
• Authorize the warrantless arrest of a person where there is probable cause to believe the person has committed a public offense that makes the person removable (formerly called deportable) from the United States.

Despite the injunction of this law, there are aspects of the enjoined portions of SB1070 that seem to have overlapping effects with current law enforcement procedure in Arizona. Sheriff Arpaio of Maricopa County (the Phoenix metro area) of Arizona is still conducting his "sweeps" pulling over cars for minor violations and then taking the opportunity to lead the detained person down a path of questioning to eventual disclosure of his or her immigration status. While it is unclear where to draw the lines between enforceable state law and unenforceable enjoined provisions of SB1070, what is clear is that violating a federal injunction is grounds for a charge of contempt of court. In the spirit of SB1070, it is only just that such a person violating an order handed down by a federal judge should be prosecuted to the full extent of the federal law.

Discussion of the Enjoined Sections of SB1070

The legal ruing handed down by the federal court in this case is what is known as a preliminary injunction. This order stops conduct from being carried out as requested by the moving party from occurring while the merits of the case have yet to be decided, i.e. the case has not yet gone to trial. This is essentially a temporary stop. The ruling on a temporary injunction may be appealed to the next highest court. This is the action that the State of Arizona has taken, asking the Ninth Circuit, the court above the US District Court for Arizona, to hear its argument.

Judge Bolton took the most appropriate action by only enjoining or blocking the aspects of the bill that were likely be won by the US Department of justice at trial, while letting other aspects of the law go into effect. The drafters of SB1070 intentionally wrote the bill to allow this type of severability, or the ability for sections of the law to be blocked without destroying the entire bill. As a consequence, Judge Bolton has essentially narrowed the issues that will be argues at the next level to the issues below.

Continue reading "The Most Appalling and Unconstitutional Aspects of Arizona's SB1070 Blocked by Federal Court" »

The American Immigration Lawyers Association ("AILA") posted on its website processing times for the Administrative Appeals Office, the AAO. The AAO has authority to review certain applications denied by the US CItizenship & Immigration Service ("USCIS"). Decisions issued by the AAO have been controversial as the USCIS may or may not be bound by them as a "legal precedence" or "lawmaking authority" as the American legal system normally operates. Hence, practitioners in the field of immigration law have found the administrative appeals before the AAO as futile and time consuming process. Nonetheless, applicants and petitioners whose cases have been denied by the USCIS have the legal obligation to "exhaust their administrative remedy" before taking their cases to Federal Court to challenge the USCIS' denial. In other words, the Federal Court system may not accept a challenge to a USCIS decision prior to having them try to resolve the matter before the AAO. Hence, the AAO appeals step is viewed by many as a necessary step, though time consuming.

Below, please find the most recent AAO Processing Times. As can be seen, it may take more than a year to review an H-1B visa case denial. An EB-2 or EB-3 I-140 denial may take 2 years to appeal before the AAO. In comparison, an alien entrepreneur petition form I-526 denial will take 6 months to appeal before the AAO.

Continue reading "Columbus Ohio Immigration Lawyer on Administrative Appeals Office - AAO Processing Times As of May 1, 2010" »

Arizona has recently passed one of the harshest anti-immigration bills in America's modern history. While the bill is obviously aimed at those persons who have entered the United States from Mexico without inspection, the effects of this bill will be felt in all immigrant communities. The law gives state and local officers the authority to arrest and detain any person in violation of federal immigration law as well as proscribing punishments for those who aid immigration law violators. Those persons who are present in the United States on valid employment based visas, such as H-1B, L-1 and H-2A, as well as those persons who are eligible or have applied for a Green Card or Legal Permanent Residency through the PERM process or family based petition, now must be extra careful to remain in valid immigration status at all times and above all else always carry their "papers" on them. Just as the tide raises all boats, Arizona's law will affect all immigrants and their employers within that state

On the heels of Arizona's new law, certain Ohio senators have begun the process of drafting copycat legislation. The consequences of such legislation for Ohio business if such legislation were to be passed could be very grave. A bill that damages the confidence of Ohio's vital, skilled and hard working immigrant population in the state's openness and welcome for immigrants in general would do unnecessary harm to Ohio's already recession weakened economy. Before Ohioans jump on the anti-immigration bandwagon, perhaps they should instigate the wording of Arizona's legislation and its potential to harm Ohio's economy.

Ohio should not burden businesses with the requirement to investigate all contractors and subcontractors for services

Arizona's law makes it a crime to knowingly or intentionally employ an unauthorized immigrant. Furthermore, Arizona's law makes it illegal to contract with a person who intentionally or knowingly employs an unauthorized immigrant to perform work for the contacting person. If read literally, Arizona's law would make it a crime to contract with any person or business that has hired an unauthorized worker. As a precaution, businesses would be required to investigate the immigration status of all of their business contact's employees. For the large and medium sized corporations that call Ohio home, such a law would create an unreasonable financial burden and untenable risk of criminal prosecution. There are plenty of other states that would be happy to siphon off the business of Ohio's corporations with the lure of a decreased risk in liability.

Ohio's immigrants make Ohio stronger

Ohio is home to one of the most diverse and most representative cross sections of business, industry, agriculture, research and government as can be found in the United States as a whole. Ohio's many colleges hire the best and brightest people in the world to teach and carry out research. Ohio's businesses rely on skilled workers in engineering and technology to fill positions where not enough American citizens can be found to fill demand. Finally, Ohio's agriculture relies on the labor of H-2A non-immigrants to carry out some of the toughest jobs on the farms and in the fields. Ohio needs to attract immigrants in order to fill vital jobs that make Ohio's economy strong. Why would we want to injure or insult our immigrant population by requiring them to carry "papers" like in some dictatorial third world country? Again, there are plenty of other states and countries that would love to attract skilled and hard working immigrants to carry out the jobs that are vital to the economy.

Continue reading "Columbus Immigration and Visa Attorney Examines the Effects of Potential Immigration Bill on Ohio Business" »

If you are residing abroad and have recently had your immigrant or nonimmigrant visa application denied by a consulate officer, you may request an advisory opinion from the Department of State's Visa Office Advisory Opinions Division (AOD) and "open the door" to a denied case. With the powerful advisory opinion, a foreign national has the opportunity to obtain the original visa classification sought instead of filing an entirely new case from the start.

When a foreign national files for an immigrant or nonimmigrant visa from a consulate abroad, the consulate officer may erroneously deny the petition taking an incorrect legal position. The foreign national may not feel that s/he has any options for appeal. However, an attorney may request an advisory opinion from the Department of State's Visa Office Advisory Opinions Division (AOD). If the AOD agrees with the attorney and issues the advisory opinion, the consular officer's determination will be overturned allowing the foreign national to obtain the visa s/he is seeking. This is a very powerful tool that not many foreign nationals know exists. This article discusses the various advisory opinion procedures and discusses the benefits of requesting the advisory opinion especially when the foreign national's petition has been incorrectly denied.

The Advisory Opinion
A request for an advisory opinion is a appropriate when your immigrant or nonimmigrant visa petition has been denied at a consulate abroad due to an incorrect application of law. The advisory opinion addresses legal questions involving proper visa classification, specific grounds of visa eligibility, and other legal issues concerning visa applicantions. The most common questions pertain to misrepresentation of material facts, nonimmigrant visa classifications (particularly E, H-1B and R), inadmissibility due to commission of crimes involving moral turpitude, diplomatic visas, visa revocation requests, and unlawful presence.

An attorney should seek an advisory opinion if it appears that there was a legal error, i.e., when a visa application is denied without an applicable legal basis. The advisory opinion may result in a favorable decision for the application. The consular officer will generally inform the alien of the suspected substantive reason for denying the visa. This will form the basis for the attorney's request for advisory opinion as often times the consulate officer may err as a matter of law.

Legal Effect of the Advisory Opinion
The Department of State's regulations provide that advisory opinions concerning interpretations of law "shall be binding upon consular officers." AOD lawyers state that consular officers never refuse to follow a purely legal opinion. This means that if the consular officer "gets it wrong" as a matter of law, the advisory opinion will cure the defect. More problematic is the situation of applying the law to the facts of a particular case. When the case involves factual interpretations as well as legal matters, the consular officer's determination on the factual issues is binding. Hence, only incorrect applications of the law may be scrutinized by a request for advisory opinion.

If you are a foreign national whose case has been denied due to an incorrect application of law, you should seek an advisory opinion. You must request an advisory opinion within one year of the date the visa petition was denied. Do not delay since after one year you cannot obtain relief. You may begin by calling the consulate officer who denied the application and request that the decision be overturned due to the error, but this approach is a far stretch given the tendancy of these officers not to overrule themselves. Thus it becomes necessary to ask the AOD to overrule the consulate officer through the issuance of an advisory opinion.

Continue reading "Columbus Immigration Lawyer: When a Consulate Shuts the Door on a Visa Petition, The Key to Victory is to Request an Advisory Opinion" »

The K nonimmigrant visas are available to fiances (K-1) or spouses (K-3) of a U.S. citizen to enter the U.S. and eventually apply for permanent residence (i.e., a green card).

This article addresses the question of which K visa is the best option. It also discusses whether the K visa is the best option when you are already married to a foreign national residing abroad. Finally, it discusses the benefits of consular processing in lieu of the K-3 visa.

The K-1 Visa
The K-1 nonimmigrant visa allows a fiance residing abroad to marry a U.S. citizen and come to the U.S. permanently. The U.S. immigration law for K-1 visas requires that you meet your alien fiance personally within two years prior to filing the K-1 visa application. Additionally, both the U.S. citizen and the foreign national must be free to marry. This involves showing that all previous marriages have been terminated. Copies of prior divorce decrees are sufficient to show freedome to marry. Dependants of the alien fiance may enter the U.S. with the K-1 visa beneficiary on a derivative K-2 visa. Dependants include minor, unmarried children of the alien fiance. A fiance may work in the U.S. by applying for a work permit with USCIS.

The K-1 fiance may stay in the U.S. for 90 days on a K-1 visa and must marry the U.S. citizen during that period. The K-1 visa cannot be extended and can only be used to enter the U.S. one time. Once married, the K-1 visa holder should immediately apply for adjustment of status to obain conditional permanent residence (i.e., a conditional green card). The green card will be conditional for two years so that USCIS knows the marriage is bona fide. 90 days before the expiration of the two-year period a petition to remove conditions must be filed.

The K-1 visa holder cannot go for consular processing, an option available to K-3 visa spouses discussed below.

The K-3 Visa
The K-3 visa allows foreign national spouses of U.S. citizens to enter the U.S. temporarily while they wait to apply for a green card. The foreign national must be married to the U.S. citizen and be residing abroad. The U.S. citizen spouse must have filed Form I-130, Petition for Alien Relative with USCIS to prove the marital relationship. Once recieved by USCIS, the K-3 visa application can be filed. Similar to the K-1 visa, minor, unmarried children of the foreign national spouse may enter the U.S. on a K-4 visa. Again your spouse may apply for a work permit once they arrive in the U.S. on a K-3 visa.

A spouse will be admitted into the U.S. for a period of two (2) years on a K-3 visa. The spouse may apply for an extension of stay no more than 120 days prior to the expiration of the K-3 visa. To obtain the extension, a K-3 visa holder must have filed the I-485 or an application for an immigrant visa, or if the I-485 was not filed, the spouse must be awaiting approval of a pending I-130; and the foreign national must still be married to the U.S. citizen.

Upon arrival in the U.S. the foreign national spouse should apply for adjustment of status to permanent resident in order to obain their green card. If any of the following circumstances happens upon arriving in the U.S. the K-3 status will terminate within 30 days: the I-130 is denied, the application for immigrant visa is denied, the I-485, Adjustment of Status application is denied, or divorce from the U.S. citizen petitioner.

Choose Between K-1 and K-3: Which Nonimmigrant Road to Travel?
There are various routes that your foreign national fiance or spouse can take to enter the U.S. Each depends on the amount of time you and your foreign fiance or spouse are willing to wait apart from each other. While the K-1 visa remains a widely used and very favorable visa category, the K-3 visa is becoming less advantageous because of the ease in which to obtain a green card through consular processing.

Continue reading "The K-1 or K-3 Visa and Consular Processing: The Choice of Marriage in U.S. or Overseas" »

Legal Permanent Residency/ Green Card: Tax Issues

Foreign nationals seeking legal permanent residency (LPR Status or a Green Card) through the PERM process, other employment based petitions or through the various family based avenues will inevitably face various tax issues. All foreign nationals applying for such status must abide by certain federal regulations and burdens of proof addressing the tax issue. As the deadline for filing personal income tax returns bears down upon all persons who derive income from the United States, now is an opportune time to discuss some of the common issues that Green Card applicants and Legal Permanent Residents face.

Required Taxation Evidence Submitted with the I-485 application

All Green Card applications require proof of whether or not the alien was taxable in the previous three years. The federal regulations state that the alien must provide proof of whether or not he or she was required to file an income tax return for the past three tax years. Certain visa holders are free from from this requirement when filing an application for adjustment of status. Visa holders that may not need to pay US income tax include J, H-4, H-3 and F visa holders as long as they have received no gross income from within the United States.

Who is to be taxed?

Everyone who derives income from sources within the United States will be taxed. Foreign nationals are either taxed as an alien resident or non-resident alien basis. Resident aliens are taxed on all income that is derived from any source around the world, just like any US citizen would be. Non-resident aliens are only taxed on income that they have gained from sources within the United States.

How do I tell if I will be taxed as a resident or nonresident alien?

The IRS has formulated a test to determine whether or not an alien is a resident alien for tax purposes. This test is called the Green Card Test or the Substantial Presence Test. In most instances, a foreign national who is present in the United States for 183 days out of the year will meet the Green Card test and will be taxed as a United States Citizen would be. A foreign national may also meet the Green Card test and be considered taxable as a United States Citizen if he or she is present in the US for 31 days of the tax year, and has been present in the US for one-third of the days in the previous tax year and one-sixth of the days of the second most recent tax year.

Some days of presence in the United States are not counted toward the Green Card test. Some visa holders are exempt from paying US taxes such as F, J, M and Q visa holders, so usually days spent in the United States on these types of visas are no counted toward the Green Card test. Some visa holders that can be present in the United States for an indefinite period of time are also not liable such as A and G visa holders. Persons who are physically incapable of leaving the US or persons go back and forth to work in the US from Canada and Mexico are usually not taxable in the same manner as nonresidents. Also foreign nationals who are only in the US temporary, using the US as a stopping point while they travel between two locations outside of the US, will not have these days counted in the Green Card test.

Finally, even if the alien meets the Green Card Test, he or she will not be taxed as a US resident if it is shown that the foreign national was not within the US for 183 days in the most recent tax year and that the alien keeps a home in a foreign country, to which country the alien maintains a nearer relationship than he or she has to the United States.

What if I am a dual citizen?

The United States maintains certain tax treaties with other nations. A dual citizen may be able to show non-residency by providing the treaty and citing to the section of the treaty regarding residency. Two specific countries do not address this issue in their treaties with the US; Greece and Pakistan.

Estate Tax Issues for Foreign Nationals who Pass Away in the United States

The rate of estate taxation also depends on whether the alien is considered a resident or nonresident alien. The residency test for estate tax purposes is different that the test for income tax purposes. Specifically, a deceased person is considered a nonresident if that person was neither a citizen nor a resident of the United States. Residency for estate tax purposes is determined based on the persons' domicile (where the person lives daily).

The property owned by a non-resident within the United States is subject to a transfer tax, the same as US citizens. Foreign nationals who are residents are subject to the same estate tax rules that US citizens must meet. For both nonresidents and residents, an unrestricted spouse deduction is available for property that passes to a US citizen spouse. However, if the spouse is not a US citizen, there is no marital deduction unless the property passes to a special type of trust. A marital deduction may be available to non-residents if they are citizens of a country that has a tax treaty with the United States.

Continue reading "Legal Permanent Residency/ Green Card Holder and Non-Immigrant: Tax Issues" »

Immigration Reform Must Be Fair To All Immigrants
In advance yet another rally for immigration reform set to descend upon Washington D.C., we are all again reminded of the need to amend the fractured structure of agencies and laws that makes up modern immigration system in America. Many of the most vocal and courageous advocates for change in the immigration system are the representatives of foreign nationals from Central and South America. It is indeed true that undocumented aliens from the countries south of the United States boarder do make up the largest contingent of aliens who will be effected by comprehensive immigration reform. However, we need to remember that in order for immigration reform to be truly comprehensive, its effects must be fair and just too all foreign nationals of all visa statuses from all continents.
Fairness for those who have followed the law
Permanent and temporary work visas are distributed according to a myriad of complicated laws and regulations. Many employers and employees who seek to utilize these avenues of immigration have spent years of their lives and thousands of dollars obtaining and maintaining their valid immigration status. While it is in the best interest of the United States to find a path to citizenship for the hundreds of thousands of undocumented workers who do the toughest jobs in this country, it is my hope that their gain does not come from a loss for those aliens who have attempted to immigrate by adhering to the rigorous immigration laws on the books today. A truly comprehensive immigration reform must strive to keep smart workers, hard workers and families together.
What Should Immigration Reform Look Like?
As much as the term Comprehensive Immigration Reform (CIR) is used in the media and around dining room tables, the nuts and bolts of such reform are still a mystery. The central tenants of such reform seem to be registration with the government, a path to citizenship for undocumented workers with caveats for the payment of taxes, tight boarder enforcement. But undocumented workers are only a part of the immigration landscape. Adjustments need to be made to the traditional three avenues of permanent immigration: 1) asylum/refugee status, 2) employment based; and 3) family based immigration.
In general, reform should establish clear guidelines for permanent immigration though these avenues. Asylum/ refugee law as well as family based immigration have a deep and rich history of case law that must be drawn upon in order to fashion legislation that ends in a fair result for foreign nationals as well as maintaining order and security within the United States. A balance must be struck between efficient adjudication of asylum claims with the need to hear the merits of each case. Furthermore, a system that eases the path to citizenship for undocumented workers would decrease the instances of foreign nationals seeking less than traditional marriage partners in order to obtain a green card.
As for employment based temporary and permanent immigration, clear guidelines are long overdue. There has been troubling recent pattern of erosion of the openings for employment based permanent and temporary employment. For example, the Department of Labor has recently taken over the determination of the prevailing wage for permanent immigration petitions from the states. This process has had the practical effect of adding 15 days to one additional month of time before a green card may be petitioned for. Similarly, the USCIS and department of labor have recently tag teemed to increase the wait time and burden of proof for a valid H-1B petition. What is needed is needed from a reformed employment based system is clarity of the parameters and decisive enforcement rather than inconsistent obligat5ions and enforcement of the immigration laws.
Stand up and be heard
In order for Comprehensive immigration reform to truly be comprehensive, representatives from all immigrant communities, representatives from immigration reliant businesses as well as immigration professionals need to make their voices heard. I urge all persons with as stake in the battle to stand up and be heard in Washington D.C. as well as the local level. Only if every party has a seat at the table of reform can fair legislation for all foreign nationals and for United States citizens be won.