Jamaica - Immigration

Immigration: New Year and New Immigration Amnesty for 2012?

Safiya Byars, Esq. — Mon, 16 Jan 2012 13:30:02 UT

Happy New Year to Everyone. With the start of 2012 everyone is concerned with the status of immigration laws. In 2011 we saw the enactment of some draconian and controversial immigration laws in Arizona, Georgia, and Alabama. We also saw increased activism for immigrants' rights. However, despite the efforts of immigrant activists we have yet to see comprehensive immigration reform from the federal government. So what will happen in 2012? The future of immigration reform is uncertain. However, what remains is that everyone must do everything they can do to maintain or obtain legal status and prepare for immigration reform/amnesty. In this month's article I will briefly address some immigration questions that are asked by prospective clients.

Question 1: I came to the United States on a visitor's visa in 2007. I am applied for an extension of my visa and it was granted until 2008. I am not married but my employer now wants to petition for me so that I can have legal status and work full-time. How can I do this?
Answer: In order to change status from a visitor's visa to a work visa you must be in current legal status. For example in order to change status your current status must still be valid. Whenever you enter the United States on a visitor's visa Immigration usually gives you a white I-94 card. You are then authorized to remain in the United States until the date indicated on the I-94 card. If you remain in the United States beyond that date you are now in illegal status and therefore ineligible to change status while in the United States. In addition, if you remain in the United States beyond your authorized stay you will begin to accrue unlawful presence.

Question 2: What is unlawful presence?
Answer: Unlawful presence simply means that you are present in the United States without Immigration authorization. Unlawful presence can be applied to individual who initially legally entered the United States and others who entered the United States illegally. For the purpose of this article I will limit my response to individuals who initially legally entered the United States, pursuant to their visa or visa waiver program, and then overstayed their status. For individuals who entered the United States in legal status but then overstayed unlawful presence begins to accrue once they have overstayed their authorized stay as indicated by Immigration. Individuals should strive to avoid unlawful presence because it could result in a 3 or 10 year bar from returning to the United States, deportation, and/or ineligibility for a change of status and other immigration benefits.

Question 3: What is the 3 of 10 year bar?
Answer: If you have accrued unlawful presence of more than 6 months but less than 1 year and you depart the United States you will barred from returning to the United States for 3 years. Likewise if you have accrued unlawful presence of 1 year or more and you depart the United States you will be barred from returning to the United States for 10 years. This means that if you leave the United States and you apply overseas to obtain another visa or to apply for permanent resident status the U.S Consulate is authorized to deny your request simply because you are subject to the 3 or 10 year bar. Some individuals may be eligible for a waiver of the 3 or 10 year bar. However, the waiver is not automatic and it is granted solely at the discretion of Immigration.

Question 4: Can I be deported simply because I overstayed my visa?
Answer: The short answer is yes. Anyone who is the United Status in illegal status is subject to deportation at any time. Individuals who initially entered the United States in legal status but then overstayed their status is considered to be in illegal status. In 2011 the Immigration and Customs Enforcement issued its legal memorandum on prosecutorial discretion. However, prosecutorial discretion is discretionary. In addition, a number of immigration attorneys have found that despite the memorandum ICE has not changed their practice of removal. As such, I would not rely on Immigration to exercise discretion in any removal proceeding.

Disclaimer: This article is a broad overview and is provided as a public service. This article is not intended to establish an attorney-client relationship. Any reliance on the information contained herein is taken at your own risk. The information provided in this article should never replace informed counsel when specific immigration-related guidance is needed.

About the Writer:
Safiya Byars (sbyars@byarslawgroup.com) is the senior partner and owner in the Law Office of Safiya Byars (www.byarslawgroup.com). She is an active member of the Caribbean and International communities in Georgia. She graduated Summa Cum Laude from the University of Montevallo and received her law degree from the University of Alabama in Tuscaloosa, Alabama. Her office is located at 160 Clairemont Avenue, Ste. 200, Decatur, Georgia 30030. Attorney Byars handles all immigration matters, deportation defense, family law issues, and business formation/litigation. To discuss you case, contact Attorney Byars at 404-992-6506 or 678-954-5809.

Immigration: The ABCS of the U Visa

Safiya Byars, Esq. — Mon, 12 Dec 2011 13:30:01 UT

Congress created the “U” nonimmigrant classification, known as the U-visa, as part of the Victims of Trafficking and Violence Prevention Act of 2000. The U-visa protects crime victims from deportation and strengthens the ability of law enforcement agencies to detect, investigate, prosecute, and solve cases of domestic violence, sexual assault, trafficking, and other crimes.

The U visa is a unique benefit because it allows an applicant to obtain status and ultimately permanent residence based on criminal activity. The U nonimmigrant status (also known as the U visa) is set aside for victims of crimes who have suffered mental or physical abuse as a result and who are willing to assist law enforcement and government officials in the investigation of the criminal activity.

The U visa is designed for noncitizen crime victims who (1) have suffered substantial physical or mental abuse from criminal activity; (2) have information regarding the criminal activity; (3) assist government officials in the investigation or prosecution of such criminal activity; and (4) the criminal activity violated US law or occurred in the United States (including Indian country and military installations) or the territories and possessions of the United States.

The abuser does not need to be a US citizen or lawful permanent resident and you do not have to have been married to the abuser to be eligible for a U visa. You are not required to be physically present in the US to qualify for a U visa. You can apply from abroad as long as the criminal activity violated US law or occurred in US territories.

To petition for U nonimmigrant status the applicant must obtain a Federal, State or local government official investigating a qualifying criminal activity c certify that the victim has been, is being, or will likely be helpful in the prosecution of the criminal act(s) of which he or she was a victim. Those who have been granted U-1 nonimmigrant status may file for permanent residency using Form I-485 upon meeting certain requirements. There is also a two-stage process for qualifying family members of a U-1 nonimmigrant status holder to apply for permanent residency. USCIS can only grant U visa status to 10,000 noncitizens in each fiscal year. This number does not include persons eligible for U-visa derivatives status – e.g., spouses, children or parents of applicants. U visas last for four years. After three years, U-visa holders may apply for lawful permanent residence. U-visa holders automatically qualify for employment authorization.

Immigration: Common Questions and Answers

Safiya Byars, Esq. — Mon, 14 Nov 2011 13:30:01 UT

Immigration has always been a very interesting topic. Immigration is an essential component for families and businesses but it is also controversial. Immigration law is very broad and due to its controversial nature it is sometimes fraught with fraud. Families and businesses are desperate to obtain legal status for their family members and workers and they are opportunistic individuals lying in wait to exploit these needs. My firm's goal is to provide individuals with the truth about their case and the law so that they can make an informed and lawful decision regarding their immigration case. In this month's article I will be briefly discuss three common questions that prospective clients ask me about their immigration case.

Question 1: I am from Nigeria and I obtained my divorce in Nigeria. I am now married to my present husband who is a United States citizen and we are ready to submit my permanent resident petition to Immigration. Is my Nigerian divorce a valid divorce or I will have to obtain a divorce in the United States.

Answer: This is a common question that I receive from individuals who are from Ghana., Nigeria, The Gambia etc. Immigration reviews each case on its own merits. However, Immigration does have guidelines as to which foreign divorces they will accept as a valid divorce. In the United States the divorcing parties are usually requires to appear in court before a divorce can be granted. The exceptions to this rule are divorce by publication when the defendant cannot be located or if the defendant has been served with the divorce complaint but voluntarily chooses not to appear in court. The U.S Government usually accepts a foreign divorce decree when the divorce is conducted in a court of law and both parties are present or at least the plaintiff was present. However, in some countries a divorce can be granted in the absence of both parties. These divorces are usually called tribal divorces. In these divorce actions the head of the household, i.e.,the father of the wife, (plaintiff) and the father of the husband, (defendant), appear before the court or the official and obtain the divorce on behalf of the divorcing parties. While this may be a legitimate and valid divorce overseas Immigration has strict documentary evidence that must be provided before they will accept the foreign divorce decree. In some cases if the applicant is not able to produce the required documentation in addition tot the divorce decree Immigration will deny the applicant's permanent residence petition. As such, it is imperative that an applicant consult with an immigration attorney regarding any foreign divorce decree to ensure that the divorce will be honored by the U.S., Government.

Question 2: My permanent residence application was denied but I still have my work authorization card. Can I still work since my work authorization has not expired.

Answer: Most individuals mistakenly believe that an unexpired work authorization card signifies that they can still work despite the fact that their permanent residence petition has been filed. It is important to remember that an employment authorization card is not a stand-alone benefit. Immigration issues an applicant an employment authorization card because he or she has a pending application. In the case of a denied permanent residence petition the employment authorization card is no longer valid because the underlying "green card" petition is no longer pending. The only way to receive a valid employment authorization card is to have a pending application that allows Immigration to issue this employment authorization.

Question 3: I am not a U.S. citizen but I have a social security. Am I able to work with my social security card.

Answer: The short answer is no. Non U.S. citizens who have social security card must show a secondary document to show that he or she is authorized to work in the United States. An employment authorization card, a permanent resident card "green card", or an employment visa, etc.

Immigration: A Review of Immigration’s Prosecutorial Discretion Memorandum and its impact on Removal Proceedings

Safiya Byars, Esq. — Mon, 17 Oct 2011 13:30:01 UT

On June 17, 2011, Director John Morton, of Immigration Customs and Enforcement issued a memorandum regarding its new policy on removal proceedings. In summary the memorandum indicated that the Immigration and Customs Enforcement Prosecutors should use “Prosecutorial Discretion” when deciding whom to detain or release. The discretion includes taking into account several factors, including the person’s education, whether he or she has graduated from high school and has attended college, if the illegal immigrant is the child or spouse of a U.S. citizen, if a relative has served in the military or if the individual is a primary caretaker of someone who is ill. Current conditions in the person’s home country, the circumstances upon his or her arrival here and whether the person came here as a young child may also be taken into account. Illegal immigrants' criminal history and whether they pose a risk to the country’s national security will also be considered, as will any history of prior removal. Crime victims and witnesses may also be given special consideration. You may access the memorandum at: http://www.ice.gov/doclib/secure-communities/pdf/prosecutorial-discretion-memo.pdf

This memorandum caused national headlines. Some individuals have interpreted this memorandum as an indication that the United States Government is offering temporary amnesty to undocumented individuals. While some individuals have interpreted this memorandum to indicate that they will not be deported despite the fact that they have no legal status. The facts are that the Government is still prosecuting individuals in deportation/removal court. My experience with the Government’s attorneys and my interpretation of Immigration’s memorandum indicate that this new policy will provide benefits to some individuals who previously were destined for immediate removal from the United States. However, each case will be considered on an individual basis and the Government’s decision whether to deport or not to deport an individual is based entirely on their discretion.

The Government has made announcements that the memorandum of “Prosecutorial Discretion” does not impact individuals who are not currently in removal proceedings. Consequently, students and others unlawfully present in the United States, but not in removal proceedings should not actively seek out the immigration authorities because there are no guarantees that an individual removal case will be administratively closed. Anyone who seeks to be placed in removal proceedings, in the hopes of avoiding deportation, could end up being deported.

The American Immigration Lawyer’s Association’s has issued the following warnings to protect people from misinformation and immigration scams:

Do NOT believe anyone who tells you they can sign you up for a work permit (Employment Authorization Document or “EAD”) or get you legal status based on the Secretary Napolitano’s August 18, 2011 announcement!
There is NO “safe” way to turn yourself in to immigration and there is NO guarantee that your case will be considered “low priority.” ANY person who comes into contact with immigration authorities may be arrested, detained or even removed.
Only a QUALIFIED IMMIGRATION LAWYER can evaluate your case and tell you about your rights. Do NOT seek legal advice from a notario or immigration consultant.

http://immigrationimpact.com/2011/08/24/immigration-lawyers-clarify-what-dhs%E2%80%99s-announcement-on-prosecutorial-discretion-is-and-is-not/

The million dollar question then becomes “will undocumented individuals be able to benefit from the new policy of “Prosecutorial Discretion?” This new policy of “Prosecutorial Discretion” will only be beneficial if an individual is able to present his case in a persuasive manner that highlights those factors such as family ties, good moral character, etc. The best way to present a persuasive case is through an attorney. If an individual has previously been ordered deported and/or received a denial on an immigration petition, it is best to obtain a complete copy of his/her immigration record before applying for stay of removal. Finally, individuals should only seek to benefit from the Government’s new policy by working with a qualified immigration attorney.

Immigration: Treaty Investor and Treaty Trader Visas

Safiya Byars, Esq. — Mon, 19 Sep 2011 13:30:02 UT

Due to the sluggish nature of the United States’ economy more individuals are now seeking new ways to become self-employed while acquiring legal immigration status. The United States has always welcomed the foreign investment of capital and jobs as a mainstay of its economy. As such, the United States created the treaty investor/trader visas. These visas are usually referred to as the E-1/E-2visa. In this month’s article I will briefly outline the requirements of these visas.

Overview

Immigration provides treaty trader/investor nonimmigrant i.e. “temporary visa” for a national of any of the countries with which an appropriate treaty of commerce and navigation exists. An individual who wishes to come to the United States to conduct substantial trade, principally between the United States and his/her own country, may apply for a treaty trader visa (E1). Someone who is coming to the United States to develop and direct the operations of a business in which he/she has invested, or is actively in the process of investing a substantial amount of capital is welcome to apply for a treaty investor visa (E2). The category is popular because unlike the L-1 visa, it is not necessary to maintain a business outside the United States. The visa option is always popular because unlike the L-1 status, E-1 and E-2 visas can be renewed every five years without limits. The spouse and minor unmarried children of the treaty trader or treaty investor aliens also qualify for the same status as the principal alien, and their nationality is not relevant to their qualification. They can live and study in the United States without any additional permits. The spouse of the visa holder may obtain authorization to work in the U.S.

Investment Requirements

Although Immigration evaluates each case on an individual basis generally the following rules apply in terms of minimum investment expectations:

1. Investments which are valued at less than $500,000:

A minimum of 75% of the total value of the business or for small to medium sized businesses, more than half of the value of the business
Exceptions may be made for certain start-ups and service businesses, where smaller initial investments may be appropriate depending on the particulars of the type of business

2. Investments which are valued between $500,000 and $3 million:

A minimum of 50% of the value of the business or a flat $1,000,000 is expected to be invested
Immigration may make an exception if it can be demonstrated that in the specified industry, it is common practice to start a business with less than 50% of the value of the enterprise.

3. Investments which are valued in excess of $3 million:

A minimum of 30% of the value of the business or a flat $1,000,000 is expected to be invested

All of the following three elements must exist for the E visa to be obtainable:

There must be a treaty between the United States and the country of the company or national applying for the visa
The majority ownership or control of the enterprise engaged in trade or investment with the United States must be held by nationals from the country which has signed a trade/investment treaty with the United States
Each employee or principal seeking E status must hold citizenship of the country, which has signed a trade/investment treaty with the U.S.

Documentation

Note that both E-1 and E-2 applicants can submit a variety of other documents demonstrating that an investment or trade between the United States and treaty country is substantial. The issue of “substantial trade” is a legal issue. Examples of E-1/E-2 visa documentation can include, but are not limited to, the incorporation of the business in the United States, proof of the ownership of the company, the capitalization of the business, the business plan, information on business activities such as marketing documentation, sales contracts, lease or property ownership documentation, and financial statements and tax returns for the United States business.

The E-1/E-2 visa is wonderful vehicle to realize your dream of owning your business in the United States while obtaining legal immigration status for yourself and your immediate family. To learn more about the E-1/E-2 visa process contact our firm at sbyars@byarslawgroup.com or via phone at 404-992-6506.

Disclaimer: This article is a broad overview of the E-1/E-2 visa classifications. This article is provided as a public service and is not intended to establish an attorney-client relationship. Any reliance on the information contained herein is taken at your own risk. The information provided in this article should never replace informed counsel when specific immigration-related guidance is needed.

Immigration: Alabama and Georgia’s HB 87

Safiya Byars, Esq. — Mon, 22 Aug 2011 13:30:01 UT

Recently the states of Georgia and Alabama have set a new standard in the enforcement of immigration law. On Georgia passed HB 87 i.e., the Illegal Immigration Reform and Enforcement Act of 2011. However, the State of Alabama set a new national standard for get-tough immigration policy. Alabama’s Governor Robert J. Bentley's new immigration law surpasses Arizona's SB 1070, with provisions affecting law enforcement, transportation, apartment rentals, employment and education. Georgia’s HB87 law became effective on July 1, 2011. Alabama’s SB 1070 is scheduled to take effect on September 1, 2011. With the enactment of these two draconian immigration laws employers will now be forced to seek solutions to ensure that their employees have the required documentation to work. This week’s article will explore the basic requirements for employers who are seeking to employ a legal labor force.

Foreign workers usually fall into two categories. The first category is focused on professional employment. Professional employment usually requires that the foreign worker has at least a bachelor’s degree and/or the work experience equivalent. The second category is focused on non-skilled or skilled labor. In this category the foreign worker is not required to have an academic degree. The remainder of this article will focus on the employment visas that are available for skilled and non-skilled foreign workers.

H-2A Temporary Agricultural Workers
The H-2A program allows U.S. employers to bring foreign workers to the United States to fill temporary agricultural jobs for which U.S. workers are not available. H-2A visa classification applies to non-citizens who are seeking to perform agricultural labor or services of a temporary or seasonal nature in the United States on a temporary basis .Unlike the H-2b visa there is no limit on the number of H-2A visas available each year.

H-2A petitions may only be approved for nationals of countries that the United States has has designated. The list of H-2A eligible countries is published in a notice in the Federal Register (FR) by the Department of Homeland Security (DHS) on a rolling basis. Designation of countries on the H-2A list of eligible countries will be valid for one year from publication. Effective Jan. 18, 2011, nationals from the following countries are eligible to participate in the H-2A and H-2B programs: Argentina, Australia, Barbados, Belize, Brazil, Bulgaria, Canada, Chile, Costa Rica, Croatia, Dominican Republic, Ecuador, El Salvador, Estonia, Ethiopia, Fiji, Guatemala, Honduras, Hungary, Ireland, Israel, Jamaica, Japan, Kiribati, Latvia, Lithuania, Macedonia, Mexico, Moldova, Nauru, The Netherlands, Nicaragua, New Zealand, Norway, Papua New Guinea, Peru, Philippines, Poland, Romania, Samoa, Serbia, Slovakia, Slovenia, Solomon Islands, South Africa, South Korea, Tonga, Turkey, Tuvalu, Ukraine, United Kingdom, Uruguay, and Vanuatu. Of these countries, the following were designated for the first time this year: Barbados, Estonia, Fiji, Hungary, Kiribati, Latvia, Macedonia, Nauru, Papua New Guinea, Samoa, Slovenia, Solomon Islands, Tonga, Tuvalu, and Vanuatu.

H-2B Temporary Non-Agricultural Workers
The H-2B non-agricultural temporary worker program allows U.S. employers to bring foreign workers to the United States to fill temporary nonagricultural jobs. There are only 66,000 H-2B visas available each fiscal year (October 1st to September 30th). Once the H-2B cap is reached, USCIS may only accept petitions for H-2B workers who are exempt from the H-2B cap. For additional information on the current H-2B cap, see the “Cap Count for H-2B Nonimmigrants” link to the right or go to it directly at www.uscis.gov/h-2b_count.

H-2B petitions may only be approved for nationals of countries that the United States has designated. The list of H-2B eligible countries is published in a notice in the Federal Register (FR) by the Department of Homeland Security (DHS) on a rolling basis. Designation of countries on the H-2B list of eligible countries will be valid for one year from publication.

Effective Jan. 18, 2011, nationals from the following countries are eligible to participate in the H-2A and H-2B programs: Argentina, Australia, Barbados, Belize, Brazil, Bulgaria, Canada, Chile, Costa Rica, Croatia, Dominican Republic, Ecuador, El Salvador, Estonia, Ethiopia, Fiji, Guatemala, Honduras, Hungary, Ireland, Israel, Jamaica, Japan, Kiribati, Latvia, Lithuania, Macedonia, Mexico, Moldova, Nauru, The Netherlands, Nicaragua, New Zealand, Norway, Papua New Guinea, Peru, Philippines, Poland, Romania, Samoa, Serbia, Slovakia, Slovenia, Solomon Islands, South Africa, South Korea, Tonga, Turkey, Tuvalu, Ukraine, United Kingdom, Uruguay, and Vanuatu. Of these countries, the following were designated for the first time this year: Barbados, Estonia, Fiji, Hungary, Kiribati, Latvia, Macedonia, Nauru, Papua New Guinea, Samoa, Slovenia, Solomon Islands, Tonga, Tuvalu, and Vanuatu.

How can the Law Office of Safiya Byars assist employers and foreign workers?

The H-2B/H-2A Visa process is simply more than filling out immigration forms. There are a number of procedural and factual requirements for obtaining these benefits. Furthermore navigating through the process can be very daunting and time-consuming for the employer. For this reason, it is advisable to obtain the representation of a qualified immigration law attorney who is accustomed to processing H-2B/H-2A visas.

Immigration Question & Answer: Permanent Residence Application

Safiya Byars, Esq. — Mon, 04 Jul 2011 12:30:01 UT

This month’s article will address the issues that applicants face when they receive a denial of their permanent residence petitions. Most applicants who receive a denial of their permanent residence petitions face the uncertainty of removal proceedings or the issue of whether or not to re-file their application or to file an appeal. This month I will answer questions that I receive from applicants who are in this uncertain position.

Question 1: My permanent residence application was denied. However my employment authorization card does not expire for another six months. Am I still able to work despite the fact that my permanent residence application has been denied?

Response: According to Immigration regulations a denial of a permanent residence application effectively revokes any prior authorized employment authorization. The fact that the employment authorization card had not yet expired at the time of the I-485 denial is irrelevant.

Question 2: My permanent residence application was denied. Should I re-file my application or should I wait until I am in removal proceedings.

Response: This is a very common question. The answer is dependent on the reason for the denial of the permanent resident application. In some instances an application is denied for a procedural issue such as the applicant missed the appointment or the applicant inadvertently failed to respond to Immigration’s request for additional evidence. If the applicant is not currently in removal proceedings then it is sometimes permissible to re-file the permanent residence application. In the event that the applicant is already in removal proceedings all issues regarding the denied application and re-filing will be addressed by the Immigration Court.

Question 3: My permanent residence application was denied and I want to file an appeal. If I file an appeal will I be able to have legal status? What is the processing time for my appeal?

Response: The processing time for appeals varies. Immigration processes appeals on a first come first serve basis. Unfortunately, a pending appeal does not confer legal status on an applicant who does not already have legal status.

Thank you to everyone that had submitted questions to our firm. If you have a general question or an immigration topic, you may submit it to our firm at sbyars@byarslawgroup.com. Your question and our answer may appear in our monthly Q&A article. Please note that the complex questions will not appear in our article and can only be answered via a paid confidential consultation.

Immigration: P-3 Visa for Culturally Unique International Artists and Bands

Safiya Byars, Esq. — Mon, 06 Jun 2011 12:30:02 UT

Summer is now here and with the onset of warm weather there will be cultural celebrations. Cultural celebrations range anywhere from reggae festivals to annual events where a specific style of music or dance is performed. Recently, my firm has had the pleasure of obtaining a number of temporary visas for internationally acclaimed artists and bands for the upcoming summer and fall events in the United States. This month’s article will briefly discuss and outline the requirements for a P-3 visa.

Definition: The P-3 visa classification applies to non-citizens who are coming temporarily to perform, teach or coach as artists or entertainers, individually or as part of a group, under a program that is culturally unique. This visa classification is utilized annually by non-profit and private organizations that have chosen to invite a particular artist and/or band to perform in the United States.

Pitfalls: In my practice there are three common pitfalls to avoid when applying for a P-3 Visa. The first pitfall is that many organizations do not fully grasp the importance of providing adequate documentation to show the cultural uniqueness of the artist or band. The P-3 visa is designed specifically for a unique cultural artist or band. As such, the burden of proof is on the petitioner to provide evidence of the cultural uniqueness of the artist and/or band. More importantly the petitioner must demonstrate that the cultural uniqueness of the artist/or band is a required component of the petitioner’s event.

The second pitfall is that P-3 visa application requires that the petitioner obtain a consultation letter from an appropriate labor organization that confirms the cultural uniqueness of the artist and/or band. Most petitioners are unaware of the appropriate labor organization and most times they assume that the appropriate labor organization does not exist and so they submit their application without the required letter. The determination of whether to not the appropriate labor organization exists is a legal one and is best left to an attorney.

The third and final pitfall is that petitioners usually fail to submit adequate documentation regarding the success and career of the artist and/or band. This step is vital because it demonstrates that the artist and/or band have obtained notoriety for a specific performance or musical presentation.

If you are an organization who would like to sponsor an artist or a band to perform in the United States, please submit your contact information to our firm at sbyars@byarslawgroup.com. My firm will streamline the P-3 visa process and as well as answer any specific questions that you may have.

Disclaimer: This article is a broad overview of the P-3 visa classification. This article is provided as a public service and is not intended to establish an attorney-client relationship. Any reliance on the information contained herein is taken at your own risk. The information provided in this article should never replace informed counsel when specific immigration-related guidance is needed.

Immigration: Question & Answer

Safiya Byars, Esq. — Mon, 09 May 2011 12:30:02 UT

This month’s article will address the most common questions that I have received from prospective clients who are seeking answers for their immigration cases. In my practice I encounter a large number of individuals who are in dire need of legal advice but they usually choose to consult the advice of their friends and families as opposed to a legal professional. As an attorney I appreciate the fact that the public may be deterred from speaking with a lawyer because of the cost. However, the bottom line is that you should seek assistance from an attorney if you have any immigration issues. Individuals who I consult with on a weekly basis often find that they have waited too long to rectify their immigration issues and now their opportunity has passed. With all immigration issues my advice is that it is always better to take an offense approach rather than a defense approach. In other words, the best strategy is to identify and rectify the problem before it is brought to the attention of Immigration.

This month I will answer three questions that I routinely encounter when meeting with prospective clients.

1. Question: I am permanent resident but I have a criminal history. Will I encounter any problems when I choose to renew my permanent resident card or if I travel overseas?

Response: Immigration regulations require that permanent residents renew their alien cards every ten years. If you have a permanent resident card that has no expiration you are still required to apply for the new alien card which has the ten-year expiration date. Immigration regulations, as it relates to criminal convictions, are complex and are constantly changing. Some criminal convictions will not produce an immigration issue while some convictions could lead to mandatory detention and deportation. The best way to ascertain whether or not a criminal conviction will have an immigration consequence is to seek the advice of a qualified immigration attorney. It will not be beneficial for you to wait until your alien card is about to expire or to travel without first seeking legal advice. In situations where the criminal conviction will have immigration consequences it is best to know this information before you are detained by Immigration and/or placed in removal proceedings. Some individuals who have criminal convictions may be eligible to apply for post-conviction relief on their criminal cases that could result in a less severe criminal conviction or an outright dismissal of the criminal charge and conviction. However, the key is to know the possible immigration consequence of the criminal conviction before you are detained, stopped at the airport, or placed in removal proceedings.

2. Question: I entered the United States as a minor child on a family member’s travel documents. I have lived in the United States all my life. I am now married to a United States citizen and we have children. Can I apply for my permanent residence in the United States?

Response: Immigration regulations require that individuals enter the United States in a lawful manner. This means that you must enter with your own travel documents and you must be admitted and inspected by an immigration officer at your port of entry, i.e., at the airport or border crossing. If you entered with someone else’s documents then this is not considered to be a lawful entry. Currently, an applicant must establish that his/her last entry into the United States was lawful. Of course there are exceptions to this rule but the exceptions are specific and are mandated by law. As such, the best way to determine if you must return home to apply for permanent residence or if you fall within an exception is to seek legal counsel. The exceptions are too lengthy to discuss in sufficient detail in this article. In the event that you are required to return home you may be eligible to apply for a waiver of the applicable 10 year or 3 year penalty that is given for your unlawful entry and stay in the United States.

3. Question: I am ready to apply for permanent residence. Will I be able to work while my case is pending?

Response: Generally, applicants who have applied for permanent residence, (in the United States), are eligible to receive work authorization while their case is pending. Generally, an applicant who entered the United States legally and who is married to a United States citizen spouse is usually eligible for permanent residence provided there is an absence of a criminal history, document fraud, or any other issue that would warrant a denial. Of course there are exceptions to this rule. In Atlanta, Georgia the processing time for permanent residence has been greatly reduced. Currently, the estimated processing time is between four to six months. Consequently, now is an opportune time to apply for permanent residence if you are eligible for that immigration benefit.

Thank you to everyone that had submitted questions to our firm. If you have a general question or an immigration topic, you may submit it to our firm at sbyars@byarslawgroup.com and your question and our answer may appear in our monthly Q&A article. Please note that complex questions will not appear in our article and can only be answered via a paid confidential consultation.

Disclaimer: This article is a broad overview of common immigration questions. This article is provided as a public service and is not intended to establish an attorney-client relationship. Any reliance on the information contained herein is taken at your own risk. The information provided in this article should never replace informed counsel when specific immigration-related guidance is needed.

Consular Processing: Confusion, Misrepresentation, and Frustration.

Safiya Byars, Esq. — Mon, 11 Apr 2011 11:30:01 UT

In my immigration practice my clients all prefer to complete their immigration process in the United States or at an overseas U.S. Consulate office in Canada or elsewhere. It seems that no one wants to travel to Kingston, Jamaica for their final interview. Based on my personal and professional experience with the U.S Embassy/Consulate in Jamaica I empathize whole-heartedly with my clients. Nonetheless, in certain cases the final interview to obtain a temporary visa or to immigrate to the Unites States must be conducted in Kingston, Jamaica. This month my article will briefly discuss some emerging issues at the U.S Embassy/Consulate in Kingston, Jamaica and some suggestions to overcome these issues.

The term “consular processing” refers to the process of obtaining an immigration visa/benefit through the U.S. Embassy or U.S. Consulate outside of the United States. As such, applicants are usually required to appear for their interview in their country of birth, except in special cases where there is not a U.S. Consulate in their country or they are eligible to attend their interview in a country other than their place of birth. In Kingston, Jamaica, attorneys and family members are usually not allowed to accompany the applicant inside the interviewing room. As such, this is where the problems begin. In my practice I have noticed and dealt with the following issues.

First, approximately 80% of my clients who attend their interview in Kingston, Jamaica complain that the Immigration officer was unpleasant and/or impatient with them. As an attorney this is most distressing as there is no way to immediately rectify this situation for my clients.

Second, a small percentage of my clients receive conflicting information from the interviewing officer. In a recent fiancé visa case my client was interviewed by one female officer who was unpleasant and when he attempted to answer her questions the officer passed his case to another officer. The second officer was pleasant but she then proceeded to inform my client that she could not approve his fiancé visa because he was outside of the processing time. The officer’s reasoning was baseless since the U.S. Consulate actually scheduled his appointment for the allotted time and therefore he had no control over the processing time. In addition, the fiancé visa is not subject to a numerical quota such as an H-1B visa. As such, the fiancé visa was available to my client and he was clearly eligible to receive the visa.

Third, there have been instances where my clients’ cases have been wrongfully denied. As such, clients are always bewildered by the fact that the U.S. Consulate can deny their case and then deny them the opportunity to appeal their case.

Unfortunately, some individuals will experience either one or all three situations on their cases. To combat these issues my firm has developed a successful process. First, it is impossible to ensure that all Immigration officers will demonstrate a pleasant and professional manner when working with members of the public. However, we can lessen the negative effects by documenting the offensive conduct and providing that information to U.S. Consulate. As such, I have always counseled my clients to politely ask for the officer’s name at the inset of the interview. My firm is also able to combat this issue by building relationships with local attorneys in Kingston, Jamaica who can visit the U.S. Consulate to gain more information about the client’s case. In addition, we take steps to maintain a good rapport with Immigration officers who we are familiar with to search for creative solutions to help our clients who have difficult cases. Finally, I have found that the best strategy to combat an adverse decision is to conduct a thorough document review, intense preparation for our clients, and constant communication with the U.S. Consulate’s office.

The U.S. Consulate’s office in Jamaica and elsewhere are very concerned about fraudulent applications. Unfortunately, each year it seems that fraudulent applications are on the rise. As such, the United States government has issued directives to the U.S. Consulates to be vigilant and thorough in its review of all applications-especially family-based permanent residence and fiancé visas. Due to the U.S. Consulate’s heightened sense of fraud sometimes a nervous applicant or a mere error on an application could be seen as grounds for a denial. This is extremely alarming because it now appears that a large number of applications are being denied for the wrong reasons.

If you are currently in consular processing or if you have received a denial, we would like the opportunity to discuss your case with you.

Disclaimer: This article is a broad overview of consular issues. This article is provided as a public service and it is not intended to establish an attorney client relationship. Any reliance on the information contained herein is taken at your own risk. The information provided in this article should never replace informed counsel when specific immigration-related guidance is needed.

The Inner Workings of Conditional Permanent Residence

Safiya Byars, Esq. — Mon, 14 Mar 2011 11:15:00 UT

This month I will discuss the issue of conditional permanent residence status. The term “conditional permanent residence” can be confusing as the term refers to a permanent immigration status that is still conditional, i.e., temporary, on certain legal conditions. Most recipients of “conditional permanent residence” are often confused as to the specific actions that must be taken to remove the condition from their permanent residence. In addition, most applicants are weary of filing their application to remove the condition on their permanent resident status if they are separated, divorced or experiencing marital problems.

First, conditional permanent residence status is given to individuals who have acquired permanent residence through their spouse but they have not yet reached their two-year wedding anniversary at the time of their interview. As such this immigration status is sometimes referred to as the green card for newly-weds. Conditional permanent residence is also given to children of the alien beneficiary as derivative beneficiaries. To that end, if an individual is applying for permanent residence through a spouse and the couple has not reached the two-year wedding anniversary the individual and his/her children will both be given conditional permanent residence. The reason being is that the child(ren)’s petition is dependent on the parent, i.e., the alien beneficiary’s permanent residence petition. Conditional permanent residence is conditional because the recipient’s permanent resident card is only valid for two years. The two-year condition can only be removed if the beneficiary submits the application to remove the condition on his or her permanent residence card before the alien resident card expires and the application is approved.

Second, the beneficiary is required to submit the application to remove the condition before the alien resident card expires. If the beneficiary is still married to his or her spouse then both parties must sign and submit the petition. If the beneficiary is separated or divorced then the beneficiary can submit the petition without the spouse. In all instances of filing, the beneficiary must submit new/additional documentation to show the validity of the marriage. However, the beneficiary will have a higher burden to demonstrate the validity of the marriage if he or she is separated or divorced from his/her spouse.

Third, most applicants are concerned about their status while their application to remove the condition is pending and their alien resident card has expired. It is important to note that a beneficiary’s permanent residence status does not terminate simply because his or her alien resident card has expired. The two-year conditional permanent residence is automatically extended for one year provided the beneficiary has filed the application to remove the condition before the expiration of the card. In some instances Immigration will accept and process applications to remove the condition if the application is filed after the beneficiary’s alien resident card has expired. During the time that the beneficiary’s application to remove condition is pending the beneficiary is still able to travel, work, and renew his or her driver’s license.

Finally, applicants who are separated or divorced sometimes believe that they are in a safer position if they do not alert immigration to the change in their marital status. This is a grave mistake. If a beneficiary fails to submit his or her application to remove condition in a timely fashion Immigration will automatically terminate his or her permanent residence status. Immigration then has the option of placing the beneficiary in deportation/removal proceedings. Immigration will approve a beneficiary’s application to remove condition so long as the beneficiary submits sufficient evidence that convinces Immigration that the beneficiary’s marriage was sincere as opposed to a sham/business marriage. Therefore, beneficiaries who are separated or divorced should still file their petitions and then work on building their case to convince Immigration of the validity of their marriage despite the fact that the marriage is failing or has ended. In the event that the application to remove condition is approved Immigration will send the beneficiary his or her ten-year permanent resident card. The beneficiary is then eligible to file for citizenship once he or she has accrued three years as a permanent resident and he or she is still married to his or her spouse. In the event that Immigration denies the beneficiary’s application to remove condition the beneficiary has the option of filing an appeal, a motion to reopen, or a motion to reconsider. If the beneficiary’s application to remove condition is ultimately terminated, the beneficiary will have the opportunity to request a second review by the Immigration judge while he or she is in deportation/removal proceedings.

Disclaimer: This article is a broad overview of Attorney Byars’ observations. This article is provided as a public service and is not intended to establish an attorney client relationship. Any reliance on the information contained herein is taken at your own risk. The information provided in this article should never replace informed counsel when specific immigration-related guidance is needed.

New Developments at the Atlanta Immigration District Office

Safiya Byars, Esq. — Mon, 07 Feb 2011 08:30:01 UT

With the New Year come several immigration policy changes that are not always transparent to the immigrant population. This article will briefly highlight my recent observations of the Atlanta Immigration District Office, [hereinafter “Atlanta Office”] as it applies to permanent residence and citizenship applications.

The Atlanta Office is the local office that administers interviews for a varied number of immigration petitions. Applicants who reside in Georgia are required to appear for their interviews at this office before their case is adjudicated. During an interview it is the Immigration Officer’s duty to verify the Applicant’s information to weed out fraudulent applications. The Immigration Officer is also charged with establishing Applicant’s eligibility for the specific immigration benefit based on the current immigration laws. It is also the Immigration Officer’s duty to identify those issues that will disqualify an Applicant from receiving a specific immigration benefit. The Immigration officer is an agent of the United States Citizenship and Immigration Services, [hereinafter “USCIS]. As such, the Immigration Officer is bound by law to apply the law as prescribed by the United States Government.

During my recent client interviews for citizenship and permanent residence I have noticed some interesting developments in the Atlanta Office’s approach to certain cases. My first observation is specific to spousal petitions for permanent residence. Every year USCIS receives a large number of fraudulent marriage-based permanent residence petitions. As such, the Atlanta Office is on high alert for fraudulent cases. To that end the Atlanta Office is now predisposed to label an application as fraudulent if there is even a minute amount of discrepancy. Petitions in which the non-U.S citizen spouse was previously married prior to marrying his/her current U.S. citizen spouse are always deemed to be suspect. Immigration has specific guidelines regarding the authenticity of a divorce that was obtained in a foreign country. Applicants of foreign countries who have obtained customary divorces are at an increased risk of receiving a denial on their petitions for permanent residence.

My second observation regarding spousal petitions pertains to newlyweds. Immigration’s definition of a newlywed couple is any couple that has been married for less than two years. Historically, Immigration has always applied greater scrutiny to marriage-based permanent residence petitions for newlyweds. As such, newlyweds who submit their petitions are at a disadvantage because their evidentiary documents that document the validity of their relationship will be fewer in comparison to couples who have been married for several years. However, despite the inherent disadvantage, newlyweds are still able to receive approvals if certain precautions are taken. One such precaution is to present the documentation of the couple’s relationship prior their marriage. The other precaution is to hire a competent immigration attorney.

My third observation pertains to the citizenship, (naturalization) petitions. As previously discussed in my articles, some criminal convictions will disqualify an applicant from receiving citizenship or permanent residence. Some criminal convictions, for example aggravated felonies, will disqualify an Applicant and will trigger deportation proceedings. Historically non-arrest traffic citations are not offenses that would trigger an Applicant’s disqualification or deportation. However, recently the Atlanta Office has taken the policy mandate to request that Applicants bring court certified copies of all traffic citations to their interviews. As such, a failure to produce these documents could result in a denial of an Applicant’s petition despite the fact that a traffic citation for speeding has no bearing on the Applicant’s petition. Some officers have argued that an unresolved traffic citation in which the Applicant did not pay the ticket and/or appear for the court hearing could result in a warrant being issued for the Applicant's arrest. This argument is true. However, prior to the Applicant’s interview USCIS has already obtained the Applicant's FBI report which would clearly show the existence of any outstanding warrants on the Applicant's case. Despite this fact, USCIS will deny an Applicant’s citizenship application for non-compliance if traffic citation documents are not submitted in a timely manner. The best recourse is to retain documents of all of your traffic citations that occurred prior to applying for citizenship. This is especially important because not all judicial jurisdictions will retain permanent records of minor traffic offenses.

My final observation relates to Applicants who have received a “deferred judgment” sentence from any court. The term “deferred judgment” has a plethora of definitions. In some instances pertaining to “deferred judgment”, the defendant must enter a plea of guilty. The case is continued for a period of time subject to certain conditions, usually including that the defendant not be convicted of another crime. If the defendant satisfies these conditions, at the end of the time period the guilty plea is considered withdrawn and no judgment of conviction or sentence is entered. In other cases, the defendant has no finding of guilt. The judgment is set-aside for a specified amount of time and the defendant must comply with any conditions given to him or her. The case can be dismissed if the defendant completes all requirements. “Deferred judgment” can be a confusing concept for non-attorneys. Likewise, Immigration Officers are usually not attorneys and they usually have limited exposure to the varied sentencing options that a criminal court may utilize in a defendant’s case. As such, Applicants who have any criminal history would be best advised to obtain immigration advice before applying for immigration benefits.

About the Writer:

Safiya Byars (sbyars@byarslawgroup.com) is the senior partner and owner in the Law Office of Safiya Byars (www.byarslawgroup.com). She is an active member of the Caribbean and International communities in Georgia. She graduated Summa Cum Laude from the University of Montevallo and received her law degree from the University of Alabama in Tuscaloosa, Alabama. Her office is located at 160 Clairemont Avenue, Ste. 200, Decatur, Georgia 30030. Attorney Byars handles all immigration matters, deportation defense, family law issues, and business formation/litigation. To discuss you case, contact Attorney Byars at 404-992-6506 or 678-954-5809.

New Year and Possibly New Immigration Reform?

Safiya Byars, Esq. — Mon, 03 Jan 2011 08:30:02 UT

Happy New Year to everyone! I trust you all had a wonderful holiday. The year of 2010 was filled with the recession and the hopes of the DREAM Act. The U.S House of Representatives had initially passed the bill but the Senate failed to pass the bill by five votes. The opponents attacked the bill as amnesty for lawbreakers. At this moment, no one is sure when or how immigration reform will be enacted. However, we are all hopeful and in that spirit we must take steps to place ourselves in the best position to benefit from immigration reform when it arrives. Consequently, it is essential that all non-citizens take steps to protect their immigration rights so that they will be able to take advantage of any new immigration reform.

The first step is to know your rights under the current immigration laws. Many non-citizens get so caught up with their busy lives that they rarely make the time to seek legal advice on their current immigration status. This is essential. Many immigration benefits are time-sensitive because most immigration benefits are tied to filing deadlines. Therefore, it is important to find out if you currently qualify for any relief under the current immigration laws because new immigration reform may amend or eliminate previous eligibility requirements.

The second step is to assess your taxes. Historically, the United States has required that all non-citizens pay off all owed taxes to apply for certain immigration benefits. Presently, under the current immigration laws, permanent residents are required to disclose if they owe any taxes during their citizenship interview. In addition, non-citizens who are applying for cancellation of removal before the Immigration Court must show proof that all taxes were paid if they wish to be considered for permanent residence. If the Court finds that the non-citizen has failed to pay his/her taxes or he/she has received tax credits for which he/she were ineligible to receive then the non-citizen is deemed to lack good moral character which renders him/her ineligible for permanent residence.

The third step is to avoid incurring a criminal history. For non-citizens who do not have a current driver’s license this means they must not drive. It would be best to carpool or take public transportation to reach their destination. States are now enacting harsher penalties for non-citizens who routinely drive without a valid license or under the influence. Recently, Georgia passed legislation that makes it a felony to drive without a license. If you already have a criminal history it would be beneficial to find out if your specific violation will have any adverse impact on your ability to acquire immigration benefits. Some minor criminal/traffic violations will not disqualify you from acquiring immigration benefits but you should seek legal counsel to ensure that your criminal history will not adversely affect your immigration status. Likewise, if you have been charged with a crime you should seek advice from an immigration attorney before you plead guilty or no contest to any charges. Typically, public defenders and some criminal defense attorneys are only competent to represent you in your criminal matters. Not all criminal defense attorneys are knowledgeable about the impact of your criminal conviction on your immigration status or your ability to acquire future immigration benefits. Consequently, if you are charged with a crime it is important that you seek out immigration advice before you plead guilty or no contest to a crime.

The fourth step is to ensure that all information on your immigration applications is correct. If there is incorrect or incomplete information on your immigration application, Immigration may deem your application to be fraudulent. Always remember that your immigration application, once filed, becomes a part of your permanent file. Consequently, it is important that you take proactive steps to ensure the accuracy of your application.

Disclaimer: This article is a broad overview of a frequently asked question associated with acquiring permanent residence. This article is provided as a public service and is not intended to establish an attorney client relationship. Any reliance on the information contained herein is taken at your own risk. The information provided in this article should never replace informed counsel when specific immigration-related guidance is needed.

About the Writer:
Safiya Byars is a native of Jamaica and an attorney in Decatur, Georgia. Her firm is located at 160 Clairemont Avenue, Ste. 200, Decatur, Georgia 30030. Her firm handles all Immigration Matters, Deportation, Domestic Relations, Criminal Defense, Business Formation and Litigation, Landlord/Tenant and Estate Planning. To discuss your case, please contact Attorney Byars at 404-992-6506 or 678-954-5809 or via email. or visit her firm's website.

Immigration: Overcoming Marriage Fraud

Safiya Byars, Esq. — Mon, 29 Nov 2010 08:30:01 UT

A finding of marriage fraud is not a trivial issue to have on any immigration record. However, a previous denial of a permanent residence application or Immigration’s finding of marriage fraud is not always insurmountable if the matter is dealt with aggressively. I have decided to write an article on this daunting issue because recently I have received an influx of calls concerning this matter. This month I will provide a brief overview of marriage fraud and some pointers on how to deal with the issue.

To begin we need to know what is considered to be marriage fraud. The Immigration Marriage Fraud Amendments Act of 1986 defined marriage fraud as an "individual who knowingly enters into a marriage for the purpose of evading any provision of the immigration laws. It is important to note that the penalties for entering into a sham marriage are very steep. A U.S. citizen and non-citizen could be imprisoned for up to 5 years and fined $250,000 for engaging in a sham marriage. The typical fact pattern in marriage fraud cases is that a U.S. citizen and a non-citizen get married and the couple fulfills all the legal requirements for a legal marriage. However, the couple never intended to live as husband and wife. In some cases the U.S. citizen is paid to marry the non-citizen in order to entitle the non-citizen to obtain status as a permanent resident of the United States. In some instances the U.S. citizen was not paid but there was an agreement between the parties that the marriage was created solely to obtain immigration benefits.

In my practice I have seen cases where couples were married solely for immigration benefits. I have also met individuals who were genuinely married but they had failed to document their file and/or they were not prepared for their interview. In these situations it is entirely possible that their case was denied based on marriage fraud when in fact the couple was just nervous and ill-prepared. In the event that an individual has received a denial on their spousal permanent residence petition there are a number of things that should be done immediately.

The first thing to do is to make a note of the appeal date in the event you wish to file an appeal or a motion to reopen. After a denial most individuals tend to shelf their case. This is a grave mistake because as times goes by it becomes more difficult defend the case. If your permanent residence petition was denied it is always a good choice to try to appeal the denial.

Second, you should consult with an experienced attorney to determine the issues for an appeal or your motion to reopen. An appeal or motion to reopen has substantive and procedural issues. In addition, when filing an appeal or a motion to reopen there are no second chances. To that end, it would be wise to hire an experienced legal professional who is well-equipped to deal with the substantive and procedural issues as it relates to your appeal or motion to reopen.

Third, the most important task is to document everything that has happened in your case. If the appeal or motion to reopen is not successful then the petitioner may need to pursue an I-601 waiver.

Avoid Deportation with a Successful Immigration Waiver Petition

Safiya Byars, Esq. — Mon, 01 Nov 2010 09:30:01 UT

In my practice I routinely consult with prospective clients who are ready to commence with the process of applying for permanent residence. However, during our consultation interview I discover that the applicant has a conviction for a criminal offense or some previous immigration violation. According to Immigration some criminal convictions/previous immigration violations may be waived if the applicant is able to prove all the necessary elements of the waiver petition. If the client is not eligible for a waiver petition the client will not be able to successfully obtain permanent residence and may be subject to detention and/or deportation. As such, if a client has any criminal convictions or previous immigration violation it is necessary to first determine if the client is eligible to submit a waiver application despite the client’s history. This month’s article will briefly discuss Immigration’s eligibility requirements for a waiver application.

Admissibility:
When a non-citizen applies to the U.S. Government for an immigration benefit the applicant must demonstrate that he/she is eligible for the specific benefit. In addition to the eligibility requirement a specific benefit, the applicant must also demonstrate that he/she is admissible to the United States. The term “admissibility” states that the applicant must show that by law the U.S. government is not required to deny his or her access into the United States. The U.S. government has several grounds of inadmissibility. The six basic criminal grounds for inadmissibility are as follows: crimes involving moral turpitude, conviction of a controlled substance, prostitution, conviction of more than one offense, drug trafficking, and commission of a serious crime in the United States for which the non-citizen asserted immunity from prosecution. If Immigration determines that an individual is inadmissible, then Immigration can and will deny the individual the privilege of entering the United States. However, the good news is that not all criminal convictions or previous immigration violation will result in a finding of inadmissibility and consequently a denial. The U.S. government has created certain waiver grounds under which an applicant with a criminal violation or previous immigration violations may still apply for an immigration benefit and be approved.

Waivers:

Waivers are generally available for minor offenses. This waiver is known as the petty-offense exception waiver. This waiver is applicable only in circumstances where the applicant has been convicted of only one crime, and the maximum possible punishment for the crime was not more than one year in prison, and if sentenced the applicant was sentenced to six months or less. The offense must have been a crime involving moral turpitude.
The second waiver is a general discretionary waiver based on the applicant’s status as opposed to the specific conviction. The offenses covered are crimes involving moral turpitude, multiple criminal convictions, prostitution, assertion of immunity from prosecution, and simple possession of 30 grams or less of marijuana. There are two ways to qualify for this waiver. The first waiver process involves convictions either only for prostitution or that are more than 15 years old. Under the second waiver process, if the applicant is the spouse, child or parent of a U.S. citizen or permanent resident, he/she may obtain a waiver if he/she can show that the denial of the waiver would result in extreme hardship to the applicant’s U.S. citizen/permanent resident family.
There are also a number of waivers that are available for juvenile offenses, purely political offenses and refugee/asylum applicants.

Conclusion:
There are two important key issues to remember about waiver petitions. First, waiver petitions are unique to each individual applicant and therefore no two waiver petitions are exactly alike. Waiver petitions must be crafted around the specific facts of the applicant’s case. Second, waiver petitions are granted solely at the discretion of Immigration. As such, the waiver petition must be persuasively presented to convince Immigration that the applicant deserves a favorable decision. A successful waiver petition is the key to remaining in the United States in lawful status rather than being deported. If you are in need of a waiver petition, please contact our firm.

Immigration Question & Answer Article: Permanent Residence Interview and Criminal Conviction

Safiya Byars, Esq. — Mon, 30 Aug 2010 08:35:00 UT

In this month’s article I will address two issues that usually pose an important concern to prospective clients. The first issue will address the issue that couples often encounter when they appear for the permanent residence interview. The second topic will address the immigration consequences of a criminal conviction for domestic violence.

Question:

1. A couple recently got married. The couple submitted their permanent resident petition based on the fact that the husband is a United States Citizen. They attended the interview and Immigration denied their case because of multiple discrepancies in their response to the officer’s questions. The couple is now worried and wants to know if they can challenge the officer’s belief that they are not a real married couple.

Answer:

Acquiring permanent residence through a spouse or a family member is usually a lengthy but simple process if all aspects of the client’s case are thoroughly prepared. Some individuals usually have the mistaken belief that if Immigration accepts their permanent resident application then an approval will be guaranteed at the interview. As a result, these applicants always fail to prepare for their interview and consequently they receive a denial on their application and non-U.S citizen spouse is then placed in removal proceedings. Consequently, I always advise clients to either hire an attorney to assist them with the entire process or at least hire an attorney to represent them at their permanent residence interview to avoid a denial of their case for petty mistakes.

In this case the couple’s best action is to hire an attorney and file a Motion to Reopen/Reconsider and/or an appeal. The deadline to file an appeal or either motions is approximately 30 days from the date of the denial decision. If the denial letter was mailed to the couple then they now have 33 days to file their appeal/motion to reopen/reconsider. While the appeal/motion is pending the couple may wish to recommence the permanent residence process because Immigration has a lengthy processing time for appeals and motions. In the meanwhile, the non-U.S citizen spouse could be placed in removal proceedings based on the fact that the previous permanent resident application has been denied. The bottom line is that this couple should run-not walk- to an attorney’s office before the 30 days has expired.

In my practice I encounter a number of individuals who find themselves in the same position as the couple. Due to a lack of knowledge and sometimes finances, couples file their permanent resident applications without an attorney. These individuals then find themselves in trouble when their case is denied at their interview due to discrepancies. In September 2010, I will be conducting an in office workshop to assist individuals with interview preparation to help them avoid a denial due to “multiple discrepancies.” To obtain more information, please contact my office.

Question:

2. A gentleman submitted his application for citizenship and then he was accused of domestic abuse by his wife. Should he wait or continue with his citizenship application? Should he plead no contest to the domestic violence charge just to get it over with?

Answer:

First let me begin by saying that you should never plea “no contest” or guilty to any offense just to get the case resolved. The plea of “no contest” is legally the same as guilty. A plea of “no contest” simply means that you do not contest the court’s evidence of the domestic abuse of the wife’s allegations of domestic violence. Second, individuals who are permanent residents should never plea “no contest” or guilty simply to get the criminal case completed. Permanent residents are not immune to deportation. In fact, a large number of my deportation cases involve permanent residents who are now facing deportation and the permanent revocation of their “green card” because of their criminal convictions in which they pled “no contest.”

In this gentleman’s case a conviction for domestic violence is a legal basis for Immigration to deny his citizenship application and to deport him from the United States. A conviction of domestic violence is a crime of moral turpitude and it could be considered an aggravated felony for immigration purposes. In order to determine the severity of the domestic violence charge the gentleman should immediately consult with an immigration attorney. If this gentleman has already submitted his citizenship application he can continue with his immigration case while pursuing his criminal case. If he is able to resolve his criminal case in his favor he can simply present the court certified copy of case to the officer at his interview. However, if he is convicted of domestic violence while his citizenship application is pending he may wish to withdraw his citizenship application before he is scheduled for an interview. In addition, despite his withdrawal of the citizenship application he may still be subject to deportation based on his conviction. Again, in this scenario, this gentleman should run-not walk-to an attorney’s office that handles both criminal and immigration matters.

Immigration Question & Answer Article: Permanent Residence Application

Safiya Byars, Esq. — Mon, 16 Aug 2010 08:45:02 UT

During my practice I encounter prospective clients who have a number of reoccurring immigration questions regarding permanent residence. My firm’s policy is to answer all questions in a private and confidential consultation for my prospective clients. However, occasionally I see a specific question that should be answered in the public forum so as to provide the most benefit to the immigrant community. Consequently, for this month’s article, I have deviated from the normal immigration topics and instead I will present and answer a common question that I receive from individuals who are applying for permanent residence.

Question:
A lady recently entered the United States on someone else's passport. She is now married to a United States citizen. Based on her marriage to her husband she applied for permanent residence and Immigration has issued her a work authorization card. However, her permanent residence application has been pending for the last six years. The lady and her husband are wondering if Immigration intends to approve her permanent residence application or will she have to return to Jamaica.

Unfortunately, this lady’s question is a typical question that I encounter in my practice. Permanent residence is an immigration benefit that is given to individuals based on Immigration’s legal requirements. Under the immigration laws, an individual who is in the United States and who wishes to apply for permanent residence must meet the legal requirements. Granted, each individual’s case is different and in some cases Immigration has created exceptions to the general rule. However, the exceptions are not limitless and they are specifically created by law. To answer this lady’s question we will first need to examine the general requirements to see if she is eligible to obtain permanent residence. INA § 245, 8 U.S.C. §1255. If the lady does not meet the general requirements we will then review the available legal exceptions to see if her case can be approved based on an exception.

The general requirements for a Jamaican national dictate that the applicant must possess and demonstrate the following:

1. No criminal history in the United States or elsewhere in the world that would disqualify him/her from permanent residence;

2. The qualifying family petitioner/employer petitioner or other legal basis, for obtaining permanent residence;

3. Lawful Admission into the United States.

Answer:

1. The Illegal Immigration Reform and Immigrant Responsibility Act, (IIRIRA), and the Antiterrorism and Effective Death Penalty Act, (AEDPA), transformed a number of minor offenses such as shoplifting into a deportable offense. Moreover to further complicate matters, when IIRIRA was passed in 1996 it applied retroactively to all those convicted of deportable offenses. In this lady’s case she has no criminal history that would prevent her from becoming a lawful permanent resident of the United States. Consequently, she has met this requirement.

2. Adjustment of status, which is commonly referred to as a “green card”, is the process of applying for permanent residence when the applicant is already in the United States. In order to obtain permanent residence the applicant must demonstrate the basis on which he/she is applying for permanent residence. Some applicants are able to obtain permanent residence through their employer, a family member, or through a self-petition based on asylum, cancellation of removal, refugee status, battered immigrant status and so forth. There are a number of different ways to obtain permanent residence other than through a family member or an employer. In order to determine your basis for permanent resident it is best to consult legal counsel. In this lady’s case her basis for permanent residence is her bona fide marriage to her United States citizen husband. Consequently as long as she can prove that her marriage to her husband is genuine, i.e., that she did not marry her husband solely to obtain immigration benefits, then she has met this requirement.

3. In order to obtain permanent residence in the United States a Jamaican national must show lawful admission into the United States. The applicant must show that he/she entered the United States on a valid visa with a valid passport and that he/she was inspected and admitted to the United States by the immigration official at the U.S airport or border. In order to prove lawful admission the applicant must submit a copy of his/her I-94 card, copy of passport and visa. This requirement is called the admissibility requirement. INA §101(a)(13)(A). In this lady’s case she entered on another individual’s passport by presenting the passport as her own. This is known as presenting fraudulent documentation to an immigration officer. This is a violation of immigration law. In addition, her entry into the United States on someone else’s passport cannot be a lawful entry because the passport did not belong to her. Consequently, she does not meet the requirement of lawful admission. As such, she is not eligible to obtain an approval on her permanent residence application.

At the initial filing of a permanent residence application Immigration usually only performs a brief review to ensure that the appropriate forms and the correct filing fees have been submitted. In addition, an applicant is usually eligible to receive a work permit while an application for permanent residence is pending. Immigration usually does not perform a detailed review of the merits of the application until the case is assigned to an Immigration officer and the case is scheduled for an interview. Consequently, despite the fact that this lady’s case has been pending for six years and she has received her work permit, Immigration would ultimately deny her application because she has not met the requirements for permanent residence. This lady would have to depart the United States and her husband will then need to submit a new petition for her while she is in Jamaica. In addition, due to her illegal entry into the United Stets this lady would also need to pursue a waiver application with the U.S. Consulate in Jamaica to waive the issue of her illegal entry.

In this lady’s case, the best action would be to withdraw the permanent residence application and return to Jamaica. Her husband could then go ahead and request consular processing so that she will be processed for her permanent residence through the U.S Embassy in Jamaica. In the event that the lady continues with her permanent residence application it is very likely that the Immigration officer will forward her file to removal/deportation court once he/she has denied the lady’s application. If the lady is placed in removal proceedings her only option would be to apply for cancellation of removal. Cancellation of removal is an application that can only be submitted when the applicant is in removal proceedings. If the court grants the approval of this application then the applicant is awarded permanent residence. An applicant for cancellation for removal must prove that he/she has resided in the United States for ten years, he/she has good moral character, he/she has United States citizen or permanent resident parents, spouse or children, and that his/her removal would result in extreme and unusual hardship to his/her United States citizen or permanent resident parents, children or spouse. INA § 240A(b); 8 U.S.C. §1229a(b); 8 C.F.R §§ 240.11(a), 240.20 If the removal court denies this lady’s cancellation of removal application, the court will order that she leaves the United States which will further complicate this lady’s case when she returns home to Jamaica.

Frequently Asked Questions regarding acquiring U.S Citizenship

Safiya Byars, Esq. — Mon, 19 Jul 2010 08:45:02 UT

Recently I have received an influx of questions regarding acquiring U.S. Citizenship in the United States. These inquiries have come mostly from permanent residents who are living in the United States and who now wish to acquire U.S. citizenship to protect their immigration status and to assist their family members in acquiring legal status. In this article I will provide a general answer to some of the concerns that I have received regarding U.S. Citizenship.

1. If I list my family members on my citizenship application will they automatically become citizens or permanent residents?

Generally the answer is no. The citizenship application does require that you list your spouse and all of your children on your application. However, if you have not submitted an immigrant visa petition on behalf of your dependents the mere task of listing them on your citizenship application will not automatically grant them legal immigration status.

2. Can I reapply for U.S. Citizenship if my application was previously denied?

Generally if your application has been denied for an administrative error you can always reapply. However, it is important to know that you will be expected to resubmit your complete application along with your immigration fees. If your application was denied because you failed the civics test or the English exam you may reapply as soon as you believe that you have learnt enough English or studied for the civics test. If your application was denied because of your criminal convictions or any other reason it would be best to consult with an attorney to ensure that you are eligible to resubmit your application.

3. If I have been convicted of a crime but my record has been expunged, do I need to indicate that information on my citizenship application?

The answer is yes. You should always be honest with Immigration regarding all arrests and convictions (even if they have been expunged). Even if you have committed a minor crime, Immigration can deny your application if you failed to disclose information about the incident.

4. I am a permanent resident but I reside in Jamaica. Can I still apply for U.S. citizenship even if I do not live in the United States?

The U.S. government requires that an applicant must have resided continuously as a lawful permanent resident in the United States for at least 5 years prior to filing with absences from the United States totaling no more than one year. In addition, the applicant must have been physically present in the United States for at least 30 months out of the previous five years (absences of more than six months but less than one year break the continuity of residence unless the applicant can establish that he or she did not abandon his or her residence during such period). The requirement of physical and continuous residence can become complicated and it is best to consult an attorney to determine if you have met these guidelines.

I recently submitted my application for citizenship but now I wish to visit Jamaica. Can I travel while my citizenship application is pending?

Applicants for naturalization are allowed to travel while their applications are pending, but should keep in mind the residency requirements. The naturalization application requires all applicants to state the time that he or she has spent outside the United States dating back to the date of obtaining permanent residency. To become naturalized, immigration requires proof that the applicant has resided in the United States at least half of the time within the last 5 years (i.e. at least 30 months within the last 60 months). Therefore, as long as your travel will not cause you to remain outside of the United States for more than the amount of time permitted for naturalization, at the time your application is filed AND at the time of your interview, then you have the option to travel while the N-400 application is pending. If you do decide to travel while your naturalization application is pending, you must supplement your application either before the interview, or at the time of your interview.

6. My girlfriend and I recently became engaged. Can I include my fiancé on my citizenship application?

The answer is no. Immigration requires that you include your spouse’s information. A fiancé or girlfriend is not considered to be a spouse for immigration purposes. In addition, common law marriage will not be accepted for immigration purposes, unless it is recognized as legal in the jurisdiction of residence or last residence.

Disclaimer: This handout is a broad overview of the frequently asked questions associated with acquiring U.S citizenship. This article is provided as a public service and is not intended to establish an attorney client relationship. Any reliance on the information contained herein is taken at your own risk. The information provided in this article should never replace informed counsel when specific immigration-related guidance is needed.

Naturalization

Safiya Byars, Esq. — Mon, 07 Jun 2010 08:45:01 UT

Recently I have had an influx of questions on naturalization. In response to these questions this month’s article will cover the general requirements for acquiring United States citizenship. In general there are a number of different ways to acquire U.S citizenship based on the specific facts of your case. Consequently, this article will not be able to address every specific case but rather the general facts about the naturalization process.

There are eight basic requirements of acquiring U.S citizenship. I will briefly discuss each of those eight requirements.

1. An applicant must first be a permanent resident. This requirement signifies that an applicant cannot be in any other status other than a lawful permanent resident when he/she applies for citizenship. Therefore, an applicant who is the United States on a professional work visa or other legal status must first acquire permanent residence before submitting his/her naturalization application. INA § 318, 8 U.S.C.‍ § 1429. There are some minor exceptions to this rule.

2. An applicant must be at least 18 years of age. INA § 334(b), 8 U.S.C. § 1445(b). There is an exception to this age requirement due to an applicant’s military involvement.

3. An applicant must be a continuous resident for five years as a permanent resident. This requirement is usually where most of my applicants have their concerns. This requirement signifies that before applying for citizenship an applicant must reside in the United States in a continuous manner. Consequently, if you are a permanent resident but you live and work in Jamaica you will probably not meet this requirement. Occasional visits to the United States will not suffice for this requirement.

4. An applicant must have resided for three months within the state that the citizenship application was filed. In other words if an applicant lives in Georgia he/she must have resided in Georgia for at least three months before the application is mailed to the service center that has jurisdiction over Georgia applicants. Again, in some circumstances the physical and residence requirements may be waived depending on the facts of the case.

5. An applicant must be physically present in the United States for at least one-half of the five years or one-half of the three years for spouses of United States citizens.

6. Must have resided continuously within the United States from the date the application was filed up to the time of admission to citizenship. In other words, once your naturalization application is submitted you must not depart the United States. INA § 316(a)(2), 8 U.S.C § 1427 (a)(2).

7. Must not be absent from the United States for a continuous period of more than one year during the periods for which continuous residence is required. 8 C.F.R. § 316(c)(1)(ii). In light of this requirement it is important for applicants to first establish their continuous presence and obtain U.S citizenship if they wish to reside outside of the United States. Again, just as with the other requirements, there are certain exemptions from disqualification based on the one year continuous absence rule.

8. An applicant must be a person of good moral character. This requirement was established to disqualify applicants who committed certain crimes. Of course not all applicants with a criminal background will be disqualified.

The above-mentioned eligibility requirements are the first basic requirements that an applicant must consider before applying for citizenship. In addition to the above-mentioned eligibility requirements there are specific application procedures that must be followed to achieve citizenship. Applying and acquiring U.S citizenship is an excellent way to safeguard and protect yourself as well as your family. Always remember that there is nothing permanent about permanent residence. However, once you become a United States citizen you and your family will then enjoy all the rights and privileges that are associated with citizenship.

Disclaimer: This article is provided as a public service and is not intended to establish an attorney client relationship. Any reliance on the information contained herein is taken at your own risk. The information provided in this article should never replace informed counsel when specific immigration-related guidance is needed.

H-2B Visa Fact Sheet

Safiya Byars, Esq. — Mon, 26 Apr 2010 08:45:01 UT

U.S employers are eligible to acquire H-2B visas for their foreign skilled or unskilled employee(s) to come to the United States to perform temporary non-agricultural work on a one- time, seasonal, peak-load or intermittent basis. The U.S employer must offer a full-time job position that is temporary. In order to acquire a H-2B visa, U.S employers must complete the following three steps.

STEP I: Department of Labor Certification:

U.S employers must first obtain a foreign labor certification from the Department of Labor. An employer is required to obtain a labor certification to show that that there are no qualified U.S workers for the job(s) and that the alien’s employment will not adversely affect the wages and working conditions of similarly employed U.S workers. The U.S employer will submit its application to the Department of Labor, (DOL). The application must include the employer’s information, the alien’s information and information regarding the job title, job duties, job requirements, length of employment, job location, rate of pay and a detailed statement explaining the basis for employing the temporary worker. The U.S employer must also provide documentation to show that the offered job is a temporary job based on one of the following temporary needs:

A. One-Time Occurrence: The U.S employer must show that it has either (1) not employed to perform the services or labor in the past and that it will not need workers to perform the services or labor in the future, or (2) it has an employment situation that is otherwise permanent, but a temporary event of short duration has created the need for a temporary worker(s);

B. Seasonal Need: The U.S employer must establish that the service or labor is traditionally tied to a season of the year by an event or patters and is of a recurring nature. The employer shall specify the period(s) of time during each year in which it does not need the services or labor. The employment is not seasonal if the period during which the services or labor is not needed is unpredictable or subject to change or is considered a vacation period for the employer’s permanent employees;

C. Peak load Need: The U.S employer must establish that (1) it regularly employs permanent workers to perform the services or labor at the place of employment and that it needs to supplement its permanent staff at the place of employment on a temporary basis due to a seasonal or short term demand and (2) the temporary additions to the staff will not become a part of the employer’s regular operation; or

D. Intermittent Need: The U.S employer must establish that it has not employed permanent or full-time workers to perform the services or labor, but occasionally or intermittently needs temporary workers to perform services or labor for short periods.

In addition to the application, the U.S employer will be required to place an advertisement for the temporary job in the local paper. The U.S employer will be required to prepare a recruitment report. Once the U.S employer has submitted all required documentation and the recruitment report to the DOL, the DOL will review the application. The processing time ranges from 2-3 months. The DOL will reject any applications that are filed more than 120 days before the worker is needed.

STEP II: Immigration

After the U.S employer received an approved certification from the DOL, the employer must now submit its application for the non-immigrant worker and supporting documentation to Immigration for processing. Immigration will not accept applications more than 6 months before the worker’s start date for employment. In addition, the application should not be submitted less than 45 days before the worker is scheduled to begin work.

STEP III: Consular Processing:

If the prospective worker is outside of the US, he/she must then apply for a visa with the US consulate.

The employee will take the following to the US Embassy:

DS-156, Application for Nonimmigrant Visa
DS-157 if male between the ages of 16 and 45)
The necessary filing fees
Copy of Notice of Approval of H-2B Petition
Passport
One passport-style photo
Evidence of ties to the home country (family, property, current occupation, etc.) Like with any other nonimmigrant visa, the Consulate needs to see that each applicant has ties to the country so that he or she will return home after their work period ends.

If the prospective worker is already in the United States and is changing from one non-immigrant visa to the H-2B visa the worker does not need to leave the United States. However, if the prospective worker is out of status then he/she will need to appear at the U.S Consulate to obtain the H-2B visa.

Immigration’s Request for Evidence and Notice of Intent to Deny Letters

Safiya Byars, Esq. — Mon, 15 Mar 2010 08:45:02 UT

In my practice I believe that the processing of most immigration petitions is divided into three main areas. There is the initial acceptance, prima facie review, and the final processing. In this article I will briefly discuss these three main areas for processing and provide some tips on how best to respond to Immigration.

The United States Citizenship and Immigration Services, (USCIS) usually sends an applicant a fee receipt after the receipt of an application and the appropriate fees. There have been rare cases when USCIS has failed to send out a fee receipt. Once USCIS receives an application this is the receipt process. It is important to know that at this point the USCIS has made no determination on the merits of an applicant’s application. It is a common misconception that if USCIS accepts an application that the application will be approved. At the initial stage all applications are sent in bulk to the service center. The service center’s job is simply to verify that the applicant’s application is timely and that the requisite supporting documents and fees are included. This is the initial acceptance stage. At this stage it is very rare that an applicant’s application will be reviewed in detail to determine if the application will be approved or denied.

The second stage is the prima facie review. Prima facie is Latin for “at first view.” It is used in modern legal English to signify that on first examination, a matter appears to be self-evident from the facts. At this stage USCIS’s personnel will review the application to ensure that the applicant has filed the correct application that is in keeping with the applicant’s goal. In addition, USCIS’ personnel will review the application to ensure that the applicant has met the basic requirements to establish eligibility to file the application. If the applicant has filed the incorrect application then USCIS will send a denial letter or a rejection notice.

The third stage is the final processing stage. At this time the applicant’s file has been assigned to an adjudicating officer to review or an appointment has been scheduled to interview the applicant. It is usually at this stage that an applicant will receive USCIS’ request for evidence or a Notice of Intent to Deny letter. In either case an applicant must exercise caution in replying to USCIS’ request. At this stage the applicant has demonstrated prima facie eligibility but the USCIS’ officer is in need of additional documentation in order to make a final decision on the applicant’s application. In situations where additional documentation is needed, USCIS will issue a Request for Evidence to the Applicant. The Request for Evidence is usually very specific in its request and it is time sensitive. USCIS will usually impose a 30 day, 60 day or 87 day deadline depending on the applicant’s specific case. All responses to USCIS’ Request for Evidence should be detailed, timely and address all of USCIS’ requests as indicated in USCIS’ letter. USCIS must receive all responses on or before the imposed deadline. Consequently, depending on the deadline, an applicant may need to send his or her response to USCIS via express mail, certified mail with return receipt or courier delivery. Under no circumstances should an applicant send his/her request to USCIS via first class mail. If USCIS receives an applicant’s response after the deadline this is grounds for a denial. Likewise if USCIS receives an incomplete response this is also grounds for a denial.

In the final stage of processing, USCIS may also send the applicant a Notice of Intent to Dent letter. At this stage USCIS has reviewed the applicant’s application and has made a determination that the applicant’s case will be denied unless the applicant can come forward with clear and convincing evidence that the applicant is actually eligible to receive an approval. In situation where USCIS has issued this letter it is simply not enough to provide USCIS with additional documents. At this juncture, in addition to providing additional documentation to USCIS, the applicant must provide documentation to overcome USCIS’ presumption that his/her case must be denied.

In both instances with USCIS’ Request for Evidence and USCIS’ Notice of Intent to Deny, it is important to provide a timely and thorough response that addresses all the issues raised by USCIS. Finally, it is important to retain a complete copy of all documentation that is sent and received by USCIS. In cases where the facts are complicated and/or an applicant is not able to provide the requisite documents it is best to seek legal counsel.

About the Writer:

Safiya Byars is a native of Jamaica and an attorney in Decatur, Georgia. Her firm is located at 160 Clairemont Avenue, Ste. 200, Decatur, Georgia 30030. Safiya Byars has served as the senior immigration attorney with boutique immigration firms in both Alabama and Georgia. Her firm handles all Immigration Matters, Deportation, Domestic Relations, Criminal Defense, Business Formation and Litigation, Landlord/Tenant and Wills/Probate/Trusts. To discuss your case, please contact Attorney Byars at 404-992-6506 or 678-954-5809 or via email.

Criminal Convictions and Its Immigration Consequences

Safiya Byars, Esq. — Mon, 15 Feb 2010 09:00:02 UT

Many non-citizens are very unfamiliar with the immigration consequences of criminal convictions. In my practice I have found that most people are mislead by the terms misdemeanor and felony convictions. In fact, most non-citizens who are unfamiliar with criminal procedure often believe that if they simply pay a fine then the crime will have no future implication on their immigration status. Most clients then unexpectedly find themselves in removal proceedings without any hope of preventing their deportation from the United States. This article will highlight the importance that a non-citizen must take when faced with a criminal conviction.

Under immigration law non-citizens and permanent residents are all subject to deportation if they have a criminal history. However, not all crimes will result in deportation. The United States Government has been very diligent in increasing the list of crimes that will result in deportation. In addition, many states are in the process of imposing felony convictions on non-citizens for fraudulent documents and so forth. In the distant past, non-citizens did not have to fear deportation based on criminal convictions unless they were convicted of a felony or a very serious crime. This is the past. Under present immigration all non-citizens, including permanent residents, can be deported for minor state misdemeanor criminal convictions even if they never spent a day in jail.

First, it is very important that all non-citizens, including permanent residents, know that they should never proceed to criminal court without an attorney who is knowledgeable of both criminal and immigration law. Most non-citizens assume that the Court will inform them of any possible immigration consequences. This is not true. The Court does not provide and cannot provide legal advice to non-citizens i.e., defendants. The Court does not represent the non-citizen and therefore the Judge is not obligated to explain in detail all adverse immigration consequences that may occur from a guilty or a no contest plea. It is very important to hire a criminal attorney who is aware of the immigration consequences of a guilty plea. In the event that a non-citizen cannot afford a criminal attorney it would still be beneficial to consult with an immigration attorney on the possible immigration consequences before pleading guilty or no contest.

Under immigration law non-citizens are deportable if they are convicted on an aggravated felony or a crime of moral turpitude. The list of crimes that fall into theses two categories are extremely lengthy and it would be impossible to discuss all crimes in this article. However, there are two specific crimes that are very common that usually results in deportation. We will discuss these two crimes in this article. The most common types of crimes are simple battery and theft by shoplifting. Simple battery is usually a misdemeanor under Georgia’s state law. However, if you are convicted of simple battery and you are sentenced to twelve (12) months confinement you will be considered an aggravated felon under Immigration law and you are deportable. Usually, individuals who are sentenced to twelve (12) months confinement will be allowed to serve their sentence on probation. Consequently, these individuals usually mistakenly believe that since they did not have to spend any time in jail that they are not deportable. This is incorrect. Immigration does not care if you never spent a day in jail as this has no bearing on the case. Under Immigration law you are considered an aggravated felon if you were sentenced to twelve (12) months in jail for battery despite the fact that you never spent a day in jail.

The second most common offense is theft by shoplifting. There are many people who stole a pack of gum or something very minor when they were growing up in the United States. Usually, if an individual has never had any prior criminal history he or she will probably just plead guilty and pay a fine. This is huge mistake. Non-citizens who are unrepresented or have a public defender will usually plead guilty without knowing the immigration consequences of their plea. Under Immigration law all non-citizens, including permanent residents, who pled guilty or no contest to theft and receive a sentence of 12 months confinement are deemed to be aggravated felons. As previously mentioned, all aggravated felons are deportable.

Most of my clients who then later find out that they are deportable always think there must be a waiver. This is another huge mistake. Under current immigration laws there is no waiver for aggravated felons. This means that individuals who are permanent residents who plead guilty to simple battery or theft and receive a twelve (12) month sentence are deportable. There is no waiver. This is very tragic and fundamentally unfair especially when permanent residents have virtually lived all their lives in the United States and they have no family in their country of birth. To add insult to injury, under current immigration laws, aggravated felons will have a difficult time in his/her attempt to return to the United States in any immigration status unless the United States government changes the law. The bottom line is that all non-citizens, including permanent residents, must seek immigration advice when faced with a criminal charge. It is never wise to proceed to Court and pled guilty to criminal charges.

About the Writer:

An Overview of the Real ID Act of 2005

Safiya Byars, Esq. — Fri, 01 Jan 2010 05:40:05 UT

I trust that you all had a very blessed Christmas and a Happy New Year. As we proceed into the New Year of 2010 it is important to know that there will be some changes regarding your photo identification. Today’s article will briefly discuss the federal Real ID Act of 2005 and its impact on the way in which we use our identification.

The Real ID Act of 2005 was passed as a part of an emergency military spending and tsunami relief bill. The act is aimed at improving the security of driver’s licenses and personal identification cards. Many lawmakers have publicly stated that the Real ID Act is simply a way for the federal government to establish a “national id card” system. The idea of some kind of national identification is an idea that lawmakers have discussed in the past but historically it has been met with vehement opposition. In addition, in the wake of September 11 there was renewed interest in creating a national identification system to root out terrorists.

Proponents of this national identification system believe that it is a unified and consistent way of establishing identification for all persons in the United States. Proponents say that a national identification system will increase national security and guard against illegal immigrants and reduce illegal industries that earn their income by making counterfeit licenses, green cards and other forms of counterfeit identification. Opponents of the Real ID Act of 2005 claim that the new law creates a de facto national identification card which violates the privacy of the persons that it seeks to regulate.

The Real ID Act of 2005 went into effect on May 11, 2008 but states could request for an extension to January 1, 2010. Below is the basic overview of the Real ID Act.

Who is required to get the new identification: Anyone with a driver’s license or state issued identification card who is a citizen, permanent resident, visa holders, and all other individuals who have a pending immigration petition with the United States Citizenship and Immigration Services.
How can you obtain your new identification: The state’s department of motor vehicle offices will require you to visit their offices before May 10, 2013 and provide a photo identification, birth certificate, proof of social security account and proof of residence. Under the Real ID Act, the states are charged with the responsibility of providing assistance to you regarding the requirements of the Act.
What must the federal driver’s license contain: All new licenses must contain your name, address, date of birth, gender, driver’s license or state id number, photo, signature and security feature to prevent tampering and counterfeiting. The date on your driver’s license must be stored on a bar code.

It is interesting to note that the Real ID Act of 2005 is a mandate. Consequently, states can choose to either opt in or opt out of the program. For those states that opt in it means that those states will be responsible for being in compliant with the Act. As such, those states will have to issue the new driver’s license card and upgrade their technology to protect its residents’ personal data. If your state chooses to opt out of the Real ID Act of 2005 then no federal agency will accept your state issued-driver’s license as a valid form of identification. You would then need to use a passport at federal buildings, parks and for domestic air travel.

It is my hope that the states that have chosen to opt into the federal mandate will experience as smooth compliance. However, the new federal mandate also signifies that that there will be a large number of undocumented immigrants who will now be unable to show a valid driver’s license. These undocumented individuals will then have to present passports and therefore it appears that it will now be easier for federal law enforcement to decipher which individuals have no legal status in the United States.

For more information regarding the Real ID Act of 2005 please visit the enclosed links:

About the Writer:
Safiya Byars is a native of Jamaica and a senior immigration attorney in Decatur, Georgia. Her firm is located at 160 Clairemont Avenue, Ste. 200, Atlanta, Georgia 30030. Safiya Byars has served as the senior immigration attorney with boutique immigration firms in both Alabama and Georgia. Her firm handles all family and business residency petitions, business, tourist and student visas, consular processing, international adoption, deportation court, asylum/ nacara and tps cases. To discuss your case, please contact Attorney Byars at 404-992-6506 or via email.

Permanent Residence Through Your Spouse

Safiya Byars, Esq. — Tue, 01 Dec 2009 04:44:39 UT

Non-citizen spouses are able to acquire permanent residence through their spouse under the following four conditions. First, your spouse must be a United States Citizen or permanent resident. Second, you must have entered the United States in legal status i.e. with a visa or under the visa waiver program. Three, you must be admissible to the United States. Finally, your spouse must be willing to submit his/her immigration petition to Immigration on your behalf. This article will highlight the process of preparing, submitting and ultimately attaining permanent residence though marriage.

The first step in acquiring permanent residence is preparation. Before you apply for permanent residence you must prepare your documents and you must prepare yourselves mentally. In preparing your documents you must complete all the necessary forms in total. Do not leave sections unanswered because you do not know the appropriate response. If you have questions or concerns you should seek legal assistance from a licensed legal professional i.e. an attorney to assist you. Do not seek legal assistance from a paralegal, notary public, notario or your friends and family. They are not legal professionals and if they provide you with the wrong advice you will have no legal recourse against them. Please know that you could be charged with fraud if you include information that is false on your application. In some cases Immigration could decide that you have committed fraud simply based on the fact that you or your spouse signed a fraudulent application. A finding of fraud could lead to the non-citizen being permanently barred from applying for any future immigration benefits, imprisonment, fines and deportation. Finally, it is important to document your marriage for the immigration officer. You must create and present a scrapbook of your marriage to the immigration officer. Therefore you should include pictures of yourselves prior to and after your marriages, joint utility bills, joint back statements, apartment lease agreement or deed to property, evidence of any joint purchases such as a car, home, furniture, household appliances, joint insurance policies, birth certificates of your children, love cards, joint tax returns etc.

The second step is to prepare yourselves mentally for the immigration process and your interview. A lot of couples get married and they do not discuss the immigration status of the non-citizen until after the marriage. This is a huge mistake. The non-citizen’s immigration status is extremely important as it could affect the ability of the couple to live together. I am not saying that a United States citizen or a permanent residence should not marry a non-citizen. I am simply stating that it is important to discuss the immigration matters prior to marriage so that both spouses understand the process so that they can plan accordingly. I have met many couples only addressed the issue of immigration status after their marriage and then they discover that the U.S citizen spouse is not willing to petition for the non-citizen spouse or that the non-citizen must return to his or her country. Both scenarios are unpleasant and usually create marital problems in the marriage. The best course of action is to avoid these unpleasant surprises by addressing these issues prior to marriage. The next component of preparing yourselves entails mental preparation. Couples should intimately acquaint themselves with the legal process so that they can plan accordingly to achieve a positive result. Mental preparation means seeking legal advice to learn about the process. The couple must also be proactive in preparing and maintaining documents to present to Immigration. Finally the couple should pay close attention and comply with all instructions from Immigration regarding fingerprint interviews, requested documents and interview times and dates.

The final step is the interview with an immigration officer. It is important to be on time. If the officer calls your name and you are not present your application could be considered abandoned and it will be terminated. Termination of your interview means that you will lose all the filing fees, you will have to start the process all over again and the non-citizen could be placed in removal proceedings. It is also important to have all original documents present for inspection. It is most important to remain professional and polite. It is never appropriate for you to be rude to an officer. If you are rude the officer could interpret this behavior as un-cooperative and he/she could deny your petition. Remember to remain calm, answer all the officer’s questions and present your documentation. If all your documents are in order and the non-citizen is eligible to apply for permanent residence in the United States then the application will be approved. In order to determine eligibility for adjustment of status it is best to consult an attorney.

About the Writer:
Safiya Byars is a senior immigration attorney in Norcross, Georgia. She is a native of Jamaica and has personal experience with the difficulties of maneuvering the Immigration system. Safiya Byars has served as the senior immigration attorney with boutique immigration firms in both Alabama and Georgia. To discuss your case, please contact Attorney Byars at 404-992-6506 or via email.

Ten essential things you must know when you are in removal proceedings

Safiya Byars, Esq. — Sun, 01 Nov 2009 04:23:44 UT

Throughout my practice I encounter a large number of clients who are in removal proceedings or have a family member who is removal proceedings. The removal process is a very emotionally charged situation especially when spouses and children are involved. The removal system is complex as it was not created to facilitate the individual who is being detained for removal/deportation. In order to navigate the pitfalls of the removal process this article will briefly discuss ten essential things that you should be aware of in the event that you or your loved one is placed in removal proceedings.

1.      First, the United States government does have the authority to detain and remove individuals who are deportable, inadmissible and or subject to a prior order of removal. These terms-inadmissible, deportable and excludable-all have different legal definitions that will ultimately have an effect on the individual’s possible relief from removal. However, the main thing to remember is that the United States government has the authority to remove you if you fall into any of these categories.
2.      Second, when you are placed in removal proceedings you will receive a document called a Notice to Appear, i.e., “NTA.” This document is your official notice that you are in removal/deportation proceedings. The NTA is extremely important for a myriad of reasons that will be discussed at my “Removal Workshop” in December, 2009.
3.      Immigration and Customs Enforcement has recently increased its campaign to locate, detain and remove undocumented individuals, individuals with criminal records, and individuals who have overstayed their legal visit. In Georgia, a majority of my clients are placed in removal proceedings because they were arrested in a criminal matter or issued a traffic citation. In addition, the United States Citizenship and Immigration Services, [hereinafter “USCIS”], has now begun to forward denied or withdraw immigration petitions to Immigration and Customs Enforcement, [hereinafter “ICE”], to be placed in removal proceedings.
4.      If you are detained and placed in removal proceedings you must first request a bond from the ICE officer that handles your case. If your officer does not issue a bond you will need to request a bond hearing before the Immigration Judge. One caveat to remember is that not all detained individuals are eligible for a bond. You will need to consult counsel to determine if you are eligible be released or if you must remain in custody throughout the entire removal process.
5.      Do not sign any documents while in detention. Typically while you are in removal proceedings the ICE officers will sometimes tell you that if you sign the paperwork you will not have to wait for a court hearing and you will be able to return home quickly. This information is sometimes true but it is also misleading. Most times whenever a detained individual signs he/she is signing a stipulated order of removal. A stipulated order of removal means that he/she has agreed to bypass the Court and he/she has agreed to be deported. This course of action will have long term consequences on that individual’s ability to return to the United States.
6.      Not all ICE officers are unpleasant. While you are in removal proceedings you may be assigned to a very pleasant officer who will advise you that your best course of action is to be deported. Do not fall for this trap! ICE officers are not lawyers and they do not represent your interest. ICE officers work for the Department of Homeland Security. As such, their job is to locate, detain and deport. You should not take any advice from an ICE officer regarding your eligibility for relief from removal. In addition, if you think that you are eligible for relief from deportation do not discuss this information or any personal details about your life with the ICE officer. Remember that everything that you say to the officer will be recorded and will be used against you in court to effectuate your deportation.
7.      If you have family members who are able to communicate directly with your ICE officer you must remind your family members not to discuss the details of your case with the ICE officer. Most times family members are distraught that their loved one is in jail. This is understandable. Consequently, family members will constantly plead with the ICE officer to terminate or release their loved one by telling the officer personal information/immigration history about their loved one. Family members should not converse with the ICE officer regarding these matters. The ICE officer is not able to help you or your family in this regard. Remember, everything that you or your family says to the officer will be recorded and could be used against you in court to effectuate your deportation. Your best option is to retain an attorney who will discuss your case with the ICE officer and pursue your case with the Immigration Judge.
8.      While you are detained you must demand to be allowed to contact your family. When you call your family you should provide them with your alien number, the name of the detention center and a telephone number, (if possible). However, the most important information that you must provide to your family is your alien number. Once your family/attorney has your alien number they will be able to determine if you are scheduled for court and to request a bond hearing. More importantly, with your alien number your family/attorney will be able to communicate directly with the ICE officer assigned to your case.
9.      While you are in removal proceedings it is your responsibility to ensure that the Court has your correct address at all times. If you do not appear for Court the Judge will order you deported in your absence. An absentia order of removal will prevent you from obtaining legal status even if you are eligible for permanent residence.
10. While you are in removal proceedings you need to remain as calm as possible. Do not give up hope. The removal hearing process can be very complex and disheartening. However, if you are eligible for relief it is worth the time and effort to pursue your case in court.

Attorney Byars will be conducting her annual “Removal Workshop” in Atlanta, Georgia in December, 2009. This workshop is geared to educate the attendees of the inner workings of the removal process. The workshop will also discuss in detail all avenues of relief from deportation. There are twelve spaces available. If you would like more information regarding the workshop or any information in this article, please contact attorney Byars via email at: swbyars@gmail.com.

Beware Of Notarios And Immigration Service Providers

Safiya Byars, Esq. — Thu, 01 Oct 2009 03:02:21 UT

As an immigration attorney I often meet clients who hired a Notario to provide them with legal assistance. These clients are often in my office because their immigration cases have been denied and/or they are now in removal proceedings. After reviewing these clients’ cases it is usually difficult, if not impossible, to resolve their cases in a favorable manner. These clients are the victims of Notarios or individuals who provide immigration services who are not authorized by the State to provide legal assistance. Please remember that a Notario is different from a Notary Public. A Notario is usually an individual who tells people that they are able to provide legal services or that they are attorneys in their native country. Notary Publics are individuals who are authorized to notarize documents. Notary Publics and Notarios are not authorized to provide legal advice to anyone. The purpose of this article is to inform the public of unscrupulous individuals who take money from clients for cases that eventually are denied and/or never filed with Immigration.

First it is important to understand that Notarios are not attorneys in the United States. In certain Hispanic countries, a Notario is a respected professional who is also a licensed attorney. In those countries it is perfectly legal for Notarios to provide legal assistance. In the United States, in order an individual to provide legal assistance he/she must be licensed in the State or they must be an individual or organization that is authorized by the State of Georgia to provide legal assistance. Notarios, paralegals, secretaries, Notary Publics are not licensed or authorized by the State of Georgia to provide legal advice to anyone. If these individuals give legal assistance they are committing a crime and they can be fined and/or jailed for engaging in the unauthorized practice of law.

Second, the next thing that clients often tell me is that the Notario and/or individual did not provide them with legal advice because he/she only assisted them with completing their immigration forms. You should know that all the questions on your immigration forms are based on immigration law. The questions on these immigration forms are there to allow the U.S Government to determine if you are eligible for an immigration benefit or deportable pursuant to the immigration laws. In addition, all the information on your immigration forms become part of your permanent immigration file. Therefore if a Notario gives you advice as to what information to include and/or what information to leave out on your application, this is legal advice. Also, please know that if the Notario puts the incorrect information on your immigration form and you sign it, you will be bound to the information in your application whether or not it is correct. Whenever you sign your immigration forms you are telling Immigration that the information on your forms is the truth. You are in fact swearing or affirming that your responses to all the questions are true as if you were before a judge in a court of law. Therefore if you sign your immigration forms with information that you know is false, or incorrect you have committed fraud upon the United States government and you could lose your eligibility for certain immigration benefits and you could be deported. If you sign your immigration forms with information that you were unaware was incorrect Immigration and the Immigration Court can still hold your accountable to your responses.

It is also very dangerous to use a Notario or an unauthorized individual to assist you with your immigration case because you have no protection. Usually, if you hire an attorney or an individual who is authorized by the State to give legal advice you have some basic protections. First, attorneys and authorized professionals are obligated to provide you with accurate legal advice. If an attorney or an authorized professional gives you incorrect legal advice and your immigration case is denied because of this advice, you have the legal right to report him/her to the State Bar Association of Georgia. The State Bar will disciple the attorney or authorized professional. Also, you can then report this individual to Immigration who may be more inclined to amend the information on your forms that were a result of the attorney or authorized professional’s error or misconduct. If you hire a Notario or other individual, Immigration officers do not usually correct mistakes on your application especially if you knew that the individual who you hired was not authorized to practice law. Also, in some circumstances even if you did not know you were hiring a Notario, it is still very unlikely that Immigration will change the incorrect information on your application unless you have compelling evidence to show that you were a victim. Finally, it is extremely dangerous to hire Notarios to prepare your cases because they usually close down their businesses and vanish without a trace leaving the client with a plethora of immigration problems. In my experience, Notaries usually refuse to give copies and/or original documents to their clients because they want to control the flow of information. Also, it is usually very difficult for the clients and law enforcement to find and prosecute Notarios because these individuals usually use false names, false phone numbers and they close down their businesses and leave the state. Consequently, most clients have no documents and they have no idea what work, if any, was actually done on their immigration cases.

The best way to protect yourself is to try to avoid hiring a Notario without your knowledge. In order to avoid Notarios you should take the following steps:

If you are going to an attorney for legal advice you should always contact the State Bar Association at 404-527-8777 to ensure that this individual is a licensed attorney.
At your consultation appointment with an attorney or an authorized individual or organization you should observe their manner. Please stay away from individuals who refuse to give your copies of your documents, provide you with case updates or refuse to take your phone calls.
Finally, if you suspect that the individual is a Notario you should report them to the State Bar Association at 404-527-8743. Also you must keep a copy of all your immigration documents and receipts for all monies related to your immigration case.
Your immigration status is very important. Your legal immigration status is your key to working and living with your family in the United States. If you have legal immigration status you must make it a priority to maintain it. Do not be taken in by individuals who promise to save you some money. In the event that this person is not licensed to provide you with legal advice and your case is denied, it is going to take a lot of time and finances to fix the problem. Unfortunately, in some cases your case will not be fixable and you will be left with no recourse. This article is not an attempt to persuade you to hire only attorneys because there are various attorneys, individuals and organization that are able to represent you for free or at a reduced cost throughout the State of Georgia. To access these attorneys or organizations who may contact the State Bar Association at 404-527-8700 or Georgia Legal Services at 404-206-5175. The purpose of this article is to warn unsuspecting individuals of Notarios so that they can avoid unnecessary expense and heartache with their immigration petitions.

An Overview of the Deportation/Removal Proceedings

Safiya Byars, Esq. — Tue, 01 Sep 2009 02:03:24 UT

Deportation i.e., removal proceedings is not usually a pleasant situation. The fears and concerns that usually arise during deportation proceedings are usually exacerbated by the issues of fear, non-eligibility for relief from deportation and possibly detention. The procedures of deportation are usually so foreign and harsh that most detained individuals usually choose to be expeditiously deported before going to court simply to escape the harsh conditions of being detained in jail with criminals. The fear of deportation is so great that most individuals are deported without first exhausting their avenues of relief. This article will provide a brief overview of deportation proceedings in order to educate anyone who is faced with removal court.

The first step is to know that time is crucial when an individual is detained. In Georgia, most individuals are detained by the Immigration and Customs Enforcement i.e., “ICE” because they were initially arrested for a traffic citation or a criminal matter. Once that individual is arrested the arresting officer usually questions the detained individual to find out if he/she is a citizen of the United States. If it is determined that the individual is a non-citizen an “ICE” hold is placed on that individual’s case. An “ICE” hold means that once the detained individual’s criminal/traffic citation case has been resolved the detained individual must remain in jail until ICE picks up the individual and transports said individual to an ICE jail facility. Once the individual is in ICE’s custody, the individual will be assigned an alien number, and an ICE officer will be assigned to that individual.

The duty of an ICE officer is to determine the immigration status of the detained individual. The ICE officer will make a determination based on questioning the detained individual, the individual’s documentation and the individual’s immigration history (if any). If the officer determines that the detained individual does not have legal immigration status then the officer may choose one of four options. First, the officer may issue and serve the notice to appear on the court so that the court can schedule a court hearing. Second, the officer may issue an immigration bond for the detained individual. An immigration bond allows the detained individual to be released from jail during the pendency of his/her removal hearing. Third, if there is a prior order of deportation then the officer will make arrangements for the detained individual to be expeditiously removed from the United States. A detained individual who has a prior order of removal is subject to immediate removal from the Unites States without first proceeding to a court hearing. Fourth, the officer may request that the detained individual waive his/her rights to a court date and agree to accept voluntary return to his/her home country. All options that prevent an individual from first proceeding to Immigration Court should be avoided.

Once an individual is detained the individual’s loved ones must act quickly if the detained individual wishes to proceed in court. Many of my clients can attest to the fact that it is very confusing and disconcerting to know that their loved one is detained but they are unable to locate their family member. Unfortunately, this scenario happens quite often. Therefore, once your loved one is detained the first step is to try and locate the individual at the ICE jail to obtain the detained individual’s alien number. Some individuals have a prior alien number because they have an immigration history. If the detained individual has never been assigned an alien number then an alien number will be assigned. The alien number is extremely important because each detained individual has an ICE officer assigned to his/her case. This ICE officer is your only point of contact with ICE regarding your loved one. Detained individuals are assigned an officer based on the individuals’ alien number. It is also important know that the alien numbers are usually assigned only when the individual is in ICE’s custody and not the State’s jail. Therefore it is a waste of time to try to ascertain the individual’s alien number and the assigned ICE officer’s information from the State’s jail.

Second once you have located the detained individual it is important communicate with your loved one that he/she should not sign any paperwork or agree to be removed from the United States without first appearing before an Immigration Judge. It is also important to ascertain from the detained individual, the jail or the officer if there is a bond. If there is no set bond you loved one should request a bond hearing. Once your loved one proceeds in court it is important to quickly determine if your loved one is eligible for any relief from deportation.

Finally, it is important to remember that the Immigration officials i.e., the immigration judge, deportation officer, jail personnel and the government’s attorney represent the interest of the U.S government and not your loved one’s best interest. It is important to determine your avenues of relief, (if any), before proceeding to court.

If you or your loved are scheduled to appear before the Atlanta Immigration Court you are eligible to receive a complimentary analysis of your case. Please send your inquiries to swbyars@gmail.com.

Human Trafficking is Modern Day Slavery

Safiya Byars, Esq. — Sun, 02 Aug 2009 02:20:00 UT

Introduction
When one thinks of human trafficking the first thing that springs to mind is usually a poor underdeveloped country where individuals are forced into sexual slavery to earn a living. This perception of human trafficking is far from reality. The second question that springs to mind when discussing human trafficking is exactly what is human trafficking. Human trafficking is the exploitation of human beings – be it for sexual exploitation, other forms of forced labor, slavery, servitude, or for the removal of human organs. Trafficking takes place by criminal means through the threat or use of force, coercion, abduction, fraud, deception, abuse of positions of power or abuse of positions of vulnerability. It relates to all stages of the trafficking process: recruitment, transportation, transfer, harboring or receipt of persons.

Trafficking is not just a transnational crime across international borders - the definition applies to internal domestic trafficking of human beings in the United States. Human trafficking is not limited to minor children and women – it includes all persons. It is estimated that approximately 800,000 persons are trafficked across international borders each year. In addition, an estimated 17,500 persons are trafficked into the United States each year. Human trafficking is also a big business bringing in US $32 billion annually, worldwide. This makes people trafficking the most lucrative crime after drug trafficking, according to statistics from the Organization for Economic Co-operation and Development (OECD, 2006).

Domestic Human Trafficking
Human trafficking has become a major concern specifically in Georgia for a number of reasons. First, Atlanta, Georgia is home to Hartsfield International Airport which is a central connection for most domestic and international flights. As such, traffickers are able to traffic a large volume of their victims both internally and internationally to and from Atlanta, Georgia. Second, Georgia has a large immigrant population that is undocumented. As such, traffickers are able to prey on these victims by extracting forced labor, domestic servitude and sexual services without any fear that the victims will contact the police department or immigration. Finally, Atlanta, Georgia is infamous for its large sex industry. Strip clubs, prostitution, and escort services are abundant. Consequently, all these reasons work together to create the perfect climate for human trafficking in Atlanta, Georgia.

Myths about Human Trafficking
According to the Polaris Project the most common myths about human trafficking are as follows:

Myth 1: Slavery ended hundreds of years ago
Reality: While certain forms of slavery were ended in the U.S. in the 1800's, modern-day slavery and trafficking is one of the most urgent human rights

issues of our time.

Myth 2: Trafficking requires transportation across borders

Reality: The international and U.S. definitions of human trafficking do not
require transportation across any international borders. Victims can be either
nationals or foreign nationals. Many victims are trafficked and enslaved
entirely within their own country.

Myth 3: Force or confinement must be involved
Reality: Threats, deception or psychological control mechanisms are often
used instead of force, and are equally as powerful.

Myth 4: This is a problem in Thailand, Nepal, and other poor countries

Reality: Some of the most severe trafficking occurs in the United States,
Japan and other wealthy destination countries. It is truly a problem that hits

close to home.

Steps to combat Human Trafficking
First, learn about human trafficking issues and communicate your support to your political representatives. If your representatives are uninformed then educate them. Second, talk to people about the issue of human trafficking. Third, find out what the local charities and church groups are doing about human trafficking. If they do not have this issue on their agenda work to get the issue on the agenda. Fourth, pray for these very vulnerable people, especially women and children, that God will give them hope for a future of freedom and restore their dignity. Finally, stay informed and observe your neighborhoods and surrounding areas. Take notice of any suspicious activity, and support the efforts of your local Non Governmental Agencies and Government Agencies working to protect individuals from commercial and sexual exploitation. For more information, you can call the Trafficking Information and Referral Hotline at 1.888.3737.888.

Conclusion
Human trafficking is a depraved criminal enterprise that deprives individuals of their life and dignity. In a letter, the late Pope John Paul II once said: “The trade in human persons constitutes a shocking offense against human dignity and a grave violation of fundamental human rights.” Human trafficking is an international criminal enterprise. Despite the enormity of this issue, we must all strive to do our part to end the suffering of its victims. Do not be discouraged, do not choose to be uninformed, do not withhold, do not ignore. Do your part today.

About the Writer:
Safiya Byars is a senior immigration attorney in Norcross, Georgia. She is a native of Jamaica and has personal experience with the difficulties of maneuvering the Immigration system. Safiya Byars has served as the senior immigration attorney with boutique immigration firms in both Alabama and Georgia. There is a $150.00 consultation fee to discuss your case with attorney Byars. The consultation fee must be paid before discussing your case. To discuss your case, please contact Attorney Byars at 404-992-6506 or via email.

Common Mistakes to Avoid when Applying for Immigration Benefits

Safiya Byars, Esq. — Wed, 01 Jul 2009 04:20:52 UT

The Immigration laws of the United States are governed by complex statutes, internal Immigration memorandums and case law. Consequently, it can be quite daunting for a non-citizen to maneuver his or her way through the entire immigration process. This article will address some common mistakes that clients usually make in applying to Immigration for benefits. I will also offer some easy solutions for those individuals who feel compelled to go through the process by themselves.

The most common mistake that non-citizens make is that he or she assumes that he or she qualifies for a certain benefit because friends or family have acquired an immigration benefit. The key to applying and receiving immigration benefits is knowledge. You and/or your attorney or your family members must take some time to find out the requirements to acquire a certain immigration benefit. If you are unable to hire an attorney then you may need to at least schedule a consultation with an attorney to find out if you qualify for a benefit. It is important to visit the Immigration website at www.uscis.gov to try and get some general information. Also, if all else fails, you may need to contact Catholic Social Services or get assistance from a pro bono (free) immigration attorney. It is never a good idea to submit an application if you are unsure if you qualify for benefits. Also, it is never advisable to submit an application to Immigration with false information. The reason for my warning is that immigration forms are not just forms. Each question on an immigration form is based on the law and it is designed to determine if you are eligible for a benefit or if you are deportable. Furthermore, once you have completed the immigration form and signed it you have just sworn under oath that all the information is correct. Hence, in the event that the information is false the U.S government will deny your application and can choose to prosecute you for submitting fraudulent information to the U.S Government. In addition, Immigration’s new policy is to automatically place individuals in removal proceedings once their immigration petitions have been denied. The lesson is that immigration forms are serious business. You need to know the law before you apply. If you don’t know the law you need to hire a professional to represent you.

The second most common mistake that non-citizens make is twofold. The typical scenario involves a non-citizen that submits his or her application in one state and then promptly moves to another state. The non-citizen is then concerned because he or she has not received any confirmation from Immigration that the application is being processed. Please note that the postal service does not forward mail from Immigration to you even if you have submitted a change of address to the postal service. Under the Immigration laws all non-citizens who apply for immigration benefits must notify Immigration within 10 days if they change their address. Non-citizens must submit a change of address form to Immigration. The change of address form is an AR-11 form and it can be found and downloaded at the Immigration website at www.uscis.gov. The other mistake that most non-citizens make is that they send important documents and filing fees to Immigration without first making a copy of the documents. Also, to make matters worse they send their important documents to Immigration via regular mail. In this scenario, the non-citizen does not have a copy of his or her documents. Consequently, if Immigration or the postal services misplaces the documents, the non-citizen will have no recourse but to begin the application process again.
Finally, the most common mistake to avoid is that the non-citizen believes that Immigration will assist him or her with his or her applications. It is important to remember that whenever you personally apply to Immigration for any benefits, by law, it is your responsibility to prove that you meet all the requirements to receive your benefits. Immigration officials do not work for the non-citizen. Immigration works for the United States government and therefore Immigration has no obligation to assist you or provide you with legal advice. Therefore it is important to know the law before you apply. In addition, it is important to know what documents are needed to prove you eligibility for benefits. and make multiple inquires as to the status of your petition.

In closing, the above-referenced mistakes are easily avoided if you invest in adequate preparation. Always remember that your immigration case is your responsibility. Therefore, you must know the eligibly requirements, organize your documents and make copies of all documents that you send to immigration. In addition, do not trust the postal service or Immigration with your documents. Always send your documents to Immigration via certified mail with return receipt or express mail with delivery confirmation. Finally, once Immigration has received your petition and your case is pending, never assume that your job is complete. You must make sure that Immigration has your correct address at all times. In addition, if Immigration sends you a request for additional documents or requests additional information you must respond. Finally, if you believe that your petition is outside of the usual processing time, you must contact Immigration via customer service at 1-800-375-5283

About the Writer:
Safiya Byars is a senior immigration attorney in Norcross, Georgia. She is a native of Jamaica and has personal experience with the difficulties of maneuvering the Immigration system. Safiya Byars has served as the senior immigration attorney with boutique immigration firms in both Alabama and Georgia. There is a $150.00 consultation fee to discuss your case with attorney Byars. The consultation fee must be paid before discussing your case. To discuss your case, please contact Attorney Byars at 404-992-6506 or via email.

Permanent Residence Through Your Spouse

Safiya Byars, Esq. — Mon, 01 Jun 2009 04:53:20 UT

The first thing to remember is that it is illegal to marry an individual for the sole purpose of obtaining immigration status. Marriages of this sort are called sham marriages and Immigration will prosecute these individuals. Most of my clients are usually appalled that Immigration is not only interested in their paperwork but also in the inner intimate details of their marriages. Unfortunately, both spouses must remember that the petition to acquire permanent residence is based in large part on the validity of the marriage. In the past whenever a United States citizen or a permanent resident married a non-citizen, Immigration would send an officer to visit the couple at home to observe them and to assess the validity of the marriage. If the officer believed that the couple was a genuine couple then the non-citizen would become a permanent resident. Those days are over. Now the individual who will make an assessment of your marriage and immigration petition is an officer who will never visit you at home. In addition, in today’s system the officer is not given the opportunity to get acquainted with the couple. The officer is forced to make his assessment of the marriage and petition solely on the documents in the couple’s petition and the short interview with the couple. In addition, government statistics show that thousands of sham marriages take place every year. Hence, the officer is operating under the assumption that every petition is a sham marriage unless the couple can provide documentation to show that their marriage is genuine. The important thing to remember is that the couple should not be offended by the officer’s questions or assumptions. The best course of actions is to provide as much documentation as possible and to remember that you must provide documentation to persuade Immigration that your marriage is valid. Immigration is under no obligation to grant you any immigration benefits unless you can prove that you are eligible to receive such benefits.

The first step in acquiring permanent residence is preparation. Before you apply for permanent residence you must prepare your documents and you must prepare yourselves mentally. In preparing your documents you must complete all the necessary forms in total. Do not leave sections unanswered because you do not know the appropriate response. If you have questions or concerns you should seek legal assistance from a licensed legal professional i.e. an attorney. Do not seek legal assistance from a paralegal, Notary Public, Notario or your friends and family. They are not legal professionals and if they provide you with the wrong advice you will have no legal recourse against them. Please know that it will be considered fraud if you include information that is false on your application. In some cases Immigration could decide that you have committed fraud simply based on the fact that you or your spouse signed a fraudulent application. A finding of fraud could lead to the non-citizen being permanently barred from applying for any future immigration benefits, imprisonment, fines and deportation. Finally, it is important to document your marriage for the immigration officer. You must create and present a scrapbook of your marriage to the immigration officer. Therefore you should include pictures of yourselves prior to and after your marriage, joint utility bills, joint back statements, apartment lease agreement or deed to property, evidence of any joint purchases such as a car, home, furniture, household appliances, joint insurance policies, birth certificates of your children, love card(s) and joint tax returns etc.

The second step is to prepare yourselves mentally for the immigration process and your interview. A lot of couples get married and they do not discuss the immigration status of the non-citizen until after the marriage. This is a huge mistake. The non-citizen’s immigration status is extremely important as it could affect the ability of the couple to live together. I am not saying that a United States citizen or a permanent residence should not marry a non-citizen. I am simply stating that it is important to discuss the immigration matters prior to marriage so that both spouses understand the process so that they can plan accordingly. I have met many couples who only addressed the issue of immigration status after their marriage and then they discover that the U.S citizen spouse is not willing to petition for the non-citizen spouse or that the non-citizen must return to his or her country. Both scenarios are unpleasant and usually create severe marital problems. The best course of action is to avoid these unpleasant surprises by addressing these issues prior to marriage. The next component of preparing yourselves entails mental preparation. Couples should intimately acquaint themselves with the legal process so that they can plan accordingly to achieve a positive result. Mental preparation means seeking legal advice to learn about the process. The couple must also be proactive in preparing and maintaining documents to present to Immigration. Finally the couple should pay close attention and comply with all instructions from Immigration regarding fingerprint interviews, requested documents and interview times and dates.

The final step is the interview with an immigration officer. It is important to be on time. If the officer calls your name and you are not present your application could be considered abandoned and it will be terminated. Termination of your interview means that you will lose all the filing fees, you will have to start the process all over again and the non-citizen could be placed in removal proceedings. It is also important to have all original documents present for inspection. It is most important to remain professional and polite. It is never appropriate for you to be impolite to an officer. If you are impolite the officer could interpret this behavior as un-cooperative and he/she could deny your petition. Remember to remain calm, answer all the officer’s questions and present your documentation. If all your documents are in order and the non-citizen is eligible to apply for permanent residence in the United States then the application will be approved.

Safiya Byars is a senior immigration attorney in Norcross, Georgia. She is a native of Jamaica and has personal experience with the difficulties of maneuvering the Immigration system. Safiya Byars has served as the senior immigration attorney with boutique immigration firms in both Alabama and Georgia. There is a $150.00 consultation fee to discuss your case with attorney Byars. The consultation fee must be paid before discussing your case. To discuss your case, please contact Attorney Byars at 404-992-6506 or via email.

Acquiring U.S Citizenship through Naturalization

Safiya Byars, Esq. — Fri, 01 May 2009 04:05:46 UT

There are many paths that lead to the path of United States citizenship. The immigration path to United States citizenship is optional. Under the current immigration laws, it is not mandatory that permanent residents become United States citizens but the benefits are much better. This article will outline the key steps that will put you on the path to becoming a United States citizen.

In order to become a United States Citizen you must first attain permanent residence status. A lawful permanent residence is a non-citizen who is authorized to live and work in the United States on a permanent basis. Usually non-citizens acquire their permanent resident status through family members, their employers or other immigration petitions that provide permanent residence status. Once you have attained permanent resident status you would have completed the first step towards attaining United States citizenship.

The second step is to maintain your permanent residence to ensure that you do not lose your status. Most non-citizens, including my colleagues from Jamaica, are always surprised to learn that an immigrant can lose his or her permanent residence status. This notion may seem strange but it is true. A permanent resident is given the privilege to live and work in the United States on a permanent basis. However, it is important to remember that a permanent resident must actually physically reside in the United States on a permanent basis to be allowed to live in the United States on a permanent basis. In other words, if an immigrant becomes a permanent resident and then returns and lives in his own country and does not reside in the Unites States, Immigration will assume that he/she has abandoned his or her permanent resident status. The permanent resident’s permanent home must be the United States and he/she must reside there. It is not sufficient for the permanent resident to live overseas and then visit the United States several times a year. This will not preserve his/her permanent residency. The permanent resident must have his/her home in the United States. In addition, if the permanent resident is employed in the United States, he/she must pay taxes. Permanent residents are permitted to travel overseas but each individual trip must be limited to less than 6 months to avoid legal complications. Finally, permanent residents are not really permanent residents because if a non-citizen acquires a criminal history he or she may become deportable. Again, most permanent residents are surprised to learn that the Immigration can deport permanent residents. So the key here is to maintain your permanent resident status. You can do this by not committing crimes, paying your taxes, living permanently in the United States and taking short visits overseas that are less than 6 months, not voting in any political elections and renewing your permanent resident card every 10 years.

The good news is that once you have acquired permanent resident status, you can acquire your U.S citizenship within 3 to 5 years. If you acquired your permanent residence through your spouse then you may apply for United States citizenship within 3 years of acquiring your permanent resident status provided that you are still married to your spouse. If you acquired your permanent resident through your spouse and you later get a divorce, you must then wait 5 years after acquiring your permanent resident status to apply for citizenship. If you gained your residency through your family member, other than your spouse, and/or any other immigration petition, then you must wait 5 years after acquiring your permanent residence to apply for citizenship.

Once you apply for citizenship, Immigration will review your file to ensure that you have no criminal history and that you have resided permanently in the United States and paid your taxes. Also, Immigration will check to ensure that you did not vote in any elections Furthermore, Immigration will check to ensure that you have not engaged in some other activity that would disqualify you from citizenship. The final step will involve the non-citizen taking and passing a U.S history test and the written English test. The entire citizenship exam will be conducted in English. Some non-citizens are able to waive the English requirement and/or history requirement based on their age and/or disability. However, young adults under 55 years old with no disabilities must take the exam in English. Once this final step is complete the non-citizen permanent resident will be sworn in as a United States citizen.

It is always important to remember the once you become a United States citizen Immigration cannot deport you unless there is evidence that you fraudulently acquired United States citizenship. As a United States citizen, your immigration petitions for your family members will be processed expeditiously. Also once you become a citizen you can vote in all elections and you could even move permanently to overseas and live there forever. You will always be a United States citizen and not even the U.S government can take that away from you.

Safiya Byars is a senior immigration attorney in Norcross, Georgia. She is a native of Jamaica and has personal experience with the difficulties of maneuvering the Immigration system. Safiya Byars has served as the senior immigration attorney with boutique immigration firms in both Alabama and Georgia. To discuss your case, please contact Attorney Byars at 404-992-6506 or via email.

Immigration’s recent amendments to the Child Status Protection Act

Safiya Byars, Esq. — Tue, 31 Mar 2009 21:37:15 UT

The Child Status Protection Act, [hereinafter “CSPA”] has been the focus of Immigration for some time. Originally the CSPA was enacted in August 6, 2002 to allow children who turned twenty one (21) years old to still be considered as minor children so that they could immediately apply for permanent residence.

In order to understand the implications of the recent changes to the CSPA we must first define some key immigration terms. Under Immigration law the definition of a child is very different from the public’s understanding of a child. Pursuant to Immigration law a child is defined as a person under 21 years of age who is a 1) Child born in wedlock, 2) Step-Child, whether legitimate or not as long as child was under eighteen (18) years at the time the step-parent relationship was created, 3) Child legally legitimated if in custody of father at time of legitimization, 4) Adopted children under sixteen (16) years old, having two (2) years of legal custody and residence with adopting parents. However, if the family has already adopted a sibling the second brother or sister who is adopted may be under eighteen (18) years at time of adoption and 5) certain orphans. It appears that Immigration’s definition of child is both inclusive and restrictive. However, for the purpose of this article, we will concentrate solely on the first category that defines a child as a person under twenty one (21) years old.

The second definition that is equally important is Immigration’s definition of the term “aged out.” As the term implies, Immigration defines the term “aged out” as a child who has turned twenty one (21) years old and therefore the child is no longer considered to be a minor child but an adult daughter or son. The distinction between a minor child and an adult daughter or son is significant because it directly affects whether or not an individual is eligible to immediately apply for permanent residence or if that person has to wait years to apply for permanent residence. Under immigration law categories such as child, adult daughter or son are important because Immigration determines eligibility of applicants according to their specific category. As such, prior to August 6, 2002, if a child aged out then he/she would be ineligible to obtain their permanent residence. For example a United States citizen or Permanent Resident, (LPR), may have submitted an I-130 petition for his wife and two minor daughters. At the initial filing of the paperwork the Petitioner’s daughters were under twenty one (21) years old and therefore they were considered to be minor children. However, if once the applications were approved the daughters were now twenty one (21) years old the daughters would now be placed in a separate category of adult daughters that would impede their ability to obtain their permanent residence at the same time that their mother received her status. The waiting time for the daughters could take years or decades depending on their county of origin. Consequently, we have the very unfair scenario where the mother and father now have legal status and their daughters had no status. This situation was especially frustrating when the main reason why the daughters turned twenty one (21) years old before their approval was due to Immigration’s inability to efficiently process applications in a timely fashion. Hence, the CSPA was designed to alleviate this unfortunate situation.

First, under the 2002 CSPA regulations, children of United States citizens who aged out i.e., became adult children, were forced to apply for permanent residence as adult children. As such, these adult children would have to wait a much longer time in order to apply for permanent residence. However, under the 2008 revisions to the CSPA, minor children of United States citizens who turned twenty one (21) years old are now eligible to apply for permanent residence as minor children as long as they have an approved I-130 petition and they did not receive a final decision on an application for permanent residence or an immigrant visa before August 6, 2002.

            Under the 2002 CSPA regulations, children of permanent residents, (LPR), who aged out i.e., became adult children after August 6, 2002 or whose I-130 petition was approved after August 6, 2002 or whose priority date became available after August 6, 2002, were still able to apply for permanent residence as minor children based on a mathematical formulae. Based on the mathematical formula if the child’s adjusted age was under twenty one (21) years old, the child could still apply for permanent residence as long he/she applied within one (1 ) year of his/her priority date becoming current. If the child adjusted age was under twenty one (21) years old but he/she failed to apply for permanent residence within one (1) year then he/she would no longer be eligible to apply for permanent residence as a minor child. As such, he/she would have to wait and then apply for permanent residence as an adult child. However, under the 2008 revisions to CSPA, these adult children are now immediately eligible to apply for permanent residence as long as their adjusted age is under twenty one (21) years old and they never applied for permanent residence.

            There are many other amendments to the CSPA that may be beneficial to applicants. However, the amendments are too detailed and complex to discuss in this article. The important thing to remember is that the new amendments to the CSPA are significant because you may be immediately eligible to apply for permanent residence today instead of years later. In order to receive a complimentary analysis of your case, please send your inquiries to my office at .

Safiya Byars is a senior immigration attorney in Norcross, Georgia. She is a native of Jamaica and has personal experience with the difficulties of maneuvering the Immigration system. Safiya Byars has served as the senior immigration attorney with boutique immigration firms in both Alabama and Georgia. To discuss your case, please contact Attorney Byars at 404-992-6506 or via email.

New Year, New President and Possibly New Immigration Reform?

Safiya Byars, Esq. — Sun, 01 Feb 2009 02:15:01 UT

Happy New Year to everyone! I trust you all had a wonderful holiday. The year of 2008 was filled with countless historical milestones. On a personal note, my husband and I welcomed the birth of our first child, Olivia Simone Byars. However, the most historical milestone for the United States was the election of President-Elect, Barack Obama. President Barack Obama brings new hope for this country and also for immigration reform. At this moment, no one is sure when or how immigration reform will be enacted. However, we are all hopeful and in that spirit we must take steps to place ourselves in the best position to benefit from immigration reform when it arrives.

Presently, it appears that President Barack Obama’s immigration platform is very general. During his election campaign, President Barack Obama’s three key immigration principles were Secure Borders, Fix the Immigration System and a Pathway to Citizenship for undocumented individuals. However, the details of President Barack Obama’s immigration legislation may not be made known to the public for quite some time. Consequently, it is essential that all non-citizens take steps to protect their immigration rights so that they will be able to take advantage of any new immigration reform.

The first step is to know your rights under the current immigration laws. Many non-citizens get caught up with their busy lives that they rarely make the time to seek legal advice on their current immigration status. This is a mistake. Many immigration benefits are time-sensitive because most immigration benefits are tied to filing deadlines. Therefore, it is important to find out if you currently qualify for any relief under the current immigration law because new immigration reform may amend or eliminate previous eligibility requirements.

The second step is to assess your taxes. Historically, the United States has required that all non-citizens pay off all owed taxes to apply for certain immigration benefits. Presently, under the current immigration laws, permanent residents are required to disclose if they owe any taxes during their citizenship interview. In addition, non-citizens who are applying for cancellation of removal before the Immigration Court must show proof that all taxes were paid if they wish to be considered for permanent residence. If the Court finds that the non-citizen has failed to pay his/her taxes or he/she has received tax credits for which he/she were ineligible to receive then the non-citizen is deemed to lack good moral character which could render him/her ineligible for permanent residence.

The third step is to avoid incurring a criminal history. For non-citizens who do not have a current driver’s license this means they must not drive. It would be best to carpool or take public transportation to reach their destination. States are now enacting harsher penalties for non-citizens who routinely drive without a valid license or under the influence of alcohol. Recently, Georgia passed legislation that makes it a felony to drive without a license. If you already have a criminal history it would be beneficial to find out if your specific violation will have any adverse impact on your ability to acquire immigration benefits. Some minor criminal/traffic violations will not disqualify you from acquiring immigration benefits but you should seek legal counsel to ensure that your criminal history will not adversely affect your immigration status. Likewise, if you have been charged with a crime you should seek advice from an immigration attorney before you plead guilty or no contest to any charges. Typically, public defenders and some criminal defense attorneys are only competent to represent you in your criminal matters. Not all criminal defense attorneys are knowledgeable about the impact of your criminal conviction on your immigration status or your ability to acquire future immigration benefits. Consequently, if you are charged with a crime it is important that you seek out immigration advice before you plead guilty or no contest to a crime.

The fourth step is to ensure that all information on your immigration applications is correct. If there is incorrect or incomplete information on your immigration applications, Immigration may deem your applications to be fraudulent. Always remember that your immigration applications, once filed, becomes a part of your permanent file. Consequently, it is important that you take proactive steps to ensure the accuracy of all applications.

The final step is to always remain informed. It is still unclear as to when our government will pass immigration reform. Therefore, our best course of action is to remain vigilant so that we can react quickly once immigration reform is enacted. The year of 2009 holds great promise. Our economy may not be at its best however, we do have a new President that is unlike any other President. Our country is now moving in a new direction and it is my hope that this new direction will change our immigration bureaucracy into a more humane and fair system.

Safiya Byars is a senior immigration attorney in Norcross, Georgia. She has over 7 years of immigration experience. She is a native of Jamaica and has personal experience with the difficulties of maneuvering the Immigration system. Her firm was established in 2009 and her cases involve all issues relating to Immigration, Family and Business Law. Prior to establishing her firm, Safiya Byars served as the senior immigration attorney with boutique immigration firms in both Alabama and Georgia. To discuss your case, please contact Attorney Byars at 404-992-6506 or via email.

Immigration

Wed, 04 Jun 2008 23:56:22 UT

The U.S. Immigration Debate – A few perspectives

Nadine A. Brown — Wed, 30 Apr 2008 17:00:00 UT

Many anticipate that the U.S. immigration laws will change after the 2008 elections in November. With candidates Obama, Clinton and McCain talking about a variety of issues, Immigration being paramount, it is clear that they will say what they must in order to get elected, which is the nature of politics. In what way the Immigration field will change is unknown as many political leaders are reluctant to make the necessary changes that will actually benefit the greater society. Many of the political leaders are crippled by their ignorance about the true impact of immigrants and immigration on the U.S. society, culture and economy; and many still pander to special interests who wish to create an environment without compromise.

There are two sides to the Immigration debate. There is the enforcement side and the legalization side. The enforcement side consists of conservative Republicans, gun toting “minute men” militia groups, and right wing television talk show pundits who harp on the perils of immigration. The only reform they promote is one where the door to American is shut tight. These individuals believe that immigrants ruin the country economically and provide cultural and ethnic divisions which threaten the fabric of American society. They are motivated by fear and sometimes hate, and believe immigrants take “Americans” jobs, refuse to speak English, and live and work in the U.S. without paying taxes. The enforcement oriented zealots want the number of immigrants reduced by increasing deportations and making it difficult or impossible for businesses to recruit and employ immigrants.

The other side which is pro-immigration is consistently filled with advocates who understand that the United States was built by immigrants for immigrants. These individuals believe that the current system is broken because of the myriad of policies and sometimes inconsistent procedures that make up the immigration system. They encourage lawful behavior and the legalization of immigrants through an application or benefits process. They push to reduce the abuses in the system that occur in the Immigration courts and with the Immigration and Customs Enforcement branch of the Department of Homeland Security. They are aware that America is a nation of Immigrants and no cultural group has monopoly on the American cultural identity.

Regardless of the perspective or side of the debate, the arguments are baseless without an understanding of social, historical and geopolitical context in which Immigration occurs. Neither side will completely get its way regardless of the outcome of the 2008 elections. Immigration, legal or illegal will never stop. There is too much of an incentive for people to desire to become Americans. More mechanisms should be in place to reduce the most egregious criminal offenders, obviously, but immigrants, for the most part, are law abiding and have contributed so much to this society. What people are most concerned with is the illegality or abuses that occur. Unfortunately, illegal immigration is a product of failed political policies and unworkable procedures.

What causes illegal immigration? First, American propaganda, or marketing around the world promote this country as the land of paradise: great entertainment and sports, big homes and fancy cars, and who would not want to enjoy the luxuries available? We see the “American Dream” promoted in American movies and music, which is sometimes the only exposure and only basis a people will have to this society. Thus, many will desire to come legally and when the opportunity is unavailable, will try illegal means through visa fraud, smuggling, and visa overstays. Second, there is the current immigration system that states it is based on family unity or reunification, but many families are fractured and separated by the long waiting periods for visas. Many abroad get impatient or so love sick for relatives, spouses, and children that to be closer; they evade immigration procedures to make immediate contact with family. These individuals feel compelled to make the journey and commit unlawful acts because they cannot unite with their loved ones. Third, world economics promotes illegal immigration. America offers good salaries for the educated and well skilled; whereas in many other countries, education and skill comes with social status but not necessarily high income. Our education systems offer programs not always available overseas and thus, many decide to study in the U.S. and then build professions here. For many unskilled or lower skilled workers there is such an incentive to be here, as well. Many poor countries in this hemisphere and in others are lured by the prospect of getting a decent wage, which by American standards may be at or below the minimum wage; yet far exceeds the wages an immigrant could earn in their own country of origin. Since poverty and starvation are not appealing ways of life, many will risk life and limb to come to the US illegally to earn in a month what they couldn’t even earn in a year because of no employment in their country of origin. Still many are recruited by American companies overseas for short term contractual work and either are misinformed or self-deluded about what American will offer and how long they can stay.

Lastly, illegal immigration is a consequence of past political practices and social policies. Many western industrialized countries including America reaped the economic rewards of the colonial and post colonial economic era; taking from the resource rich “third world”: people, gems, and crops resulting in a wealth producing economy that put them far ahead of everyone else, so much so that all that was left in the “third world” is a legacy of poverty, social inequality, and dependence that is perpetuated even today. Thus, the brain drains from the east and south and the drain of resources as well, make it almost insurmountable for the developing world to be stabilized enough that its own people will invest in building up its own society to create a different dream, rather than chasing the American Dream.

Illegal immigration should be abated, but how, is the question. Increasing deportation and making visa requirements more strict is not the answer because our immigration courts are already overburdened. Creating blanket amnesty is also not the answer. A comprehensive reformed system where violent criminals are expelled and desperate and separated family is reunited is what will work. Refining the current rules as we already know what works and what does not is the key. Visa allotment systems must and should be re-evaluated and revised and industries should be analyzed to broaden visa categories for not just skilled but more unskilled laborers, which is where most illegal immigration occurs. The system should inherently operate with a set of specific rules and on procedure with less discretion given to officers as quite a few immigration officers have specific political or personal agendas.

ABOUT ATTORNEY NADINE A. BROWN
Attorney Nadine A. Brown practices Immigration Law in the Greater Orlando, Florida area. She has practiced Immigration Law for approximately 8 years, 3 of which was as the supervising attorney for the Catholic Charities Immigration & Refugee Services and the last 4 in private practice. Her firm was established in 2002 and her cases involve issues relating to asylum, citizenship, consular affairs, deportation, residency petitions, student and business visas, and visa extensions or changes of
status. She handles all cases personally. Questions can be sent to counselorbrown@embarqmail.com

Please visit her website at: www.nadinebrownpa.com

Humanitarian Parole and Public Interest Parolees Entry into the United States

Nadine A. Brown — Fri, 28 Mar 2008 17:00:00 UT

Many do not know that within the US Immigration system exists certain discretionary grants of entry to the United States. The Humanitarian Parole is one such form of entry and the Public Interest Parole is another. Both are available pursuant to section 212(d)(3) or 212(d)(5) of the Immigration and Nationality Act. Both require that certain conditions be met and that the need for immediate entry be thoroughly explained and documented.

Sometimes an individual may be considered a public interest parole pursuant to section 212(d)(5) if entering the United States without a visa at a port of entry. This individual is usually evaluated to determine whether s/he has a credible fear of returning to their country of origin. This type of entry may result in the issuance of an I-94 arrival card that is stamped “parolee” pursuant to section 212(d)(5) and it may also state “pending removal” or “pending asylum proceedings”. If the latter is stamped on the card, then the individual will be noticed for a hearing before an immigration judge and should seek the advice and representation of a competent Immigration Attorney.

Both section 212(d)(3) or section 212(d)(5) entries are available if no other means of entry exists and all other application processes have been exhausted, or if the entrant would otherwise be prohibited from entry because of previous violation or complication in a past visa process. The section 212(d)(3) entry is issued by a consular officer at a visa post or US Embassy abroad. The section 212(d)(5) entry can be issued by an Immigration Inspections Officer at a US port of entry, or must be issued by the Attorney General of the United States through the Department of Homeland Security Humanitarian and Parole Assistance Branch.

Individuals who are denied visitor’s visa but who have an extremely urgent or life threatening medical issue may be considered for a humanitarian parole. The application process does take time, however; and is not suited for a “true” emergency (i.e. next day travel) unless requesting a parole pursuant to section 212(d)(3) at the consular post. An applicant must submit a formal application for the humanitarian parole and it should be noted that a favorable response is not guaranteed. The applicant must demonstrate the need for entry to the US, explain what other means or methods of entry they have tried unsuccessfully to obtain, provide copies of any previously filed immigration petitions, and provide a sponsor in the United States who is willing to provide financially for the individual in the event s/he is unable to provide for himself.

If the reason for travel is a medical emergency where the applicant needs the treatment or is coming to assist a relative with treatment, then a thorough and careful letter of explanation about the illness or treatment must be provided by a competent physician. In some instances, an applicant outside the US may be required to consult a Department of Homeland Security approved physician in the foreign country. Lists of physicians are available at the US Embassy or consular post abroad. Also, the applicant must provide documentation of financial support, both from a US sponsor and him or herself. Thus, bank statements and income tax returns may be requested and should be submitted with all other documentation to show that the intending parolee will not become a public charge or tempted to work in the United States. If for example, an individual is coming to seek medical services or treatment at local US hospitals, clinics or research facilities, s/he must provide documentation as to how payment for those services will be satisfied.

If the individual who is applying for a parole has previous immigration violations, then a waiver application may be requested with filing fee. A waiver is a request to excuse a visa violation and may require the applicant to produce information about immediate US citizen or permanent resident relatives who would experience extreme hardship if s/he were not permitted to enter the United States.

Please visit her website at: www.nadinebrownpa.com

HIV and Medical Waivers in the US immigration context

Nadine A. Brown — Sat, 01 Mar 2008 17:00:00 UT

The US immigration process requires that every applicant for Lawful Permanent Residency complete a medical examination. This medical examination consists of a set of routine vaccinations for diseases such as mumps, measles, rubella, polio, tetanus, diphtheria, influenza, hepatitis B, and any other vaccine for preventable diseases of public health significance. In addition, the medical examination consists of a physical and tests for the human immunodeficiency virus or (HIV) and Tuberculosis or (TB).

Anyone who does not have the required vaccinations or is positive for a communicable disease such as TB or HIV or who has a physical or mental disorder or exhibits behavior associated with a physical or mental disorder including but not limited to drug addiction, schizophrenia, bipolar or manic disorders who may pose a threat to the property, safety, welfare of the individual or another person is inadmissible to the United States according to the Immigration and Nationality Act (INA) Section 212(a). There are some exceptions, however. Children under the age of ten (10) who are adopted by US citizens are exempt from vaccination requirements; however, the adoptive parent must provide an affidavit stating that the child will have the vaccinations completed within 30 days of arrival to the United States.

For those applicants who are HIV+, the United States Citizenship & Immigration Services (US CIS) will also allow a waiver of the rules. This waiver, however, has specific conditions that must be met in order for the adjustment of status application to go forward. The waiver application is to be submitted simultaneously with the application for adjustment of status or when US CIS requests it. The HIV+ individual must provide documentation that s/he is aware that they have the disease and know the modes of transmission. They must provide an affidavit and documentation to show they are currently or will (if outside the United States at a consular post) receive treatment for the disease or will be under a doctor’s care and will not willingly or knowingly transmit the disease. Also, s/he must explain how s/he will pay for the treatment of the disease or what payment arrangement has been made with a clinic or facility if the clinic or facility agrees to provide treatment free of cost to the individual. The last hurdle requires the applicant for adjustment of status to provide documentation as to what hardships the sponsoring US citizen spouse, child, or parent would suffer if s/he were denied adjustment of status or admission to the United States. This requires the sponsor to prepare as much evidence as possible to demonstrate how integral or essential the intending immigrant is to that sponsor or family member’s life.

The US CIS has a duty when reviewing the waiver application to submit the information to the US Center for Disease Control (CDC) and have a CDC official sign off on the application before they can approve the application for adjustment of status. Once all information about the HIV+ individual is placed in the CDC database and provided there are no other obstacles to the adjustment process, the HIV+ applicant can receive Lawful Permanent Resident Status and a Green Card.

Another process that allows a waiver based on medical condition or disability is the process of naturalization. Individuals who may have a medical condition or disability that prevents them from being able to take and pass the civics and US political history test and/or the

English literacy test may obtain US citizenship status as long as they comprehend the oath of allegiance. These individuals, who may not be literate in English, or who will fail the civics or history portion of the naturalization test may obtain a medical waiver. The naturalization waiver requires the applicant to provide documentation prepared by an attending medical doctor (MD) or doctor of osteopathy (OD), psychologist, therapist, or other licensed medical professional explaining the disability, impairment, or medical condition in plain English terms. The licensed medical professional must also explain HOW that medical condition, disability, or impairment affects or prohibits the applicant from taking the civic or history test, or attaining literacy in English. If the medical professional uses language that is not easily understood by a layperson or Immigration Officer, the medical waiver will be denied and the underlying naturalization petition also denied.

The medical or disability waiver must be submitted simultaneously with the initial filing of the petition for naturalization. The applicant cannot subsequently submit the waiver once at the naturalization interview. If a naturalization application is denied because the applicant fails the written or oral civics and history test or is not literate in English and did not file a waiver with his or her initial application, then the applicant will have to re-apply and submit the waiver application with the new filing. Mature individuals, who may suffer from any number of medical conditions including stroke or dementia, must emphasize to their doctors that the explanation or connection between the disability, medical condition, or impairment, AND the inability to successfully pass the oral or written test or attain literacy because of memory loss, for example, must be clear. The licensed medical professional must specifically explain what caused the memory loss and by what process or methods the memory loss impedes retention of information and thus limits the applicant’s ability to successfully become literate in English or successfully take a written or oral civic and history test.

The English literacy requirement is customarily waived for mature individuals if they are fifty (50) years of age or older and have been a Lawful Permanent Resident for at least twenty (20) years or if they are above the age of fifty-five (55) and have lived in the United States as a Lawful Permanent Resident for at least fifteen (15) years. The individuals that fall into this category can take the written or oral examination in their language of origin. Exemptions from the civics or history test in addition to the English literacy test also occur for those individuals age sixty-five (65) and older who have lived in the United States as permanent residents for at least 20 years and who may not have a disability, impairment or medical condition impeding success during the naturalization process. Thus, although there are restrictions on who may become a Lawful Permanent Resident or naturalized citizen, the US CIS will entertain the submission of certain waivers to make accessible the path to legalization and citizenship.

Please visit her website at: www.nadinebrownpa.com

Visiting The USA

Nadine A. Brown — Fri, 28 Dec 2007 17:00:00 UT

Getting to the United States may involve more than just buying a plane ticket with an itinerary bound for a US destination. The United States requires that most individuals from around the world apply for and obtain a visa at a US Embassy in their home country prior to entry. If an individual comes to the United States without the required travel documentation, then s/he may be immediately placed in secondary inspection where s/he will be interrogated for anywhere from one to several hours. The US Immigration and Customs Enforcement (US ICE) Officer is there to determine the purpose of travel and, in some instances, whether the entrant has a credible fear of returning to his or her country of departure/origin.

The type of individual that comes without a valid travel visa or entry permit is designated an “arriving alien” and will be placed in removal (deportation) proceedings upon entry. Some of these arriving aliens may be removed immediately, meaning turned around at the airport, depending on the discretion of the officer. Most, however, will be given due process and allowed to see an Immigration Judge to explain their case in full detail. The most frequent types of entrants that see Immigration Judges are those who an ICE officer has determined may have a legitimate fear of returning to his or her country of origin. That is, the entrant may request asylum: political, religious, gender based, or racial and ethnically based asylum. To apply for asylum, an applicant must demonstrate that s/he has been harmed in his or her country of origin by individuals who the government cannot control or are members of the government. The purpose of motive of the harm must be because of the individual’s race or ethnicity, religion, national origin, gender, or membership in a narrow social group. The purpose or motive must be clear and is the most important part of the asylum case. Once a credible fear has been determined, then the individual will be referred to an Immigration Judge who will hear the case in its entirety upon submission of a written application for asylum detailing events in a coherent chronology of events. For those individuals not asking or qualifying for asylum, the individual will be placed in removal proceedings and may have other options available, or if no relief is available, then s/he may at the point of entry (in the sea/airport) withdraw the admission and return immediately to the country of origin, which means to leave the same day s/he arrived.

Most individuals, however, will have a valid travel document or visa. A visa is obtained by making a written application, usually by submitting Form DS 156, Application for Non-Immigrant Visa, at the local US Embassy in the country of origin. The most commonly requested visa is the B-1/B-2 Tourist Visa. This visa will allow the recipient to travel to the US for up to six (6) months at a time, if the stated purpose of travel is for pleasure, or up to one (1) month at a time, if the stated purpose of travel is for business. Obtaining this visa may be easy for some and difficult for others. Usually, the consular officer will try to determine whether the applicant will likely abuse the visa and overstay or if the individual will return to his or her country of origin in a timely manner. The consular officer may determine these outcomes by using his discretion and by requesting information from the applicant such as documentation that they are returning to a home or house they own, a job, or to reunite with other close family members. Thus, it is important for the applicant to understand that s/he must convince the officer that they will most likely return to the country or origin and also that s/he will not work while in the United States. The consular officer may request documentation about the applicant’s finances, such as a bank statement or tax returns to determine the self sufficiency of the applicant. A formal letter of invitation from a family member, friend, or sponsoring organization may sometimes help with getting a tourist visa. This process not only includes a letter, but also financial documentation to show that the host will provide room and board or financial support for the payment of medical bills if the need arises while the visa applicant is traveling in the US.

It should be noted that there are some countries that do not require a visa at all. These are called visa waiver countries. They include most of the European Community countries and a few others. These individuals need to only have a valid EC or EU passport and can travel up to three (3) months at a time when entering the US. The disadvantage of being a visa waiver entrant, however, is that the entrant cannot change or extend his or her status, whereas with the B-1/B-2 Tourist Visa you can extend and change status. The visa waiver entrant forfeits due process protections, so that if they overstay they will most likely be returned to their country of origin without an opportunity to see an Immigration Judge. The only exceptions to a visa waiver entrant overstay is if the entrant is the spouse, parent or minor child of a US citizen. These immediate relatives may be eligible to change status provided that the US citizen submits the appropriate paperwork to legalize the entrant’s status as soon as possible.

All other types of non-immigrant visas are determined by the purpose of the trip to the U.S. and are obtained the same way that the Tourist visa is obtained. All other conditions must be met in addition to satisfying the discretion of the consular officer who has power to deny or grant the visa. Consular post concerns are not only for security, but that the applicant will use the visa in the manner for which it was intended, so that abuse will not occur.

Attorney Nadine A. Brown practices Immigration Law in the Greater Orlando, Florida area. She has practiced Immigration Law for approximately 8 years, 3 of which was as the supervising attorney for the Catholic Charities Immigration & Refugee Services and the last 4 in private practice. Her firm was established in 2002 and her cases involve issues relating to asylum, citizenship, consular affairs, deportation, residency petitions, student and business visas, and visa extensions or changes of
status. She handles all cases personally. Questions can be sent to counselorbrown@embarqmail.com

Please visit her website at: www.nadinebrownpa.com

Green Card Renewal - Removing the Conditions on Residency

Nadine A. Brown — Thu, 29 Nov 2007 17:00:00 UT

If you have an old edition Green Card that was issued prior to 1989 and has no expiration date, US CIS encourages you to renew your card as soon as possible. Although it is not currently mandatory, US CIS will soon make it so. The renewal of the Green Card serves the purpose of updating your biometric information with US CIS. Biometrics are your unique identifying information such as fingerprints and electronic photograph. The renewal process also allows you to update any biographic information such as name or address changes. In order to renew your old edition card, you can submit an application on-line at www.uscis.gov or mail a paper application with filing fee of $370 to US CIS. If you have ever been arrested or had criminal convictions since your card was initially issued, it is critical that you consult a competent Immigration Attorney as criminal background checks are routinely conducted and will affect the issuance of a new card.

For many people who have conditional resident status or CR6 status, the process of renewing the Green Card is different than mentioned above. Conditional Resident status is the status given to individuals who obtained their Green Cards through a marriage petition; and the marriage was less than two (2) years old at the time of the initial adjustment of status interview. The purpose of giving conditional resident status is to make sure that the marriage is bona fide and not solely for the purpose of getting a Green Card. Roughly two (2) years after the initial adjustment of status interview, the couple is required to submit a petition to remove the conditions of residency. This must be done at least three (3) months prior to the expiration of the Conditional Green Card. The petition for the removal of conditions is not the same Form I-90 that is required for the replacement or renewal of a Green Card as mentioned above. The form required for the removal of conditions is form I-751 and the filing fee currently is $545. This form requires that applicants file and sign jointly with their sponsoring US citizen spouse. The applicants must produce additional documentation to show they continue to live together from the time of their last interview until the time of their submission, usually that two year period of marriage.

Most often applicants for the removal of conditions will be interviewed a second time because of US CIS policy and experience with marriage fraud. The application for the removal of conditions may be pending for several years, but the applicant can usually apply for naturalization while the I-751 application is pending. This may accelerate the processing time of the filing of Form I-751 as most applicants are eligible to naturalize within three (3) years of becoming a conditional resident. It should be noted; however, that an interview for both the naturalization and removal of conditions may be consolidated. These joint interviews can be rigorous and intense.

If the parties are separated or no longer living together, this poses quite a problem. If the applicant can obtain a final order of dissolution of marriage, then s/he can still submit an application to remove the conditions on residency; however, s/he must do this as a “waiver” application. These applicants must prove the same thing as joint filers, that is, that they entered their marriage in good faith and lived with that spouse for a reasonable period of time before separation or divorce. Also, if the reason for separation is psychological or physical nature, then the applicant can still remove the conditions on residency to obtain a ten (10) year Green Card or “Permanent” Residency status. The standards of proof for psychological abuse (i.e. extreme cruelty) and/or physical abuse are extremely high and demanding. Well proven cases will generally be approved, but will still require a rigorous and intense interview.

If conditional status has been formally terminated by US CIS, it is difficult to re-open a case and the only recourse for the applicant may be in front of a judge in Immigration Court. Also, if during the years the joint application for removal of conditions is pending the couple separates and divorces, then the immigrant can re-submit a waiver application, but must do so quickly. Thus, it is important to maintain lawful status in the US and renew or replace Green Cards sooner rather than later. For old edition card holders, the time to renew is now. For conditional residents or two (2) year Green Card holders, it is 90 days before the card expires or anytime prior to termination of status if a waiver is required.

Please visit her website at: www.nadinebrownpa.com

Visa Lottery and Immigration News

Nadine A. Brown — Mon, 29 Oct 2007 17:00:00 UT

One way in which SOME people can obtain a Green Card without any form of sponsorship is to participate in the Visa Lottery which is held each year. Between October 3 and December 3, 2007 the US CIS and the US State Department have in effect the 2009 Diversity Visa (DV) Lottery program. This is a lottery where applications from all over the world are received so that the applicants can be considered for a Green Card. Not everyone in the world is eligible. Only those from traditionally low visa requesting countries may apply. Not every who applies is selected and not everyone who is selected obtains a Green Card. The Visa Lottery has strict exclusions for some countries and specific requirements that must be fulfilled by the recipients.

Countries with traditionally high volumes of visa applicants are NOT eligible to apply. Thus, high volume visa applicants from the countries listed in this paragraph are NOT permitted to apply. Everyone else in the world not mentioned can apply. So, people from the near Caribbean such as Dominican Republic, Haiti and Jamaica are NOT eligible to apply. People from the following South and Central American Countries are also NOT eligible to apply: Peru, Brazil, Colombia, Ecuador, El Salvador, Guatemala and Mexico. In addition, some nationals from Asia such as those from the Philippines, South Korea, and Vietnam are not permitted to apply either. Also people from the United Kingdom are NOT permitted to apply, but people from Northern Ireland ARE permitted to apply. Also, if you are from one of the excluded countries mentioned above, but you are the lawful spouse of someone who is eligible to apply, you can claim the nationality of the eligible spouse so long as, if selected, both of you apply for the Green Card at the same time and enter the US simultaneously.

So, if you happen to be from a country that is permitted to apply for the Visa Lottery, what should you do? You apply on line at www.dvlottery.state.gov . The application does NOT require any fee. It only requires that the applicant complete all the biographical information such as name, dates of birth, country of origin/birth (or nationality), address, etc. Also, the applicant must provide or upload an electronic/digital photograph to include with the application. The digital photograph requirements are very strict. The photograph must have been taken within the last six (6) months and must be similar to a passport photograph, customarily 2 inches high by 2 inches wide of the head and shoulders, no jewelry, and straight faced. Also, each applicant can include the names of immediate family members which are limited to a spouse and all biological or legally adopted children under the age of 21.

The DV lottery program only allows one submission per person, but a husband and wife can each submit a separate application and include the other as an immediate family member. Of the millions of applications submitted each year, only approximately 55,000 are selected each year. Of the 55,000, approximately 5000 are allocated to other visa programs and the remaining 50,000 are notified that they were selected or are visa lottery winners. Once selected, the applicant has a specific and limited time in which to submit a properly completed visa application or, if in the United States, an adjustment of status application. If the applicant is in the United States, s/he is only eligible to adjust status if there has been NO lapse in status. That is, when applying for the Green Card, s/he must be in a valid immigration status, usually with an unexpired I-94 arrival record. If the immigration status has expired, then even if selected for the DV lottery, the application will be denied!

Other requirements for the Green Card application are standard regardless if it is for the lottery or through any other means. A DV Lottery recipient must not have a serious criminal background otherwise s/he will be disqualified from the application process. Simple fraud crimes such as shoplifting to big things such as drug possession can disqualify an applicant. Also, unlike the regular Green Card requirements, the DV Lottery applicant must have completed high school and must produce a high school diploma or equivalent when submitting his or her visa or adjustment of status application. Improperly completing the lottery application, omitting requested information, or not uploading a photograph, will also result in the applicant’s disqualification.

Once selected if the applicant has no stumbling blocks in the application process, s/he can obtain an Immigrant visa if outside the US or can adjust status if physically in the US. The applicant’s family can join and simultaneously enter the US; however, if the applicant is in the US, s/he can then file a petition to have his or her family join him in the US once he has been approved for the Green Card. This process may take a year or more if family members are overseas while the principal applicant is in the US.

Immigration Information/Updates:

There are delays at most immigration service centers in issuing official receipt notices. So be patient
Also, US CIS will be implementing a new naturalization test in 2008 toward the end of the year.
The DREAM ACT was killed in the congress yesterday October 24, 2007. There were not enough votes to pass the legislation that would have allowed Immigrant children who graduated from US high schools to obtain residency if they went to college for two years or joined the US military.
People with old edition Green Cards (no expiration date) are encouraged to replace their cards to update their information with the US CIS. Mandatory replacement is not yet required but will be soon. The filing fee for renewal or replacement cards is $370. Also those eligible for naturalization should consider applying for naturalization.

Please visit her website at: www.nadinebrownpa.com

Investor and Short Term Work Visas

Nadine A. Brown — Sun, 30 Sep 2007 17:00:00 UT

Living and working in the United States is not just for professional workers with advanced degrees or those at the opposite extreme with no skills seeking seasonal or temporary employment. Others may choose to enter to conduct short term business, or to become self employed by owning their own business. In this way, the self employed individual can obtain a visa that allows him or her to work in the United States so long as their business enterprise is thriving.

If an individual is coming to the United States to conduct short term business matters, s/he can use a B-1 visa to enter and successful fulfill their goals upon entry. This visa, which is usually not understood by many, but which gives the least amount of time in the US, is part and parcel of the B-1/B-2 visa so many travelers obtain. This visa is obtained at the US Embassy in the foreign country and allows an individual to enter and work or conduct business for up to 30 days per entry. It is a status granted at the point of entry when declaring one’s purpose for entry. That is, the traveler is usually given an option to explain that they are traveling either for business or pleasure when entering the Immigration and Customs declaration area at the port of entry. When an entrant states that the trip is “for business” and the B-1/B-2 visa is affixed to the passport, the Immigration Officer will stamp B-1 entry on the I-94 arrival record and grant 30 days permission to remain in the US to conduct whatever business the entrant is here to conduct. This visa entry is customarily used for trainings, seminars, conferences, and sometimes to work as a domestic servant for a US citizen.

Others who are more enterprising and have larger plans for longer periods of stay may obtain an E investor visa. There are two (2) kinds of E visas: a) one called an E-1 visa for those who will engage in substantial international trade, or more simply create an import export business; and b) another called an E-2 visa for those who will engage a substantial amount of capital in an active business enterprise. Individuals applying for these types of visas must be a national of a country that has a bilateral treaty with the US or other international trade arrangement with the US, such as NAFTA. These visas usually last for up to 2 years but are extendable in one year increments so long as the business enterprise is functioning. A business cannot be passive. The investor in the substantial trade must have at least 50% volume with the United States and the case of a joint venture, 50% of the stock must be owned by a national of a treaty country. In the case of capital investment, as is the E-2 visa, the investor must have personal assets or funds at risk of loss. Also, the investment must be proportional to the cost of purchasing or creating the enterprise and the investor must present a plan to be self sustaining beyond just generating income to support the investor and his/her family. The investor must manage and direct the business enterprise and have a controlling interest in the business. Any foreign employees of the investment enterprise also seeking to enter the US to work must be executives, supervisors, or essential employees with special knowledge about the business. The spouse of an E visa holder can obtain an employment authorization document or work permit independent of the principal E applicant and their children can attend school without a change of status. Children, of course, must be under age 21.

While B-1 or E visas cannot lead to permanent residency, only one type of investor visa can, that visa is the alien entrepreneur visa. The alien entrepreneur visa is for investors who have capital of at least one million dollars (US$1,000,000) to invest and who employ at least 10 US citizen workers or legally authorized US workers. The business enterprise must be a new creation and the capital must not be derived from loans. The investment must be at risk and the investor must show the source of funds. Joint or multiple investor partnerships require that each investor meet the US$1million investment and 10 US employee requirements. Once the entrepreneur has the business enterprise, s/he can apply for conditional resident status under the fifth preference employment based visa category (EB-5). Upon completion of two years as a conditional resident, then s/he can apply to remove the conditions on residency by provide updated information about the investment enterprise.

Please visit her website at: www.nadinebrownpa.com

The US Deportation Process - Removal Proceedings

Nadine A. Brown — Tue, 21 Aug 2007 17:00:00 UT

If an Immigration violator is apprehended by the US Border Patrol or Immigration and Customs Enforcement Officer, then he or she is placed in removal or deportation proceedings. In addition, many are placed in removal proceedings because of a failed Immigration application. These individuals are issued Notices to Appear in Immigration Court by the US CIS adjudications officer. Thus, many people end up in removal proceedings because of some of the following actions beginning with the most common: illegal entry by land, sea or airport; improper application for extension of non-immigrant visa status; ineligibility for work authorization; ineligibility for permanent residency status; expired conditional resident status, expired permanent resident card, ineligibility for naturalization, omissions or fraud on applications especially naturalization petitions, routine arrests, and criminal convictions.

Therefore, almost anyone, except a US citizen of more than 2 years, including those applying for entry, submitting applications for Immigration benefits, and those who already have permanent residency status can be placed in removal proceedings and deported. Just having a Green Card does not protect the individual from deportation or removal proceedings. Also, those who have had a naturalization certificate for less than two (2) years can have that naturalization revoked and an order of deportation entered against them if that certificate was issued because of fraud. Others who have engaged in serious security breaches to the level of treason or engaged in terrorist activities against the United States may be denaturalized.

Many people believe that if they have the misfortune to be placed in proceedings, then all you have to do is present a case for hardship to an Immigration Judge and there is a good chance s/he will stop the deportation. Not so. Each Immigration Judge is bound by the Immigration & Nationality Act to only grant the relief available to each applicant. Most undocumented people who have no immediate US citizen relatives, who have crossed the border illegally, or who have overstayed their visa may have no relief available. They may or may not be eligible for what is called “voluntary departure”. Voluntary Departure is what the applicant agrees to do, voluntarily depart the United States at his or her own expense. Voluntary Departure applies only to individuals who have no criminal conviction and who have been in the United States for at least one year and has the present ability and resources to leave the United States. The Immigration Judge may grant the individual 30 to 120 days to depart the United States. Extensions beyond this time are rare and if the individual agrees to voluntary depart but fails to do so, then the Immigration Judge’s order converts into an order of removal, in which case, a warrant for arrest will be issued. Most individuals once they are back in their country of origin can register with the US Embassy there and if under bond can recuperate that bond upon registry.

Others who have immediate relatives who are US citizens may qualify for other relief such as Adjustment of Status or Cancellation of Removal. Some may qualify for asylum. In order to qualify for asylum, the individual can be a new arrival, or demonstrate that s/he has been persecuted in their country of origin because of their race, religion, nationality, political opinion or membership in a particular social group. If an applicant for asylum has been in the United States physically longer than one year, it is increasingly difficult but not impossible for a judge to grant asylum. Individuals who have changed country or personal circumstances may still qualify for asylum if they meet the higher burden of proof.

In order to qualify for Adjustment of Status, which is essentially an application for permanent resident status, an individual must already be the beneficiary of an approved I-130 alien relative petition and a visa must be available to him or her. They must otherwise qualify for adjustment of status meeting the good moral character conditions, meaning that they have no significant criminal convictions that could bar them from getting a Green Card. A person who is already a permanent resident can also re-adjust his or her status if they have been a Lawful Permanent Resident for at least 5 years and resided in the US continuously for at least 7 years.

Someone who is not already a Permanent Resident can also apply for Cancellation of Removal. This relief is ONLY available if the individual is already in removal proceedings and has been issued a notice to appear in front of an Immigration Judge. Cancellation of Removal requires that the applicant complete and document ten (10) years of physical presence in the United States. Remaining 10 years in the US is not the only condition that must be met, however. If the person has serious criminal convictions, s/he is not eligible for Cancellation of Removal. Most importantly the applicant for Cancellation of Removal must demonstrate that s/he has immediate US citizen relatives that would suffer extreme hardship if s/he were deported. The proof of hardship should be extensive and beyond what anyone would suffer if a loved one was deported. The hardship must be extreme and exceptional. Proof is reviewed on a case by case basis although there are standards for what is considered extreme and exceptional to the immediate US citizen relative. For individuals with more complicated immigration matters such as very serious criminal convictions other types of relief may be available. In these cases a skilled immigration attorney and sometimes seasoned criminal attorney may play a role. In still other more complicated cases federal appeals may be necessary.

One more thing, some people believe that if you get married to a US citizen while in removal proceedings this will stop the deportation. This is not always true. A higher burden is placed on people who marry while in removal proceedings. It is presumed that the marriage is fraudulent and the applicant for relief must prove that the marriage is bona fide. In addition, the marriage petition that is filed may take many months if not a year+ to get approved before the individual is eligible for adjustment of status to permanent residency. In some jurisdictions, the individual waiting on the marriage petition may be ordered removed or granted voluntary departure before they are eligible to adjust status, thus, separating the parties anyway.

If anyone finds themselves in removal proceedings, then it is critical that s/he finds an immigration attorney that can give wise counsel explaining his or her options for relief and the likelihood of that relief being granted.

Please visit her website at: www.nadinebrownpa.com

H Work Visas

Nadine A. Brown — Fri, 27 Jul 2007 17:00:00 UT

While many come to the United States to be reunified with family, many more come simply to work. Those coming simply to work just want a social security card or work permit. Only those people who are already in the process of applying for Lawful Permanent Residency Status or asylum are eligible for an employment authorization document (EAD) or “work permit” as it is commonly referred to. The employment authorization document is valid in one year increments and allows the holder to work for any employer. For those still wanting to work but have no access to an EAD, there is the most commonly sought work visa, the H1B1 non-immigrant visa. The H1B1 affords the holder the opportunity to remain the United States for up to six (6) years. At the end of the six years the visa holder must leave the United States for a period of at least one year before returning to complete another H1B1 for up to six more years. There are a limited number of these visas available and they are subdivided into categories based on education level. Because the number of visas is limited, once the visas are exhausted, the applicants must wait for the next year fiscal cycle before submitting an application for this type of visa.

Unlike the EAD which allows the holder to work for any employer of his or her choosing, the H1B1 worker must work for the specific employer that sponsored him or her. The H1B1 worker is a contract employee. Contracts can be for up to 3 years initially and then the employer can request renewal for up to an additional three (3) years if desired. Employers are required to provide for return transportation for the employee back to his or her country of origin once the contract period ends. Immediate family members can accompany the H1B1 worker, but these dependents are not permitted to work. Thus, the H1B1 worker will be the sole supporter of the family unless the other spouse can obtain his or her separate H1B1. The dependent children (under 21) can attend school while the H1B1 worker is working for the employer.

If the employment relationship terminates before the contract period is up, then the visa also expires as the visa is based solely on the employment relationship. An H1B1 can change employers but must re-apply or begin the application process over from the beginning with the new employer and can only remain in the United States for as long as they are able to in the six year window unless s/he returns to his or her country of origin for at least one year before returning. The one year absence from the United States renews the six year cycle. An individual can have more than one H1B1 at the same time, but must complete separate applications for both employers. If an individual is physically in the United States on a different visa and changes to an H1B1 visa while in the United States and leaves the country, then the individual must re-apply by re-submitting all application materials for the H1B1 to the US Embassy abroad before re-entering the US after the trip abroad.

In order to qualify for an H1B1 visa, an individual must have at least a bachelor’s degree or its equivalent or higher. Thus, this is a visa for professionals. Documentation such as diplomas, certificates, or transcripts for completion of degree programs is required to show achievements in the educational discipline. At times, a credential evaluation is necessary if foreign course work is not easily understood or transferable. A certified evaluation service or credentialing agency is able to provide such translation and evaluation of foreign diplomas and transcripts. In addition to the transcripts or diplomas, letters of reference should be provided as well as a thorough curriculum vitae or resume.

The employer must demonstrate that the prospective employee is necessary, an essential worker, or would be indispensable to the company. The employer must provide documentation to explain the business purpose or mission of the company and function of the employee, his/her duties or job description. Generally, the employer must post notices that it is seeking an H1B1 foreign worker and it should not have more H1B1 workers than US authorized workers in its employ. The wages or salary and/or benefits package of the prospective worker must be comparable to what an authorized US worker would receive. Appropriate wages are determined by a prevailing wage occupational or industry database. The employer must demonstrate its ability to compensate the employee by providing some documentation about the company financial profile to demonstrate that the employee would not likely take additional unauthorized employment.

The filing fees can be substantial depending on company size and are usually a disincentive for pursuing this type of visa. Only truly serious employers are willing to the make the investment as considerable costs and turnover rates affect a company’s willingness to pursue this option. Once the visa is granted an H1B1 worker can work for the duration of the contract period. Thus, many individuals who want to obtain a work visa may not be eligible because of education level or employer willingness. Further, in order to obtain an H1B1, the worker must currently be in lawful status in another visa category if intending to apply for an H1B1.

Unskilled workers do have an option, however, and can obtain a work visa as well. This type of visa is in the H2 category and is reserved for temporary or seasonal workers in both agriculture (H2A) and non-agricultural sectors (H2B). The H2 visas are extremely limited as the law authorizing these visa permits less than 10,000 visas nationwide per fiscal cycle. Employers hiring these types of individuals are required to provide roughly the same documentation regarding “necessity” as are H1B1 employers of professionals, but the employers are required to show that the need is “temporary”: one time or seasonal based on industry demands. These visas tend to last up to one year and extensions are given rarely, and only in well documented extraordinary circumstances.

Thus, obtaining permission to work in the United States is not an easy feat. Unless an individual is already pursuing adjustment of status through family or the asylum process, s/he will not likely obtain an employment authorization document allowing him or her to get a social security card to work for any employer. Work visas are extremely competitive and require both the employer and the prospective employee to invest time and money into the process. Fortunately for some, educational training and skills, and the profession into which they fall afford them opportunities they would not otherwise have.

Please visit her website at: www.nadinebrownpa.com

Immigration Fees Due To Increase

Nadine A. Brown — Wed, 27 Jun 2007 17:00:00 UT

Applicants for various Immigration benefits should be aware that on and after July 30, 2007 new Immigration application fees and procedures for payment will apply. Immigration Fees are not refundable.

Generally a fee must be included with an application if a fee is required. Forms with the improper fee will be rejected by US CIS. The payment must be in US dollars and should be in the form of a US money order. You may pay with a personal check; however, this will delay the processing of your application as it is subject to collection. If your check is returned for insufficient funds, your application will be rejected. All payments should be made payable to the “US Department of Homeland Security”. US CIS will no longer accept abbreviations such as “US DHS/US CIS”. You must write out the name of the agency completely. However, if you live in Guam, make the payment payable to “Treasurer, Guam”. Or if you live in the US Virgin Islands, make money order payable to “Commissioner of Finance of the Virgin Islands.”

A major change with US CIS is for Green Card applicants. Beginning July 30, 2007 only one fee will apply for Adjustment of Status (Form I-485) and employment authorization document (EAD) and Advance Parole. Applicants will still have to complete a form I-765 for an EAD and form I-131 for advance parole, but will only pay the filing fee for form I-485 application to adjust status. If, however, you applied for adjustment of status before July 30, 2007 and need to renew your employment authorization, or advance parole, you must pay the new fees for each application. Another major change has to do with the renewal process for expiring or expired cards. If applying for a renewal of a Green Card, Employment Authorization Document or Advance Parole travel document, the applicant must submit the expiring or expired card/document with the petition and the filing fee. If a concern is a lost or missing card, make sure to send petitions for renewal by US mail certified return receipt, registered or express delivery.

Those who are not able to afford the new substantially high fees can still request “fee waivers”. In order to obtain a fee waiver, an applicant must demonstrate his or her need by providing documentation of income and an affidavit of necessity, including copies of household bills. Before your Immigration application can be reviewed and a decision made in your case, your fee waiver application must be approved. A fee waiver does delay the processing time for the application, but is helpful for truly indigent persons. Fee waivers can be applied to many applications but not all. Some of the more relevant forms for which a fee waiver may apply are:

I-90 renewal of Green Card

I-751 Removal of Conditional Residency Status

I-765 application for employment authorization document

N-400 application for naturalization

N-565 application for duplicate naturalization certificate

N-600 application for certificate of citizenship (derivate & acquisition)

I-485 application for Lawful Permanent Residency IF based on ASYLUM, T visa or U visa

I-360 Application for Special Immigrant (battered spouse or child).

A complete list of Immigration fees can be found at www.uscis.gov. Some of the new fees for the most frequently used forms effective July 30, 2007 are below (the asterisk * and numbers in parenthesis denotes current fee):

I-90 Application to Renew or Replace Permanent Resident Card (incl. biometrics) (*$260) $370

I-129F Petition for Fiancée (*$170) $455

I-129F For K-3/K-4 status for spouse or child of a US citizen sponsor (*$170) No fee

I-130 Alien Relative Petition (*$190) $355

I-131 Travel Document (Advance Parole) (*$170) $205

I-140 Petition for Immigrant Worker (*$195) $475

I-360 Petition for Special Immigrant (*$190) $375

* Battered Spouse and Special Immigrant Juveniles No fee

I-485 Application to Adjust Status to Lawful Permanent Residency (*$395) $930

I-539 Application to Extend or Change Non-Immigrant Status (*$200) $300

I-601 Waiver for Grounds of Inadmissibility (*$265) $545

I-751 Remove Conditions on Residency (biometric incl.) (*$205) $545

I-765 Application for Employment Authorization Document (*$180) $340

N-400 Application for Naturalization (*$400) $675

N-600 Application for Certificate of Citizenship (derivation & Acquisition) (*$255) $460

Applicants should pay fees in separate money orders for each petition/form requiring a fee. As most fees will increase significantly, it is prudent to submit petitions as far in advance of the deadline as possible to allow for mail delays. Procrastination will cost you.

The Immigration Reform Bill of May 2007

Nadine A. Brown — Thu, 31 May 2007 17:00:00 UT

There is always much excitement in the national news media, among Immigrant advocacy groups, and the general public when there is an announcement of a new Immigration “bill” created or “compromise” met by the U.S. Congress. While there is always reason to be excited for the 12 million or more Illegal immigrants in the United States who may have a chance of legalizing their status, it is critical for this population and for the public to understand what a “bill” is and how it may affect the people residing within these borders. A basic civics lesson is necessary.

A bill is not the law. A bill is merely a proposal or a draft. All laws start out as “bills” or “proposals” submitted in a small congressional committee by one or more members of Congress. There may be bills proposed in either house of Congress: the House or the Senate. The bill undergoes a process of review and revision to satisfy a majority of the members of the Congress. The end result “law” is often very different from the bill as it was initially proposed because of the revisions that are made over time. The revision process involves negotiations between members of Congress. Each side tries to advocate their position, but more often appease the other, or compromise their position to get an agreement. The bill does not become a law until it has been signed by the President of the United States after BOTH houses of Congress have reviewed, made changes and have voted on the bill. Only a majority vote in Congress moves the bill to the President’s office for his signature.

What does this mean? Any “bill” such as the Immigration Reform Bill publicized on May 17, 2007, in February 2007, or on any other date, will merely be a “draft”, “proposal” or “recommendation” on which both houses of Congress and the President MUST agree. Furthermore, the implementation process sometimes takes several years as government bureaucracy requires the formulation of a plan of action to carry out the provisions of the law. In the case of Immigration, the enforcement provisions require several departments or agencies to provide the man power to construct physical borders such as fences, in addition to, hiring and training the actual border patrol agents manning the fences at the border. For the Immigration benefits section (i.e. issuance of visas or Green Cards), the process involves creation of forms, determining the proper fee, how and where to send the forms and, the hiring and training of personnel to review and adjudicate the millions of applications that will be submitted. But before any new cases would be adjudicated, a reduction of the current caseload which is backlogged for years must occur. Thus, “reform” is a process that involves many components and can take several years to complete.

What does mean for the recent “immigration reform bill” announced on or about Thursday, May 17, 2007? It means that a group of Congressmen in the United States senate proposed a method of reform that must now go the floor of both houses of Congress for revision and a vote before it is submitted to the President who must also agree by signing. Until these events occur, it is a mere proposal or draft. Thus, while there is a buzz about the Immigration “reform”, there is no reason yet for unbridled excitement.

The current Immigration Reform Bill incorporates several past proposals known as the STRIVE and DREAM ACT. It shifts the focus of Immigration from one of family ties to an employment and US economic needs based system. Essentially, the current bill proposes to eliminate certain family based immigration provisions to allow skilled or professional workers the opportunity to legalize status. The proposal is to totally eliminate the sponsorship categories of adult children over the age of 21 for both US citizens and Lawful Permanent Residents (LPR), in addition to eliminate the category for brothers and sisters of US citizens. There would also be a limit to the number of parents of US citizens that could immigrate to the United States. So, in order to create a space for those 12 million + illegal immigrants, it appears that the elimination of certain immigrant visa categories would be necessary.

The option for the vast majority of illegals would be vested in a one visa category that requires them to have a certain education level, profession, or skills of benefit to the US economy. The Z visa, which is a work visa valid in four (4) year increments, would allow the holders to apply for a Green Card after waiting up to 13 years and paying a fine of about $5000. The other visa categories created in the current proposal seem to create a guest worker provision that either eliminates the current H2A agricultural worker visa and H2B unskilled laborer visa and/or amends by expanding the number of visas issued from 5,000 to about 400,000. This new visa category is the Y visa and is subdivided in Y2A for Agriculture and Y2B for unskilled laborers. The Y visa would be valid in two year increments for up to six years total. The disadvantage would be that the Y visa holders could not easily apply for Lawful Permanent Residency Status and a majority would have to leave the US after completing their six year term unless they qualified for legalization under another visa category. Also, employers would have a strict reporting requirement for Y and Z workers while still further provisions of the proposal increase the penalties generally for Immigration and document fraud.

Therefore, it is good that the need for Immigration reform has sparked much debate in the public as well as within Congress because the system as is is flawed. What that reform looks like is more a product of political forces and economic factors converging rather than public outcries. It is difficult to please all sides of the debate, however, public opinion does matter and is sometimes the catalyst for the development of proposals, it drives negotiations, facilitates compromise and ultimately brings resolution. Thus, those who can vote, should, and can make their opinions known prior to elections and during the Congressional revision process by contacting their local US congressional representative by letter, fax or phone.

US Citizenship - Naturalization

Nadine A. Brown — Sun, 29 Apr 2007 17:00:00 UT

If an individual is not born within the geographic territory of the 50 states of United States of America, or any of its territories such as Guam, Puerto Rico, the Northern Mariana Islands, American Samoa or the U.S. Virgin Islands, then s/he must go through the process of naturalization unless they meet one of few exceptions. Naturalization results in tremendous benefits for the individual. A US citizen can travel freely in and out of the United States without restrictions. S/he can sponsor immediate relatives, especially spouses more quickly, vote in local and national elections, become a candidate for elected office, receive full social security benefits while outside the United States, derive citizenship for minor children, receive more public benefits for which they are eligible, qualify for certain government jobs, and receive protection from deportation.

The path to naturalization can be a straight one although several potholes and obstacles exist for some applicants. Most individuals who have attained Lawful Permanent Residency (LPR) status through family or employer sponsorship are eligible for naturalization after a period of five (5) continuous years of such residency. Some may even be eligible after only three (3) years of continuous residency. The process of naturalization requires an oral and sometimes written examination administered by an Immigration Officer. It ends with an oath ceremony and the issuance of a Certificate of Naturalization. The oath requires allegiance to the United States.

The process of naturalization requires that the Lawful Permanent Resident (LPR) have continuous physical presence in the United States. A frequent traveler for instance may encounter hurdles to naturalization. The US CIS will not only deny an application for naturalization based on lack of continuous physical presence in the United States, but it may also initiate deportation proceedings or request that the applicant give back their “Green Card” and sign a notice of abandonment of domicile if it is discovered that the LPR has remained outside the United States for more than six months per year and has assumed residence/domicile in a foreign country. The only exceptions are for clergy (i.e. missionaries), active US military, and workers of US companies abroad. Those who fall into the exception MUST submit a request to preserve residency for citizenship PRIOR to departure in order to avoid the problem of a naturalization denial or deportation.

It is critical that a Lawful Permanent Resident demonstrate that s/he has been domiciled in the United States. In addition, to disclosing on the application the location of residences within the United States within the last five years, s/he must provide a list of absences from the United States and at times provide the interviewing officer a copy of his or her passport for inspection. The examining officer will count the number of days the applicant has been absent and determine whether the amount is within the permissible number of days one can travel outside the United States and still retain residency and qualify for naturalization. Generally, an applicant must have been physically within the United States one-half of the last five years prior to submission of the application. The time need not be consecutively, but can be sporadic departures.

A principal requirement of naturalization is that the applicant be able to read, write and speak English. If the applicant cannot because s/he never learned to read or write even in their native language, then the applicant is disqualified. However, if an individual has been in the United States as a Lawful Permanent Resident for at least 15 years, and has achieved the age of 55, then s/he can take the citizenship test in his or her native language. Also, if a medical condition exists that prevents the applicant from reading, writing or speaking English, then a medical waiver exists that would allow the applicant to still attain naturalization.

Some of the more common obstacles to naturalization deal with the good moral character of the applicant. Obviously, individuals who have been arrested or convicted of a crime within the five years prior to application or have ever had a criminal legal problem will have a problem with their application, but this problem could not only result in a denial, it could result in deportation depending on the nature of the arrest or conviction. Other non-obvious issues relating to good moral character can involve non-payment of taxes (federal or state), non-payment of child support, visa or other immigration fraud, failure to register for Selective Service if required to do so, voting in an election or falsely claiming to be a US citizen, engaging in bigamy, and having affiliations or providing financial support of certain designated organizations, just to name a few.

It is critical that the applicant determine prior to filing the application whether they would trigger further US CIS inquiry or investigation because of potential problems. For instance, many men between the ages of 18 and 26 are required to register with the US government Selective Service agency. Failure to register can result in a denial of naturalization. Information on what Selective Service is, its requirements or to get proof of registration can be found at www.sss.gov or by calling (847) 688 – 6888. Also, many men who father children out of wedlock and fail to pay child support may be denied naturalization unless they comply with court ordered child support or for those who do not have a court order, have documentation proving they have paid and are currently paying child support for their children under the age of 18.

Provided that there are no obstacles to overcome in the application process, an applicant can achieve naturalization in a relatively short period of time depending on the processing time of the location where the applicant is interviewed. As mentioned before, while some applicants have to wait five years before they can apply, some other individuals such as spouses of US citizens, active military, and battered spouses and children of US citizens need only wait three (3) years. Those filing based on marriage to US citizens must demonstrate that they are still presently married to the US citizen AND living with the US citizen spouse when are interviewed. Thus, they will be asked to provide good faith marriage documents such as jointly filed tax returns, bank accounts, and routine household bills.

Most children need not go through the naturalization process if they were born abroad to US citizen parents, but the parents must have registered the child with a US Embassy shortly after birth. A child automatically becomes a citizen if one or both parents naturalize when the child is under 18 and the child is a Lawful Permanent Resident. Then this child can get proof of status by applying for a US passport or Certificate of Citizenship, which is different from a Certificate of Naturalization. Also, there are special circumstances if a child is born overseas, but the citizen parent is living with them overseas and never registered them at a US Embassy. This child must first become a Lawful Permanent Resident through sponsorship and may be able to attain citizenship through acquisition (without naturalizing) if s/he can prove that the US parent lived in the United States for a minimum of five years before the child’s birth two of which was after age 14.

Attaining citizenship in the United States can be easy or hard depending on your particular circumstance. Before applying make sure that you are eligible and have no issues that could result in deportation. The application is extensive and the filing fees are high and are due to increase even further later this year; therefore, a consultation and advice from an experienced Immigration Attorney is recommended although some individuals may feel competent and comfortable filing on their own.

Attorney Nadine A. Brown practices Immigration Law in the Greater Orlando, Florida area. She has practiced Immigration Law for approximately 8 years, 3 of which was as the supervising attorney for the Catholic Charities Immigration & Refugee Services and the last 4 of which were in private practice. Her firm was established in 2002 and her cases involve issues relating to asylum, citizenship, consular affairs, deportation, residency petitions, student and business visas, and visa extensions or changes of
status. She handles all cases personally. Questions can be sent to counselorbrown@embarqmail.com

Please visit her website at: www.nadinebrownpa.com

Immigration Violations And Waivers

Nadine A. Brown — Wed, 28 Mar 2007 17:00:00 UT

There are many reasons immigrants get caught up in the Immigration drag net, have their Immigration applications denied, their Green Cards revoked or are deported from the United States. The obvious are those who have been convicted of criminal activity in the United States, those who enter the country illegally or those who overstay their visa.

The “illegals” are those individuals who cross a land border without a visa or border crossing card and are not inspected by an Immigration or Customs Officer at entry. Contrary to what the news media may indicate illegals are matched by countless other people who come to the United States each year with a visa issued by an American Embassy in their country of origin. Each legal entrant is given an entry permit called an I-94 arrival/departure record. This piece of paper is stamped by an Immigration Officer and indicates that the entrant has been inspected by an Immigration and/or Customs Officer, and states for how long the individual may remain in the United States. Once the I-94 card expires and the individual remains in the United States, s/he is considered a visa overstay. The companion visa in the passport is no longer valid and re-entry to the United States may be difficult if not impossible.

Most visa overstays or illegal entrants are seldom detected by Immigration authorities until they submit an application to Immigration or are apprehended by local police authorities for criminal violations or traffic infractions. A lot of “illegals” however are caught and detained at entry by border patrol agents. These individuals are immediately placed in removal proceedings pending Immigration court hearings, while others are turned back by border patrol agents immediately upon attempt at entry. The actions of the border patrol agent are also considered deportation and named “expedited removal” and have the same effect as an Order by an Immigration Judge. Those who are placed in proceedings may be released on bond or detained in an Immigration detention facility pending further hearing.

There is a number of other Immigration violations besides entry without a visa or visa overstay. Those with visas who entered and failed to do what they said they would while here, but whose I-94 cards have not expired are also visa violators. For instance, those who obtain student visas but fail to attend classes or drop out prematurely could be deported. Or those who obtain a trader or investor visa to open a business but do not, but continue to remain in the US run the risk of being deported. Likewise, those who have employment visas who fail to work for the sponsoring company or are terminated early but fail to depart the U.S. are considered violators as well.

Many violators do not have a method by which they can legalize their status, however; there are always exceptions. Many violators can legalize because of spouses, parents or adult children who are US citizens. So although visa overstays are customarily prevented from changing or legalizing their status once the I-94 card has expired, a few can become Lawful Permanent Residents if they have the qualifying family connection. But they too like all other applicants for a Green Card must make sure they do not violate the host of other immigration regulations. Few “illegals” can legalize through family. They can legalize, however, if and only if they qualify based on family petitions previously filed during the Immigration and Nationality Act section 245(i) filing period which expired on April 30, 2001.

A big obstacle to changing or legalizing status for every Green Card applicant is working without authorization. If an individual who is a non-citizen, non-resident has worked without applying and receiving an employment authorization document (EAD) s/he may be disqualified from changing their status. Generally, if a B-2 tourist/visitor is working without authorization and attempts to extend his or her status in this category, s/he may be denied because working under this category is inconsistent with the intent to maintain status as a temporary visitor for pleasure. In order to extend status, a B-2 tourist/visitor must demonstrate how s/he will support him/herself without working while “vacationing” in the United States. Obviously, income cannot be derived from unauthorized work in the United States. There are some exceptions to this rule as well.

Another common group of Immigration violators are those who engage in fraud to obtain an immigration benefit. This fraud may be either in the way of false documentation or verbal misrepresentations. These are the individuals who enter the country with photo-switched passports, have visas issued after presenting false information on a visa application, or assume a legitimate visa holder identity or claim to be US citizens upon entering the United States.

Other Immigration violations involve Green Card holders. Those individuals are not protected from deportation either. These individuals include those who fail to remove the conditions on residency if they have an expired two year Green Card, those who engage in smuggling other illegals across the border, and even those convicted of domestic violence crimes, including stalking, child abuse or violations of protection orders. Further, individuals who falsely claim to be US citizens not just upon entry or vote in elections thinking they can are also deportable. Nowadays, voter registration occurs when applying for a driver’s license. Although an individual may be given an application to register to vote or told to submit one; unless s/he is a US citizen, s/he is not eligible and should not ever register to vote or vote in a US election. It should also be noted that while using a false or fake Social Security card in and of itself is not an immigration violation, circumstances surrounding unauthorized employment which may be the result of false claims of US citizenship could result in denials of a Green Card application and subsequent deportation. Those who participate in sham marriages and for whom there is a finding of marriage fraud by US CIS, may be deported also. In addition, those who become public charges within five years of entry to the United States, submit frivolous asylum applications, or even have failed to change their address by completing Form AR-11 (now available online) can be deported.

Although many people may be implicated or fall into one or more of the categories mentioned above, not all will end up in deportation proceedings and not all will be precluded from obtaining legal status. For most violations, there are “waivers” or pardons available. The completion and submission of a companion form: Form I-601 Waiver and filing fee may be requested and in most cases is required. The Waiver requires a qualifying US citizen or Permanent Resident Immediate relative. Most waiver cases are based on demonstrated hardship to the US citizen or Permanent Resident relative. It should be noted that refugees and battered spouses are not exempt from requests for waivers for their immigration violations. Only for three major violations are there permanent bars and no waivers available. Outside the criminal context, no waivers are available for those who have a final finding of marriage fraud, claims under oath to be US citizens/have voted in an election, and those who submit frivolous asylum applications. For others who may be deported and who did not have the opportunity for a waiver or any relief in Immigration court, deportation may carry up to a ten (10) year bar before an application for re-admission may be submitted. In still other cases, it may be up to twenty (20) years depending on the violation. These also have exceptions, thus each case must be analyzed by a highly qualified Immigration legal practitioner.

Attorney Nadine A. Brown practices Immigration Law in the Greater Orlando, Florida area. She has practiced Immigration Law for approximately 8 years, 3 of which was as the supervising attorney for the Catholic Charities Immigration & Refugee Services and the last 4 of which were in private practice. Her firm was established in 2002 and her cases involve issues relating to asylum, citizenship, consular affairs, deportation, residency petitions, student and business visas, and visa extensions or changes of
status. She handles all cases personally. Questions can be sent to counselorbrown@embarqmail.com

Please visit her website at: www.nadinebrownpa.com

Immigration: Impact of Criminal Convictions in the Immigration Process

Nadine A. Brown — Thu, 22 Feb 2007 17:00:00 UT

Moral character is a serious issue in the process for a Green Card. This means that if an applicant for the Green Card has a criminal conviction, however minor, s/he may be denied a Green Card and in some instances the United States Department of Homeland Security, particularly US Immigration and Customs Enforcement (ICE) will actively seek to deport those individuals by initiating “removal” proceedings. Although mere arrests may not lead to deportation, they may raise questions as to the character of the applicant seeking a Green Card. Likewise, an individual may not even have been arrested, but issues relating to visa fraud may affect the application for Permanent Residency status triggering suspicions as to the applicant’s fitness of character. Thus, where discretion is widely used in granting Immigration benefits such as the Green Card, applicants must be careful how they disclose and address issues relating to their moral character.

Moral character is defined by the Immigration & Nationality Act in various sections. While it seems clear that if a person has been arrested or even convicted of a crime, s/he should seek legal advice from a criminal defense attorney, but if that individual is an immigrant, then s/he MUST also seek professional representation or advice from a competent Immigration attorney. Failure to disclose events that US CIS may discover will result in two problems: the fraud or misrepresentation of omitting relevant information regarding the applicant’s character and once that event is discovered, the immigration consequences of the underlying event.

Determining what to disclose and how is necessary BEFORE submitting an application for Permanent Residency status or going to the Green Card interview also known as the “adjustment of status” interview. Even if the applicant has NEVER been arrested for a crime, merely admitting to something under oath in front of an Immigration Officer MAY affect the decision in that case. For those individuals who do not have an issue of an undisclosed crime, but who have a conviction as a matter of court record, these individuals may be eligible for a hardship waiver based on the impact deportation would have on a qualifying US citizen immediate relative or Lawful Permanent Resident relative. In most cases, an applicant for the Green Card may overcome the burden of proving good moral character if a waiver application is submitted, however, there are those who may encounter more complicated problems. Waiver applications are submitted in conjunction with the application for Permanent Residency or are requested by the Immigration Officer at the interview.

Waivers would apply most frequently to those applicants who have convictions for petty or “petit” offenses which are deemed “misdemeanors” in the state criminal court context. These are for crimes that resulted in imprisonment of less than 6 months or less than one year. An analysis of the factors surrounding the conviction and the sentencing is necessary to determine which crimes in which contexts could allow an Immigration waiver. It should be noted that some petit crimes depending on surrounding circumstances may be deemed “aggravated felonies” for immigration purposes. One such example is battery. Depending on the context of the battery, it may be re-characterized as an aggravated offense because of the degree of violence. A battery that occurs in a domestic violence context or a battery with a weapon may take the crime out from a “petit” offense level elevating it to a crime for which the perpetrator may be deported.

Usually if the sentence for the crime was imprisonment for more than one year, then the applicant may have a serious burden to overcome as these crimes may not only be considered felonies in the state criminal court context, but may also fall into the Immigration and Nationality Act “aggravated felony” definition. An “aggravated felony” for Immigration purposes under the current Immigration Laws renders the applicant for a Green Card permanently barred from certain relief and may result in deportation for life. This also applies to someone who is already a Lawful Permanent Resident. Thus, those individuals who already have a Green Card are not immune from deportation or having immigration problems. While I state that an “aggravated felony” will most likely result in permanent deportation, other types of convictions could also result in the initiation of removal proceedings. There are always exceptions to the information stated above so each case should be examined carefully to determine how it will be affected in the Immigration context.

If an individual is already a Lawful Permanent Resident, how does s/he trigger removal proceedings? This occurs, generally, when a Lawful Permanent Resident leaves the country on vacation and is returning to the US, or when the applicant applies for naturalization. As fingerprinting and Federal Bureau of Investigation back ground checks are routine before an applicant is approved for an Immigration benefit, US CIS will discover the criminal record. Also, as airport security becomes increasingly meticulous, US Immigration Border Patrol and Customs Inspectors have databases available to them that notifies them of a traveler’s criminal history.

What can an applicant or Lawful Permanent Resident do if they have a conviction be it a misdemeanor or felony? Sometimes, the conviction can be re-opened in the state criminal court context and the decision overturned. This often occurs if during the plea stage, the defendant was not advised of the immigration consequences of entering a guilty or no contest plea. Also, if there were other errors in procedure that rise to the level of a constitutional violation, the conviction may be overturned and the reason for deportation could be eliminated. It should be noted, however, that re-opening a criminal court case could result in re-trial for the initial charges. Retaining the services of a good criminal defense attorney will be effective. Not everyone will be able to afford a good criminal defense attorney, or have the time to re-open a criminal case if they are already in the midst of removal proceedings. There may be other alternatives available to defeating deportation. The date of the conviction and laws in effect at the time of conviction may be helpful in defeating the deportation proceeding. Generally, however, merely expunging or sealing a record at the state court level will not hide or remove the conviction from the Federal Bureau of Investigation record or immigration database.

Therefore, while some individuals may be eligible for waiver applications which allow them to still obtain a Green Card despite blemishes in their character or criminal record, others may have more arduous hurdles to overcome. An individual who is an immigrant with a criminal conviction, be it a petty offense or felony, must seek immigration advice before submitting an application or leaving the country.

Attorney Nadine A. Brown practices Immigration Law in the Greater Orlando, Florida area. She has practiced Immigration Law for approximately 8 years, 3 of which was as the supervising attorney for the Catholic Charities Immigration & Refugee Services and the last 4 of which were in private practice. Her firm was established in 2002 and her cases involve issues relating to asylum, citizenship, consular affairs, deportation, residency petitions, student and business visas, and visa extensions or changes of
status. She handles all cases personally. Questions can be sent to counselorbrown@embarqmail.com

Please visit her website at: www.nadinebrownpa.com

Immigration: International Adoptions

Nadine A. Brown — Mon, 29 Jan 2007 17:00:00 UT

For childless couples being able to adopt a child is a great option to the physical barrier of not being able to have children biologically. While there are children in foster care here in the United States, the appeal to adopt a foreign child may be overwhelming because of humanitarian reasons or to encourage connections of heritage. For others the reasons may be to support family or to take care of one’s own. Nevertheless the immigration process to get a child to the United States can be daunting. Obviously, there are concerns that children are not abducted or sold to childless American couples, and for that reason the Immigration process enforces policies and places conditions on the process to ensure the integrity of international adoptions.

The childless couple that wants to adopt a foreign child may find the process a bit easier than a person trying to assist extended family through adoption. An orphan is a child that either has no living parents or whose biological parents, one or both, have abandoned the child. The child must be processed for adoption overseas in his or her country of origin prior to attaining the age of sixteen (16). The adoptive parents must file the appropriate immigration forms (I-600 or I-600A) requesting that the child be designated an orphan. A study of the prospective home must be completed and an investigation into the adoptive parent’s criminal background must be done to determine that the child will receive proper care and supervision while in the United States. Additionally, US CIS may investigate to determine that the proper channels in the foreign country were used in obtaining the adoption order for the orphan. It should be noted that the process of orphan adoption is reserved for US citizens and primarily for couples, although single individuals above age twenty-five (25) can adopt as well provided that they pass scrutiny in the home study and criminal investigative stage of the process.

Identifying a child for adoption may be facilitated by using a reputable international adoption agency or traveling to the country and searching on one’s own. Once the child’s immigration petitions are approved, then the child will become a U.S. citizen upon lawful entry to the United States.

If the situation is different and the child that is being adopted is a part of the adoptive parent(s)’ extended family: a cousin, grandchild, niece, nephew, or younger brother or sister for example, the standards are different. Or, if the couple or individual wishing to adopt is only a Lawful Permanent Resident, then the adoptive parent(s) must overcome a variety of obstacles before obtaining Immigration status for the child. The child must be under sixteen (16) years of age prior to the adoption. The adoption must be legal by the laws of the country in which the adoption took place. A court order is required and the whereabouts of the biological parents may be investigated by the US Immigration service. At times, proof of voluntary consent of a surviving biological parent is required. Sometimes a notarized affidavit is not sufficient unless it states that the biological parent knows that s/he is severing all legal rights to this child. Once the child is adopted all legal rights for the biological parent(s) end, so that the adopted child who then becomes a Lawful Permanent U.S. Resident cannot ever sponsor his or her biological parents or biological siblings for a Green Card if any exist. The Immigration system, however, will allow a family to adopt two children who are siblings and one child can be over 16 years old but below 18 years of age.

The child must at some point be in the care and physical custody of the adoptive parent(s) for at least a two (2) year period prior to petitioning the child for Lawful Permanent Residency status. This means that the child cannot still be living with the biological parent(s) while the adoptive parent(s) sends money “back home” to care for the child or pay the child’s school fees for example. Receipts for money wires and transfers are insufficient to show care and custody. The Immigration service wants to see proof that the child lived with or is currently living with the adoptive sponsoring parent for a two year period prior to or after adoption but before the immigration papers are filed. The adoptive parent can do this by showing the child’s school records and/or medical records that state the legal guardian or parent, in addition to any other proof. If the adoptive parent is only a Lawful Permanent Resident of the United States prolonged absences of six months or more while s/he is living with the child overseas could cause serious problems for that person’s Immigration status. Thus, the requirement of having the child in one’s physical custody for at least two years creates a problem for the adoptive parent. Getting the child to the U.S. also becomes problematic if it is difficult to obtain a visa for the child at the US Embassy because the relationship to the US resident would cause the consular officer to deny the visa. However there are creative ways in which physical custody can be achieved legally. There are also ways in which a child who is a relative can achieve status through other means without adoption.

Thus, foreign adoptions require that certain conditions be met both for orphans and for extended family adoptions. Both cases involve a high degree of scrutiny from Immigration as to the authenticity of the adoption and, sometimes, as to the whereabouts of the biological parents to ensure no instances of baby selling or kidnapping occur. Also, each process requires submission of forms and fees and in the case of non-US citizen adoptions, supporting documents to show the two year residency requirement.

Attorney Nadine A. Brown practices Immigration Law in the Greater Orlando, Florida area. She has practiced Immigration Law for approximately 8 years, 3 of which was as the supervising attorney for the Catholic Charities Immigration & Refugee Services and the last 4 of which were in private practice. Her firm was established in 2002 and her cases involve issues relating to asylum, citizenship, consular affairs, deportation, residency petitions, student and business visas, and visa extensions or changes of
status. She handles all cases personally. Questions can be sent to counselorbrown@embarqmail.com

Please visit her website at: www.nadinebrownpa.com

Immigration: Work Authorization

Nadine A. Brown — Mon, 27 Nov 2006 17:00:00 UT

Many people come to the United States for the specific purpose of working. Most come to work for a short time and return home, while others feel this is a place where they can gain economic freedom through long term employment allowing them to legalize their status permanently or just as a means to send money back to their country and family. In order to legally work in the United States, eligibility is determined by citizenship status or authorization from a government agency such as the Department of Homeland Security. For non-citizens/non legal permanent residents you must have an employment based visa or an employment authorization document (i.e. work permit) in order to work in the United States. Anyone authorized to work will also be eligible to apply and receive a Social Security number/card that qualifies him or her and his or her dependents for certain public benefits in the case of disability or retirement.

Obtaining work authorization is complicated. Unfortunately, not everyone who applies for work authorization is eligible. Customarily visitors to the United States are prohibited from working unless upon entry they declare their intent is to conduct business while in the United States for a short period of time. An Immigration Inspector at the port of entry, usually an airport, will place a red or pink stamp on a small white card known as the I-94 entry permit. The stamp will indicate the date of entry and the class of admission. For visitors the class of entry is either B-1 or B-2. B-2 means visitor for pleasure, which will afford the traveler up to 6 months of authorized stay as a vacationer, while the B-1 stamp is a visitor for short term business, which affords the traveler up to 30 days to conduct business. Obviously, for the individual wishing to work for a short period of time thirty (30) days may not be enough to even find a job and get settled. This B-1 does not allow a social security card. It is good for accompanying nannies and domestics.

Thus, it is more feasible that those travelers coming to the United States hoping to work for longer periods can try to change their status and apply for an employment authorization document or work visa. A work visa differs from an employment authorization document in that the work visa limits the choice of employer and requires the employee to possess a degree of skill or level education. The most commonly approved type of visa is the professional work visa, which requires at least a university education or Bachelor’s degree. The visa can last up to 6 years and is only valid provided that the employer continues to employ the employee. If the employee is terminated or if the employee quits, the employee loses his or her authorization to work.

Other types of professional work visa apply to inter-company transferees for bi-national or multinational corporations or individuals in the arts and athletics. There is also the TN visa for Canadian citizens who are professional workers. These individuals do not need an extensive application, but must apply at the border when crossing provided they are degreed professionals with a letter of prospective employment. They can work for up to one year and such work authorization is renewable indefinitely in one year increments.

While most of the professional work visas require sponsorship by a specific employer, there are a few that may permit self sponsorship depending on the field of endeavor. Those include individuals in the arts, some sciences, and athletics. These require detailed itineraries for venue appearances and performances in the case of professional athletes, fashion models, musicians and performing artists. Other self sponsored individuals can include those in the sciences, business or education who are not only extraordinary but outstanding in their field such as professors, researchers, and distinguished business people.

Of the class of unskilled workers, it should be noted that there are very few visas of this kind issued per year. Regardless of when the visas are exhausted applications may be rejected or denied based on numerical limitations. The unskilled workers are usually seasonal, part time or work in the United States for up to one year as needed by the employer. They are, like most employment based visas, employer specific, which means that the worker can only work for the sponsoring employer and no one else. Once the visa is expired, then the worker must return home or is considered illegal in the United States. For the skilled laborer as well as the professional worker, the sponsor for unskilled labor must demonstrate a specific need for the worker, that there is no US worker available, and must pay the worker a wage that is comparable to what an American worker would receive. The majority of these types of workers are used in the agriculture and hospitality industries. For all types of work visas, the application process is tedious and expensive, so much so that the parties may spend several thousand dollars in application fees alone in addition to hefty lawyer fees.

For those who want more flexibility, the employment authorization document provides the freedom to work with any employer, but like all things in Immigration, there are limitations to this benefit. An employment authorization document (EAD) is limited to a one year validity period and is renewal in one year increments. In order to qualify for an employment authorization document, it is necessary to have some other underlying petition pending or status with the United States Citizenship and Immigration Service (US CIS). For instance, a student may obtain an employment authorization document if s/he is at the end of their program and applies to complete an externship through the optional training program known as “OPT”. Or, a student can obtain an EAD if during the course of their study they fall into financial hardship criteria and qualify for financial aid, in which on campus or study related work is authorized. A spouse of an investor/trader can also apply for employment authorization. And still others who may qualify for EAD’s include individuals who are here in Temporary Protected Status, asylum applicants who have applications pending for at least 150 days, and applicants for legal permanent residency status through a family or employer sponsor.

Therefore, the employment authorization document is a secondary benefit. Each applicant must declare the qualifying criteria that make him or her eligible to work in the United States; otherwise the US CIS will request proof of eligibility resulting in the delay of issuance of the card. Refusal to respond appropriately to the request for proof may ultimately result in a denial of the application resulting in the loss of the fee paid and may result in the initiation of deportation proceedings against the applicant. Also, all applicants for an employment authorization document must be fingerprinted and a biometric photo identifier taken. Even if an applicant is eligible for the card, but if s/he fails to attend the fingerprint or biometric appointment, s/he will not be approved or receive the card.

Usually the process to obtain an EAD can take up to 90 days while an employment based visa application can take from two (2) weeks, if the applicant pays additionally for the expedited process, up to one (1) year. While the application is pending, the applicant should not be working, although there is one minor exception, those who are immediate relatives of US citizens are excepted. Also, if anyone works in the United States without authorization and who is not the immediate relative of a United States citizen the penalty can be denial of a current, renewal or future visa, initiation of deportation proceedings, or denial of a Green Card.

Attorney Nadine A. Brown practices Immigration Law in the Greater Orlando, Florida area. She has practiced Immigration Law for approximately 8 years, 3 of which was as the supervising attorney for the Catholic Charities Immigration & Refugee Services and the last 4 of which were in private practice. Her firm was established in 2002 and her cases involve issues relating to asylum, citizenship, consular affairs, deportation, residency petitions, student and business visas, and visa extensions or changes of
status. She handles all cases personally. Questions can be sent to counselorbrown@embarqmail.com

Please visit her website at: www.nadinebrownpa.com