Category Archives: Immigration Law

Crimes and inadmissability

August 3, 2017

Dena Wurman, MPA, JD

Recently, a number of returning green card holders detained at the border have been reminded of a past marijuana offense.  Immigration authorities are not concerned with the various and different marijuana laws of the 50 states.  A marijuana conviction is a federal matter in the immigration context.  A marijuana conviction is crime of moral turpitude (CMT).

The immigration consequences of criminal acts depend on a number of factors. These include a person’s immigration status, a prior criminal record and the specific contents of the court record of conviction.

Two ways one may be detained at the border are expedited removal or detention. At the airport or border this is called a expedited removal.  During expedited removal, a person’s fingerprints will be taken, notice will be given, and the person will sign something.  Detention is usually more than 24 hours.

If detained, there may be a hearing for bond in some cases.  If bond is approved, one may be released until trial. Then, whether one might have a good chance to convince a judge of their eligibility to remain in the U.S. depends on circumstances such as family ties or length of residence in the United States.

With regard to a marijuana conviction, the petty offense exception to inadmissibility applies if a person is convicted only one time and the conviction does not occur within five years of legal entry into the US and the maximum possible sentence is less than one year.  There are three hurdles one needs to overcome.  It’s not just the amount of marijuana.

What is a conviction?  In some states (Texas) a deferred adjudication under article 42.12, § 5 of the Texas Code of Criminal Procedure is a conviction for immigration purposes.  Matter of Punu, 22 I. & N. Dec. 224 (BIA 1998)

If the government shows, by a preponderance of the evidence, that a noncitizen has committed a second CMT, s/he will no longer be eligible for the petty offense exception to inadmissibility.

If your client is facing conviction of only one crime involving moral turpitude and the crime was not committed within five years after his or her admission, s/he would not become deportable under this ground of deportation, but consider whether s/he would become deportable under another ground of deportation, e.g., deportability for conviction of an aggravated felony or of a crime of domestic violence.

 

 

A newer I-9

This firm continues to monitoring the status of executive actions and will publish updates  on federal immigration issues.

On July 17, 2017 the United States Citizenship and Immigration Services (USCIS) released an updated I-9 form.  Employers will need to adapt to the change and use the new form by no later than September 18, 2017 or face the possibility of large fines.

Just last year, Immigration and Customs Enforcement (ICE) announced increases in fines for Form I-9 violations to account for inflation. Increases are retroactive to cover any violations that took place after November 2, 2015.

These increases are for:

  1. Simple Form I-9 violations: The minimum fine has increased from $110 to $216 per Form I-9 violation, while the maximum fine increases from $1,100 to $2,156 per Form I-9 violation. Fines for second and third offenses have also increased to a similar degree.
  2. Unlawful Employment of Unauthorized Workers: For the first offense, the minimum fine has increased from $375 to $539, while the maximum fine increased from $3,200 to $4,313 per worker (fines for second and third offenses also increased).
  3. Unfair Immigration-Related Employment Practices: The minimum penalty has increased from $375 to $445, while the maximum penalty increased from $3,200 to $3,563 per charge. Repeat offenders now face a new maximum penalty of $21,563.

On September 18, 2017, all employers will be required to use the revised form, so it makes sense to avoid any delay and begin use of the new version immediately.

 

Seeking Admission

Permanent residents who have criminal records should exercise caution.

Think before making any trip abroad, seeking new immigration benefits, or applying for citizenship. You may be denied admission if these “inadmissibility” grounds apply if you:

(1) have abandoned or relinquished your permanent resident status,
(2) have been absent from the United States for a continuous period in excess of 180 days,
(3) have engaged in illegal activity after their departure from the U.S.,
(4) have departed from the U.S. while in removal or extradition proceedings,
(5) have committed a criminal or related offense (including “crimes of moral turpitude”, drug trafficking, or prostitution),
or
(6) are attempting to enter at a place other than a designated port of entry or have not been admitted to the U.S. after inspection and authorization by an immigration officer.

Some relatively minor crimes may be grounds for inadmissibility. These might not come to the attention of immigration authorities until you return to the U.S. after traveling abroad. At that time you may be denied entry.

Many of the grounds of inadmissibility can be waived in individual cases. For example, INA § 212(d)(3) allows the Secretary for Homeland Security to waive any of the grounds, except for a few security-related provisions, for nonimmigrants applying for a visa or seeking admission. Waivers for permanent residents are more limited.

H-4 Visa Holders May Lose Work Permit

There are indications that the Trump administration is preparing to issue regulations rescinding the ability of H-4 spouses to get work permits.  H-4 visas are given to the spouses of H-1B visa holders, highly-skilled foreign workers, the majority of whom are from India.

Until 2015, H-4 visa holders – who often had skill levels comparable to their spouses – were not allowed to work. In 2015, U.S. Citizenship and Immigration Services announced that some H-4 visa holders would be able to work if their spouses were on track for permanent residency in the U.S.

The primary visa holder had to be a beneficiary of an approved Form I-140, Immigrant Petition for Alien Worker, or a nonimmigrant seeking lawful permanent residence to work and remain in the United States beyond the six-year limit on their H-1B status.

If the application was approved, the eligible spouse would receive a Form I-766, Employment Authorization Document (EAD), allowing them to work during the period of its validity.  The EAD validity period generally will match the H-4 spouse’s authorized period of admission, up to three years.

The 90-day period for adjudicating these I-765 applications, however, does not begin until the companion extension application is approved.

Travel Ban Highlights

Since January 2017, three executive orders referring to immigrants have been issued by the president.  All are controversial.  In addition to funding a wall between the US and Mexico and re-prioritizing deportations, there is a proposed travel ban.

Of the three orders, the travel ban was re-written and issued again.

What is the travel ban?  The purpose of the ban is to freeze travel from primarily Muslim countries.  In early February a Washington court stopped (enjoined) the ban.

The president then drafted a new order rather than appeal this old one.

After releasing this new presidential order, a federal court in Hawaii came out with a nationwide injunction striking down all of the travel ban.

As of March 16, 2017, there is  no suspension to travel to the U.S.

Deportation Facts

The Executive Office for Immigration Review (EOIR) operates immigration courts all over the U.S. If you are a non-citizen, or an attorney with a non-citizen client, this article will cover a few key terms so that you may respond appropriately after receiving a notice from the government.

The government needs a warrant signed by a court (not an administrative agency) to search your property.  You do not have to say anything to an immigration enforcement officer. Immigration is a civil matter.

A Notice to Appear (NTA) is issued to bring you or your client before an immigration judge. Service by mail is sufficient if there is proof the government attempted to deliver the NTA to the last address provided. After receiving the NTA it is important to meet with an attorney and discuss the factual allegations presented in it. It is possible that the government may have alleged facts that are not accurate.

Most scheduled hearings are what the court calls “master calendar hearings.” A master calendar hearing is an individual’s first appearance before an Immigration Judge. The purpose of the master calendar hearing is to advise individuals of their rights, explain the removal charges filed, take pleadings, identify and attempt to narrow the factual and legal issues, and set deadlines for filing any papers needed for subsequent hearings.

So that you may have the opportunity to secure counsel, the law requires 10 days to elapse between service of the NTA and the first removal hearing. Once the 10 days have elapsed, the government is free to pursue a removal hearing regardless of whether you have legal representation.

Courts have said that immigration law is second only to tax law in its complexity. Attorney Dena Wurman has represented clients in immigration hearings and removal proceedings for over a decade. If you received an NTA to appear, she is qualified and experienced to represent you, your client or your family member. For a confidential consultation call (505) 506-9434 or email dena@wurmanlegal.com

Working Visa Status

Many clients get tripped up at the border with the intent to stay permanently while entering the country on a temporary visa. Unfortunately, a customs enforcement agent is ready to catch you in this trap. So beware!

When applying for permanent residency in the U.S., which includes the authorization to work in a virtually unrestricted way, you must match your current visa intent with your future plans.

Your “intent” is a major factor the government looks at when approving your application to stay and work in the U.S.  If your intent doesn’t match, our application will be denied.

Most people who do not enter the U.S. on a visa waiver program, enter on a B-1 visa is a “visitor” visa.

Non-immigrant visas, such as a B visa, are for individuals with permanent residence outside the U.S. but who wish to be in the U.S. on a temporary basis – for tourism, medical treatment, business, temporary work or study.

The intent of a visitor – according to the government – is to return home.

On the other hand, and H visa is a “dual intent” visa there is much more time to apply for a green card.  Dual intent means you plan to visit and work and at the same time may stay for the longer term and apply for a green card.  Applying for an H1B and a green card at the same time is possible in this instance.  However, applying for a B visa and a green card at the same time is not.

 

Citizenship

When traveling back and forth to a foreign country exceeds half the year, this can add an element of uncertainty to a citizenship application. There is an important term the government uses to map a permanent resident’s time in the U.S. It is called ‘continuity.” Continuous U.S. residence can be broken by traveling and working in a foreign country.

There are two basic requirements for U.S. citizenship.  One is good moral character. The other is to live at least half of the year in the U.S.  You must be living in the U.S. most of the year to 1) keep your green card or 2) apply for citizenship.  There are few exceptions.

Generally, an applicant must wait three or five years as a green card holder before applying for citizenship. This time is counted very carefully on the N-400 citizenship application form.   After the required three or five years pass, a green card holder submits forms to the government along with supporting documents. These forms are then reviewed by a government official and approved by this official. There is also an exam and an English test.  The government has a lot of leeway in approving applications.  Even if your application is denied, you can take it to another government court to appeal a denial.

So let’s take an example of travel that will cause an official to deny an application for U.S. Citizenship.  Here is an actual case of a Chevron employee.

The details of the case were as follows. The applicant spent more than half the year working abroad for a gas company “subsidiary” of Chevron.  The reviewer was not persuaded that the subsidiary the applicant worked for was in fact a U.S. company. If the employee worked for a U.S. company, this would fall under an exception to the continuous residence requirement for citizenship.

In October 2010 this application for citizenship was denied by an immigration officer. On appeal, the court found the subsidiary company was in fact a U.S. company because company shares were traded on the U.S. stock exchange.

Here is an example of how a government immigration official opinion may be overruled on appeal. It also shows how there are exceptions to rules that may apply in individual cases, depending on the facts of the case.

Thankfully, our system has checks and balances to offer people who want to become citizens a second chance.

Facing Deportation?

The Executive Office for Immigration Review (EOIR) operates immigration courts all over the U.S. If you are a non-citizen, or an attorney with a non-citizen client, this article will cover a few key terms so that you may respond appropriately after receiving a notice from the government.

Notice to Appear

A Notice to Appear (NTA) is issued to bring you or your client before an immigration judge. Service by mail is sufficient if there is proof the government attempted to deliver the NTA to the last address provided. After receiving the NTA it is important to meet with an attorney and discuss the factual allegations presented in it. It is possible that the government may have alleged facts that was not accurate.

Master Calendar Hearings

Most scheduled hearings are what the court calls “master calendar hearings.” A master calendar hearing is an individual’s first appearance before an Immigration Judge. The purpose of the master calendar hearing is to advise individuals of their rights, explain the removal charges filed, take pleadings, identify and attempt to narrow the factual and legal issues, and set deadlines for filing any papers needed for subsequent hearings.

Removal Attorney

So that you may have the opportunity to secure counsel, the law requires 10 days to elapse between service of the NTA and the first removal hearing. Once the 10 days have elapsed, the government is free to pursue a removal hearing regardless of whether you have legal representation.

Attorney Dena Wurman has represented clients in master calendar hearings and removal proceedings for over a decade. If you received an NTA to appear, she is qualified and experienced to represent you or your family member. For a confidential consultation call (505) 506-9434 or email dena@wurmanlegal.com

Immigration Forms are Tricky

If a U.S. immigration form is in English it should be easy, right? After printing out immigration forms, many clients still have issues.

To include or not include.

It is not uncommon to skim through a form and fill in the blanks quickly.  For example, in one case the client’s father checked a box that he did not plan to have any of his children included in the application.

When it came time for the consular interview he told the interviewer he did want to include his daughter.  The interviewer asked, where was she…why wasn’t she in the interview?

Is a form appropriate under the circumstances?

For example, in one case a well-meaning mother filled out a number of B visa forms for her daughter so that she could visit her boyfriend.  When the visitor B visa expired, while in the US, the couple was told by the USCIS agent to simply cross the border and have her passport stamped .

She had spent most of the entire year in the US on a visitor visa, which is restricted to under six months.

It wasn’t until she attempted to entered the US again that the complete time period she spent here was evident.  She tried to re-enter,  was detained at the airport and returned to her country of origin.  She was very upset.  That is all part of her immigration record now.

Where do I file my forms.

Immigration application processing is redistributed frequently based on the number of people sending in forms.  Various service centers throughout the U.S. accept forms.  These locations change. The new mailing addresses are updated on the USCIS website.   When a form is “expedited” it’s mailed to a different address for premium processing, not the regular address.

Here are three more tips:

TIP 1:  Fees are usually required with a form. When the filing fees change, if the new fee is not mailed with the form, everything will be returned to the applicant.

TIP 2:  Immigration law changes every day. When submitting a form with a letter or a legal brief, understanding the twists and turns in the law and hitting all the required, legal elements is important.

TIP 3: A petition needs a “wow” factor. There is a short time to make a big impact. A government reviewer will set aside a confusing, large petition for a smaller well-crafted one.  If there isn’t a persuasive reason why the evidence is included and how it proves the case, it should be left out.

It is best to work with an experienced attorney.

Attorney Dena Wurman has helped clients navigate the complicated federal U.S. immigration system. Through her efforts, new immigrants are awarded visas, green cards and U.S. citizenship. For a consultation call (505) 506-9434,  email dena@wurmanlegal.com or fill out the contact form on this website.