Important changes to hardship waiver applications

The government announced probably the most important change in immigration procedures in the last 10 years: It has proposed that I-601 hardship waiver applications for unlawful presence can be processed while you are still in the United States. This changes the application process for all those who would need a hardship waiver and who live in the U.S.

You need a hardship waiver for unlawful presence in many cases, for example when you entered the United States without inspection and later married an U.S. citizen. If you stayed unlawfully for more than one year, you will not be able to process for legal papers unless you either spend 10 years outside of the U.S. or you claim extreme and unusual hardship to your American spouse.

Those waiver applications were processed only after an application was filed after personally appearing in a consulate, such as in Ciudad Juarez, Mexico. So you had to leave the U.S., triggering the 10 year re-entry bar. If the waiver application was denied, you would not be allowed to return to the U.S. for 10 years.

Now, under new proposal, a provisionary decision will be made upon your hardship waiver before you leave the U.S. and thus before you trigger the 10-year bar.

Hardship waiver applications are successful in about 50% of the cases, but much less when made without the help of a licensed attorney. If you consider such an application, give us a call!

Remember, the law has not been changed yet, but it is likely the new rule will become effective at the end of the year.

What to do when disaster strikes the homeland?

The majority of our clients and staff is from Mexico, so the news of the earthquake today has rattled us all. Thank God it seems that not much damage was done. We keep all friends and family of our clients and staff in our prayers.
 
The news of the earthquake also raised some important questions for immigrants:

What can we do for our families and friends? Can we go home to see if they are all right, can we help clear up the mess, and then return?

And what if our friends and family need to come to a safe place, what if they have lost th…eir homes and livelihoods, and what can we do to bring them to the United States?

And last, but not least: what if the U.S. government decided that I have to leave? Can I be deported to a country in distress?

Let’s tackle these questions one after the other:

If I have to leave the U.S. to help my friends or family back home to cope with the disaster, can I come back to the United States?

If you are an U.S. citizen, you can freely travel. But if you have a green card or a non-immgrant visa, or if you are undocumented, you have to keep some things in mind:

If you have a green card, you may travel and usually may return. But there are some possible problems:

If you have had certain criminal convictions that did not make you deportable, they still could have made you inadmissible. In that case you will not be allowed to return to the U.S., even if you have a green card.

If you have a green card, you also must keep in mind that you should not stay out of the U.S. for more than 6 months at one time. If you stay outside of the U.S. for more than one year at one time, your green card will no longer be valid to return. But even after 6 months, a border officer already could suspect that you have abandoned your residency in the U.S.

In some cases you can obtain a “re-entry permit” that allows you to return after a stay of up to 2 years, but such a permit does not protect you against a finding that you abandoned your residency. Also, such a permit cannot be obtained outside the U.S.

If you do not have a green card, but a non-immigrant visa such as a work visa or student visa, you may only return to the U.S. if your visa is still valid and if you have not lost your basis for the visa, for example your job or your school registration. If you had changed your immigration status in the U.S., but did not obtain a new visa yet, you will not be allowed to return before you have obtained a new visa, which can take months.

If you are undocumented or overstayed any authorized stay, leaving the U.S. will have dire consequences. You will most likely not be allowed to return for many years or even forever. Leaving the U.S. could destroy your chances for ever getting legal status in the U.S.

So, even if everyone understands your desire to help your loved ones in your home country after a disaster, you must consider the consequences carefully and you should consult an immigration attorney before you travel.

Can I bring relatives or friends who have become victims of the disaster in my homeland back to the United States?

As much as we would like to help and bring our families or friends back to safety in the U.S., unless the U.S. government issues some emergency rules, the normal immigration law will rule. That means, the answer will likely be no or not right away.

If you have any relative or friend who is in urgent need of medical care which is only available in the United States, you may ask for “humanitarian parole” if no regular immigration process is available. However, it can be expected that the U.S. government will be restrictive if many such applications are made after a natural disaster of greater proportions.

Besides this, there are not many options in the law. You also might be able to adopt children from your home country and bring them to the U.S., but even this process is complicated and takes quite long.

For most other cases, only the regular immigration provisions will apply, which can mean a long wait for any visa or green cards.

In every case it will be best if you consult an immigration attorney.

What if I have been ordered to leave the United States just before a disaster struck?

If you have an outstanding order of deportation, removal, or voluntary departure, or are undocumented in the United States, you might be given relief. In many of the major disasters that happened recently, for example after the earthquake in Haiti, the United States government issued an order granting “temporary protected status” to citizens of Haiti who were in the United States. That means, in most cases they were protected from deportation, removal or voluntary departure. Usually only people who register in time for this status will be protected, so it is important to follow announcements of the U.S. government after a major disaster abroad and to register if such an opportunity is given.

In all cases it will be helpful in such a stressful moment to consult a compassionate and experienced immigration attorney.

Solicitation of prostitution is base, vile and depraved - and therefore a big problem for immigrants

Solicitation of prostitution is base, vile and depraved. That is what the Federal Court of Appeals for the 9th Circuit said today in San Francisco.

Why does it matter? It matters, because solicitation is one criminal charge that I often find on immigrant’s records when they have gotten into trouble with Immigration Enforcement or when they apply for citizenship.

Immigration law is very much concerned with morals. It may appear surprising, in a time when prostitution has been found to be just a “regular profession” in many European countries, that in the United States anything related to it is a crime that can have very dire consequences. For immigrants, engaging in prostitution always has been a major problem, but the focus always was on the prostitute. Persons who have worked as prostitutes in their home countries usually will not be allowed to enter the U.S., persons who organize prostitution are similarly unwanted, and immigrants engaging in prostitution while they are in the U.S. can be convicted of a crime of “moral turpitude” that might lead to deportation.

Today the court looked at the customers. In pretty clear words it found that soliciting the services of a prostitute is a crime of moral turpitude. Such a conviction can lead to deportation and will cut off many important defenses against deportation.

Interestingly, in a different case, the Board of Immigration Appeals held in 2008 that a solicitation conviction is not grounds for denying “good moral character” when it comes to an application for naturalization (citizenship). I had clients with that charge on the records successfully naturalize. It is a little confusing, how much “moral turpitude” will lead to denial of “good moral character.” We will see if the Board will change its attitude towards naturalization now that the 9th Circuit has spoken so vehemently on the solicitation charge.

(Today’s case was Rohit v. Holder)

Undocumented presence in the U.S.

We have updated our website to give you an overview of how an undocumented person in the U.S. may be able to legalize status and become a legal permanent resident.

Changes come to those who wait

It isn’t often that changes in immigration law can be announced. But yesterday the House voted with resounding majority to lift “per-country-quotas” for work visa. Currently the number of work based green cards that can be issued each year is limited in total and in a per-country limit for the applicant’s country of origin. That led to huge backlogs for applicants from China and India. In the future, all applications would be handled strictly on a first come first served basis.

However, because the total limit will not be changed, this will increase waiting times for all applicants who are not from India or China. Some commentators speak about an additional 2 years. Since the most popular green card class already has a waiting time of almost 6 years, this is not good news.

Family based green cards also currently see waiting times of up to 18 years or more. Here the per country quotas are to be doubled, which will bring some relief for applicants from Mexico or the Philippines, but potentially longer waiting times for everyone else.

All this means that it becomes even more important to get your applications on the road as quickly as possible and to make sure you have competent counsel to avoid mistakes that may cost months.

Treat your lawyer like your priest

Some people may be familiar with confession in church. You go to your priest, you confess your sins - all your sins - and you receive God’s absolution. The priest will not tell anyone. You go home, assured of redemption and happy.

Now you come to your lawyer. The lawyer says: tell me about all your criminal convictions. You admit you have had one, about 13 years ago.

You go home. Lawyer thinks he might better be careful and checks the court’s records. And he finds you had four more convictions, the last one just 10 months ago.

Now, if your lawyer had not checked, or if he had not found the records, he would have not only embarrassed himself and you in court, he would also have lost your case. YOU would have lost your case.

So, swallow your pride. When your lawyer asks, confess ALL your sins. Your lawyer won’t tell, he is on your side, just as the priest is, but he needs to know everything to be able to represent you.

A little kindness can go a long way - but don’t abuse me

A lot could be written about the relationship between lawyers and their potential clients. Many people think that a lawyer will charge you for each breath he takes during your representation.

I tend to work differently. On any given day I spend between one or two hours giving out free advice. People call me and ask questions. Often a loved one is in detention, often the caller is in desperate need of help. Of course, my time is valuable, and I cannot make a living or feed my family if I only spend my days doling out free advice. But often all that is needed is a little kindness.

A guy just called me: a close relative had attempted to cross the border between Mexico and the US illegally in Juarez. This is the most dangerous city in the world. The relative was supposed to cross 2 weeks ago. Since then nobody had heard from him.

I could hear the deep worry in the caller’s voice. Was the relative arrested by American immigration? Was he kidnapped by Mexican gangs? Was he killed in Juarez?

While I cannot spend hours searching for someone lost on the border, I could check the ICE detention database if the guy had been arrested by our immigration officers. It took me about 5 minutes and I found him: sitting safely in an US jail.

I could have charged the caller. I did not. I never charge for things like that. I write it off as the cost of goodwill. And sometimes I get rewarded: even though I would not handle the case of that fellow in Texas, since it would be cheaper to hire an attorney in Texas, the caller then revealed that he also needed legal help with a case for himself. And that case I might get.

A little kindness can go a long way.

However, this morning I had a different situation: Another guy had called about an arrested relative. I had spent considerable time on finding out all about the case. The representation would cost a couple of thousands of dollars. He had agreed to hire me.

I prepared the agreement and was ready to begin, when he calls and says he offers only 25% of the original sum. I might be a kind lawyer, but I am not a dumb lawyer. I know when someone wants to take advantage of me. I declined the case.

So I will always be willing to go above and  beyond, but please, don’t attempt to abuse my generosity.

Men don’t ask for directions

You know the old saying that men never ask for directions. The joke goes that this is why the people of Israel were lost in the desert for 40 years, because Moses never asked.

Well, there is something to it. This year I had a string of couples walk in with problems in their green card applications. They had filed them without asking for professional guidance and got into costly trouble.

In each one of these cases at some point the wife admitted: “I thought it was better to hire a lawyer right from the beginning, but my husband said we can do it ourselves.”

Men don’t ask for legal directions, it seems. But they better do. Mistakes can be costly. The saddest cases are always those where the mistakes are so huge that even an attorney cannot make them undone.

Before you get stuck in the desert for 40 years: go and ask an attorney! Men, be brave, you can do it, too.

Reality catches up with Sci Fi at the border

You remember those movies where the action hero gets access to the super-top-secret area only by having his or her fingerprints or iris scanned? Then with a “beep” the gate opens and the plot can continue?

Welcome to the new border crossing world at Paso del Norte pedestrian crossing between El Paso, TX and Juarez, Chihuaha.

Customs and Border Patrol announced that they will begin processing pedestrians only by automated system: the traveler needs to have a travel document (passport, border crossing card etc.) containing a RFID (the tiny radio transmitters you have heard about). That document then will automatically send the info to the border computer. The traveler puts her or his hand into a scanner which reads the fingerprint, to match the person with the document.

If everything is ok, the gate opens and you march into the United States.

No more pesky questions by border officers. At least, that is the goal. In the test phase, you still will pass an officer, but if there are no problems indicated, he or she will probably not stop you any more.

CBP says it will speed things up at the border. The downside is, that the government will need to have a set of your fingerprints on file.

You decide if this is good news or not.

http://www.cbp.gov/xp/cgov/newsroom/news_releases/local/09152011_3.xml

Always count the days! A leap year won’t help you leap over the deportability hurdle.

Immigrants are deportable if convicted of certain crimes and when their sentence is a year or more.

They can also be deportable under different rules, but for this blog, we focus on this year.

An innovative attorney (not me) tried to argue that because his client was convicted to serve 365 days in jail, but in a leap year, which has 366 days, he was not deportable, because he had not served a full year.

Nice try, the court today said. But as far as immigration law is concerned, a year always has 365 days. Period.

It seems those justices were no fans of February 29. So, don’t rely on leap years to avoid deportation.