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Immigration

Friday, December 8, 2017

Is Birth Tourism a Shortcut to US Citizenship ?

Is Birth Tourism a Shortcut to US Citizenship?

Ever since the post-Civil War adoption of the 14th Amendment to the Constitution, all persons born on American soil have been automatically granted citizenship. This policy was common sense in the era it was adopted, a time when international travel was cumbersome and relatively rare, but today its wisdom is being questioned. Is birthright citizenship being abused by people who want to short-circuit America’s labyrinthine immigration law?

The Citizenship Clause of the 14th Amendment states:

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”

From the moment it was adopted, this clause has motivated foreigners to give birth in America. For many years the number of these birth-tourists were limited by the nature of travel, but in today’s world, where air travel drastically cuts down the time it takes to get from one country to another, the path to citizenship guaranteed by the 14th Amendment is well-trod.

Stories abound of pregnant women visiting the U.S. on tourist visas who stay long enough to have their children, get American birth certificates and passports for them, then go back to their native countries, American tot in tow. The Chinese film industry even made a popular romantic comedy about the practice

Having a child that is an American citizen does not, however, guarantee that the child will grow up in America, or allow the family of the child to stay in this country indefinitely. Unless the parents have legal status in the United States, the entire family must return to their home country. It is not until an American-born baby is 21 that they are able to come to the United States and stay without being in school or having to show that they have a legal guardian here.

Once they reach the age of majority, the birthright citizen can enjoy the full benefits of citizenship, and can even sponsor his or her parents’ applications for citizenship.  It is important to remember that having an American-born child is a way to short-cut the system, but will likely take at least 21 years to capitalize on the investment.. In most cases applying for citizenship through other means will be just as fast.


Thursday, December 8, 2016

Pathway from Permanent Resident Status to Citizenship

 

Permanent Resident to Citizen

 

How do I become a citizen if I have a green card?

The most common path to citizenship for immigrants is to obtain a permanent resident green card.  The receipt of a green card, however, does not guarantee that citizenship will follow.  Before an individual who possesses a green card can become a citizen, a number of criteria must be met. Individuals desirous of U.S. citizenship should be aware that when their green cards have been obtained through marriage to U.S. citizens, these criteria are slightly different.

Criteria for Application for Citizenship

In order to be eligible to apply for citizenship, an individual must meet the following criteria:

  • Be at least 18 years old;
  • Be in possession of a green card for at least 5 years, or 3 years if a spouse of a citizen;
  • Live in the same state for 3 months preceding application;
  • Maintain residence in the U.S. continually for the 5 years preceding application;
  • Be physically present in the U.S. for at least half of the 5 years preceding application; and
  • Remain in the U.S. while the application is processed.

Once these criteria have been met, United States Citizenship and Immigration Services (USCIS) will qualify the applicant to take the naturalization test. The test comes in two parts: English and civics (history and government). The English test may be waived if the applicant is over 50 years of age and has lived as a permanent resident in the U.S. for 20 years (the "50/20" exception) or is over 55 years of age and has lived as a permanent resident in the U.S. for 15 years (the "55/15" exemption).

The law also requires that an applicant for citizenship be of good moral character, show "attachment to the principles of the Constitution," and be "well-disposed to the good order and happiness of the United States." Having met all these qualifications successfully, the applicant is permitted to make an oath of allegiance to the United States and become a naturalized citizen.  


Monday, June 20, 2016

Form I-9 Inspections

Form I-9 Inspections

The Immigration and Nationality Act (INA) requires employers to verify the identity of their employees and their eligibility to work in the U.S.  To comply, employers must retain original I-9 Forms for current employees and, for former employees, keep them for at least three years.  These need not be submitted to the government but must be available for inspection.  From time to time, U.S. Immigration and Customs Enforcement (ICE) ask to inspect the forms. 

What Does an Inspection Entail?

An employer who receives a Notice of Inspection must produce its I-9s, usually within 3 business days, and may be asked for payroll records, employee lists, articles of incorporation, and business licenses.  ICE may ask the employer to bring the documents to an ICE field office, or officials may visit the employer.  At the inspection, in addition to printed documents, the employer must retrieve any electronically stored documents requested and provide the ICE officer with the hardware and software needed to view them.  The employer must also provide an electronic summary of information in the I-9s, if one exists.

What Happens Afterwards?

After reviewing the I-9s, ICE may send the employer one or more of the following:

  • Notice of Inspection Results, also known as a compliance letter, informing a business that it is in compliance. 
  • Notice of Discrepancies, informing the employer of problems with the employer's I-9s and documents submitted by the employee.  The employer must provide a copy of the notice to the employee, who then must prove to ICE that he or she is eligible to work.
  • Notice of Technical or Procedural Failures, listing technical violations and giving the employer ten business days to correct them.  If not corrected in time, these failures may become "substantive "violations."
  • Notice of Suspect Documents, stating that ICE has found an employee unauthorized to work.  The employer must terminate the employee or face penalties.  ICE gives the employer and employee an opportunity to show that this finding is in error.
  • Warning Notice, notifying the employer that there are substantive verification violations, but that the circumstances do not warrant a fine.
  • Notice of Intent to Fine (NIF), informing an employer that it has been found to have knowingly hired and employed ineligible workers.  The employer must cease and may face fines and criminal sanctions.  An NIF may also be sent for technical errors that an employer failed to correct.

What If ICE Decides to Fine an Employer for Violations?

In response to an NIF, employers may seek a hearing before an Administrative Hearing Officer or try to reach a settlement with ICE.  If an employer does nothing, ICE will issue a Final Order.

Civil fines can be as low as $110 and as high as $1,100 for each employee, depending on mitigating and aggravating factors.  Serious violations may also lead to prosecution for knowingly hiring unauthorized workers, document fraud, harboring, and other crimes.  With the high stakes involved in being accused of I-9 violations, it is best to contact to qualified attorney to discuss the matter as early as possible.

 


Friday, April 8, 2016

Dual Citizenship

Dual Citizenship

Dual citizenship, or dual nationality, means that a person is a citizen of two countries simultaneously. It is also possible to simultaneously be a citizen of three or more countries. Dual citizenship occurs when an individual becomes a citizen of another country, in addition to his or her birth country. Generally, countries define citizenship based upon one’s place of birth, descent, marriage or naturalization process.

A foreign citizen does not lose his or her citizenship when becoming a naturalized United States citizen. Nevertheless, some countries do not recognize dual citizenship, so it is important to consider the factors carefully before applying for citizenship in the U.S. or abroad.

Dual citizenship can also occur by automatic operation of laws for some individuals, such as a child born abroad to parents who are U.S. citizens, or a child born in the U.S. to non-citizen parents.

An individual who is automatically granted citizenship in another country does not risk losing his or her U.S. citizenship. On the other hand, a U.S. citizen who applies for and is granted foreign citizenship may lose his or her U.S. citizenship, provided the application was made voluntarily and with the intent to relinquish United States citizenship. Such intent can be shown by the person’s conduct or statements.

Each country has its own laws regarding dual citizenship. The United States recognizes dual citizenship, and does not require an individual to choose one citizenship over another. However, the U.S. government does not endorse dual citizenship as a matter of policy because of the problems it can cause.

Dual citizens owe allegiance to both countries and are required to abide by the laws of both countries. For example, citizenship often comes with legal obligations relating to taxes, military service and travel restrictions. There could be a conflict between the laws governing the two countries, which may cause problems for the dual national. In addition, dual citizenship may limit the U.S. government’s efforts to assist U.S. citizens abroad, because the country where the dual citizen is located generally has a stronger claim to that individual’s allegiance. Dual nationality also has its advantages. For example, dual citizenship affords an individual with a greater degree of flexibility in choosing where to live and work.

U.S. citizens, including dual nationals, must use a United States passport to enter and leave the U.S. Dual citizens may also be required by the foreign country to use that country’s passport when entering and leaving that country.

Most countries permit their nationals to renounce or otherwise lose citizenship. Americans can renounce their United States citizenship at U.S. Embassies and Consulates abroad; and information on giving up foreign citizenship is available from that country’s embassy or consulate in the U.S.

If you are in a dual citizenship situation, or are contemplating such a move, it is important to discuss your intentions and goals with an attorney who is knowledgeable in this particular aspect of immigration law to help weigh the pros and cons and avoid the pitfalls that may accompany dual citizenship.


Monday, January 18, 2016

Overview of Non-Immigrant Visas

An Overview of Non-Immigrant Visas

Below is a list of all the various types of non-immigrant visas and brief qualifications of each:

H-1B: Temporary professional workers for a specialty occupation                with at least a 4 year bachelor’s degree. Maximum stay of 6              years, but can lead to permanent residency.

H-2B: Seasonal workers permitted to enter the country for a short              time to fill a need when American labor is unavailable.

H-4: Spouses and children of H-1B and H-2B immigrants are                      permitted to enter the country under an H-4 visa but are not allowed to work.

K-1: For the fiancé[e] of a U.S. citizen where the marriage will occur within 90 days.

K-3: For the spouse of a U.S. citizen while the application for a green card is pending.

L-1A/B: An international company with an existing presence in the United States may transfer a foreign employee to               a local office with one of these visas. The L-1A is for executives, and the L-1B is for individuals with                                 specialized knowledge.  Spouse and children of employee may enter the U.S. on an L-2 but may not work.

O-1: Limited to individuals with extraordinary ability in arts, science, education, business, or athletics, with a record            of great achievement and indisputably at the top of their field.

O-2: Assistants to O-1 visa holders in artistic or athletic events.

O-3: For the spouses and children of an O-1 or O-2 visa holder.

R-1: Religious workers entering the country on a temporary basis

R-2: For spouses and children of those entering the country with an R-1 visa.

TN-1/2: For Canadian (TN-1) and Mexican (TN-2) nationals to work in specific occupations. These visas have strict                     educational requirements. The spouses and dependents of these individuals must apply for TD visas to                       enter the country.

A-1/2/3: For diplomats, government officials, their families and attendants.

B-1: For individuals entering the United States who are briefly visiting for business purposes.

B-2: For individuals briefly visiting the United States for pleasure -- also called tourist visas.

C: For travelers passing through the United States who don’t intend to enter the United States.

F-1: For individuals engaged in a full course of study at a U.S. institution -- also called student visas. Individuals are             not permitted to work when in the country on this visa. Spouses and children of F-1 visa recipients must apply           for F-2 visas to enter the country.

J-1: For individuals participating in visitor exchange programs. Spouses and children of recipients must apply for J-2          visas to enter the country.

Q-1: Participants in international cultural exchange programs apply for this visa.

T: A person who has been a victim of human trafficking who cooperates with law enforcement in the investigation         and prosecution of human trafficking is eligible for this visa.

U: This visa is for victims of criminal activities who seek police protection from a qualifying crime.


Wednesday, October 28, 2015

Do Multiple Applications Improve Your Odds of Winning the H1B Lottery ?

Do Multiple Applications Improve Your Odds of Winning the H1B Lottery ?

Over the past few years there has been a greater demand for H1B visas.  In fact, many more people apply for these visas than there are visas available. When this happens, U.S. Citizenship and Immigration Services (USCIS) conducts a lottery to determine whom the available visas will be awarded to. In order to increase their odds of winning, many visa-seekers have started filing multiple petitions.

USCIS’s H1B lottery does not take into account the visa-seekers’ educational background, career path, country of origin, age, sex, or any other distinguishing characteristic. Instead, the lottery is done with a random number generator. One’s odds of winning depend solely on the number of petitions in the lottery. This means that the only way to increase one’s odds of winning is to submit multiple visa petitions and thus increase one’s ratio of petitions to the overall pool of petitions. 

There is a USCIS rule prohibiting visa-seekers from filing multiple identical H1B applications. However, there is no prohibition on a visa-seeker having multiple valid petitions filed on his or her behalf by different employers for different job offers.

A large company that really wants to hire a certain visa-seeker can in effect file multiple H1B petitions for the same visa-seeker by having each of its related entities file a petition on behalf of the visa-seeker. The only limiting factor is that each entity must be able to show a legitimate business need to hire the visa-seeker.  Some visa-seekers are accepting job offers from multiple companies, each of who files a petition on his or her behalf.

If the visa-seeker wins the lottery, he or she can choose which company to work for, and the visa will travel with them to that company. If the employee chooses to work for a company whose petition was not selected, or a company that did not petition for a visa for the employee at all, they will need to fill out a new petition, but it will almost certainly be granted since it is not subject to the cap.

While the practice of filing multiple petitions is legal, some criticize it as unethical. They claim that it is dishonest for visa-seekers to lead employer on if they do not intend to actually take the job being offered. If you are a applying for an H1B visa or a company filing a petition on behalf of an immigrant, you should consult an experienced attorney today to review your options.


Tuesday, September 8, 2015

Enrolling in E-Verify: Pros & Cons

Should Employers Enroll in E-Verify?  Pros and Cons

The U.S. Citizenship and Immigration Services, in partnership with the Social Security Administration (SSA), offers E-Verify to help employers instantly determine an employee's eligibility to work.  Initial confirmations and "Tentative Non Confirmations" are available in as little as three to five seconds.

The voluntary Internet-based program works by comparing the information from an employee’s Form I-9, Employment Eligibility Verification, with Department of Homeland Security and Social Security Administration records.  Instead of simply retaining I-9s on file in their own offices, employers who enroll in E-Verify must enter the I-9s of all new hires into the program's database.

There are both advantages and disadvantages to using E-Verify.  Employers must weigh each and its relevance to their circumstances.

Five Benefits of Signing Up for E-Verify

 • While E-Verify is generally voluntary, some states require employers to use E-Verify, and it is mandatory for some federal government contracts.

 • E-Verify could become mandatory nationwide.  Adopting it earlier affords employers more time to become familiar with it and adapt.

 • E-Verify helps companies avoid hiring and training a person who turns out to be ineligible to work.  It can eliminate "No Match" letters from the SSA notifying an employer that an employee's reported social security number does not match government records.

• If an employer hires foreign nationals who recently received a degree in science, technology, engineering, or mathematics, enrolling in E-Verify may make those workers eligible to work an additional 17 months without the employer having to file H-1B petitions on their behalf

•Although using E-Verify does not provide a "safe harbor" from prosecution, it creates a "rebuttable presumption" that the employer has not violated section 274A(a)(1)(A) of the Immigration and Nationality Act ("Unlawful Employment of Aliens").

Five Drawbacks of Signing Up for E-Verify

 • E-Verify is not entirely free.  Employers must allot time and resources to training and supervising staff to use the system and deal with the results of queries.  

 • E-Verify makes mistakes, issuing Tentative or Final Non-Confirmations for workers who are authorized to work, or stating “Employment Authorized” for workers who are not.

 • Tentative Non-Confirmations open employers up to new legal risks.  For example, employees have sued employers for discrimination for not providing proper notice and instructions for contesting a Tentative Non-Confirmation.

 • E-Verify can lead to liability for privacy and discrimination violations.  Federal and state laws require the safeguarding of I-9 information.  Employers must make sure that their staff does not intentionally or accidentally misuse E-Verify data.

 • Because the government can use E-Verify to mine data, it may find employers' hiring mistakes that otherwise would not have been discovered.  For example, employers enrolled in E-Verify must complete and submit I-9 forms by the third business day after a new hire's first day of work.  Consistently missing this deadline could trigger an I-9 inspection and fine.  Employers who are not submitting I-9s to E-Verify might never be caught in a slight delay in completing them.

 If you have encountered any of these issues in your past or current use of the E-Verify system, you would be best served by discussing the problems with an immigration law attorney as soon as possible.


Friday, August 28, 2015

Sponsoring a Family Member for Immigration

Sponsoring a Family Member for Immigration

The Immigration and Naturalization Act allows citizens and permanent residents of the United States to sponsor family members abroad for immigration to the U.S.  The relatives must be direct relatives, and their sponsors must commit to supporting them financially.

A petitioner may apply on behalf of a son, daughter, husband, wife, parent, brother or sister.  In many cases, these relatives may bring along dependents, such as a spouse or unmarried children under 21.

What Paperwork Is Required?

The sponsor begins by filing a Form I-130, Petition for Alien Relative, which contains basic information about the identity of the sponsor and the relative seeking to immigrate.  The sponsor must also complete a Form I-864, Affidavit of Support, agreeing to be financially responsible for the relative.  

The Affidavit of Support assures the U.S. government that the immigrant will not need public assistance, such as food stamps or Medicaid.  If the immigrant ends up receiving "means-tested public benefits," the financial sponsor may be required to reimburse the government.  This affidavit remains enforceable until the immigrant becomes a U.S. citizen or has done 40 quarters (10 years) of qualifying work.

Financial Requirements

A sponsor must have an income level at or above 125% of the federal poverty level, or 100% in the case of active duty members of the military bringing in a spouse or child.  The exact numbers, which can change, are listed in form I-864p, Poverty Guidelines.

Sponsors who do not meet this requirement can submit evidence of bank accounts, stocks and bonds, real estate, or other assets.  These assets must have a cash value equal to at least five times the difference between 125% of the poverty level and the sponsor's income, or three times if the relative is a spouse or adult son or daughter.  It can simply be equal to the difference if the relative is an orphan arriving for adoption.

Other Sponsors

Financial sponsors can count the income and assets of other household members related to them by birth, marriage, or adoption, if they are listed as dependents on the sponsor's tax return or have lived with the sponsor for the last 6 months.  The sponsor and household member must complete Form I-864A, Affidavit of Support Contract Between Sponsor and Household Member.

A sponsor can also have an unrelated "joint sponsor" willing to accept financial responsibility for the immigrant.  A joint sponsor must complete a separate Affidavit of Support and meet all of its requirements independently.

Sponsoring a family member for immigration is an important matter.  You should discuss your situation with a seasoned immigration attorney to ensure that the process is handled appropriately.


Monday, August 10, 2015

Entrepreneurial Immigrants: Building the American Dream

Entrepreneurial Immigrants: Building the American Dream

The American Dream of starting your own business and pulling yourself up by your bootstraps is alive and well. In fact, it is the creation and growth of small businesses that is instrumental in helping America recover from the Great Recession. What many do not realize is that a significant percentage of new business ventures in this country are started by immigrants.  Despite their business startup prowess, Immigrants face a multitude of legal issues as they start new ventures in the United States.

If you are an immigrant and are considering starting a business in your new homeland, there may be a number obstacles ahead of you. At the top of that list is obviously obtaining legal status for yourself, your family, and your employees. America welcomes innovators and business creators, but obtaining legal status is never easy. Thankfully, there are several paths to legal status available to entrepreneurs. Working with an experienced immigration attorney is the best way to figure out which options will work for you.

Providing employment for family members and friends is one of the rewarding aspects of being a small business owner, but immigrants must strictly adhere to all laws governing the employment of non-citizens. If you are caught violating this law you could lose your business and put your legal status in jeopardy.

Immigrant entrepreneurs may also face discrimination. If you think that a lender, supplier, or other business-related contact has treated you unfairly because of your nationality, and your business suffered, you should contact an attorney. An attorney can help you seek compensation if appropriate, and can help you negotiate and enforce future contracts.

There are also unique opportunities in the business creation world for immigrants.  As newcomers to an area, immigrants have the ability to see gaps in the market that others may not notice. A business attorney can help you take your vision and make it a reality by helping you through the formation and permitting processes.  The government also has several special programs that are designed to help minority and woman-owned businesses flourish. Many immigrant business owners are able to take advantage of these programs.

Starting a business is challenging regardless of whether you’re an immigrant.  The pride of owning your own business, seeing it succeed and living the American Dream more than makes up for the trials and tribulations that founders encounter.


Thursday, June 18, 2015

Effects of a Lay Off on an Employment-sponsored Visa

Effects of a Lay Off on an Employment-sponsored Visa

The dragging economy has been tough on immigrants. An overabundance of citizens looking for work limits the number of some types of visas, and instability in the job market limits the appeal of employment-backed visas. Many workers who have lost their jobs because of the economic slowdown have had to leave the United States in order to avoid violating the law and jeopardizing their ability to live in this country in the future. However, some immigrant workers are finding ways to stay in the United States legally despite being laid off. 

  • Find another job. This is somewhat easier said than done, but workers who are able to find new employment can often extend their visa or get a new visa. This works best if the worker knows in advance that his or her current job will soon be ending and can find a new job to start before the old job ends.

There is technically no grace period in which to find a new job when a worker’s job ends (meaning a worker is out of status as soon as they clock out for the last time), but U.S. Citizenship and Immigration Services (USCIS) often approves petitions to change from one employer to the next if the gap between jobs is 30 days or less.

If a worker is out of work, and thus out of status, for more than 30 days, he or she will probably have to leave the country and get a new visa at a United States consulate office before starting a new job.

If a worker does have to travel abroad to get a new visa, the worker’s former employer may be required to pay for the worker’s trip home. Whether the employer is required to pay depends on when and how the worker’s job was terminated.

  • Become a dependent. If a worker in the United States on an employment-backed visa loses his or her job, one of the easiest ways to stay in status and prevent deportation is to become the dependent of someone who has legal status. Obviously, this only works if family circumstances allow.

 

It is important to note that if, for any reason, the worker's family member loses his or her legal status, then the worker who has become that person's dependent will lose his or her status as well.

 

  • Go to school. Workers who lose their jobs may have their status changed to student (F-1 status) if they are accepted into a full-time program at a college or university.

The further in advance a worker knows his or her job is in jeopardy, the easier it is to find a solution that will allow him or her to stay in the country legally. However, it is never too late to contact an experienced immigration attorney.


Monday, June 8, 2015

10 Things to Bring to Your First Meeting with Your Attorney

10 Things to Bring to Your First Meeting With Your Attorney

Hiring an attorney is not something most people do every day, so being a little bit unsure of how things are going to go is perfectly normal. To help ease some of the stress and make the process go more smoothly, take time to compile and bring the following list of items with you to your first meeting.

  1. A list of all your contact information. Your lawyer is going to need to know your full legal name and any other names you go by, your address, phone number(s), and email address.

  2. The names and contact information of other people that might get involved with the case - people on the other side, people on your side, witnesses, doctors, police, insurance agents, etc.  If a case has already been filed against you, the name(s) and contact information of the lawyer(s) representing the other side will also be needed.

  3. A typed up or written down account of the circumstances surrounding the situation that is causing you to seek legal help. Try to make your summary of events as detailed as possible. If writing or typing isn’t one of your strengths, try creating an audio recording.

  4. A timeline of events. The best way to do this is to buy a calendar, write all the important events on it, and bring it to the meeting with you.

  5. Any materials (including documents, digital files and photos) you have that relate to your legal matter. If possible, put the documents in an order that makes sense when paired with the summary of events and timeline you put together above.

  6. A list of information (particularly documents) you wish you had or thought you had but can’t seem to find now.

  7. The truth. You don’t have to swear to tell the truth, the whole truth, and nothing but the truth unless you are taking the witness stand in the courtroom, but lying to your attorney will not help your case. 

  8. Bring a good idea of what you hope to get out of the case. Think about what winning looks like to you. It is difficult for your attorney to figure out how best to help you if they don’t know what you want. 

  9. An open mind paired with a good sense of what your gut is telling you. Your lawyer may suggest a solution that you would never have imagined, or let you know that you don’t have a case. Listen to what they tell you, but don’t be afraid to share your thoughts on their suggestions.

  10. A list of any questions you have. The meeting will be far more productive if you leave without nagging questions or lingering doubts.

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