Musings on Immigration

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Top 3 Immigration Myths that You Need to Know

written by Hiba Ghalib, Associate, Kuck Immigration Partners

Forecasts of snowstorms and rainfall are not the only ones being made on our evening news lately. Predictions of major reform to our complex, archaic immigration laws are also being announced as bipartisan congressional leadership hunker down in Washington to tackle comprehensive changes in our current immigration system, set to happen in 2013.  And, as the winds of change blow, families hoping to fix their immigration problems have begun to come out to ask what they can do.

Over the past several weeks, the attorneys at Kuck Immigration Partners have been fortunate to travel to several local venues to speak to the community about immigration, allowing families and individuals with immigration questions the opportunity to address them.  However, after meeting with a few hundred people, you start to see the same questions cycle back and forth.  We cannot guess what reform will do, but before we try to predict the future of our immigration laws, let’s first try and understand our current system a little better. To do this, I thought I would take a moment to address the top three questions I have come across in hopes to assist those in similar predicaments.

Myth #1

If I am in the United States after having entered without inspection but I have a U.S. Citizen child or spouse, can’t my child or spouse apply for my greencard?

It’s not that simple. If you entered the U.S. without inspection, you may not adjust status to permanent residency, even if you have U.S. Citizen spouse or child over 21 years of age that can petition for you. To become a permanent resident, you must leave the U.S. and consular process, the same way anyone else would who is outside the United States. However, if you are like most, you have accrued unlawful presence in the United States, which would trigger a three or ten year bar from re-entering the United States once you leave. In such cases, the only way to re-enter is with a waiver of your unlawful presence. New provisional waiver process will be in effect starting March 4, 2013 does not change the requirement of filing the waiver, but simply changes the place and time you can file it. For more information about the provisional waiver, please see Charles Kuck's Provisional Waiver blog HERE and USCIS's explanation HERE.

If you think you are ready to proceed with this process, you also want to ensure that you are otherwise eligible for permanent residency. During many consultations with clients, it’s not uncommon to dig up an old, forgotten arrest for a crime committed while “young and stupid” that you may have thought was not a big deal but could actually render you inadmissible.  It’s extremely important to consult with a licensed immigration attorney to advise you prior to filing any immigration forms.  Be ready to be candid with your attorney- remember, they are on your side and they cannot help you if they are kept in the dark.

Myth #2

I may have been arrested for shoplifting and a DUI (and honestly I wouldn’t have snatched a pair of socks and the car battery from Walmart had I not been drunk!) But my criminal attorney said if I plead guilty and pay a fine I will not have to go to jail. Will this affect my future immigration case? Could I be ordered removed?

Here’s where it becomes extremely critical to seek advice regarding the immigration consequences of your criminal case. First, if you or a loved one ever gets arrested, make sure you not only consult with a criminal attorney that can assist with his/her criminal charges, but also an immigration attorney who is likely more familiar with the immigration consequences of your pending charges. Do this ASAP. If you or your loved one is confined, be very careful about rushing to pay the criminal bond until you have at least consulted with an attorney. A guilty finding, whether or not it was a plea, will be more difficult to undo. And if you or your loved one has an ICE hold, it will begin to take effect. Someone may tell you that if you plead guilty and pay a fine it will “go away” – however unless you are a U.S. citizen, chances are this is absolutely not true.  Even lawful permanent residents who have resided in the U.S. for decades can be put in removal proceedings for a crime committed.

Long story short, prevention is the best medicine. If you cannot not commit a crime, and you cannot not get arrested, at least try to prevent any charge that could have the potential to make you forever barred from lawfully residing in the United States.  If you have already been convicted, post-conviction relief is the remedy you may need to explore, but you will definitely need to speak to a qualified attorney to advise you on both your criminal case as well as your immigration case.

Myth #3

If I have been in the United States for over ten years, can I apply to become a permanent resident? 

NO NO NO.  You may not affirmatively apply for a greencard simply because you have resided in the United States for 10 years. There is no such thing as a “10 year rule”. With that said, IF an individual happens to be placed in removal proceedings, he or she may then qualify for what’s called Cancellation of Removal and Adjustment of Status for Certain Nonpermanent Residents.  To apply for Cancellation one must be able to show that they have resided in the United States for at least ten years, do not have any disqualifying criminal offenses and are otherwise persons or “good moral character”, plus that their U.S. Citizen qualifying relative will suffer extreme and extraordinary hardship if ordered removed.  Even if you think you are eligible to apply for Cancellation of Removal, you may do so only a defense to removal proceedings, keeping in mind the fact that not all applicants for Cancellation win, even those that are statutorily eligible.

This list is by no means exhaustive, nor is it intended to be legal advice.  Just like every person is unique, so is every person’s case. Even if it appears your neighbor or friend may have been in the exact situation as you, chances are your case is very different.  Please call a licensed immigration attorney to discus your case to see what you can do to enjoy lawful status in the United States. And, while you’re near a phone, call your local congressperson and let them know you are in support of comprehensive immigration reform. While I am not one to immediately cancel a picnic if weather forecasters call for rain, I am optimistic that the announcements of impending comprehensive immigration reform will actually happen.  Until then, stay tuned…

What You Need To Know About The "Line" in 2013

Four years ago, I wrote about the "Line" that determines how long it takes to immigrate to the United States.  The "line" was long then, and is longer now, with more than four million people waiting for an immigrant visa to become ready for them to immigrate to the United States.  There is a good number of these more than four million people already in the United States, either working under valid visas, or as undocumented members of our society.

An example is appropriate   We know from a recent meeting with the Department of States that there are approximately 44,000 EB-3 India cases with priority dates prior to August 2007.  Right now, the priority date (the date people who filed on that date can now apply for permanent residence) for India is November 22, 2002.  Available visas count both the principal applicant (the person who's job it is), PLUS each family member.  Hypothetically and because of "per-country limits," that means that if there are 3,000 EB-3 immigrant visas available each year to Indian nationals in this category, then only 1,000 to 1,500 actual families will get permanent residence, because 45% of visas are used by the principals, and 55% are used by their family members.

There are of course, more immigrant visas available in the India EB-3 category every year, because of flow down (and flow up) from other categories, but not many.  If you extrapolate these numbers, you come up with the conclusion that a person who files in February 2013 for an EB-3 India immigrant visa, with no change in the law, will have to wait more than 80 years to obtain permanent residence under a worst case scenario (but perhaps only 35 years under a best case scenario).  This goes to the main point, which is there is no real line.  80 (or even 35) years is a lifetime, not a line.  "Lines" like this actually cause undocumented immigration.

The good news is that there is a bill pending in Congress that will make this "line" into a useful piece of immigration management. Senate Bill S.169, sponsored by Senator Orrin Hatch of Utah and named the Immigration Innovation Act of 2013, adds immigrant visa numbers, does not count family members towards the actual visa limit, fixes the legal employment non-immigrant visa categories, eliminates per country quotas, and reduces overall wait times to manageable levels. This bill will certainly be part of any overall immigration reform that is passed, and more importantly can stand on its own if Congress is unable to pass a comprehensive immigration reform package. But we all need to make our voices heard.  Send a message to your Senator today to support S.169 and demand a restoration of sanity to our immigration system and an end to the "line."

¡Con el Momento Creciendo para la Reforma Migratoria, el Tiempo para Prepararse es Ahora!

Escrito por: Abogado Dustin Baxter, Socio de Kuck Immigration Partners

Muchas personas han estado esperando pacientemente la reforma migratoria comprensiva durante muchos años. Han sido arrullados por la inactividad legislativa, promesas rotas de los políticos, posturas políticas, y constantes rumores vasillos sobre cambios que han dado esperanza que rápidamente se disminuya una y otra vez cuando nada se realiza.

Para aquellos que se han arrullado, es ahora el tiempo de despertar. Sé que usted ha sido engañado en el pasado en que las cosas cambiarían, pero ahora, más que nunca, hay una razón verdadera para creer que la reforma viene. No se encuentre durmiendo mientras las leyes cambian. Esté preparado.

Hay varias cosas importantes que usted puede hacer para prepararse para los cambios que vienen. Aunque nadie sabe cómo exactamente se verá la reforma, hay varias cosas de sentido común que usted puede hacer para estar preparado:
  • Consulte con un abogado de inmigración acreditado AHORA! Al consultar con nosotros, vamos tomar su información en nuestra forma de admisión. Tomaríamos toda la información pertinente, y una vez que la ley cambie, revisaríamos nuestras notas para comunicarle exactamente cómo el cambio de la ley le afecta a usted. ¡Fije una consulta! Lo que es más sorprendente, es cuanta gente tiene otras opciones, como la visa “U”, o VAWA, o el perdón provisional. Vale la pena hablar con un abogado con buena reputación ahora mismo.
  • Revise todas sus condenas penales. Hay muchas condenas que posiblemente van a hacer que una persona no sea elegible para poder tomar ventaja de la reforma migratoria. Algunas de estas condenas son contra-intuitivas. Usted necesita hablar con un abogado de inmigración, y revisar sus disposiciones con ellos para determinar si usted debe de consultar con un abogado criminal para arreglar las condenas. Tome en cuenta que no necesariamente importa que usted haya pagado todas las multas, que haya servido libertad condicionales, o si ha tenido convicciones canceladas. Si alguna vez ha sido condenado por algún delito, revise esto con su abogado.
  • Reúna sus documentos. Es probable que tenga que comprobar la cantidad de tiempo que usted ha estado aquí en los Estados Unidos, y los lazos familiares a este país. Reúna documentos tales como: declaraciones de impuestos, certificados de nacimiento, contratos de alquiler, recibos, estados de cuentas bancarias, registros escolares; y registros médicos. Esto le ahorrará tiempo si usted se toma su tiempo para reunir esta información.
  • Obtener un número de identificación fiscal (TIN). Si aún no lo ha hecho, comuníquese con el IRS y obtenga su número de identificación para que pueda presentar su declaración de impuestos cada año. El gobierno probablemente requerirá amenos alguna prueba de declaraciones de impuestos para aprovechar cualquier cambio en la ley de inmigración. Todo el mundo puede y debe hacerlo.
  • Ahorre su dinero. El gobierno, sin duda, va a cobrar altos honorarios de presentación para lo que requiera aplicaciones. También podrían cobrar una multa por presencia ilegal como parte del proceso. Comience a ahorrar ahora para que usted no tenga que retrasar su presentación cuando llegue el momento.
Comience ahora mismo. Si espera, la línea será muy larga en el momento de aplicar para tomar ventaja de cualquier reforma que llegué. Por último, una palabra de precaución: Tenga cuidado con los notarios, vecinos, y los abogados sin experiencia. Ya que cuando la reforma sea revelada, habrá muchas personas no autorizadas y sin experiencia, algunos con malas intenciones, que van a venir de la nada, con ofertas de ayuda. Confíe sólo en abogados de inmigración con experiencia, como los abogados de Kuck Immigration Partners con su futuro.

Why A Company Should Not Self- Audit its Own Forms I-9!

Much has been made recently of the increased ICE enforcement activity against employers. The majority of this enforcement activity is directed towards the Form I-9 and whether or not employers have either properly completed the Form, or have somehow knowingly hired individuals who are not authorized to work.

In support of this enforcement activity, in May 2010, ICE released the "ICE Guide to Administrative Form I-9 Inspections and Civil Monetary Penalties." That agency field manual provides insight into the administrative procedures and penalty scheme for administrative inspections for the agency’s special agents and forensic auditors. This "fine guideline" only briefly discusses the remedial impact of "auditing" a company's Forms I-9 PRIOR to ICE serving a Notice of Inspection on the company.

There have been countless seminars over the last several years talking about the need for Human Resource professionals to "audit" your company's Forms I-9, and even describing how this auditing should be done. Here is the bad news--companies that audit their own Forms I-9 are not significantly reducing the potential fines, because much of this audit work perpetuates previous errors made by the same person who is now auditing the forms.

In a Seminar on work site enforcement issues, an ICE representative made quite clear that self-audits typically result in a more difficult situations for the employer than if an audit is done by a qualified, experienced, independent auditor, such as an attorney. Examples of massive mistakes made by self auditing after attending a "training session" include: redoing all the Forms I-9 and throwing away the originals, separating copies of documents from Forms I-9 and throwing them away, making changes to Forms I-9 without initialing and dating the Forms, and inserting backdated information in Forms I-9 making them appear to be completed timely. Each one of these "mistakes" in auditing has lead to massive fines by USCIS and even findings of unlawful employment of aliens.

The complicated nature of auditing Forms I-9 was made even more apparent on February 23, 2010, when ICE provided policy guidance concerning the applicability of the Federal Omnibus five-year statute of limitations provision in employer sanctions cases. Therefore, Form I-9 audits require the auditor to make determinations as to the running of the statute of limitations for paperwork violations (from the correction of the I-9’s), timeliness violations (from the second and fourth day of employment) and knowingly hiring or continuing to employ violations (from the termination of the employee). ICE also reiterated its continuing use of the Virtue Memorandum’s interpretation of the 10 day notice paperwork good faith defense.

The bottom line on auditing Forms I-9 is this--Much like completing the world's most complicated one-page form, auditing the Form I-9 is fraught with potential for increasing, rather than decreasing one's potential for fines, and best left to those with substantial experience in the field. A company's best practice is to complete a yearly audit of the Forms I-9 using an immigration attorney with experience in Form I-9 compliance. Any other type of audit will always leave a company wondering whether or not the audit done in-house actually left their employer compliance program in worse condition.

Why Georgia DACA Students are Entitled to In State Tuition

Ever since President Obama announced the Deferred Action for Childhood Arrivals ("DACA") program the question has been asked in Georgia by DACA beneficiaries, can I now pay "in-state" tuition at Georgia Colleges and Universities?  The question is simple, but the answer is complicated because of the differences between "lawful status" and "lawful presence," terms that are poorly understood outside of the immigration lawyer community. Now that clarifications have been issued by the Department of Homeland Security on "lawful presence" and "lawful status" within the DACA context, it is clear that the Georgia Board of Regents must allow DACA beneficiaries to pay in-state tuition, by the words of their own policy Manual.


Initially when this issue percolated through the Georgia state legislature in 2010, and in order to stop actual laws from being enacted on this issue, the Georgia Board of Regents, which is tasked with determining eligibility for in-state tuition, came out with a policy in October 2010 directly affecting undocumented students.  The Board of Regents declared that all institutions in the University System of Georgia must verify the "lawful presence" of all students seeking in-state tuition rates. The Board of Regents also stated that any institution that has not admitted all academically qualified applicants in the two most recent years is not allowed to enroll undocumented students. This rule means that no undocumented students, regardless of what tuition they pay, or their qualifications, is allowed to attend the University of Georgia, Georgia Tech, Georgia State University, Medical College of Georgia, and Georgia College & State University. 

After President Obama released the details on DACA in August 2012, faced with the question of students who now would be "documented,"
 the Board of Regents, again addressed the issue of in-state tuition for DACA eligible students, and again closed the door on them.  The Board of Regents used semantics to bar DACA eligible students from paying in-state tuition.  The problem for DACA students was that DHS had not yet considered whether these students had "lawful presence," but had only addressed the issue of "lawful status."  Let's look at the the specifics for a better understanding.  

The Board in 2010 adopted this language (emphasis added):
Georgia Board of Regents Policy Manual   Policy 4.1.6 - Admission of Persons Not Lawfully Present in the United States
A person who is not lawfully present in the United States shall not be eligible for admission to any University System institution which, for the two most recent academic years, did not admit all academically qualified applicants (except for cases in which applicants were rejected for non-academic reasons).
At this time, the following institutions fall under Policy
  • Georgia College and State University
  • Georgia Health Sciences University
  • Georgia Institute of Technology
  • Georgia State University
  • University of Georgia
Students applying to one of the universities listed above will be required to provide verification of their lawful presence in the United States before their admission to the university can be finalized.
Policy 4.3.4 - Verification of Lawful Presence Policy
Each University System institution shall verify the lawful presencee in the United States of every successfully admitted person applying for resident tuition status, as defined in Section 7.3 of this Policy Manual, and of every person admitted to an institution referenced in Section 4.1.6 of this Policy Manual.  Any student requesting to be classified as an in-state student for tuition purposes will be required to provide verification of their lawful presence in the United States in order to be classified as an in-state student.
FREQUENTLY ASKED QUESTIONS (From the Board of Regents Web Site)
What documentation may I be asked to submit?
There are a number of ways for a student’s lawful presence in the United States to be verified. In some instances, the student will not need to submit any additional documentation. For example, if the student completes the Free Application for Federal Student Aid (FAFSA), and the U.S. Department of Education determines that the student is eligible to receive federal student aid, then the student may not need to submit additional documentation as the U.S. Department of Education verifies lawful presence before awarding aid.  
In other situations, a student may need to provide documentation of lawful presence, such as a copy of their U.S. birth certificate (certified copy), Georgia driver’s license (issued after January 1, 2008), United States passport, or Permanent Resident Card, as proof of lawful presence. Students should contact their college or university to learn more about what documentation they may need to submit. 

You will notice that the Board of Regents used the term "lawful presence" in its Manual, NOT the similar, but legally distinct term, "lawful status."  Lawful status typically derives from the fact that someone is in the United States on a specific type of visa (e.g. F-1, H-1B, B-2, L-1), or is a permanent resident of the United States.  However, Congress has given the executive branch a great deal of latitude in allowing people to remain in the United States, and classifies those people who are here and known to the U.S. government as having "lawful presence," even if they do not have lawful status.  So a person can be lawfully present in the United States and NOT be in lawful status.   Granted, this is confusing, but, it should not be confusing to those who truly understand the law and are writing laws dependent upon precise meaning.

The Law on "Lawful Presence"

On January 18, 2013, the Obama administration updated their FAQs about Deferred Action and made it quite clear that individuals granted DACA are "lawfully present" in the United States, even though they do not have "lawful status."  Let's take a look at what DHS says about Deferred Action beneficiaries (emphasis added):

Q1: What is deferred action?
A1: Deferred action is a discretionary determination to defer removal action of an individual as an act of prosecutorial discretion. For purposes of future inadmissibility based upon unlawful presence, an individual whose case has been deferred is not considered to be unlawfully present during the period in which deferred action is in effect. An individual who has received deferred action is authorized by the Department of Homeland Security (DHS) to be present in the United States, and is therefore considered by DHS to be lawfully present during the period deferred action is in effect.  However, deferred action does not confer lawful status upon an individual, nor does it excuse any previous or subsequent periods of unlawful presence.
We see that DHS has made a distinction between Lawful Status and lawful presence.  And it is a distinction with a difference. If the Georgia Board of Regents required that a student be in "lawful status" to pay in-state tuition, there would be no argument here.  But, the Georgia Board of Regents only requires that a student show "lawful presence."  It is undisputed that what defines "lawful presence" is determined by the federal Immigration authorities, since it is a specific legal term of art.  We also see above that the federal Immigration authorities (DHS) has decided that DACA beneficiaries are "lawfully present" in the United States.  

We can come to only one conclusion from the law as written.  DACA beneficiaries in Georgia are legally entitled to pay in-state tuition.  Apparently, the Board of Regents has not yet clarified this fact to the institutions under its authority.  But even without such a clarification, the outcome is certain.  Unless the Board of Regents moves again to deny in-state tuition to qualified DACA beneficiaries (by definition long-term residents of Georgia), these students must be allowed to pay in-state tuition.  

Dealing with ESTA, Prior Visa Applications and The Visa Waiver Process

Having your country be part of the ESTA, or Visa Waiver program to come the United States is a wonderful thing!  But like many good things, there is a downside. The downside to ESTA is in not disclosing all prior visa refusals (which may make you permanently ineligible to use ESTA), even if you do not know you were refused a visa!  Huh?  Is it possible that I was refused a visa at an U.S. Consulate and do not know it?  Oh, yes it is. 

In an advisory sent out today by the American Immigration Lawyers Association, there are at least TWO instances in which a person could have had a visa refused, and not know or understand what has happened.
Customs and Border Protection ("CBP") may deem the failure to disclose visa refusals for administrative processing or incorrect visa category on the Form DS-160 as a misrepresentation when completing the Electronic System for Travel Authorization (ESTA) form, which could make the applicant inadmissible under INA § 212(a)(6)(C)(i). Therefore, when filing the ESTA form, you should report visa “refusals” as “denials” when refusals are for § 221(g) administrative processing or for selecting the incorrect visa category on Form DS-160.
1.  Administrative Processing
The Department of State (DOS) treats a consular officer’s decision to suspend a visa application for administrative processing under INA § 221(g) as a visa refusal. This is true even though the administrative processing notice frequently asks for documents or other information, and after those materials are submitted, the visa is granted.
Because DOS treats the suspension for administrative processing as a refusal, United States Customs and Border Protection (CBP) requires that such refusals be reported on the ESTA application. The ESTA application asks “Have you ever been denied a U.S. visa or entry into the U.S. or had a U.S. visa canceled?” If the applicant’s visa application is under administrative processing by a consular post, the applicant should answer “yes” to this question on ESTA. CBP will manually review the ESTA application to determine whether the applicant is eligible for travel. Generally, CBP will issue a decision on such applications within 72 hours of submission. 
2.  Preparation of New DS-160 Due to Incorrect Choice of Visa Classification
If a visa applicant does not select the correct visa category on Form DS-160, the consular officer may require the applicant to complete a new Form DS-160 with the correct visa category before the visa may be issued. As to the Form DS-160 submitted with the incorrect visa category selection, the consular officer may enter a § 221(g) notation in its system. Because of this possibility, even if the applicant is not told that the consular officer has entered such a notation, the applicant should also disclose a visa refusal on ESTA as a denial and explain the circumstances in the space provided.
Tips for ESTA Applications - Responding to Question F: “Have you ever been denied a U.S. visa or entry into the U.S. or had a U.S. visa canceled?”
  •  If a person’s nonimmigrant visa application has been referred for “Administrative Processing” by a consular officer and is still in that status, the visa applicant should answer “Yes” to the above question on ESTA and explain.
  • If, at the request of a consular officer, a visa applicant has completed a new Form DS-160 to correct the visa category stated on a submitted Form DS-160, that person should answer “Yes” to the above question on ESTA and explain.
  • If  a person has ever applied for a U.S. visa and has not or did not receive the visa for any reason, the traveler should answer “Yes” to the above question on ESTA and explain.
So, if you are applying to use the ESTA program and have previously applied for a U.S. visa.  make sure you understand what happened BEFORE answering the online forms from CBP to obtain your ESTA clearance.  You can save yourself a lot of headaches by making sure you answer the form correctly.  In the U.S. immigration process, there is rarely a second chance.  

Grumpy Ex-Consular Officer Not The Best Source of Immigration Reform Advice

Having been an immigration lawyer for almost one-quarter of a century, I have heard thousands of stories of surly, rude, grumpy and downright mean Consular Officers at U.S. Consulates around the world. Songs are sung of the families they have kept apart, the U.S. employers they have left without key employees, and the souls who's dreams they have crushed.  One example of such an officer, apparently, is the writer of an opinion piece in the Chicago Tribune this week, who believes that there is no reason whatsoever for immigration reform, and that anyone who came in without papers, or who overstayed their visa, is the lowest form of humanity, regardless of their reason for doing so.  

This attitude and letter reminded me of this video about the reasons why a person can be denied a visa.  I wonder if consular officers sing this song at night to be prepared to interview the next day.   (Actually, I know many consular officers and they are stellar human beings and terrific at issuing visas, but as in all things, there are exceptions).  

Immigration Reform Good for Economy

Lane Beattie, President and CEO of the Salt Lake Chamber, and a Partner of Kuck Immigration Partners co-authored an op-ed that appeared in the Sunday, February 3, 2013 edition of The Salt Lake Tribune entitled, Immigration Reform Good for Economy.
"No one benefits from our outdated and broken immigration system. Bringing undocumented immigrants out of the shadows will enhance our recovering economy and position us for continued growth. Fixing the system will attract and retain the most educated and hardest-working talent for decades to come."
A Partner of Kuck Immigration Partners also appeared with University of Utah Sociology Professor Theresa Martinez as featured guests on KSL Channel 5's Sunday Edition with Richard Piatt to discuss the recently announced immigration reform proposals.  Sunday Edition - Segment One (Feb 3, 2013)