|
|
 |
|
|
Immigration
Law Blog Posts
|
The Dallas Morning News came up with a surprise today -- the newspaper has named as Texan of the Year for 2007, the "Illegal Immigrant." This followed a long countdown, in which the paper named various Texans who figured prominently in news stories this year. The News ran a lengthy article about the Texan of the Year, and I recommend reading it. Here are the first few paragraphs:
He is at the heart of a great culture war in Texas – and the nation, credited with bringing us prosperity and blamed for abusing our resources. How should we deal with this stranger among us? He breaks the law by his very presence. He hustles to do hard work many Americans won't, at least not at the low wages he accepts. The American consumer economy depends on him. America as we have known it for generations may not survive him.
We can't seem to live with him and his family, and if we can live without him, nobody's figured out how.
He's the Illegal Immigrant, and he's the 2007 Dallas Morning News Texan of the Year – for better or for worse. Given the public mood, there seems to be little middle ground in debate over illegal immigrants. Spectacular fights over their presence broke out across Texas this year, adding to the national pressure cooker as only Texas can.
To their champions, illegal immigrants are decent, hardworking people who, like generations of European immigrants before them, just want to do better for their families and who contribute to America's prosperity. They must endure hatred and abuse by those of us who want the benefits of cheap labor but not the presence of illegal immigrants.
Especially here in Texas, his strong back and willing heart help form the cornerstone of our daily lives, in ways that many of us do not, or will not, see. The illegal immigrant is the waiter serving margaritas at our restaurant table, the cook preparing our enchiladas. He works grueling hours at a meatpacking plant, carving up carcasses of cattle for our barbecue (he also picks the lettuce for our burgers). He builds our houses and cuts our grass. She cleans our homes and takes care of our children.
Yet to those who want them sent home, illegal immigrants are essentially lawbreakers who violate the nation's borders. They use public resources – schools, hospitals – to which they aren't entitled and expect to be served in a foreign language. They're rapidly changing Texas neighborhoods, cities and culture, and not always for the better. Those who object get tagged as racists.
Whatever and whoever else the illegal immigrant is, everybody has felt the tidal wave of his presence. According to an analysis of government data by the Washington-based Center for Immigration Studies, Texas' immigrant population has jumped a whopping 32.7 percent since 2000, a period in which immigration to the United States has exceeded, in sheer numbers, all previous historical eras. Half the immigrants in the state – 7 percent of all Texans – are estimated to be here illegally.
Though many would agree that the status quo cannot be sustained – more illegal immigrants arrive each year than legal ones, a sure sign that the system is a joke – neither Texas nor the nation seemed nearer in 2007 to resolving this complex crisis. We can't deport 12 million people who already live here, but we can't leave our back door open indefinitely. Compromise comes hard because the issue is tangled up with the most basic aspects of everyday life, down to the core of what it means to be American.
This essay cannot put a name or a face to an illegal immigrant, because that would subject him to possible deportation. Because he lives underground, the illegal immigrant becomes, in our rancorous debate, less a complex human being and more a blank screen upon which both sides can project their hopes and fears.
A religious organization in the United States may sponsor an individual from another country who has been a member of a religious denomination for two years immediately preceding the filing of the application. If the appropriate Petition and supporting documentation are submitted, the individual may qualify for a nonimmigrant R visa. If the individual is the United States, the religious organization must file Form I-129 Petition for a Nonimmigrant Worker, along with the R Classification Supplement in the United States. If the individual's spouse and children are accompanying or following to join him or her, then Form I-539 should be filed with the I-129 Petition. The petition must be supported with documentation establishing that the individual seeks to enter the United States solely for the purpose to:
1) carry on the vocation of a minister of that religious organization; or
2) work in a professional capacity for that religious organization at the request of the organization; or
3) work at the request of the organization in a religious vocation or occupation for the organization (or its § 501(c)(3) affiliate).
The petitioner (religious organization) must show that it is a bona fide, non-profit, tax exempt religious organization under § 501(c)(3) of the Internal Revenue Code. This can be shown by submitting copies of the organization's articles of incorporation, bylaws, financial statements, and letters from the Internal Revenue Service showing that the religious organization is nonprofit and exempt from taxation.
Furthermore, a letter from an authorized official should indicate that the individual has been a member of the religious organization and that the foreign and U.S religious organizations belong to the same religious denomination. The religious organization should provide a sworn statement by an authorized official outlining the hours the individual will work, the duties and responsibilities the individual will perform and the remuneration the individual will receive. Once the R-1 visa is approved, the religious worker, spouse, and children (under 21 years) are granted admission for three years which may be extended for an additional two years.
The R visa allows the individual to apply for permanent residency. If an individual has been in R status for at least two years, a Special Immigrant Petition I-360 may be filed by either the Religious worker or the employer. The Special Immigrant Petition is a step towards obtaining permanent residency. Please contact us if you have any questions regarding Religious Worker visas.
A spouse, child or parent who has been subject to extreme cruelty or battery by a U.S. citizen or lawful permanent resident (LPR) spouse or parent may file a Violence Against Women Act (VAWA) self-petition. VAWA petitions are available to the victims of domestic violence and may be either male or female victims. In order to qualify, a victim of domestic violence has to meet several requirements. The self-petitioner must establish that he or she is the spouse of a U.S. citizen or LPR; resides in the United States when the self-petition is filed; resided with the abuser in the United States in the past; has been battered or subject to extreme cruelty by the Citizen or LPR spouse during the marriage; is a person of good moral character; is a person whose deportation would result in extreme hardship to himself, herself, or his or her child; and the victim entered into a good faith marriage with the Citizen or LPR. Before filing a VAWA case, evidence must be gathered to establish the above-mentioned requirements. For example, the petition must be accompanied by evidence of the marriage relationship, such as a marriage certificate. To satisfy the requirement that the abusive spouse or parent is a U.S. Citizen or LPR, a copy of their birth certificate or resident card should be provided. With respect to providing evidence of the abuse, the victim may include police reports, temporary restraining orders, affidavits from police and judges, medical reports, and letters from doctors. To satisfy a good faith marriage requirement and the requirement that the self-petitioner resided with the abuser, the self-petitioner must submit documentary proof which includes, but is not limited to, joint accounts, credit card bills evidencing both names, apartment leases, driver’s licenses showing the same address of both, insurance records held in both names, federal tax returns filed jointly, and birth certificates of children. In order to show that the victim is a person of good moral character, the self-petition should provide an affidavit from the self-petitioner, accompanied by a local police clearance, and letters from individuals. Evidence of extreme hardship includes affidavits, birth certificates of children, etc.
Once the VAWA petition is approved, the next step will be to proceed with obtaining permanent resident status based on the approved self-petition. Please contact us if you have been or are subject to abuse by a U.S. citizen or LPR spouse, or parent.
According to an article in today's Washington Post, immigration is the number one issue among potential voters in Iowa's Republican caucus next month. I don't doubt the Post's polling, but that is amazing to me. With all our economic woes, a crisis in education, crime in the streets, and ongoing wars in both Iraq and Afghanistan, I don't see how people could put immigration at the top of their list of things to worry about.
From the Brownsville Herald comes a story about a recent USCIS proposal to require holders of old green cards with no expiration dates to turn them in and get a newer version. The stated reason for the proposal is to allow USCIS to get current personal contact information on these green card holders. The problem for green card holders will be that this will give USCIS an opportunity to run criminal background checks, and if any minor infractions of the law are found, the green card holder could be subject to deportation. It's going to be a very tricky matter. Here are excerpts from the article:
U.S. Citizenship and Immigration Services (CIS) is considering a proposal to eliminate hundreds of thousands of green cards that were issued between 1979 and 1989.
The cards, which were issued without expiration dates, would be upgraded to store personal information electronically.
Officials at CIS say that the new cards would be more difficult to counterfeit. Like cards issued after 1989, they will expire every ten years.
“The photos on the old cards are more than 18 years old,” said Sharon Rummery, a spokesperson for CIS, “and the security features are not as good.” She explained that the new card includes holograms of U.S. presidents, which are difficult to duplicate.
CIS is currently reviewing comments that have been submitted in response to the proposal. As of now, there is no timeline for implementation.
If the proposal, which was issued on Aug. 22, moves forward, legal permanent residents would have 120 days to apply for new cards. Failure to comply with this would be a misdemeanor, which could result in $100 fine and/or imprisonment of up to 30 days.
Immigration attorneys are concerned about the financial burden their clients will bear if the proposal is implemented. The card costs $290 plus an additional $80 for fingerprinting and photo fees.
Permanent residents who replace their green cards will also be subject to criminal background checks. If an infraction—even one as minor as a traffic citation—is uncovered, they might be asked to provide relevant paperwork, including proof of an indictment and its dismissal.
Thanks to Greg Siskind for pointing out this page of the Web site of the Americans for Better Immigration, an anti-immigrant group. The ABI has rated all the presidential candidates on their positions on immigration reform and enforcement. Of course, many of us strongly disagree with the philosophy of the ABI, but this rating system does let us learn about the candidates' positions and make our judgments accordingly.
The Dallas Morning News had an interesting story Sunday about the declining student population in Irving, Texas. Speculation is that the decrease, which will cost Irving money in state funding, is due to the city's crackdown on illegal immigrants. As you know, Irving has been reporting to Immigration Services whenever an undocumented alien is stopped for a traffic ticket or for any other criminal offense. Hundreds of Irving residents have been deported recently. Here are excerpts from the story:
The Irving school district has lost 656 students since the end of September, and officials attribute the decline to a crackdown on illegal immigrants and the shutting down of aging apartment complexes.
School officials said they don't know exactly why hundreds of students have disappeared since the district hit its peak enrollment of 33,189. But the losses outpace previous years. Last year, Irving schools lost 283 students during the same period.
Superintendent Jack Singley said a city code-enforcement crackdown on declining apartments where many low-income families live may have caused people to leave town. And some immigrants may have left Irving because they feared deportation.
"We're watching our enrollment very carefully," Mr. Singley said. "This probably will be the toughest year to predict future enrollment for many reasons. There are many changes in our community."
School administrators are concerned because they stand to lose state funding, which is based on how many students attend school each day.
The superintendent and principals have tried to assure parents that their children are safe at school. Mr. Singley raised concerns early in the year that deportations were causing parents to go "on the run" and withdraw children from the schools.
"I think the reason is the climate in Irving," school board president Michael Hill said. "If parents are pulling their kids out of school for fear of what they're hearing throughout the city, my concern is: Are the kids in school at all?"
The school district's students are about 73 percent economically disadvantaged and 67 percent Latino this year. Many of them are the children of immigrants.
About 39 percent of students are classified as limited English proficient, the highest in North Texas. The district continues to go through considerable change, losing white students as it gains Hispanics.
Mr. Singley reassured parents in a letter that the school district does not assist law-enforcement officials with deportations.
Generally, a lawful permanent resident (LPR) must have continuous residence in the United States for five years (or 3 years if married to a U.S. citizen) in order to be eligible for citizenship. Continuous residence in the United States does not mean that an LPR cannot leave the country for the entire five years (or three years if married to a USC) in order to qualify for citizenship. On the contrary, LPR's can travel freely without the hassle of obtaining a visa from the United States Citizenship and Immigration Service. However, LPR's must make sure they do not face the problem of abandoning the continuous physical presence requirement. An LPR may be deemed to have disrupted the "continuous residence" requirement if the LPR travels out of the United States a few times a year, or if an LPR is outside of the country for over six months. If an LPR continuously maintains a residence in the United States but is physically outside of the United States for over a year, the Department of Homeland Security (DHS) may decide that the continuous residence has been abandoned. If an LPR has not properly maintained the continuous physical residence requirement, and the DHS determines that an LPR has abandoned his or her residency, DHS can refuse an LPR back into the United States.
Attention all frequent-flyer residents: Make sure your trips abroad are for short periods of time. Please note that the continuous physical residence requirement is one requirement that must be satisfied to qualify for citizenship. There are other requirements that must be met in order to establish citizenship eligibility. Please contact us if you would like to begin your citizenship process.
The Dallas Morning News reports today that two regional training centers will open in Dallas in January for new employees of U.S. Citizenship and Immigration Services, a government agency swamped by naturalization petitions. Excerpts:
The move comes as the agency hires 1,500 additional employees nationwide to deal with a surge in citizenship applications. The increase has caused processing time to triple, to up to 18 months in Texas and nationwide.
The number of naturalization applications nearly doubled, to 1.4 million, in fiscal year 2007, as some legal immigrants tried to meet a July deadline for a fee increase, and others reacted to a crackdown against illegal immigrants that spilled into the legal immigrant community.
"These facilities will enhance the agility and focus to confront the complex national security challenges ahead, provide excellence in customer service, and operate effectively across interoffice and organizational boundaries," agency director Emilio Gonzalez said Wednesday.
Dallas has one of only three regional offices for Citizenship and Immigration Services, an agency within the Homeland Security Department that has faced mounting lawsuits over the processing delays.
An article in the Los Angeles Times today says that one-third of Americans think that illegal immigrants should be denied basic social services. On the other hand, 60% of Americans are in favor of a path to citizenship for immigrants who are here illegally but have not committed crimes. Here are excerpts from the article:
Those crosscurrents create treacherous political waters for the major presidential candidates in both parties, many of whom have tended to avoid spotlighting the issue. But all the White House contenders have been forced to confront the issue repeatedly under questioning at campaign events and candidate forums.
Some poll respondents, in follow-up interviews, expressed frustration that the candidates have not been more forthright in addressing immigration-related issues.
The poll indicates that illegal immigration is not the most important issue voters have on their minds, but that most people view it as a key concern.
Asked what problem is a top priority for presidential candidates to address, 15 percent said illegal immigration — the fifth most-mentioned topic behind the war in Iraq, the economy, protecting the country from terrorist attack and health care. Asked how much of a problem illegal immigration is, 81 percent of voters said they considered it important, including 27 percent who said it was one of the most pressing problems facing the country.
The poll also makes clear that voters make a distinction between legal and illegal immigrants: Asked if illegal immigrants had made a positive or negative contribution to their community, 36 percent said negative (21 percent said positive, 29 percent said the impact was not discernible).
When the same question was asked about legal immigrants, only 12 percent said their impact was negative.
(46 percent said positive, 31 percent said no discernible impact).
When those who said immigrants had a negative impact were asked precisely how, the reasons most often cited were increased crime (30 percent), loss of American jobs (35 percent) and increased cost of social services (19 percent).
Voters are divided about what the best solution is to the problem of illegal immigration, but a strong majority expressed support for a proposal discussed in Congress — part of a package backed by President Bush — that would create a pathway to citizenship for illegal immigrants already in the U.S.
The plan, under which illegal immigrants could become citizens if they have no criminal record, register in the U.S., pay a fine, learn English and meet other requirements, was supported by 64 percent of Democratic voters and 62 percent of Republican voters.
However, that plan died in Congress under fire from critics who called for the U.S. to do more to tighten border security before considering liberalized treatment of illegal immigrants.
The Dallas Morning News has an article today stating that in 2008 construction will begin on approximately 150 miles of fencing along the Texas-Mexico border. This fence project has been the subject of heated debate in the border communities. The fear is that a fence, which will of course have to be built on the Texas side of the Rio Grande, and not in the river itself, will have both environmental and economic adverse effects on Texas and Texans. Many landowners will see their property bisected by the fence, and many more will lose access to needed water from the river. Small businesses along the border are concerned that they will lose customers if border crossings become less convenient for Mexicans authorized to come to Texas.
Here are excerpts from the article:
More than 150 miles of fencing is to be constructed along the Rio Grande in Texas. Fourteen miles of fence was built in El Paso several years ago.
"We're going to see steel barriers erected on the borders where U.S. and Mexican cities adjoin. These will slow down illegal crossers by minutes, but that will be long enough for agents to turn them back," Chief Hill said.
"In the open areas outside the cities, we'll build a virtual fence that uses radar to detect entry and then key a camera to that point."
Opposition to the fence by politicians, business leaders and border residents has been loud.
"It's one of the few issues around which virtually every group along the border is organized and united," Hidalgo County Judge J.D. Salinas said earlier this year. "No one on the border likes the wall. But Washington isn't listening."
If a foreign national is married less than two years to a U.S. Citizen, the alien spouse may be granted conditional permanent resident status in the United States from the time residency is granted. Is there a difference between permanent residence and conditional permanent residence? No. Conditional permanent residents have the same rights, privileges and obligations as permanent residents. The only difference is that conditional permanent residents must file a petition to remove their conditions a year and nine months from the time their residencies are granted. Alien spouses currently in conditional resident status must not forget to remove their conditions on Form I-751 Petition to Remove Conditions. Such petition should be accompanied with evidence that the alien spouse and U.S. Citizen spouse continue to reside together and have a valid marriage. Supporting documents include utility bills bearing both names, apartment leases showing joint tenancy, joint accounts, and birth certificates of children. The petition to remove the conditions must be filed one year and nine months from the date the alien spouse was granted conditional permanent resident status. Failure to file the petition removing the conditions may result in the termination of the alien spouse's permanent resident status and removal proceedings may be initiated.
If the spouses are divorced before the second anniversary of the date the alien spouse was granted conditional permanent resident status, and the parties cannot file Form I-751 jointly, waivers are available. The alien spouse may be granted the waiver by showing proof that the marriage was entered in good faith, and it would result in extreme hardship if the alien were deported. So if an alien spouse has been granted conditional permanent residence, don't forget to remove your conditions!
The New York Times is reporting that the Bush administration is backing down from the announced policy of punishing employers who hire illegal immigrants. The proposed rule was to enforce so-called "no match" letters from the Social Security Administration by prosecuting employers who did not fire employees whose Social Security numbers did not match the database of the Social Security Administration. Here are excerpts from the New York Times article:
Instead, the administration plans to revise the rule to try to meet concerns raised by a federal judge and issue it again by late March, hoping to pass court scrutiny on the second try. The rule would have forced employers to fire workers within 90 days if their Social Security information could not be verified. The government’s proposal was a response to an indefinite delay to the rule ordered Oct. 10 by the judge, Charles R. Breyer of Federal District Court in San Francisco. Judge Breyer found that the government had failed to follow proper procedures in issuing the rule and that it should have completed a survey of its impact on small business.
He also found that the Social Security database the government would use to verify workers’ status was full of errors, so the rule could lead to the dismissal of many thousands of workers who were American citizens or legal immigrants.
In a four-page motion filed Friday, the government, without acknowledging any flaws in the original rule, asked Judge Breyer to suspend the case so the Department of Homeland Security could rewrite the rule and conduct the small-business survey, which it expects to do by March 24. The government said that it wanted to “prevent the waste of judicial resources” and that it was confident the amended rule would “fully address the court’s concerns.”
The rule laid out procedures for employers to follow after receiving a notice from the Social Security Administration, known as a no-match letter, advising that an employee’s identity information did not match the agency’s records.
The employer would have had to fire an employee who could not provide verifiable information within 90 days, or face the risk of prosecution for knowingly hiring illegal immigrants. Those immigrants often present fake Social Security numbers when applying for jobs.
Judge Breyer also stopped Social Security from sending out about 141,000 no-match letters, covering more than eight million workers, which contained instructions from Homeland Security about the rule. Social Security sends the letters to clarify workers’ information so it can correctly credit taxes deducted from their wages.
Some businesses welcomed the rule because it clarified what they had to do to avoid immigration raids. But the labor unions cited a report from the inspector general of the Social Security Administration finding that 12.7 million of the records of United States citizens in the agency’s database contained errors that could lead to them being fired.
My friend Reid Trautz is is the Director of the American Immigration Lawyers Association (AILA) Practice and Professionalism Center, where he provides ethics guidance and practice management information and consulting services to AILA members to help them improve their businesses and the delivery of legal services to their clients. Reid is back again with his annual Holiday Gift Guide for Lawyers. If you have a lawyer on your shopping gift (or anyone else, for that matter) you'll find some great gift ideas here:
My Holiday Gift Guide for Lawyers is back for the third consecutive year, with an expanded array of noteworthy recommendations for the lawyers in your life. Not a tie, gavel, or kitschy brass scales on this list, just gifts that any self-respecting, hard-working, red-blooded American lawyer wouldn’t love to have–if they had the time to find it themselves and tell you about it!
Once again, I’ve compiled this list as a public service for my learned professional colleagues and their time-sensitive, gift idea-starved family, friends, partners, associates and, dare I say, appreciative clients? Yep, that means that once again I make no money on this guide. No Google Ad Words, referral fees, nor sponsorships. Consider it pro bono publico! The gift ideas are in no particular order (except I’m hoping my wife notices I put the iPhone first), and range in price from under ten dollars to several hundred. Enjoy!
Yesterday, USCIS issued a reminder to employers about the new I-9 form, which must be used beginning December 26, 2007. Here is the text of the reminder:
USCIS Reminds Employers to Transition to New
Employment Eligibility Verification Form by Dec. 26, 2007
WASHINGTON
U.S. Citizenship and Immigration Services (USCIS) will announce in a Federal Register
(Rev. 06/05/07)N printed on the lower right corner of the form) which is now the only version valid for use. In that Nov. 7 announcement, USCIS explained that employers would have 30 days, beginning on the date the Federal Register notice is published, to transition to the revised form. Accordingly, effective Dec. 26, 2007, employers who fail to use the revised form will be subject to applicable penalties.
On Nov. 7, USCIS announced the availability of the revised version of Form I-9 (includes the revision date --
Both the revised form and the "Handbook for Employers, Instructions for Completing the Form I-9" are available online at www.uscis.gov. To order forms, call USCIS toll-free at (800) 870-3676. For forms and information on immigration laws, regulations, and procedures, call the National Customer Service Center at 1-800-375-5283.
The other day, someone asked me which presidential candidate would be best, strictly on immigration reform views. Here is a nice little summary from a Reuters news story:
DEMOCRATS:
New York Sen. Hillary Clinton
Supports a guest worker program for immigrants if it does not undermine U.S. workers' wages and favors giving undocumented workers a way to become legal workers. Backed building border wall. Urges development of an employer verification system and higher penalties for employers who exploit illegal immigrants.
Former North Carolina Sen. John Edwards
Urges doubling the number of Border Patrol agents, installing surveillance technology to police the border and increasing enforcement against employers who hire illegal immigrants. Supports allowing illegal immigrants to become U.S. citizens if they avoid a criminal record, pay a fine and learn English. Against a guest worker program that does not include workplace safeguards.
| | | |
