A Case involving a Child of a US Citizen with an Overstayed Visa from Ghana

With the father recently filing an I-130, they will need to provide the documentation requested to the Service Center. If the documentation establishes the father-child relationship, the case will be approved. The next step will be either adjustment of status within the U.S. or consular processing abroad in Ghana. If the child is under 21 and unmarried, they will be able to adjust status within the U.S. as long as the family has proof of lawful entry. If the child is over 21 or married, and have overstayed their visa, they will have to process the immigrant visa in Ghana causing the child to need a waiver depending on how long they overstayed their visa.

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Inquiry Regarding requesting an Employment Card

In being asked this question: My wife applied for residence for me. Uscis sent me the receip number- So can I ask for an employment card so I can start working in the US? I don't have enough information to answer. I would need to know if the wife is a citizen or resident and whether the person entered the U.S. legally or illegally. If the wife is a citizen and the the husband entered the U.S. legally and have never left, they can file for the immigrant visa, the permanent residence and work authorization all in one application.

Once that is filed, the work authorization card would arrive 60-90 days after filing unless there are missing documents. If more information is needed, they would have to consult with a colorado immigration lawyer.

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Returning to the US with a Visa After Leaving the Country for an Extended Period of Time

Posted here is an interesting situation with numerous questions regarding returning to the US with a visa after being away for an exteneded period of time.

The situation from the client's point of view:

My brother is on OPT now and which is valid till Jan 2012 and he left to India on April 29th 2011 due to medical emergency. When he left US ,he was working for an Employer and as he was not able to return in the given time and his job got terminated on May 27 th 2011. He would like to come back now.He is been out of country for 140 days now.

The questions Asked Included:
1) Can he comeback now with diffrent employer offer letter?
2)As he have been out of US for 140 days till date, would he able to enter US with current F-1 Visa ,which expires on July 2013.
3) Is this true that if a peson is out of country for 150 days ,he may not enter with his previous VISA.
4) Is it ok to enter with offer letter in hand anytime before January 2011?
5) Please suggest what is the best way for him to come back?

The Answer: The F-1 visa is tied to a particular I-20 form which was signed by a particular school. Similarly, the OPT that he received is also tied to that I-20 signed by a particular school. If he has left the United States for that length of time and has been outside the U.S., he is not going to be allowed to reenter on the same I-20, visa and OPT. He will need to file for a new work authorizing visa and reenter with the new visa. The best thing he can do is contact immigration specialists who may be able to help him understand and work through the immigration process.

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Change from L1a to L1B/H1B

In terms of making the transition from a L1a to L1B/H1B a client posed the following question:

I have been in the US for two years under a L1A visa, now I transfer into a new role, which does not have a managerial responsibility. My company will apply for a new visa (L1B or H1B) but what happens during the processing time, I'm I still entiled to stay in the US?

Our response was that he could remain in the United States as long as his current I-94 card had not expired and he had filed a timely change of status application to L-1B or H-1B based on the new company. If there is time out of status, it is possible that the USCIS will approve the new petition but deny the change of status in which case, you would have to travel outside the U.S. to obtain a visa abroad.

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Getting Residency Back by Applying for Waiver

Can a person regain a green card after the one they had was subjected to a removal and deportation order (for a crime of moral turpitude)? The person left the US on their own but wants to return to the US where they previously worked and resided for fourteen years.

That person can seek a waiver of both the crime of moral turpitude (as long as it is otherwise not an aggravated felony) and the prior removal order. However, they must first have an avenue by which to reapply for permanent residence. This can be through a family petition or employer sponsor, but the visa petition and application for residence must be approved before you can seek to enter and apply for the waiver at the consulate.

For a more detailed analysis of the process and issues involved, contact an immigration lawyer who can assist.

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Legalizing your Future Spouse

A woman inquired about legalizing her future spouse who she had been dating for months. They were talking about getting married but needed to know if it would be better to go to Mexico and marry and file over there or do it here in the US. They also inquired about the steps for doing so once their decision was made.

We provided an answer of:

You can get married in Mexico or in the United States. However, there may be risks with traveling abroad so before your spouse leaves the country, you should consult with a Colorado immigration attorney to discuss your options and come up with the best option for your circumstances.

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Sponsoring an Immigrant

A Swedish citizen currently living in the US with her spouse's VISA (L1 and L2) asked about when his assignment is over. She wanted to know if there was any chance someone can sponsor her to stay in the US. They had financial resources, but also wanted to work here. Additionally, she requested to know if there was any risk for the sponsor?

Our response at Joseph Law Firm Denver was that under U.S. immigration law, there is not avenue to remain in the United States based on generic sponsorship. It may be possible for you to remain in the United States, but you would have to obtain a new employer sponsor or start a business and self-petition for an investor or treaty trader visa (E-1 or E-2). You should consult with an immigration attorney to discuss these options and the best avenue for you.

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If Looking to Marry Someone Who Entered the Country from Mexico without Inspection

I am sharing this question pertaining to a woman who asked if it was possible to keep her boyfriend here without having to go to Mexico.

Generally, if you entered the United States without inspection, you must return to Mexico in order to process your immigration paperwork. The exception to this is if someone filed an immigrant visa petition for you or your spouse or your parents prior to April 30, 2001 in which case you may be covered by a law called 245(i) which expired on April 30, 2001. Under 245(i), you may be able to pay a penalty fee and remain in the United States to process your paperwork. You would need to consult with an immigration attorney to see if you qualify inder 245(i) and, if not, to discuss the process of obtaining a visa at a consulate abroad. We would be happy to assist you with this. Please contact our office at the number above and we can assist you.

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E2 investor & Canadian Citizen Seeks Work Permit

If your request for a work permit was denied and you are wondering what happens if your appeal is also, denied.

As an immigration lawyer in Denver, I would need to know at what level the person appealed and what the result was. If the personal also exhausted all adminstrative remedies, they can seek review in federal district court. They can also refile a new E-2 petition or examine other nonimmigrant opportunities.

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Prosecutorial Discretion

A few months ago, the Obama administration started reviewing the cases of those in removal proceedings with an aim of focusing on criminals. As a result, many illegal immigrations are wondering if it is considered a criminal act to be charged with overstay.

When a person is charged with overstaying on an authorized period of stay on the Notice to Appear, alone, and were never prosecuted for a criminal offense, that would not constitute a crime that would prevent their case from being reviewed under the Morton memo.ICE will consider all 19 factors in reveiwing cases to determine which cases are appropriate for administrative closure or other remedies.
For those here illegally and that are overstaying on authorized time, it is always best to hire an immigration lawyer in Colorado who can better advise you based on the details of your situation.

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Does he really have to go back to where he is from??

Question: I got married a year ago and we are ready to get my husband papers. He just turned 18 years of age and has been here for ten years but he came here illegally, so will he be required to return to his country of origin? 

Answer:  If he initially entered without inspection and no one has ever filed for him or his parents in the past, then most likely he is not covered by 245(i) and would have to return to his home country to process his papers. If he leaves before he is 18 and 1/2, then he will not have triggered unlawful presence and may not need a waiver to return. Because of the complex issues in the case, you should definitely consult with an immigration attorney before proceeding with the case.

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New Proposed Rule Would Decrease Time Abroad for Many Consular Processing Cases

On Friday, Alejandro Mayorkas, the director of United States Citizenship and Immigration Services, announced a proposed rule which could help thousands of families seeking to legalize the immigration status of one of their members.

Currently, if a person present in the United States entered the country without being inspected, she must leave the country in order to gain lawful permanent resident status based on the petition of a spouse or other immediate family member. As soon as they leave the United States, their previous unlawful presence triggers a 3 or 10 year bar to their return. So when they are abroad in their home country, they must file for and obtain a waiver of their unlawful presence bars before they can return. In order to obtain the waiver, they must establish that their absence from the United States is causing "extreme hardship" to their qualifying family members in the United States who are U.S. citizens or lawful permanent residents.

The problem is that the adjudication process for these waivers can sometimes take a year or longer. So at a minimum, the families face a long period of separation while trying to become legal. And of course, there is no guarantee that the waiver will be approved after the long adjudication.

If implemented, the new proposed process would allow those seeking to legalize their status through consular processing to submit their waiver applications for pre-approval before leaving the United States. While such applicants would still have to leave the United States to receive their status, the new process would have the potential to drastically decrease the time that they are abroad away from their citizen spouses and families.

As of now, the new rule is just a proposal and has not been implemented. There is no date certain for implementation. Also, it appears that the new pre-approval process would only be available for the waiver of unlawful presence bars. Those who also need waivers for bars triggered by criminal convictions or past fraud would have to continue to follow the old process where their waivers are submitted and adjudicated abroad.

Click Here to see the New York Times Editorial

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Call for "Humane" Immigration Policy in GOP Presidential Debate

Last night, the candidates for the Republican presidential nomination gathered for their eleventh debate (still thirteen to go). This debate focused on national security issues. Late in the debate, the topic turned to immigration policy and specifically on what to do with the 11 million people in the United States without immigration status.

While most of the candidates only spoke about the need to secure the border, Newt Gingrich, who is currently at the top or near the top of national GOP polling, set himself apart from the crowd by actually addressing the 11 million people who are already here and calling for a "humane" solution. Gingrich indicated that deporting someone who has been living, working, paying taxes, and attending church in the United States for 25 years is not practical and not humane.

"I do believe if you've come here recently and you have no ties to the U.S., we should deport you," Gingrich said, but he stated, "I don't see any reason to punish someone who came here at 3 years of age and wants to serve the United States of America," in apparent support of DREAM Act-type legislation.

Gingrich indicated that for those who have been here for a long period of time with deep roots in our community and have not committed crimes, there should be some way to legalize their status without separating families. He added that if Republicans want to be the party of families, they cannot support ripping these types of families apart. Gingrich recognized the potential political problems his stance could make for him in the GOP, saying, "I'm prepared to take the heat for saying, 'Let's be humane in enforcing the law without giving them citizenship but by finding a way to create legality so they are not separated from their families.'"

Gingrich, the former Speaker of the House with unquestioned conservative credentials, deserves credit for standing apart from the crowd and trying to shift the conversation toward realistic solutions in the midst of a GOP primary.

Mitt Romney's response to Gingrich during the debate was with unflinching opposition to anything that smelled of amnesty. Romney, though, has in the past taken a very similar position to Gingrich regarding those already in the country. As recently as 2007, Romney was quoted in the Lowell Sun newspaper saying, "I don't believe in rounding up 11 million people and forcing them at gunpoint from our country. With these 11 million people, let's have them registered, know who they are. Those who've been arrested or convicted of crimes shouldn't be here; those that are paying taxes and not taking government benefits should begin a process toward application for citizenship, as they would from their home country."

While it would be an overstatement to suggest that there is broad support for any type of immigration reform in the Republican party, the fact that two top candidates for the nomination are (or recently have been before becoming staunchly anti-amnesty) supportive of a humane and realistic approach to dealing with those already in the country without status is the first hint in a long time that there may be some daylight for future immigration reform.

Read the RealClearPolitics article on the immigration exchange in last night's debate here.

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DHS: Pilot Project for Deportation Case Review in Denver

The Department of Homeland Security will conduct a review of all pending deportation cases around the country to conduct a triage of the courts' overwhelmed dockets. The review is intended to focus resources on deporting those who have committed serious crimes or pose national security risks.

The review will include six-week pilot projects in the immigration courts in Denver and Baltimore. During the pilot projects, teams of immigration agency lawyers will evaluate each case pending before those courts. Those cases which are not determined to fit with the government's priorities may be administratively closed but will not be dismissed. The fact that a person's case is administratively closed will not entitle him to any work permit or any other immigration status. Additionally, the administratively closed deportation case can be reopened in the future at any time the government chooses.

Click here to see the New York Times article on the review of deportation cases.

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Author of Arizona Immigration Law Loses Recall Election

Russell Pearce, the author of the controversial Arizona legislation aimed at illegal immigrants, lost a recall election last night and has been voted out of office.

He was forced into the recall election after disapproving constituents collected more than 10,000 signatures. He was defeated in the election by fellow Republican Jerry Lewis, who said that Pearce's immigration law had made Arizona "a pariah." Lewis is proposing a more cooperative stance against illegal immigration which aims to seek solutions by working with federal authorities and other parties.

Click here to read the CNN article on the recall election.

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Boulder County DA Vows to Prosecute Crimes Against Immigrants

In an interview with Colorado Public Radio's Ryan Warner today, Boulder County District Attorney, Stan Garnett, discussed his new focus on prosecuting crimes against undocumented immigrants. Garnett's decision to act comes as a response to countless cases of exploitation of immigrant communities.

Garnett's firm commitment to protect crime victims, regardless of immigration status, has drawn heavy criticism from anti-immigrant members of the community. Despite public uproar, Garnett is unwavering in his belief that immigration status is irrelevant to the prosecution of criminals and that all victims deserve protection. Garnett also hopes to foster a relationship of trust with law enforcement, so immigrants feel comfortable reporting crimes. He describes his policy as aligned with the values of law enforcement throughout Boulder County.

Stan Garnett's promise to prosecute crimes against immigrants is a welcome one, especially when contrasted with other counties whose District Attorneys inexplicably refuse to certify U Visa applications filed by victims of serious and violent crimes.

Watch Ryan Warner's interview with Stan Garnett here.

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Tancredo Either Dishonest or Completely Uninformed in 9News Debate with Julien Ross

On Tuesday, Will Ripley of 9 News hosted a debate on immigration and border-related issues with former U.S. Representative and Colorado gubernatorial candidate Tom Tancredo and Colorado Immigrant Rights Coalition Director Julien Ross.

Click here to watch a 9 minute clip of the debate.

For one of the loudest participants in our national dialogue on immigration issues, Mr. Tancredo displayed a surprising naïveté and ignorance on critical issues.

In the face of Mr. Ross’s point that 3/5 of the 11 million undocumented people in this country have been here for over a decade and are deeply rooted to their communities, Mr. Tancredo insisted that implementation of E-verify will cause them all to self-deport. Mr. Ross recommended a more comprehensive approach which would require the undocumented population to come out of the shadows and register, pay taxes, pay a fine, go through a background check, and learn English. This would immediately bring this population out of the shadows and allow immigration enforcement authorities to identify and focus on those who have been convicted of violent or dangerous crimes. In combination with an E-verify-type system, the proposals from Mr. Ross and others could be the backbone of a reform that would both deal with the 11 million undocumented people here now while preventing illegal immigration in the future.

Beyond his naïve belief that E-verify by itself will cause 11 million people to self-deport and resolve our immigration issues, Mr. Tancredo demonstrated startling ignorance of the law on his pet issue. At about minute 5:00 of the clip, the conversation turned to the DREAM Act (Development, Relief and Education for Alien Minors). Mr. Ross told the story of a young man named Edgar who was brought to the United States as a seven year old, went to our schools, and then graduated from police academy. Our communities have invested resources in Edgar to educate him and now he is ready to serve his community as a police officer. But Edgar can’t do so because he does not have any documentation. The DREAM Act would allow people like Edgar to obtain a legal status and would allow our society to reap the benefits from these people that we have already invested our resources in.

Mr. Tancredo’s argument against the DREAM Act is that it is a way in which to give amnesty to all of the DREAM Act eligible person’s family members. At minute 6:10, Mr. Tancredo states that the “minute you become a legal resident, you have the ability to apply for that same residency for all of your family.” With Mr. Tancredo’s years of advocacy on immigration issues, he either knows that his statement here is completely untrue but says it anyway to try to advance his agenda or he has been utterly careless in researching an issue on which he holds himself out as an expert. First, DREAM Act students would not immediately become lawful permanent residents but would have to pass through a period of conditional status. Moreover, even when they do eventually become permanent residents, they cannot apply for that same status for all of their families. For instance, a permanent resident from Mexico can file an immigrant petition for his spouse, but under current wait times the spouse would not be able to gain resident status for years. The same would be true for the child of a permanent resident. Under section 1153(a) of Title 8 of the U.S. Code, a permanent resident cannot petition at all for his parents or brothers or sisters. If some day, say in 11 years (six years in conditional status plus five years as lawful permanent resident as required for naturalization), the DREAM Act kid successfully became a naturalized citizen, at that time he could apply for his parents and siblings. Of course, the siblings who were born in Mexico would have to wait for 15-20 more years under current processing times to be able to get their resident status.

The idea that the DREAM Act allows the beneficiary to get amnesty for his entire family “the minute he gets his status” is absurd and can be debunked with a few minutes of research. It’s not immediately clear which would be worse: if Mr. Tancredo knew this and lied about it or if he honestly doesn’t understand and hasn’t researched this issue that he spends so much of his time advocating on.

Kudos to Julien Ross of CIRC for his performance in the debate. As for Tom Tancredo, there are plenty of arguments to be made on different sides of the immigration debate and there is no need for him to make misrepresentations about the facts or the law. If he wants to carry the bullhorn for the anti-immigration reform crowd, he owes it to them research the issues and present the facts honestly.

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Napolitano Predicting Record Deportations

On October 5, 2011, Department of Homeland Security (DHS) Secretary Jane Napolitano wrote an Op-Ed piece for Politico about the enforcement of immigration laws.

Secretary Napolitano sought to respond to critics of immigration policy from both sides. In the editorial, she predicted that next year DHS will break records with the number of deportations from the United States but explained that "while the overall number of individuals removed will exceed prior years, the composition of that number will consist of more convicted criminals, recent border crossers and repeat immigration law violators than ever before."

The administration's focus on prioritizing which individuals should be deported with limited resources makes sense. However, her prediction that DHS will break records for deportations next year calls into questions the hope for those low-priority individuals who seek prosecutorial discretion. Rather, it seems more likely that DHS will see that "record" number of deportations for the coming year as a mandate from above or a quota. Unfortunately, the data can be easily massaged to make it look like DHS has really sharpened its focus on high-priority aliens. By lumping all criminal offenses together, DHS can crow about the removal of criminal aliens. Secretary Napolitano stated in her Op-Ed that "50 percent of immigrants removed from our country had been convicted of a criminal offense."

Such statistics don't delve into what percentage were deported for drug offenses or violent offenses and what percentage were deported after being pulled over for having a tail light out and then convicted of driving without a license because their international driver's license is only good for a short period here in the United States.

All crimes are not the same and we should remember this for the coming year when DHS produces statistics of record deportations of "criminal aliens."

Click here to see Secretary Napolitano's Op-Ed .

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Far Reaching Human Consequences of Failure to Change Immigration Laws

In a time of consistent inaction on any issue important to the governance of the United States by the United States Congress, the question becomes how individuals work within antiquated, draconian, biased and divisive immigration laws. The United States bases its existence on the rule of law, and sees the Constitution as a living document; therefore, ensuring that one is following the immigration law is of paramount importance.

Putting aside the fact that current immigration law is a hindrance to free market economy because employers basically have to ask permission from the United States Department of Labor to hire the employee of their choice (ask any employer who has chosen the perfect person to work for him and has had to navigate business based visas, the PERM Labor Certification Process, and the minimum six year waiting period for professionals to be eligible to then apply for permanent resident status); and not taking into account the fact that permanent residents of this country have to wait years to live with their spouses and children, it is becoming ever more clear that the human toll of the immigration laws in the United States is devastating, and affect so many, it becomes difficult to fathom why Congress has refused to act.

When considering all those that immigration law affects, consider those in the gay and lesbian community. People who are legally allowed to marry in a minority of states remain ineligible to petition for their spouses to remain in the United States because of the Defense of Marriage Act (DOMA). DOMA denies same-sex couples all federal marital benefits, such as tax preferences, Social Security and spousal immigration rights. This means that even for same sex couples that are legally married to a United States citizen that citizen in their state, the government still does not allow them to petition for the foreign national spouse to remain in the United States. There are a number of Congress men and women who believe this is unfair, and have introduced bills to repeal DOMA and allow same sex married couples to petition for one another, but in the meantime families continue to suffer under Congress’ inaction. Just because a bill is introduced, it does not mean it will be passed, or even looked at.

http://www.sfgate.com/cgi-bin/article.cgi?f=%2Fc%2Fa%2F2011%2F10%2F05%2FMNEJ1LDPA3.DTL

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Decline in Unauthorized Aliens Residing in US

Whether it is the economy or an increase in worksite enforcement, the number of unauthorized aliens in the United States has declined since 2008. According to the Congressional Research Service report published September 22, 2001, an estimated 10-11 million unauthorized aliens lived in the U.S. as of 2010, compared to over 12 million in 2007. The report surveyed the U.S. Census Bureau's Current Population Surveys (CPS) published since 1986, and the Department of Homeland Security (DHS) Office of Immigration Statistics (OIS) reports based on the U.S. Census Bureau's American Community Survey (ACS) since 2000.

The report analyzed data collected not only on the number of unauthorized aliens in the U.S., but also countries of origin, residence in the United States, and year of arrival. The majority of unauthorized aliens residing in the U.S. as of 2010, approximately 30% of the total population, entered between 2000 and 2004. Only 9% of the current unauthorized alien population entered the U.S. between 2005 and 2009 according to a 2010 CPS report. Unauthorized aliens migrating from Mexico have declined since 1986, from 69% to 57% in 2010, while aliens originating from Asia have increased by 6%. The greatest number of unauthorized aliens continue to reside in California and Texas. According to the report, Colorado is not even in the top ten states "with unauthorized resident aliens" with a 2010 headcount between 140,000 to 325,000.

Contributing factors to the rise and fall of the unauthorized alien population in the U.S. since 1986 included economics, legislation, and enforcement. Some analysts attributed the rise of unauthorized aliens to "lax enforcement of employer sanctions," introduced in 1986 (Immigration Reform and Control Act (IRCA) of 1986). These analysts point to the decrease in unauthorized aliens since work site enforcement increased in 2007-2008. However, the decrease in population since 2007 may also be attributed to the 2008 housing downturn and the subsequent recession.

In addition, the Illegal Immigration Reform and Immigration Responsibility Act of 1996 (IIRIRA) "may have inadvertently increased the population of unauthorized resident aliens." Among other penalties, the act introduced the three and ten year bars to admission for aliens unlawfully present in the US for 180 days or more. These provisions "coupled with incrased resources for border enforcement" in the wak of the 911 terrorist attacks, according to the report, have created a "caging effect" that has "stymied what had been a rather fluid movement of migratory workers along the southern border." The result of IIRIRA "raised the stakes" and "created an incentive for those who succeed in entering the United States to stay."

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