Immigration Attorneys Blog

Ever hear of a black hole? It is an entity in space which is so dense that anything which goes into it, even light, will never be seen again.

This reminds me of a process called "administrative review" which is the black hole into which a fiance visa (K-1) is placed when sent from the overseas consulate back to the USCIS in the states when the consular official decides that the original USCIS approval is flawed in some way and needs a second look. The visa file goes back to the US and disappears into a black hole of administrative processing and review never to be seen again (CR-1/K-3 marriage/spouse visas are also subject to this vanishing act, though not as frequently); months if not years often go by with no word other than "...its in processing". The paper backlog at the USCIS is the suspected culprit, and often a stalled petition or other documentation can only be retrieved through draconian actions.

In a recent case paperwork in this "black hole" could only be retrieved by resorting court action. http://j.st/P4o Hector Valencia has a deportation hearing June 11. But before he faces an immigration judge, he wants a copy of his complete immigration file to prepare his defense. Good Luck! His attempt to get the documents from the U.S. Citizenship and Immigration Services under the Freedom of Information Act hit a wall, so his lawyer had to ride to the rescue and he has asked a federal court to compel the agency to provide the documents. Can even a federal court order be stonewalled? We'll see... In many cases the hapless visa petitioner, with no right to appointed counsel, does not have the wherewithal to seek these remedies and may just have to abandon his petition and years of work and start over. Procedural time limits, and the funding to make them work, are not only fair but needed NOW.

More Later...

Well, you can't have it both ways. Workers, especially skilled workers, are needed and needed now. While the husband or wife of a US citizen can assume a new legal status in a matter of days by adjusting their status and going to the head of the line for their green card, persons in other classifications in the past had to jump through endless hoops and wait months or years to even get a shot at it. Even other marriage based visas (K-1/fiance or CR-1/marriage can take many months and a substantial amount of paperwork.

Amazingly enough the U.S. government is responding to industry's needs.

Manufacturers want the immigrant visa program to work for them, so earlier this month, the U.S. government began accepting applications for an immigrant worker visa program designed to counter fluctuations in the high-tech workforce. But experts say it could be used to solve Southeast Michigan\'s immediate need for skilled laborers. The current H-1B visa program is too rigid to fill that need, said David Koelsch, associate professor of law and director of the immigration law center at University of Detroit Mercy.

Will this effort survive the cries for tougher immigration policy in this election year. We'll see...

In a recent New York Times article (see March 7, 2012 Cuomo and G.O.P. Quiet So Far on Tuition Aid for Illegal Immigrants (N.Y. TImes) (adjustments of status and green cards) it is highlighted how gingerly our politicians, even liberal ones such as Governor Andrew Cuomo, are treating immigration issues in general and the financial impact (some would argue benefits) of the undocumented immigrant.

The conservative would frame the question as "should real US citizens pay for medical care, schooling, etc. for the undocumented?".

The liberal would frame the question as "why should we deprive those who have done nothing "wrong" themselves (in this case children brought to this country illegally) from access to intrinsically important, possibly life changing, government services? Or possibly, "we are all God's children".

With immigration still a contentious issue around the country, Gov. Andrew M. Cuomo and Republican lawmakers have maintained a noticeable distance from New York State proposals that would make financial aid available to illegal immigrants at colleges and universities.

As noted in an earlier blog, the concept of "fairness" is central to our values as Americans. This question begs for a "case by case" analysis. As a nation of laws, including immigration and or tuition laws, we cannot afford (either in a moral sense or a financial sense) to have those who willfully flaunt our law be given benefits simply because they are here.

However, if reasonable verification is provided that the undocumented immigrant was, through no fault or choice of his/her own, brought to this country where he/she behaved reasonably as a citizen, then law and fairness should dictate that that person can compete on a level playing field for benefits such as tuition help. Right?...I think so but it will take strength of will (read political guts) for those allegedly in charge to implement a system to achieve this goal. Not so easy when you are directly impacting your constituents pocket books!

The Bible, among other things, posits the question should the sins of the father (or mother) be visited upon the son (or daughter). A conundrum which just cries out for solution is that of the minor child who is brought into the US illegally by the parent(s) who is also entering illegally. The problem is, of course, compounded when the child has been in the US for many years, gone to school and the prom and in all other relevant ways acted as a US citizen/young person only to find out at some advanced stage of "young person hood" that he/she is subject to removal and can no longer play the game

Our country is founded on the premise that the result of our government and laws should, in the end, be "fair". While what is fair is in the eyes of the beholder, as a community we define fair in our compact of laws and our willingness to obey then (or have them enforced).
In a recent American Bar Association article (see March 7, 2012 CUNY Law Grad Reveals Undocumented Status, Fears He Can't Practice Despite Passing NY Bar (ABA Journal) A 28-year-old Mexican immigrant who graduated from law school at the City University of New York and passed the state bar exam in November fears he will not be able to practice law in New York because he was illegally brought to this country as a 5-year-old child by his mother.

This sort of block to the pathway through our society is unfair on its face, but it is the law. Can it/should it be changed so our budding lawyer can adjust his status have a green card, and practice his craft in peace, (or raise legal hell if he so chooses?). What are the other considerations besides just fairness?...more on this later.

What was good for Perry Mason (for those of you old enough to know who that is...if not, Google it...he was a TV lawyer who never lost) is good for us immigration guys. He always told the truth.
Most people who want to bring their loved ones here with a K-1 fiance visa or marriage visa or to keep them here with an adjustment of status have not done this before. They have been doing a good deal of reading on the net and have decided that they would like to look into getting a lawyer to assist since they are getting conflicting information, some many years old, and it is confusing; so they start to "Shop Around". They call many lawyers advertising on the internet. Sometimes they get through to the attorney, sometimes a paralegal and sometimes not at all.
The policy of my office is to try and always answer the phone myself if at all possible (the sound of shock at having a real live lawyer answer is worth the trouble), and to try and provide some valuable information to the caller who has taken their time to call me. What are some of the questions we most frequently hear?
#1: Having seen our site, with the prices out front, I am asked "how can you offer quality professional services at that low price?" They have been shopping lawyers and have seen pricing ranging from many thousands of dollars down to perhaps a couple of hundred bucks (usually a form mill). I suggest that the potential client inquire of those they talk to about what type of office they have. Is it full of large, leather (read expensive) sofas and paralegals (doing most of the work) (read high overhead) or at the other end of the spectrum do they just send you some forms. Is the lawyer directly available to you. Is there an extra charge for "lawyer contact", is contact limited, etc. You are shopping for value but you don't want to sacrifice quality in this, one of the most important "legal actions" you will ever take... More questions to help you "cull the heard" shortly.

I get a lot of calls in my office. I do primarily internet advertising and people call from my web site. In almost all cases I answer my phone (or call back quickly...to ring my own bell) and have a discussion about a client's particular case issues and offer information. Being internet based, and having a net focus of K-1 fiance visas and CR-1 (formerly K-3) marriage visas and family related adjustments of status, I often talk to the client who has been on the net for hours or days "shopping around". Assuming they have been able to even talk to the attorneys they have called they have found wide differences in costs and the level of service, and have developed a kind of "check list" for the discussion. I can always tell when a potential client has been shopping as a couple of questions are always asked. The 100% Quandary: "what is your success rate" is a very common question. Well, I tell them, "anyone who says they have a 100% success rate is blowing smoke (to put it nicely) at you." Stuff happens. Even assuming that the attorney is experienced, competent and cares (I like to think that is my case...there is that bell again) things such as inaccurate reporting of income, forgetting to get divorced from an earlier spouse, serious criminal records, illness, etc. may all effect the time and viability of the petition and may be beyond the "repair" of even the best immigration attorney...there goes the 100% despite your best efforts. I would be really skeptical of anyone who tells you...100%. So, what are other good questions?...more later.

One of the most common questions asked is "why is this taking so long. When one wants to bring his or her spouse to the US with a CR-1 Marriage visa or your future wife or husband (fiance) with a K-1 fiance visa or even just keep a loved one here with an adjustment of status it can seem like a million years goes by before you can get it done. However, do not feel like the Lone Ranger, as this is true of many types of immigration, including obtaining citizenship status. Consider this horror story:

Twenty-one years after he set foot in the United States, Facebook engineer Wei Zhu was overjoyed to take his oath of citizenship Wednesday at a special Silicon Valley immigration summit. But why, he asked, did becoming American have to take him two decades? The path for me to become a citizen was really too long. It really shouldn't have to be this long, said the 39-year-old Cupertino engineer, one of the brains behind the social network's Facebook Connect application.

So, what can make it better? The USCIS is really no help. While they post your case status on their web site months and months usually go by with nothing noted except "in process" or some other inanity. Call customer service? Good luck with that endless phone tree.

Well, I hate to say it, (I don't really) an attorney's assistance may be your best bet. He/she will make sure that your filing is correct. If he/she knows what they are doing they will make sure that your forms are not only correct, but that you have presented the proper and complete "picture" with you petition to avoid THE DREADED RFE (request for further evidence). Should you mess up when filing yourself (or your less than experienced attorney does) this could set you back many months in a already long process.

Contrary to popular belief an attorney can be a good thing; but SHOP AROUND. Prices, competency and other factors can vary widely...more on this later.

A North Carolina man recently highlighted what many feel is an injustice for many potential students who, through no fault or action of theirs, and after our K-12 education system has given them the expectation of an affordable higher education in their home state, are, in many cases, "priced out of the market" when attempting to enter their local college.

A Winston-Salem man wore a graduation gown and a mask Wednesday. Why, you ask? While this may or may not be unusual in Winston-Salem, read on...

Speaking in front of about 50 people during a meeting sponsored by the Latino Club at Winston-Salem State University, he said his parents brought him to the United States when he was 8. He attended elementary, middle and high school in Forsyth County, but college is out of reach because he must pay out-of-state tuition as an immigrant who is not authorized to be in the U.S. So, what is his path to higher education. He could marry a US citizen, apply for a marriage visa or enter some other category and attempt an adjustment of status (a path not likely to be successful) or just give it up. Since one cannot turn on the "tube" without hearing about the benefits to our state, nation in general, and economy (to say nothing of the student) of a higher education, both short and long term; it would seem to me to be very short sighted to put up unnecessary and unfair barriers to higher education before exactly the sort of person we are trying to reach and empower. ...more later.

Oh yes, the young man, to the shock of many, pulled off the mask saying "I am Angel Fuentes and I am undocumented"...now what? We shall see.

While federal efforts to fix our broken immigration system remain largely ineffective, at the state level, legislators are becoming proactive in expanding opportunity for all, both immigrant and native-born. Across the country, a growing and diverse number of forward-thinking state legislators are abandoning unproductive and economically unsound approaches taken by states such as Arizona and Alabama. Instead they are advancing inventive policies that make economic sense for states' bottom lines and uphold their reputations. One such approach, tuition equity, continues to gain political and popular support and build momentum in statehouses across the country.
Under current federal law, states have the option to enact laws that grant the same access to higher education for undocumented students as their U.S. citizen and legal permanent resident classmates. Fourteen states have already enacted such laws with several more poised to move this year. Only a month into the 2012 session, pro-active legislators have already introduced bills to increase access to higher education in five states including Colorado, Hawaii, Florida, New Jersey and New York.
Tuition equity laws expand educational access for undocumented and non-resident students but, importantly, also increase the revenue stream for state university systems--expanding the resources available for all students at a time when budget crunches loom. In Colorado, for example, proposed tuition equity bills will bring in over $2.8 million in increased tuitions within the state university systems next year.
So now the "push" of economics at the state and local levels may accomplish what our mired down Federal government representatives cannot and or will not tackle and solve. For documented or undocumented immigrants wanting to integrate into and contribute to the good 'ole USA this will become an increasing necessity as well as a benefit to the country at large with a projected two thirds of the projected areas of job growth requiring a college degree...more later.

While it is unfortunate, it occasionally happens that when the a potential spouse comes to the US on a K-1 visa the two parties (or at least one of them) just don't click like they thought they would and decide not to go on together as man and wife (as different situation arises if the spouse arrives on a CR-1 marriage / spouse visa...but more on that later.

Ok, so the two of them are not going forward as man and wife. The situation is quite different depending on if the parties have married within the 90 days allowed for this or not. A K-1 visa is good for 90 days from the time the fiance enters the US on the visa. It expires after that 90 days if the parties have not married. The fiance must also file for an Adjustment of Status / Green Card within that first 90 days. . Obviously, if they do not marry the visa will expire and the foreign fiance must return to his/her country. This is also true of any children who may have come with the foreign spouse on a K-2 visa (not marry, return...but you knew that)

But what happens if they do marry; then, for whatever reason, they decide not to continue as man and wife. What now? Can the fiance, now wife/husband stay in the US? Can he or she divorce and stay? Can he/she apply for Adjustment of Status, work and travel permits ? What if he/she is sponsored by the US citizen spouse and adjusts status to a green card, has work and travel permits, but now wants a divorce.

The difference for immigration law, as it so often is in other phases of the law, is in the parties INTENT; so its really a case of "nothing but the facts"...oddly, no one really cares about who is right, wrong, hurt or angry...just the facts. More about this sad development later...

With the online dating industry a fact of everyday life and the relative ease of traveling abroad (at least for US citizens), more and more Americans, meeting the love of their life either on line or in person, are finding themselves facing a bewildering problem - how can their loved one join them in the US quickly and easily?
Gone are the days of simply showing up at a US Embassy with a loved one and hopping on a plane the next day. The process for bringing a fiancé(e) or spouse to the US has become an overwhelming journey one shouldn't do alone.
Petition packages for either fiancés or spouses must be filed with US Citizenship and Immigration Services, which then passes through the National Visa Center, and ends with additional documents to be filed at the US consulate level and an interview of the foreigner at a US Embassy abroad. Individuals find themselves overwhelmed with the number of forms, the amount of evidence; and the procedures (when, what, how many, to file, and with who to file it, etc. ) are involved in this seemingly simple task of bringing their loved one to the States.
The US government allows two main courses for bringing a partner to the States; the K1 Fiancé(e) Visa and the CR1 Spousal Visa. Both have their pros and cons and should be researched before starting.
The K1 Fiancé(e) visa takes approximately 4 to 6 months from the time of filing (if everything goes right) and costs US$340 filing fee to the US government plus other fees of about $500 paid the the US consulate just before the issuance of the visa. Once here, the foreign fiancé(e) must file for an Adjustment of Status to receive his or her "green card" (another 3-6+ months waiting time and US$1,070 fee). Temporary work and travel permits (advance parole) may also be needed
The CR1 Spousal visa will take about the same time and money as the fiance visa, but will require that the US citizen and foreign spouse be married at the time of filing. One advantage of the CR-1 Marriage visa is that once in the US, the foreign spouse does not need to file for the "green card," saving time and money.
Both routes are long and costly, and a simple mistake can waste money and more importantly, time. In the past, immigration lawyers offered the only professional help in navigating the visa system, at a very high cost of upwards of thousands of dollars. Now, using high tech communication solutions, and the internet, coupled with the personal guidance of an immigration attorney these visas or adjustments can be quickly, accurately and economically obtained. The attorneys at AmeriLawGroup provide this reasonably priced way to quickly and accurately get your loved one to the US as your spouse with a green card.
Next time: do you really need an attorney or will a document preparation service do just as well?

What is it that motivates our government "watch dogs" to take or not take action regarding the needs of varying segments of our communities for there to be significant immigration legal reform. In short, WHAT ARE THE DRIVERS behind action or inaction, and what actions are actually taken, in this increasingly important segment; immigration. Question: "Is it votes or is it money; or is there a difference?

In a story posted in the Los Angeles Times, October 16, 2011,

New California law bars E-Verify requirement for employers (Los Angeles
Times)

It was reported that For years, activists against illegal immigration pushed cities across California to adopt ordinances ordering businesses to verify that their employees were eligible to work in the U.S. Several cities, including Temecula, Murrieta and Lake Elsinore, complied and required businesses to enroll in E-Verify, an online program that uses federal databases to check the immigration status of workers. A rare example of Federal/State co-operation no doubt driven by the fact that those that refused could face fines or revocation of their business licenses. But those victories appear to have been wiped out this month with legislation signed into law that prohibits the state, cities and counties from mandating that private employers use E-Verify. Could this be due to the burden on employers and our legislator's desire to lighten it or could it be due to the changing demographics of California and the increasing political clout (read votes) of Anti-E-verify groups?

Across the country (or at least a lot of it) the halls of academia have weighed in and determined that the real consideration to be taken into account is money. What does it cost and who spends it, saves it, or makes it. In a report posted on October 19, 2011 a University of Alabama economist (good to have a hot bed of learning weighing in) noted in the Birmingham Business Journal that his latest analysis indicates that Alabama's controversial new immigration law will have serious economic costs for the state. According to the position paper from Sam Addy, of the Center for Business and Economic Research at the university, "the law is certain to be a drag on economic development even without considering costs associated with enforcement of the law." The issue here is not what's right for the state or nation but centers on economics, that is, money. Despite many old jokes about economists (Google it, some are hilarious and some truly insightful) Addy notes parenthetically that one cannot really tell anything for sure...(so what's new here folks)? While this sounds more legislative than academic we will leave it by finally moving on to the Right Coast...

Here we find that in Washington DC the esteemed mayor , Vincent C. Gray, sworn to uphold law and constitution, has reaffirmed Wednesday that District police and other public agencies will not cooperate with Immigration and Customs Enforcement, leaving it up to federal immigration officials to determine on their own whether a resident is in the country illegally. Ah! There is that good ol'e Federal/State co-operation again; I wonder what Mayor Gray's "drivers" are? Up front, it would seem to indicate votes but I would bet that somewhere in the "back seat" there is a good bit of money.

The beat goes on, but does not change?

More later...

August 24, 2011
Alabama's immigration bill challenged in court (WBRC - Birmingham, AL).

Hundreds of lawyers,(you can never have too many, right?), activists, state lawmakers (even worse) and journalists (usually talking heads) crowded into the Hugo L. Black Federal Courthouse in downtown Birmingham Wednesday for a daylong hearing on the future of Alabama's illegal immigration law that's set to go into effect next week. After hearing much meaningful discussion, posturing, and pontificating, Judge Blackburn made clear she will not rule Wednesday. Being clear of mind and quick of decision, she seemed to indicate she has different leanings on different sections of the law, making it unlikely she will completely uphold or strike down the law, but may rule on the bill piece by piece. What is the net result. Nothing!, Nada! No changes, no improvements, not even making it worse...just another waste of time. Why we have so many people applying for greencards in the hope of eventually participating in the fray amazes me...must be the best system anywhere...which is really scary. More later.

The question of the status of undocumented students is a thorny one and often leads to bad results for the student the University the state and the country.

In a recent case at UC Berkeley student Ju Hong: said he was both undocumented and unafraid; (see story details ) Ju Hong looked tired. Uncharacteristic stubble peppered his chin and there were shadows under his eyes when he met with reporters at a Temescal coffee shop.

But then again, had had a crazy week. Most Cal students spend the warmer months taking summer courses, doing internships or catching up with hometown friends and family. Hong, an ASUC senator-elect and political science major, spent time in jail. Police arrested 21-year-old Hong and six other undocumented student activists for blocking a major street at a July 12 San Bernardino immigration rally. They were released 12 hours later, but might now be at risk for deportation. An ICE agent told the activists they might be ordered to an immigration court hearing in a few weeks, Hong said.

While one might question the wisdom of participating in public protests where arrest is likely when one is undocumented, this case nevertheless spotlights the conundrum. Should a student, without visa or other authorization; and while lawfully admitted to a state educational institution, be subject to having his education interrupted or terminated and to being deported; an obvious waste of time and resources for all involved, including the Federal Government which has, in effect, subsidized Hong's education (through subsidy to UC) to date.

One state says yes, one university says no and a patchwork of rules and laws apply. The obvious solution is a clear and concise ruling on the issues setting a federal standard across the board or a decision by the federal courts to "butt out" and specifically entitle each state to set clear standards on this issue. In short, clear the air. Will this happen? Who knows but we are getting closer!

The matter of whether undocumented persons can or should be allowed to attend public schools and universities has raised its ugly head again with no real resolution in sight. Various states have attempted to legislate this issue and it is perennially on the ballot of one state or another inevitably resulting in protracted litigation regardless of which way the law or vote goes.

In a recent case the court was asked to decide if an immigrant tuition law should go to the Maryland ballot (Washington Post) Opponents of a new Maryland law that would give undocumented immigrants breaks on in-state college tuition have a right to force a referendum, an immigrant rights group charged Monday in a lawsuit seeking to keep the issue off the 2012 ballot. The lawsuit contends that tax money the DREAM Act would direct to tuition aid for undocumented immigrants effectively puts the measure in a class of laws dealing with state budget issues, making it off-limits to a referendum. While this issue does not apply to documented immigrants such as those coming to the US on fiancé or marriage visas or those who have had an adjustment of status , or are otherwise here legally, the contentious issues arise almost exclusively regarding those who are now undocumented.

Whichever way it goes in Maryland you can bet it will be appealed. So, what is the solution? More on this next time.