Thursday, December 16, 2010

What You Post on Facebook Matters

Facebook has become an interesting tool for people who engage in background investigations. People with Facebook accounts are invited to share such information as their relationship status, their birth dates and other personal information. Plus, a person's Facebook page often has links to that person's "Friends."

U.S. immigration authorities, for example, have been know to research social networking sites, like Facebook, to see how an applicant describes his or her relationship status, or with whom that person associates. If an alien is applying for a visa based on a marriage to a U.S. citizen, for example, but has his or her relationship status listed as "single," this may prompt immigration authorities to suspect fraud.

Posts on Facebook can also sometimes inadvertently reveal where a person has been hanging out, what he or she has been doing with their time, and with whom they associate. Such information can be used by immigration authorities to compare with other answers to questionnaires to find inconsistencies.

Another red flag could be where a Facebook user does not have his or her spouse listed as a "friend."

The availability of such information to government investigators has prompted many immigration lawyers to ask whether a client has a social networking account, and request that the client become a "friend," so that the lawyer can monitor the same information.

While social networking sites can be a fun way to stay in contact with friends, family and loved ones, users should be aware that posts which are public can be seen by anyone, including government officials. Social networking users should keep this in mind when posting status updates.

Friday, December 10, 2010

Arlington Circuit Court Grants a Writ to Allow Alien Detainee to Testify

The Arlington Circuit Court issued a writ of habeas corpus ad testificandum, instructing U.S. Immigration and Customs Enforcement to transfer the custody of an immigration detainee to the Arlington County Sheriff's Department, temporarily, to allow the alien to testify in an upcoming hearing in state court.

The alien is challenging a sentence entered years ago in a petit larceny conviction. The sentence was for twelve months, with ten months suspended. However, this makes the conviction one for an aggravated felony under U.S. immigration law, and thus renders the alien ineligible for cancellation of removal. The alien argues that his criminal defense lawyer did not discuss the immigration consequences of his plea bargain. If true, then this would be a clear case of ineffective assistance of counsel, as the Supreme Court recently defined it in Padilla v. Kentucky.

There are many different types of writs of habeas corpus. The one that most people are familiar with is a writ where a prisoner seeks to be released, claiming his imprisonment is in violation of law. Usually, this is sought when the prisoner believes that his conviction was the result of a constitutional violation.

A habeas corpus ad testificandum is a writ addressed to the government entity holding the person, to have that person appear before another court in order to give testimony. It is related to a writ of habeas corpus ad prosequendum, which is a writ used when a state court wants to prosecute a prisoner in federal prison.

Where the legal action is pending in a state court, a writ of habeas corpus ad testificandum or habeas corpus ad prosequendum must be issued by that state court. Federal courts have no power to supervise state court proceedings.

This ruling is significant because it is often difficult to get ICE to permit an immigration detainee to appear for a state court proceeding. That is, some aliens have experienced the problem where the alien is arrested for a state criminal action, ICE places a detainer on them, the alien makes bail, only to find himself in ICE custody. Once in ICE custody, the alien often misses his state court hearing. Having the state court issue a habeas corpus writ may permit the alien to attend the state court proceedings, while preserving ICE's custody over the alien for immigration purposes.

Wednesday, November 17, 2010


The word is that Hispanic Democrats in Congress are pressing for the passage of the DREAM Act during the lame duck session. The DREAM Act stands for "The Development, Relief and Education for Alien Minors Act." It would provide for a pathway for alien children who graduate from a U.S. high school to earn a way to eventual citizenship.

If the Act passes, then an undocumented alien who graduated from a U.S. high school, was brought to the U.S. as a minor, is of good moral character, has been present in the U.S. for five years before the passage of the Act, and who either enlists in the military or completes two years of higher eduction could earn conditional permanent residency.

The DREAM Act is meant to address the inequities that occur when a family brings a minor child into the United States, and raises the child here. Often, such children may not know the language of their home country. The only life they may know is here in the United States. Moreover, undocumented children now face a situation where they cannot qualify for various scholarships and financial aid. Thus, many are trapped in a life without further education.

The DREAM Act was offered as an amendment to a spending bill just before the October recess for the 2010 elections. However, the amendment never came to the floor. Whether the DREAM Act will have an opportunity to face a vote is an open question, since many Republicans will resist such major policy pushes in the waining days of the current Congress.

Thursday, November 4, 2010

What Do the Elections Mean for Immigration Reform?

I will be the first to admit that I am no geenie. I cannot read the tea leaves and see the future. But, I can give an educated guess on what I think the future of comprehesive immigration reform is based on this year's mid-term elections.

This past Tuesday gave the Republicans a historic victory with a pick-up of about 60 seats in the House of Representatives (as I write this, about 10 races are still not decided). The fact is that Republicans generally draw their support from people who oppose immigration reform. Do not expect any movement from the new Congress on comprehensive immigration reform, then.

But, is that the final answer? The current Congress still has a lame duck session. Many hope Congress will address some of the most pressing issues before it adjourns, such as tax reform. Quite frankly, I don't see this Congress addressing tax reform when the Republicans will be more than happy to take that up in the next Congress when they control the agenda and do not have to compromise with the Democrats.

But, immigration is another story. Realistically, the next two months may be the last chance for comprehensive immigration reform for a long time to come. No one will want to touch it before the 2012 election. The outgoing Speaker, and some of the ousted Democrats may see this as their last hurrah. That is, it may be possible to push immigration reform through with the majorities the Democrats will have until January. Such actions are not unprecedented.

Of course, the Democrats who will be remaining in the House after January may have a differenet point of view. If passing comprehensive immigration reform as a last gasp can be seen as abusive and countrary to the will of the people, those Democrats may be resistant to going along with a push to pass such important legislation before the end of this Congress.

In the end, the answer is simply that if comprehensive immigration reform is to happen, it must happen in the next two months. If it does not pass the lame duck session of Congress, then I believe that there will not be another opportunity to pass it again for a long period of time.

Thursday, September 9, 2010

Third Circuit Court of Appeals Strikes Down Hazelton Law

The U.S. Court of the Appeals for the Third Circuit today struck down a law from Hazelton, Pennsylvania that attempted to crack down on those who did business with undocumented aliens. The law imposed sanctions against landlords who rented to known undocumented aliens, and to deny business licenses to business that hired illegal immigrants.

The Third Circuit held that this was an intrusion into the power of the Federal Government to regulate immigration. In response to the decision, the Mayor of Hazelton vowed to take the case to the U.S. Supreme Court.

Our Government is one of divided powers. The state and local governments have their domains, and the Federal Government has its own. The Constitution squarely gives the Federal Government the power to regulate immigration and nationality. Indeed, the Federal Government has a comprehensive body of law regulating the employment of aliens.

Given this broad constitutional power, and the comprehensive legal scheme that the Government has adopted to regulate employment of aliens, the Third Circuit's decision is correct. State and local government simply cannot adopt their own set of immigration laws.

Wednesday, September 8, 2010

Asylum Granted Based on Inter-Faith Marriage

On September 1, 2010, Immigration Judge Paul Schmidt of the Arlington Immigration Court granted asylum to a woman from Nepal who entered into an inter-faith marriage. The woman was raised a Hindu, and her family had arranged a marriage with a Hindu man. Before the marriage occurred, the woman came to the United States, met a Muslim, fell in love, married him, and converted to Islam.

The woman offered evidence that her father had threatened her life for marrying a Muslim. She demonstrated that her father was a violent man, who had beaten her, her mother and her sister in the past. The father had gone so far as to arrange for a fraudulent marriage certificate. State Department Human Rights Reports on Nepal indicated that the police tend not to take domestic violence in Nepal seriously.

Based on this evidence, Judge Schmidt found that the woman showed a fear of persecution based on her religion, and that the Nepali Government was unwilling to protect her.

A redacted copy of the decision can be found here.

Tuesday, July 27, 2010

How Criminal Lawyers and Immigration Lawyers Differ

As an immigration lawyer, you have to think about the immigration consequences of everything. This includes traffic violations.

Hypothetically, let's say you have a client charged with driving without a license. He has no immigration status, so he can't get a license. This is his second offense.

In Virginia, this would be a class 1 misdemeanor, punishable with up to 1 year in jail and/or a $2500 fine. The offense itself does not require that the person know that he had no valid license. This means that the conviction in and of itself would not have immigration consequences.

Now, let's say the prosecutor offers a 30 day sentence with 25 days suspended. The jail counts a day and a night as separate days. Client could serve the whole sentence in a weekend by reporting Friday afternoon. Most criminal defense attorneys would find that a good deal.

But, here's where an immigration attorney differs. I would see my client going into jail, being put in a computer system. ICE would pick that up, and could possibly put a detainer on him for being present without status. Thus, even though the offense itself may not have immigration consequences, the fact that he goes to jail and is put in a system could have immigration consequences. In this situation, my judgment is to advise taking the fine, even if it is $2500, and walking out of the courthouse free, to avoid any jail time and the risk that ICE starts removal proceedings.

Bottom line is that sometimes an immigration attorney will see it better to reject what a criminal attorney would think is a good deal, in order to avoid the opening of removal proceedings.

Thursday, July 15, 2010

New US Citizen!

Congratluations to one of the newest citizens of the United States, my friend and client, Pam Berrios!

Tuesday, July 6, 2010

H-1B Visas Still Available for Fiscal Year 2011

As of June 25, 2010, 23,500 H-1B visa petitions had been filed for fiscal year 2011. There is an annual cap of 65,000 visa. That means that over 40,000 H-1B visas for fiscal year 2011 remain.

Also, 20,000 H-1B visas are available every year for foreigners who hold a masters degree or higher from a U.S. institution. As of June 25, only 10,000 petitions from this category had been filed. Thus, 10,000 H-1B visas for foreigners holding a U.S. master's degree or higher remain.

H-1B specialty worker visas, therefore, remain available. Specialty workers generally are workers in a profession requiring a bachelor's degree or higher. The fiscal year starts on October 1, 2010.

The Federal Government Sues Arizona

The Federal Government filed a lawsuit against Arizona over its law requiring police to inquire into the immigration status of a person if the police have a reasonable suspicion that the person is an illegal immigrant. The lawsuit contends that the Arizona law has been pre-empted by the comprehensive set of immigration laws promulgated by Congress.

In my humble opinion, I do not think the Arizona law can withstand a challenge from the Federal Government. The reason is that the Constitution clearly makes immigration a federal issue. In fact, immigration has to be a federal issue. The country simply cannot have one set of immigration rules at work in Arizona, and another set in place in Nebraska. Immigration must be a unified national policy.

The pre-emption doctrine provides that where a subject is within the authority of the Federal Government, and Congress has occupied the field by passing a comprehensive legal framework, states are not free to adopt their own laws on the subject. There is a comprehensive legal framework in place. The Department of Homeland Security is clearly tasked with enforcing U.S. immigration laws. The Constitution provides that the laws passed by Congress are the Supreme Law of the Land. Therefore, I do not believe that there is any room for the states to adopt their own immigration rules.

Interestingly, this is the same issue that led to our civil war; namely whether a state can trump the Federal Government by passing its own law that is inconsistent with Federal law. Just as the South was wrong then, Arizona is wrong now.

Saturday, July 3, 2010

A City on a Hill

On this Fourth of July weekend, we celebrate the freedoms many of us take for granted. I am sure that when the Founding Fathers met in the sweltering heat of Philadelphia in 1776, they had no idea that what they started would be the creation of a beacon that would draw pople from all over the world. People flock to the United States to this day because of our freedom, and the opportunities we have.

It is fitting, then, to contemplate immigration reform. The president gace a speech on the issue two days ago. While I am generally not a fan of this president, there are some things I must agree with him about. Namely, that our immigration system is broken and is in need of reform.

A few years ago, I was in the camp of enforcement only, and strengthening the security of our borders. I still believe strongly in strengthening our borders. But, I have seen how the enforcement only approach has simply failed, and created an inhumane and intolerable situation.

The problem with enforcement only is tat it requires a huge amount of resources to implement. You need money for more courts and judges. You need money for more ICE officers. You need money for more goverment lawyers. You need money for more detention facilities. You need money to care for those who are held in detention awaiting a hearing.

Yet, we have not had the forethought to pure the money into the system. What is the result? People charged with immigration violations are being crowded into jails awaiting hearings. Sometimes, with the hge backlog of cases, they find themselves waiting years for a hearing. Worse yet, these people, who may have already served time for various minor crimes, and who are only awaiting a hearing for alleged immigration violations, find themselves mixed in with the general population of some of the most violent criminals.

The strain on the immigration court system is great. The judges' docket is packed. The government attorneys are overworked. In many instances, when the person has a claim under the law for relief, it is not unusual to have to wait two years for a hearing.

Money has not been put into the system to care for those who are in detention. Detainees sometimes lack even rudimentary health care. Plus, the system creates incentives for those in charge of the detention to develop a cold and callous attitude towards detainees. There are stories of detainees who complain of health issues, only to have ICE officers use that to pressure them to give up their case, and just accept going back to their home countries. There was one story from two years ago where the ICE officers refused to believe a man from Hong Kong of his incredible pain. Not until his family was able to get a court order was he able to get a medical exam. By then, it was discovered that this man had cancer, and the delay in treatment only served to allow the cancer to spread through his body.

This is the result of our enforcement only policy. This is why, as a human being, I can no longer support enforcement only. Yes, tose who broke the law should not be able to benefit by that. But, the reality is, the problem is just far too big to solve simply by enforcement only. If our elected officials are not going to have the political strength to dedicate the resources necessary to implement the enforcement only approach in a human e fashion, he we have to address those who are here, and do it in a fair way.

This country should continue to the a beacon for the world. As my favorite president, Ronald Reagan, described, we should be a city on a hill, an example of freedom and self-government for the whole world to admire. And we should lead by example, showing that we can deal with our immgiration problems fairly, but with compassion.

Saturday, June 12, 2010

Ineffective Assistance of Counsel: Padilla v. Kentucky & Post-Conviction Relief for Criminal Offenses with Immigration Consequences

On March 31, 2010, the U.S. Supreme Court issued its decision in the case of Padilla v. Kentucky, Crt. No. 08-651, which held that the failure to give advice concerning the immigration consequences of a guilty plea amounted to ineffective assistance of counsel, and thus a violation of the Sixth Amendment. Immigrants facing deportation or removal because of criminal convictions now face the possibility of using the Supreme Court’s decision to solve their own immigration problems.

Padilla was a permanent resident and veteran of the Vietnam War, where he served his country honorable. He was charged under Kentucky law for transporting marijuana, an offense that carried with it an assured deportation if convicted. According to Padilla, when considering whether to plead guilty, he asked his counsel about the immigration consequences of his conviction. His counsel told him not to worry because of the long time that he had spent in the United States. This advice was dead wrong.

After pleading guilty, Padilla faced removal proceedings. It was at this time that Padilla sought post-conviction relief to withdraw his guilty plea and face trial. The Supreme Court of Kentucky denied his request.

The U.S. Supreme Court held that the failure of counsel to provide advice on the immigration consequences of a guilty plea amounted to ineffective assistance of counsel, and remanded the case for further proceedings under Kentucky law. In reaching this conclusion, the Court made a number of key findings. First, the Court found that even though immigration is governed by civil law, the immigration consequences of a conviction are inexorably intertwined. Second, the Court noted that there was no distinction between bad advice and no advice. That is, criminal defense counsel is under a duty to provide advice concerning the immigration consequence of a conviction, even if the topic was not affirmatively brought up by the client. Finally, a key point of the Supreme Court’s decision is that Padilla sought to remedy a guilty plea that was allegedly procured by ineffective assistance of counsel.

With the Supreme Court weighing in on the subject, the question now for many facing deportation or removal is how to use Padilla to gain immigration relief.

All people being held by the government have the right to file a writ of habeas corpus. That means, that they can challenge the legality of their detention. Thus, in many instances, it may be possible now to file for a writ of habeas corpus, and argue that the detention is illegal because the conviction was based on a guilty plea procured by counsel’s bad immigration advice.

But, habeas corpus may not be available for everyone facing immigration consequences of their criminal convictions. For example, in Virginia, a habeas corpus action is only available for two years after the final judgment of the trial court, or one year after the final decision on appeal.

Virginia has one more avenue that may be available. That is the writ of error coram vobis. This is a procedure meant to correct errors that affect the validity and regularity of the judgment. In Commonwealth v. Mohamed, 71 Va. Cir. 383 (2006), a defendant attacked the length of his sentence, claiming his criminal defense counsel failed to advise him properly on the fact that the length of his sentence would cause his to be deportable. The Circuit Court of Arlington County permitted the defendant, who had served his sentence completely, to use the coram vobis procedure to reduce his sentence in order to avoid deportation proceedings.

It is important to note that Mohamed did not challenge a guilty plea itself. Indeed, in Virginia, by pleading guilty, a defendant waives a host of rights, including the right to appeal. A question remains as to whether the coram vobis procedure can be used to withdraw a guilty plea when based on ineffective assistance of counsel. The Virginia Supreme Court in Dobie v. Commonwealth, 198 Va. 762, 96 S.E.2d 747 (1957), held that coram vobis cannot be sought merely if the criminal defendant thinks he can obtain a better result by going to trial.

However, Dobie was decided long before Padilla. And, Padilla specifically addresses the situation where the guilty plea was alleged procured because of bad advice on the immigration consequences of the plea. The argument would be that the guilty plea itself is invalid because it stemmed from the ineffective immigration advice.

Such a strategy remains untested. Its success is, therefore, unknown. Moreover, this strategy faces the hurdle that guilty pleas are difficult to attack under Virginia law. However, it may be the best hope available for immigrants who have already served their sentences in Virginia, and now face the immigration consequences of their guilty plea.

Update (September 27, 2012):  The Virginia Supreme Court case of Morris v. Commonwealth has pretty much shut the door on obtaining post-conviction relief based on Padilla.  Morris held that the writ of error coram vobis and the writ of audita querela were not available in Virginia to address a claim of ineffective assistance of counsel.  The only avenue open for post-conviction relief based on a Padilla claim is a writ of habeas corpus.

There is, however, a statute of limitations on a writ of habeas corpus in Virginia.  It must be filed two years after the final judgment of the trial court, or one year after the appellate decision is final.

This creates a gross inequity in Virginia.  A person can have a conviction of a deportable crime that is ten years old.  There is no statute of limitation on the ability of the Government to use such a conviction for deportation.  But, that person may not have any clue that the advice he or she received when accepting the plea was faulty until ICE takes him or her into detention and starts removal proceedings.  That person would then have no ability in Virginia to challenge the conviction based on the Sixth Amendment violation.

By:  William J. Kovatch, Jr.
(703) 837-8832

Tuesday, April 27, 2010

Supreme Court Holds Competent Criminal Advice Includes Discussion of Immigration Consequences

On March 31, 2010, the U.S. Supreme Court held that the failure to advise a criminal defendant of the immigration consequences of a plea amounted to ineffective assistance of counsel.

Padilla had been a lawful permanent resident for forty years, and served honorably in the U.S. Armed Forces during the Vietnam War. On the advice of counsel, Padilla plead guilty to transporting a large amount of marijuana. Because of his guilty plea, Padilla faced deportation.

Padilla claimed that his defense counsel not only failed to advise him of the immigration consequences of the guilty plea, but that counsel assured him that since he had been a permanent resident for so long that he did not have to worry about his immigration status. Padilla insisted that if he knew about the immigration consequences of his guilty plea, he would have insisted on going to trial.

The Supreme Court of Kentucky, assuming Padilla’s claims were true, denied post conviction relief. Padilla appealed to the U.S. Supreme Court, which reversed the Kentucky decision.

Pursuant to the Sixth Amendment, before deciding on whether to plead guilty to a charge, a defendant is entitled to the effective assistance of competent counsel. Kentucky had argued that immigration consequences of a plea are merely collateral, and thus criminal defense counsel need not address them. The Supreme Court disagreed, noting the unique nature of deportation. While removal proceedings are a part of civil law, not criminal law, deportation is intimately related to the criminal process.

Based on this reasoning, the Supreme Court reversed the Kentucky Court’s decision, and remanded the case for further proceedings. Five justices joined in the Court’s opinion. Justice Alito concurred in the judgment, and was joined in his opinion by Chief Justice Roberts. Justices Scalia and Thomas dissented.

Arizona Law Ignites Firestorm of Controversy

Arizona passed a law addressing immigration concerns which has touched off a firestorm of controversy. The most controversial provision of the law provides that where any lawful contact is made by a law enforcement official or agency of the state or a county, city, town or other political subdivision, and a reasonable suspicion exists that the person is an alien unlawfully present in the united states, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person.

Opponents argue that it will be difficult for government officials to define when a reasonable suspicion exists that a person is an unlawful alien. Critics fear that police and other officials will rely on racial profiling to identify potentially undocumented aliens, thereby bringing a large number of lawful residents and U.S. citizens of Latino descent into suspicion.

Critics further note that the law will discourage many Latinos from seeking the vital services they may need from the government, for fear of being placed in immigration proceedings.

Despite pleas from immigrant rights groups across the country, and criticism from President Obama, the Governor of Arizona signed the bill into law on August 23, 2010. In response, the Board of Governors of the American Immigration Lawyers Association moved its fall conference from Arizona in protest.

Saturday, April 10, 2010

H-1B Visas for Fiscal Year 2011 Still Available

On April 8, 2010, USCIS announced that it was still accepting applications for H-1B specialty worker visas for fiscal year 2011. The H-1B visas are for foreigners who work in a position requiring a bachelor's degree or higher. There are 65,000 available each year, plus an addition 20,000 available for foreigners holding a master's degree or higher from a U.S. school.

The fiscal year begins on October 1, 2010. H-1B petitions can be filed as early as 6 months in advance. Thus, April 1, 2010 was the first date on which H-1B petitions could be filed. As of April 8, 2010, 13,500 H-1B petitions had been filed, and 5,600 petitions for individuals with advanced degrees.

In recent years, the trend had been for there to be more petitions filed on April 1 than there were available visas. This results in a lottery to see which applicants receive the visas. Last, year, however, H-1B visas remained available up through December of 2009. Fiscal year 2010 appears to be starting off in the same manner.

Monday, March 29, 2010

How to Prepare for a Marriage Interview

Every applicant for a visa will be interviewed by an official from the U.S. Citizenship and Immigration Service (“USCIS”). It is USCIS’s opportunity to ensure that the intended immigrant is a real person, and that there is no fraud. The trickiest of interviews tend to be
those where a young marriage is involved.

The spouse of a U.S. citizen can become a permanent resident without waiting for a visa to become available under the preference system. That means that there is no long wait. Being a spouse of a U.S. citizen has other advantages under immigration law. A spouse can adjust in the United States, and does not have to go overseas to process at a U.S. consulate. If a spouse entered legally, the spouse can be out of status when he or she applies for permanent residency. Plus, unauthorized work will not count against the spouse of a U.S. citizen.

All of these benefits under the law create a temptation for a foreigner present in the United States to find a U.S. citizen to marry, so that the foreigner can apply for permanent residency. This is particularly true where the foreigner is out of status. It is because of this temptation that USCIS is suspicious of young marriages.

How, then, can a candidate for a visa based on a marriage prepare for a USCIS interview? The first bit of advice is to try to relax and be yourself. The USCIS officer may ask questions just for the sake of getting to know you as a person. Simply answer the questions honestly.

Next, it is a good idea to talk to your spouse about your history together before going to the interview. Talk about how you met. Reminisce about your dates. Talk about what you got each other for special holidays. Don’t try to memorize every detail. Simply go over your history so it is fresh in your mind. If your answers appear too memorized, it might draw suspicion.

Don’t shy away from bad facts. If your spouse’s parents don’t like you, say so. If you hated the last birthday present you got, don’t hide that fact. Real life has its conflicts. USCIS officers know that.

It is a good idea to have pictures with you at the interview. Try to review them before hand, and remember who was with you, who took the pictures, and what you were doing.

Review your written petitions. The interviewer will ask questions about them. It may have been months since you last saw them. Refreshing your memory is a good idea. If you see mistakes, be sure to correct them up front in the interview.

USCIS insists on evidence of a shared life together. Having a joint bank account is one way to show a joint life. But, don’t open a joint bank account simply to have one. USCIS officers may ask if you have other accounts, and which accounts you use to pay the bills and deposit your paychecks. If you have a long standing account that you use frequently, but the account with both of your names is one that is used infrequently, that will create more suspicion.

Be prepared for questions that might otherwise appear too personal or out of bounds. Some USCIS officers will ask who sleeps on which side of the bed. Some will ask about the decor of your bedroom. Don’t be insulted. Just answer calmly and accurately.

If there is suspicion during the interview, USCIS may bring out the questionnaires. They will ask one spouse to leave the room, and have the remaining spouse fill out a written questionnaire. They will tell you that it is voluntary. Of course, if you refuse it can be held against you. This is not criminal law, thus the 5th Amendment does not apply. Once finished, the USCIS officer will ask you about your answers.

Then, the other spouse will be brought in to answer the same questionnaire. The USCIS officer will compare answers. Be prepared that this might happen.

If you and your spouse normally speak in your native language, be careful about that during your interview. The interviewer can become annoyed if you speak to each other in a language other than English. If your spouse does not speak English, you must bring the interpreter. Again, try not to talk to each other in front of the officer in your native language.

If you have a lawyer, it is a good idea to have the lawyer present in the interview. The lawyer’s role is limited to that of an observer. That is, your lawyer cannot interrupt and answer questions for you. But, if an interviewer is being abusive, your lawyer can, and should, interpose. The best advice is simply to relax and tell the truth. A little preparation beforehand can help calm your nerves, and have you ready to answer whatever questions the interviewer poses.

Wednesday, March 17, 2010

Some Efforts to Comply with Immigration Laws Can Open a Company to Liability for Employment Discrimination

The United States uses employers to help enforce certain immigration laws. Employers, for example, are responsible to verify the identity and employment authorization of all new hires. An employer who knowingly hires a person who is not authorized to work in the United States can face stiff penalties.

Sometimes, however, in their zeal to comply with U.S. immigration laws, employers adopt policies that could run afoul of antidiscrimination laws. For example, I recently attended a conference where the goal was to educate churches on compliance with tax and other federal laws. The presenter warned the attendees that the Department of Homeland Security was more aggressive than the IRS, and stated that at a minimum the church should have a copy of a person’s driver’s license, green card and visa. His theme was that all paperwork should be completed before any work was done.

The problem with this approach (aside from the faulyt assumption that a person with a green card has or even needs a visa) is that it opens the employer to legal liability for employment discrimination. On page 1 of the I-9 form, in the very first text box, the government warns:

It is illegal to discriminate against any individual (other than an alien not authorized to work in the United States) in hiring, discharging, or recruiting or referring for a fee because of that individual's national origin or citizenship status. It is illegal to discriminate against work eligible individuals. Employers CANNOT specify which document(s) they will accept from an employee.

Page 5 of the I-9 lists the type of documents that are acceptable. The documents are divided into 3 lists: A, B and C. List A documents show both identity and authorization to work. If a new hire shows a document on list A, the employer can require no further identification.

List B documents show identity. List C documents show authorization to work. If a new hire does not have a list A document, he or she must show both a list B and list C document.

Many of us are used to showing a driver’s license and a Social Security card when we start a new job. The driver’s license is a list B document that shows identity and a Social Security cards is a list C document that shows authorization to work. But, those are not the only acceptable documents.

For example, certain foreigners may be in the United States with the authorization to work. Such foreigners may have an employment authorization document, with or without a photograph. If the new hire has an employment authorization document without a photograph, that is a list C document and shows authorization to work. The foreigner can show the employment authorization document, and a driver’s license, which shows identity, and be able to work. In this situation, the employer cannot require the new hire to show a Social Security card. If the employer does require the new hire to show a Social Security card before permitting the person to work, the employer has engaged in a discriminatory practice and can be held liable for damages to the new employee.

If a person shows a green card (also known as the I-551), that person cannot be required to show any other form of documentation. A green card falls under list A, and demonstrates both identity and authorization to work. Similarly, if a U.S. citizen shows an unexpired U.S. passport, that is sufficient to show both identity and authorization to work. Moreover, if a new hire shows an employment authorization document with a photograph, that document alone is sufficient to permit the new hire to work. In these situations, the employer cannot require further identification. If the employer does, the employer has engaged in a discriminatory practice and can be held liable.

In adopting policies to ensure an employee’s ability to work in the United States, the employer should be mindful of the potential employment discrimination liability. Reading Form I-9 thoroughly, and understanding it is a good first step in balancing the duty to comply with the duty to avoid discriminatory practices.

Friday, February 26, 2010

Being Honest with the Government

If my eight years working for the United States Government taught me anything, it is not to try to lie to Federal employees.

Federal employees, particularly those who work directly on specific cases, tend to be overworked. Due to budget constraints, they are also given few resources to do their jobs. That means that case workers sometimes have tough choices about which cases will get the bulk of their attention. Lying to a Federal case worker will not endear you to them. Being human, they will likely become annoyed. This can very well work to the detriment of how much attention your case gets.

Lying also affects your credibility. A Federal case worker is less likely to find in your favor after you have lied. And why should they? If a Federal case worker has caught you in one lie, they may assume that you lied in other aspects of your case as well.

Lying to a Federal employee about something important and relevant to their job is also a crime. It can result in fines and jail time. Sometimes, when a Federal employee has discovered you lied to them, it can motivate them to bring the full force of the Department of Justice on you.

Finally, particularly in the immigration context, it is extremely difficult to get away with a lie. Often, immigration benefits depend on a background check. That means the FBI, who are extremely good at what they do, will be investigating your background. The FBI is thorough and professional. You should not expect to keep something having an important bearing on your case from the FBI.

If you have an issue that may affect your eligibility, the best course is to seek out a lawyer, be truthful in explaining to your lawyer your situation, and letting your lawyer give you the best advice for your situation. While you may not like it, that advice could be not to seek the immigration benefit.

Employers Should Start the H-1B Process for Fiscal Year 2011

The H-1B, or specialty worker, visa is available to foreigners who will work in the United States in a profession requiring a bachelor's degree on a temporary basis. Only 65,000 are available each year. In addition, there are 20,000 H-1B visas for foreigners holding a master's degree.

The H-1B visas allow the foreign workers to start at the beginning of the fiscal year, October 1st. The employer may apply for the visa as early as six months before the beginning of the fiscal year, or April 1st. In the past few years, the trend had been that the Government received more petitions on April 1st than the number of available visas. Last year was an exception, as H-1B visas remained available through December.

Because of the timing issues, and the possibility that the recession is ending, employers would be wise to start the H-1B process now for employees who will start on October 1, 2010. The process includes not only filing the visa petition by April 1st, but also having the Department of Labor approve a labor conditions application ("LCA").

Through the LCA, the employer certifies that: (1) it will pay the the greater of the prevailing wage or the actual wage paid to other employees in the same position; (2) the
employment of an H-1B worker will not adversely affect the working conditions of US workers; and (3) there is no strike, lockout or other work stoppage because of a labor dispute.

The employer applies for Department of Labor approval of the LCA on-line. Prior to last year, the LCAs were being approved almost instantaneously. However, with the adoption of the iCert portal, the Department of Labor is now taking up to a week to approve the LCAs. The need for additional time should be factored in when preparing to apply for an H-1B visa.

Preparing for ICE Employer Inspections

With some preparation and a plan, an employer can successfully navigate the receipt a Notice of Inspection (“NOI”) from U.S. Immigration and Customs Enforcement (“ICE”).

All U.S. employers must verify the identity and authority to work of its newly hired employees. After seeing the new hire’s documentation of identification, the employer documents its compliance with the law through the I-9 form.

The receipt of a NOI indicates that ICE wants to inspect an employer’s records to ensure that the employer is complying with the law. ICE will give the employer 3 business days to produce its I-9 forms. ICE will likely also request other documentation, such as a copy of the employer’s payroll or a list of the employer’s employees. ICE will compare the list of employees with the I-9 forms, to determine whether any documentation is missing or out of order.

The best result from an inspection is a Notice of Inspection Results. This is also called a compliance letter. This letter informs the employer that it was found to be in compliance.

ICE could also issue a Notice of Suspected Documents. This is an indication that the employee is unauthorized to work. ICE will notify the employer of the possible fines and criminal penalties for continuing to employ the person. However, the employer will have an opportunity to present additional evidence if it believes ICE has reached its conclusion in error.

ICE could issue a Notice of Discrepancies. Through this notice, ICE is notifying the employer that it has been unable to determine the work authorization of the employee. The employee is to be given an opportunity to present additional documentation to ICE to prove his or her work authorization.

If ICE finds a technical violation of the law, it will issue a Notice of Technical or Procedural Failures and give the employer ten days to comply. The failure to correct the technical violations becomes a substantive violation and could result in a monetary fine.

A Warning Notice is issued where ICE finds substantive violations, but determines that monetary fines are not called for.

Finally, if ICE determines that the employer has committed a serious substantive violation or has knowingly hired or continued to employ a person who is unauthorized to work, ICE will issue a Notice of Intent to Fine (“NIF”). The employer will be required to put an end to the illegality. The employer may also face a fine and criminal prosecution. The employer may also be “debarred” by ICE, meaning that the employer will not be permitted to participate in federal contracts, or receive other federal benefits.

When ICE finds an employer has knowingly hired or continued to employ an unauthorized worker, it may impose fines ranging from $375 to $16,000 for each violation. The amount of the fine will depend on five factors: (1) the size of the business; (2) good faith efforts to comply; (3) the seriousness of the violation; (4) whether the violation involved unauthorized workers; and (5) any history of previous violations.

If ICE issues a NIF, it will also issue a charging document specifying the alleged violations of the employer. The employer may choose to negotiate a settlement with ICE, request a hearing, or do nothing. If the employer takes no action, ICE will issue a final order.

Of course, the best way to ensure that ICE finds no violations is to adopt a procedure to ensure compliance with the law. This procedure should include periodic self-audits to test whether the procedure works adequately. Consultation with an attorney can assist the employer in putting the procedure together, and testing its efficacy.

Subtle Differences Between Inadmissibility and Deportability Can Have Major Consequences

U.S. immigration law provides a number of bases to either prevent someone from entering the United States, or to deport someone out of the country. These bases are called the grounds of inadmissibility and deportability.

Inadmissibility refers to the rules that apply to a person attempting to enter the United States, or to a person currently in the United States after entering illegally. Deportability refers to the rules that apply to a person that is currently in the United States after being lawfully admitted into the country.

Many of the grounds of inadmissibility are similar to the grounds of deportability. However, they are not exactly the same – some of the most important distinctions are based on how the rules consider a person’s criminal behavior. Certain crimes, such as crimes involving moral turpitude, can render a person inadmissible and deportable. The term, “crimes involving moral turpitude,” has been defined as conduct that shocks the public conscience as being inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general. Such crimes include theft, fraud, arson and blackmail.

Other crimes, known as aggravated felonies, can also render a person deportable. The crimes that constitute aggravated felonies are defined in the law, and include such crimes as murder, rape and fraud involving $1,000 or more. The first major distinction is that an aggravated felony may not render a person inadmissible. However, many aggravated felonies also happen to fall within the definition of a crime involving moral turpitude, and may render a person inadmissible for that reason.

Another distinction between the rules of inadmissibility and deportability is whether a person must have been convicted of a crime in order for the rules to apply. Generally speaking, for a person to be deportable for a crime involving moral turpitude or an aggravated felony, that person must have been convicted of the crime in question. However, even if a person has never been convicted of a crime, if that person has committed an act which would amount to a crime involving moral turpitude, that person could be rendered inadmissible to the United States.

Whether a crime that falls within the definition of a crime involving moral turpitude is so minor that it may be ignored is another big difference between the rules of inadmissibility and deportability. For example, if a person has committed one act that would be considered a crime that would not be punishable in excess of one year, and that person has been sentenced to six months or less, this is considered a “petty offense,” and will not render a person inadmissible.

However, when a person is present in the United States legally, and that person has convicted of a single crime involving moral turpitude within five years of being admitted to the United States, in order for that conviction to be ignored for deportation purposes, the crime must have a maximum punishment of less than one year in jail.

Generally, the rules governing the admissibility of a person into the United States are more stringent than those governing the deportation of someone legally in the United States. However, the exceptions relating to crimes of moral turpitude can result in confusing outcomes. For example, in Virginia, Class 1 misdemeanors are punishable by up to one year in jail. Under the rules governing admissibility, a person admitting to a criminal act that equates to a Class 1 misdemeanor may qualify for the petty offense exception if the sentencing guideline provides for sentences less than one year.

However, a person convicted of the same Class 1 misdemeanor will be deportable, regardless of the actual sentence, so long as the crime occurred within five years of admission into the United States. In addition, a conviction record for crimes of moral turpitude can have a major impact on whether a person can travel outside of the United States.

For example, if a permanent resident is convicted of a crime involving moral turpitude punishable by more than a year in jail, but the act was committed more than five years after being admitted to the United States, the permanent resident is not deportable. However, if that same person takes a trip overseas and attempts to re-enter the United States, that person will be deemed inadmissible. Further, the law provides that when a person who is in removal proceedings has committed a crime involving moral turpitude, that person is subject to mandatory detention during the pendency of the removal proceedings.

Thus, the same crime, which may have no immigration consequences for a permanent resident who does not travel overseas, can place the same person in detention and subject that person to removal proceedings if the permanent resident leaves the United States and attempts to come back.

Because of the subtle differences between the grounds of inadmissibility and the grounds of deportability, certain acts can result in vastly different outcomes. A permanent resident with a criminal record, or facing a criminal conviction, would be wise to seek advice from an attorney familiar with immigration law to learn of the possible immigration consequences that could result from a conviction.