Video Blog: Traffic Court

December 11, 2012.  Today, I was in traffic court.  Traffic charges can have significant consequences for immigrants.

If you hire a lawyer to help you with your traffic case, please remember, get to court early.  Your attorney will need to know that you are present, and to seek out the prosecutor before court. 

Also remember, courts have security.  You need to budget time to pass through the metal detectors.  In many courts, cell phones are prohibited.  In Fairfax, camera phones are banned.  You can leave your camera phone with the security.  But, in other courts, such as Arlington, Loudoun and Prince William, you cannot bring any phone into the courthouse.  Be prepared to store your phone  in these courts.

Taking these steps will help your lawyer provide the best service to you.

If you need help with a traffic case, call me at (703) 837-8832.

By:  William J. Kovatch, Jr.
(703) 837-8832
info@kovatchimmigrationlaw.com

Help Me Raise Money for the Cub Scouts!

Want to help me do something goofy and raise money for my Cub Scout pack?  Check out this video.  If I receive a total of $500 in donations to the Cub Scout Pack 95 before the annual Blue and Gold Banquet, I will dye my hair a goofy color scheme. Not only that, I will publish photos on the Internet.

I'm not afraid to get goofy in front of my boys for a reason.  And this seems like a good enough reason.

Plus, as an added incentive, you get to choose the color scheme.  The color scheme getting the most donations wins.  You vote with your dollars.  Your choices:  (1) blue and white to represent my high school, J.R. Masterman; (2) orange and green to represent my undergrad school, the University of Miami; (3) red, white and blue to represent my graduate school, The American University; or (4) scarlet and white to represent my law school, Temple University.  But wait, you could go off the board.  My daughter has suggested neon pink and purple.

If you would like to donate, make your checks out to Cub Scout Pack 95.  Mail them to me at: William J. Kovatch, Jr., 2121 Eisenhower Avenue, Suite 200, Alexandria, VA 22314.

Take Steps to Avoid Immigration Scams!

People seeking help to stay in the country, unfortunately, tend to be the most vulnerable to immigration scams.  USCIS warns to watch out for such scams.

What are some of the common immigration schemes?  USCIS provides a list of immigration scams.

One of the most common schemes are notarios.  Notarios publicos in Latin American countries have a different role than notary publics in the United States.  In the United States, a notary public verifies signatures.  But, in other countries, notarios are public officials with important duties.  The duties can include performing marriage ceremonies.  Many unscrupulous people will exploit this linguistic problem, and advertise that as notarios they are qualified to help someone get immigration status.  At times, the advice given by such notarios is just plain wrong.  Other times, notarios will fill out forms and file them for their clients, without checking into whether the forms are appropriate to file in the alien's specific case.  Notarios have also been known to charge money for services that are never delivered.

Then, there a local businesses who promise that they can get a person immigration benefits.  These can include promises to get a green card, work authorization and other visas.  Many of these businesses will advertise that their services are cheaper than a lawyer's services.  Of course, only a lawyer can give proper immigration advice.

One such immigration scheme was busted outside of Houston.  There, an elderly woman bilked aliens out of thousands of dollars to perform services which she never provided.  According to authorities, the woman promised to file forms on behalf of aliens, but failed to deliver.  Instead, she would make repeated excuses as why she had not performed as promised.

According to USCIS, other scams include the use of .com websites, which imitate real U.S. Government websites.  U.S. Government website always end in .gov.  Forms are available from USCIS with no charge, so aliens should be careful not to pay to obtain forms.

Another common scam involves the visa lottery.  Scammers will promise to make it easier to win the diversity visa program, or will send emails claiming that the alien has won the visa lottery.

One key that can be useful in identifying a scammer is whether the advertisement references the INS, or Immigration and Naturalization Service.  This agency was eliminated after 9/11, and replaced by three agencies with responsibility over immigration:  U.S. Citizenship and Immigration Services (USCIS), U.S. Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP).

Those seeking immigration help would be best served by seeking advice from a knowledgeable immigration lawyer, or a reputable organization known to offer immigration help.

By: William J. Kovatch, Jr.
(703) 837-8832
info@kovatchimmigrationlaw.com

President to Press for Immigration Reform Early in the Next Congress

According to the Los Angeles Times, President Obama is preparing to press for comprehensive immigration early in the next Congress.  The plan calls for an all-out blitz as soon as talks over the country's fiscal problems dies down.  Reportedly, the campaign to press for immigration reform will focus on convincing Americans that reform will provide benefits in such areas as education, health care, business and safety.

The exact details of the President's proposal are still evolving.  Reportedly, the proposal will include a pathway to citizenship for those undocumented aliens already present in the United States, increased border security, increased penalties for employers who hire aliens unauthorized to work in the United States, and increased opportunities to hire foreign workers.

According to the Times, some Democrats believe that there is a narrow window to press for reform.  The closer it gets to the next congressional elections, the more likely members of Congress will be reluctant to vote in favor of a bill that has political risks.

Republicans, however, appear to be in favor of slower approach, tackling one issue at a time before addressing whether there should be a pathway to citizenship.  Florida Senator Marco Rubio has stated, "Portions of immigration reform can be dealt with quicker than others."  Congress, for example, could first approach expanding opportunities for science and technology workers and addressing undocumented aliens who were brought here as children before the more controversial subjects.

Recently, however, a bill to expand the number of visas available to science, technology, engineering and math (STEM) workers stalled in the Senate after being passed by the House.  The fight over the bill highlighted a key difference of opinions between Republicans and Democrats over the shape of reform.  Specifically, Republicans appear to believe that in order for there to be more visas available for STEM workers, over visa categories have to be eliminated.  Democrats, by contrast, do not view reform as a zero-sum game, seeing no need to eliminate some visas in order to expand the availability of others.

One key concern for Republicans is whether they would be sacrificing their political future by supporting immigration reform now.  Specifically, conservatives, such as Rush Limbaugh, have argued that if Republicans support a pathway to citizenship, they would simply be expanding the number of Democratic voters in the future.  This is a fear that can be seen by careful analysis of the Achieve Act currently pending  in the Senate.

The Achieve Act, sponsored by Republicans Kaye Bailey Hutchison, John Kyl and John McCain, is the Republicans' response to the DREAM Act.  It would create a way for some undocumented aliens brought to this country as children to have legal status.  However, the bill would create a non-immigrant visa for such aliens, which would not itself lead to citizenship.  Thus, beneficiaries under the Achieve Act would not automatically be on the path to obtain the right to vote.

While this appears to be the most positive atmosphere for immigration reform since President Bush attempted to press for a guest worker program, the battle will not be easy.  Competing interests will need to be addressed, and in some instances overcome, if the press for immigration reform is to be successful.

By: William J. Kovatch, Jr.
(703) 837-8832
info@kovatchimmigrationlaw.com

Supreme Court May Rule on Whether Same-Sex Couples Can Enjoy the Same Immigration Benefits as Heterosexual Couples

The U.S. Supreme Court has agreed to hear two cases which could decide whether visas can be granted to foreign-born same-sex spouses.

Both cases involve the issue of same-sex marriages.  One stems from a California case where voters approved a ban to same-sex marriages.  The other is an appeal from a Second Circuit case which held that the Defense of Marriage Act was an unconstitutional violation of the Equal Protection Clause.

The Defense of Marriage Act prohibits the Federal Government from recognizing same-sex marriages for the purposes of federal law.  The Second Circuit case specifically addressed whether the surviving spouse of a legal lesbian marriage could claim the marital deduction in the federal estate tax.  However, because the Second Circuit found the Defense of Marriage Act unconstitutional, it opened the door for same-sex couples to claim other federal benefits reserved for married couples.

One such benefit is the ability to petition for an immigrant visa for a foreign-born spouse.  U.S. citizens and lawful permanent residents may petition for a visa for a foreign-born spouse.  To date, such visas were only available to heterosexual couples, even if the same-sex marriage was legally valid where is was concluded.  With many U.S. states legalizing same-sex marriages, a finding by the Supreme Court that the Defense of Marriage Act is unconstitutional may open the door from numerous same-sex couples to solidify a legal immigration status for a foreign-born spouse.

By: William J. Kovatch, Jr.
(703) 837-8832
info@kovatchimmigrationlaw.com

Political Wrangling Over Immigration Reform Begins

In the aftermath of the 2012 presidential election, some Republicans began pressing to change the party's stance on immigration reform as a way to change the party's image with Latino voters.  Over 70% of Latinos voted for President Obama, and was seen by many as a key reason for the President's victory.

Comprehensive immigration reform will take time and negotiations.  Some Republicans eager to start changing the party's image have introduced smaller proposals in Congress now, during the lame duck session, in an effort to give the GOP some credibility.

One such proposal is the expansion of the number of permanent residency visas available for workers in science, technology, engineering and math, so-called STEM workers.  I have already discussed the arduous process of hiring foreign-born STEM workers and applying for their visas on this blog.

While Republicans may not be completely unified on comprehensive immigration reform, STEM worker visas is one area where the GOP does have a degree of unity.  One Republican proposal on STEM worker visas was brought to a vote in September of this year.  The plan would have increased the number of visas available for STEM workers by 50,000, while eliminating the diversity visa program.  The diversity visa program, also known as the visa lottery, makes 50,000 visas available to people born in areas of the world that have sent the fewest immigrants to the United States in the past five years.

The GOP bill was brought to the floor in September under the suspension calendar, and needed a two-thirds majority to pass in the House of Representatives.  While the proposal failed to gain the required support in September, the bill to expand the number of STEM visas came to the floor on the regular calendar, and passed the House on November 30, 2012.  The bill passed, and was introduced in the Senate.

In the Senate, Republican John Cornyn sought unanimous consent to bring the bill on STEM worker visas to a vote.  Democrat Chuck Schumer objected, noting that while Democrats favored expanding the number of visas available for STEM workers, that Democrats did not believe it had to be done by eliminating the visas available under other immigration programs.

The political wrangling over immigration reform has therefore begun.  There is a question over whether the Democrats will even permit immigration reform to pass.  If immigration reform were to pass, it would rob the Democrats of a political issue where they believe they have an advantage over Republicans. 

This first foray into the issue of immigration reform, therefore, does not bode well for the passage of comprehensive reform.  If political parties cannot agree on the specifics of this one issue, where there is general agreement for the need to expand the visas available for STEM workers, then finding common ground on a host of other immigration topics could prove elusive.

By: William J. Kovatch, Jr.
(703) 837-8832
info@kovatchimmigrationlaw.com

A Brief Overview of Asylum Law

Click here to see an article where I give a brief overview of U.S. asylum law.

By:  William J. Kovatch, Jr.
(703) 837-8832
info@kovatchimmigrationlaw.com

An Overview of the Process to Hire Foreign Science, Technology, Engineering and Math Workers

In the push for comprehensive immigration reform, U.S. businesses are pressing for more visas for science, technology, engineering and math ("STEM") workers.  Even on the campaign trail, Governor Romney stated that every science and math student graduating from a U.S. institution should have a green card stapled to the diploma.

But how difficult is it to get a visa for a foreign STEM worker?  The fact is that the process is tedious.  Moreover, a foreign worker can wait years for a permanent residency visa to become available.

In the article linked here, I give an overview of the process of hiring a foreign STEM worker, both on a temporary visa and on a permanent residency visa.  The process takes planning, resources and effort.  Most STEM workers start off with an H-1B temporary visa for specialty workers.  Annual quotas are tight, and deadlines are important.

Hiring a foreign worker permanently requires an effort to show that there are no U.S. workers who are ready, willing, able, and available to fill the position.  This is called the labor certification process, and requires that the employer go through a recruiting process.

Even after a visa petition is granted, because of annual limits, it may take years for the visa to be available.  If a worker is employed through an H-1B visa, it takes coordination and timing to make sure that the worker can remain in the United States until the permanent residency visa is available.

By:  William J. Kovatch, Jr.
(703) 837-8832
info@kovatchimmigrationlaw.com

Video Blog: Preparation is Key for Immigration Court Cases

Today, December 4, 2012, I appeared before the Arlington Immigration Court for a contested hearing.  The key to such hearings is preparation.  Be sure you take the time to discuss the hearing and the testimony with your lawyer in advance of the hearing, so that there are no surprises.

For an attorney who will take your case seriously and take the time to be well-prepared, call me, William J. Kovatch, Jr., for an appointment.

By:  William J. Kovatch, Jr.
(703) 837-8832
info@kovatchimmigrationlaw.com

State Courts Limiting the Effect of Padilla v. Kentucky

A little over two years ago, the U.S. Supreme Court handed down its decision in the case of Padilla v. Kentucky, where it held that the failure of criminal defense counsel to advice a non-citizen defendant on the immigration consequences of of accepting a plea bargain amounts to a violation of the Sixth Amendment.  To many at the time, Padilla appeared to be a landmark decision, offering help to permanent residents and other non-citizen convicts seeking to re-open convictions which resulted in surprise immigration consequences.  A number of state courts, however, have attempted to close the door on the ability of non-citizen defendants to use Padilla to re-open old state convictions.  States such as Virginia now prohibit the use of certain extraordinary writs to seek post-conviction relief.  States such as Florida hold that Padilla is not retroactive, and thus cannot be used to attack convictions occurring before the date of the Supreme Court's decision in Padilla.

In this article, I discuss the efforts of state courts to curtail the reach of Padilla.

The Virginia opinion of Morris v. Commonwealth can be found here.

The Florida opinion of Hernandez v. State can be found here.

The U.S. Supreme Court has taken up the issue of whether Padilla should be applied retroactively, as discussed in this article.

By: William J. Kovatch, Jr.
(703) 837-8832
info@kovatchimmigrationlaw.com

Do I Need a Lawyer to Apply for Citizenship?

While attending a class with other immigration lawyers, I heard a presenter express her experience that USCIS is reviewing the basis of a person's permanent residency in many more cases when that person has applied for citizenship.  Indeed, I have personally come across a number of people who found themselves in trouble after submitting a naturalization application because USCIS had uncovered some problem with their permanent residency.  Indeed, other immigration lawyers stated that the situation had gotten to a point that when a person comes to them for assistance in filing a naturalization application, the lawyers are now going in depth in questioning the potential client on how they became a permanent resident.

When a person submits a naturalization petition, USCIS does not simply adjudicate whether that person should become a citizen.  Quite the contrary, USCIS sees this a its last opportunity to look into the background of the applicant, and be sure that everything in the applicant's background is in order.  This means that the adjudicator routinely reviews the applicant's basis for applying for permanent residency in the first place, to ensure that the applicant was granted permanent residency properly.

While it may no seem fair, if, during the naturalization application process, the adjudicator finds something was wrong with the way that the green card was issued, he or she can recommend that the green card be revoked.

For example, if an adult child of a permanent resident was granted an immigrant visa, he or she must remain unmarried until being admitted to the United States as a permanent resident.  If that person were to get married at some point after the U.S. consulate issued the visa, but before actually entering the United States, then that person would have been unqualified to have been admitted as a permanent resident.  When applying for naturalization, that person will be required to disclose the details of all marriages.  A thorough adjudicator could notice that the date of marriage preceded the date of admission, conclude that at the point of admission the person did not qualify for the green card, and then recommend that the green card be revoked.

Similarly, there is a requirement that an applicant for citizenship show five years of good moral character.  Applicants should be aware that the FBI will be conducting a background check on them.  That means that any convictions will likely be brought to the Government's attention if a naturalization application is filed.

The bottom line is that sometimes it may be the better course simply not to apply for citizenship.  But, in order to know that, a person would likely need to consult with a knowledgeable immigration lawyer.  Thus, while the application process would appear simple, consulting with a lawyer beforehand can avoid some disastrous consequences.

By: William J. Kovatch, Jr.
(703) 837-8832
info@kovatchimmigrationlaw.com

Do Democrats Have an Incentive to Sabotage Immigration Reform?

In the wake of the November presidential election, there has been much discussion of whether it is time for the Republican party to embrace immigration reform.  The conventional wisdom has been that since President Obama won over 70% of the Latino vote, the GOP has to make some changes in its platform and image in order to attract Latino voters.

This conversation, however, is built on the assumption that both major political parties, Democrats and Republicans alike, approach comprehensive immigration reform in good faith.  In this article, Ruben Navarette, Jr. argues that the Democrats have every incentive to sabotage the move to adopt comprehensive immigration reform.

Navarette's argues that the Democrats really do not want to be known as the part of amnesty or open borders in later elections.  In particular, he notes that this would not enhance the party's stance with Caucasians and African Americans.

So long as immigration reform is not passed, the Democrats will continue to have an issue to use against the Republicans.  Thus, there is no incentive to actually settle the issue.  Rather, by sabotaging the issue, the Democrats can continue to make Republicans look like the bad guys to the Latino voters.

One main constituency of the Democrats is the labor movement.  Labor unions do not want the added competition of a guest worker program.  Therefore, passing immigration reform runs the risk of alienating a key constituency.

Having worked in the Federal Government myself, I must admit to a certain degree of cynicism when it comes to national politics.  There is merit, particularly in Navarette's argument that reaching a compromise would rob the Democrats of an issue to use against the Republicans.  Also, it is a mistake to think of the Democrats as a single party joined together by a unified ideology.  Quite the contrary, the modern Democratic Party is more of a collection of minority interests who find it mutually convenient to ally themselves in pursuit of their own agendas.  Thus, there is a precarious balancing act among the party leaders to try to keep such diverse constituencies as labor unions and liberal activists satisfied.  In this regard, if labor unions were to find their members' jobs threatened by a guest worker program, then it would make sense that the party leaders would develop a strategy to make it appear as though they are serious about immigration reform, but never agree to a compromise, instead blaming Republicans as obstructionists, in order to keep some of their constituents happy while having a bad guy to campaign against.

This, and the fact that the Republicans are not themselves unified on the issue of immigration reform, must be taken into consideration in analyzing whether immigration reform will indeed pass the next Congress.  Those expecting fast movement may find themselves disappointed.

By: William J. Kovatch, Jr.
(703) 837-8832
info@kovatchimmigrationlaw.com

Happy Thanksgiving!

Happy Thanksgiving! Enjoy your time with you family.  But please, be responsible.  Don't drink and drive.

If you find yourself with traffic problems, give me a call at (703) 837-8832.

info@kovatchimmigrationlaw.com

Dream to Achieve: Comparison of Proposals to Address Young Undocumented Aliens

In the wake of the presidential elections, many in the Republican Party have shown a greater willingness to consider comprehensive immigration reform. In particular, many have seen a softening of the GOP's stance on immigration reform necessary in light of the overwhelming majority of Latino voters who supported President Obama.

Nonetheless, the Republicans may not be in complete uniformity on what shape comprehensive immigration reform should take.  One issue that may prove to be the most difficult to address could be what to do about the many undocumented aliens already in the country.  The issue of creating a guest worker program, with some pathway to citizenship, may complicate the drive for comprehensive reform.

In the meantime, there appears to be some agreement that young people, brought to this country as children and who have grown up as if they were Americans, deserve some form of relief.  This is on the heals of the President's Deferred Action for Childhood Arrivals program, which could grant a promise not to deport such young people who meet certain qualifications.  The program has its roots in the DREAM Act, which failed in 2010 when a Senate filibuster prevented the bill from coming up for a vote.

At least two Republicans have been working on a similar bill over the past year.  Senators Kay Bailey Hutchison and Jon Kyl, both of whom will retire in January, have been working on the Achieve Act as an alternative to the DREAM Act.  There appears to be a movement to try to bring the Achieve Act up for a vote before January.

The Achieve Act, however, has some major differences in qualifications when compared to the President's deferred action program.  If the Achieve Act were to pass, it could cause a number of people, who have applied for and already received deferred action, out in the cold as far as permanent relief is concerned.

The requirements for relief under the Achieve Act are:  (1) the applicant must have completed high-school and be admitted to college or earned a college degree, or completed high school and be enlisted in or have completed four years of military service; (2) the applicant must have entered the country before the age of 14; (3) the applicant must have lived in the U.S. continuously for five years; (4) the applicant must have not committed a felony, two misdemeanors with a jail term of over 30 days, or a crime of moral turpitude; (5) the applicant must not be subject to a final order of removal; (6) the applicant must pay a $525 fee; and (7) the applicant must be under the age of 28 (or 32 if they have a bachelor's degree from a U.S. university).

The major differences are:  (1) the deferred action program only requires that the applicant be enrolled in a U.S school, have a high school diploma, have a GED or be enrolled in classes to work toward a GED; (2) the deferred action program only requires that the applicant enter the United State before age 16; and (3) the deferred action program only requires that the applicant be under age 31 as of June 15, 2012.

With these key differences, there are several young people who would qualify under the deferred action program,  who would not qualify under the Achieve Act.  People who entered the United States after age 14, but before age 16, for example, would be out of luck under the Achieve Act.  Likewise, people who have a high school diploma, but who chose not to go on to higher education would be left out.  Finally, the cut-off age is lower for the Achieve Act.

It is unclear why the Republican proposal has stricter qualification requirements than the current deferred action program.  It may be explained by the fact that the bill was drafted before the President announced the program.  Nonetheless, equity would argue that the bill be modified to cover all of those covered by the deferred action program.  Whether that will happen, or the Republicans stick to their guns remains to be seen.

By:  William J. Kovatch, Jr.
(703) 837-8832
info@kovatchimmigrationlaw.com

Kay Bailey Hutchison, of Texas, and Jon Kyl, of Arizona

Read more: http://www.foxnews.com/politics/2012/11/16/republicans-mull-own-version-dream-act-vote-on-achieve-act-by-january/#ixzz2Cte3l3Wt

Kay Bailey Hutchison, of Texas, and Jon Kyl, of Arizona

Read more: http://www.foxnews.com/politics/2012/11/16/republicans-mull-own-version-dream-act-vote-on-achieve-act-by-january/#ixzz2Cte3l3Wt

Video Blog: Arlington Immigration Court

Today, my practice takes me to the Arlington Immigration Court, located at 1901 S. Bell Street, Suite 200, Arlington, VA 22202.  This is in Crystal City, near Ronald Reagan Washington National Airport.  Conveniently located about a block south of the Crystal City Metro stop on the Blue and yellow lines.  Parking, however, is difficult and can be expensive.  The best lot is on 20th Street.  Today, for two hours I paid $10 in parking.

In my video blog, I wanted to give you a little bit of a tour of what the outside of the building looks like, and the closest landmark, which is the Marriott across the street.

By:  William J. Kovatch, Jr.
(703) 837-8832
info@kovatchimmigrationlaw.com

ICE Detention System Needs Reform

Having visited a number of "detainees" awaiting a hearing on immigration issues, I highly recommend this article.  The ICE detention system needs major reform.

The number one problem is that immigration law is civil in nature, not criminal.  This appears to be a hard concept to get across to the average person.  It is even harder for the alien who is being detained.

In many instances, aliens are detained in prisons alongside convicted criminals.  They are treated like prisoners.  They are indeed prisoners in all but name.   They are called "detainees."  But the softer language fails to hide the cruel reality that these are largely forgotten segments of our society.  One where pursuing reform is difficult because it is not politically popular to do so.

The detention system is largely ad hoc.  There are a few federally run facilities, such as Farmville in Virginia. But, in many instances, the Federal Government contracts either within a state or local jail for space, or with a private prison company.

One of the issues that led to this problem was the press for enforcement, enforcement, enforcement.  Naively, the public thinks that enforcement means you pick up an illegal alien, and you neatly drop him off over the border.  That is hardly the case.  When a person is here without a valid immigration status, there are provisions of law which may help that person become legal.  It is that person's right to pursue those avenues.  This means you must have due process.  You must have courts to hear the cases.  You must have Government lawyers to present the Government's side.  You must have humane facilities available to house these people until their hearing is scheduled.  That means money. 

When the Government last pursued an enforcement-only policy, it failed to put the money into the effort that was required.  This led to the ad hoc and inhumane system we now have.  One that in many instances even deprives detainees of the health care they need, as many have died in detention over medical conditions that would have been easily treatable if caught early enough.

You add to the complications that it is much easier for politicians to say that they are being tough on crime.  Thus, they pass measures such as mandatory detention.  This means that aliens who are removable or deportable because of criminal convictions must stay detained, with no hope of being released on bond while waiting for a hearing.  The law is mandatory, giving immigration judges absolutely no discretion.

The law leads to intolerable situations, where a person who has a conviction, and has served time for that conviction, now has to be imprisoned yet a second time for the very same crime awaiting his hearing.  This is true, even if the alien can make a good showing that he is entitled to immigration relief.  I had such a client.  He had been convicted of domestic assault.  He served his time.  he was picked up again later for his immigration problems.  But, he was relief available to him.  I ended up securing permanent residency for him.  In the meantime, he was forced to wait for 9 months in detention, with real, hardened criminals.  And there was nothing we could do about that.

More pleasant sounding words, like "detention," and publicly denying that this is a criminal law matter, fail to hide the deplorable condition that exists in the nation's immigration detention system.  This is a condition that must be addressed, out of pure morality and civility.

By:  William J. Kovatch, Jr.
(703) 837-8832
info@kovatchimmigrationlaw.com

Updated Deferred Action for Childhood Arrivals Statistics

USCIS has released updated statistics on the Deferred Action for Childhood Arrivals program.  Through November 15th, a total of about 309,000 applications have been received.  About 53,000 have been approved.

There was a slight increase in the number of applications between September, where almost 105,000 aliens applied, and October, where about 113,000 applied.  In November, where data for only half the month is available, a little less that 44,000 applications were submitted.  November is therefore on track for around 90,000 applications.

It has been estimated that 1.4 million people present in the United States meet the qualifications of the President's program.  This would mean that to date, a little more than 20% of those believed to be eligible have applied.

The New York Times notes that the agency has not released how many applications, if any, have been denied.

USCIS Statistics can be found at this link.

By:  William J. Kovatch, Jr.
(703) 837-8832
info@kovatchimmigrationlaw.com

Video Blog: USCIS Field Office in Fairfax for a Marriage Visa Interview

I was at the Fairfax Field Office of USCIS this morning to attend a marriage visa interview.

Video Blog: Let Me Assist You with Your Immigration Needs

Adoptions of Foreign Born Children Present Tricky Issues

I have often been asked whether adopting a niece or nephew can serve as an easy way to allow that child to immigrate to the United States.  While it seems like a simple proposition, in reality, the legal issues are quite difficult.

This is not the same as when a couple goes to an adoption agency and adopts an orphan from someplace overseas, like China or Russia.  In that situation, if you use a reputable agency, they will be quite familiar with the immigration rules, and will usually help you address them.

What I am talking about are intra-family adoptions.  You want to adopt a nephew or a cousin.  In those situations, the immigration rules make it virtually impossible for a permanent resident to adopt a family member and bring that family member to the United States.

The reason is that if a person is adopting a non-orphan, then the parents must do so before age 16, and must live with the child for 2 years before the child can come to the United States.  For a permanent resident, any trip overseas for greater than six month is considered to be an abandonment of permanent residency.

Consider very carefully whether adopting a foreign-born relative makes sense for you.  Consult with an attorney, and make sure you know the rules before you invest your time and emotions.  Hasty moves could end in great disappointment.

I discuss the immigration rules as they apply to adoptions here.

By: William J. Kovatch, Jr.
(703) 837-8832
info@kovatchimmigrationlaw.com

Video Blog: Criminal Issues and Immigration Law

President Promises to Press for Comprehensive Immigration Reform

In his first press conference since the November 6th election, President Obama promised to press for comprehensive immigration reform in early 2013.  According to the President, immigration reform will include strengthening the borders, greater penalties for employers who hire undocumented aliens, and a pathway to citizenship for those already present in the United States illegally.

The last attempt at comprehensive immigration reform took place during the Bush Administration.  The Bush proposal also included a pathway to citizenship.  However, the legislative package failed to pass Congress.

In 2010, Congress came close to passing the DREAM Act, which would have given legal status to young people who were brought the United States as children and who have attended school in the United States or were honorably discharged from the U.S. military.  The DREAM Act died in a Senate filibuster.  However, the President announced a program to grant some form of relief to those who would have qualified for benefits under the DREAM Act through his Deferred Action for Childhood Arrivals program.  The deferred action program, however, does not lead to permanent residency.

Click here to read more on the President's statements concerning immigration reform.

By: William J. Kovatch, Jr.
(703) 837-8832
info@kovatchimmigrationlaw.com

What is the Diversity Visa Lottery?

You may have heard people talking about "winning the lottery" when they explain how they came to the United States.  What exactly does "winning the lottery" mean?  Can just anyone get a visa by winning a lottery?

It is true that U.S. law provides for a lottery to make visas available for 50,000 people each year.  But, that is a deceptively simple way of explaining it.  The program is called the diversity visa lottery.  The idea is to give countries that have traditionally sent fewer immigrants to the United States the chance to have their nationals come to the United States.

Visas through the lottery are made available to countries that have sent the fewest immigrants to the United States in the last five years.  No on country can account for more than 7% of the total of visas available for that year.  Plus, there are qualifications that the immigrant must meet.  The immigrant must have a high school education, or have been working in an occupation that requires two years of training for two of the past five years.

The qualification requirement is where many applicants get tripped up.  There is no requirement that a person meet the qualifications to enter the lottery.  A foreigner simply registers for the lottery online when the registration is open.  This means that a person can win the lottery, think they have a visa, and then become greatly disappointed when the Consulate inform them that they don't have the required education or occupation.

At any rate, the lottery may be on its way out.  In all of the talk of immigration reform, some Republicans are proposing the elimination of the diversity visa lottery, and expanding the number of immigrant visas available to graduates with advanced degrees in science and engineering by 50,000.  Whether this happens remains to be seen.  A bill that would have eliminated the lottery almost passed the House of Representatives in September.

Click here and you can read more about the diversity visa lottery in another article I wrote on the subject.

By:  William J. Kovatch, Jr.
(703) 837-8832
info@kovatchimmigrationlaw.com

Immigration Law Provides Opportunities to Bring Foreign-Born Relatives to the United States

U.S. citizens and lawful permanent residents can petition for visas to bring certain foreign-born relatives to live in the United States.  How fast the process works depends on whether the petitioner is a citizen and which relative is involved.

Spouses, minor children, and in some cases parents of U.S. citizens are defined as "immediate relatives."  The process for immediate relatives tends to be much quicker than other relatives.  Immediate relatives, for example, do not have to wait for a visa number to become available to immigrate.  Immediate relatives also have more liberal rules to allow them to adjust to status if they are present in the Untied States after being inspected and admitted.

Adult children and siblings of U.S. citizens, and spouses and children of permanent residents can also immigrate. But, the numbers are limited by Congress to 400,000 per year.  This is called the preference system.  Visas become available based on the date that the visa petition is filed.  For some countries, it is not unusual to have to wait years for a visa to become available.  In most cases, these relatives must process their visa applications at their local U.S. Consulate before being admitted as a permanent resident.

For more information on the availability of family-based visas, and the process, please click here to see my article.

By:  William J. Kovatch, Jr.
(703) 837-8832
info@kovatchimmigrationlaw.com

No Republican Uniformity on Immigration Reform

After Romney's presidential election defeat last week, many prominent Republicans began advocating for a change in the party's stand on immigration reform.  Pointing to the overwhelming majority of Latino voters who sided with President Obama, these Republicans saw a softening on the party's stance on immigration as one way that the party could appeal to this demographic group.

However, there does not appear to be uniformity within the Republican ranks on this issue.  Some have argued that changing the party's stance on immigration would amount to nothing more than pandering, and would not guarantee that Latinos would be more attracted to Republican candidates.

A strategy that hoisted all hope on immigration reform may not work to attract more Latino voters to the Republican party.  Such a strategy assumes that Latinos are single-issue voters, leaning heavily on immigration policy to guide their choice.  This, however, appears to be a false assumption.  Indeed, to consider the Latino vote to be a homogenous group itself is something of a fallacy.  Cuban Americans living in Florida, for example, are not the same as Mexican Americans living in California.

 The argument has been made that changing the party's stand on immigration reform could be the first step to changing the GOP's image on diversity in general. Business Insider has pointed out that Romney lost among Asian voters in a slightly larger margin than he did among Latino voters.  This is despite the fact that Romney generally won the vote among Americans with incomes of greater than $100,000 per year, and that on average Asians earn more than caucasians.  The argument here is that the Republicans' stand on immigration issues gives the appearance that the party is not so very tolerant of ethnic minorities.  But, immigration reform alone would not be enough to sway minority voters.

Francis Wilkinson of Bloomberg argues that Republicans place too much emphasis on Christian values, which can alienate Buddhists and Hindus.  Jennifer Rubin in the Washington Post wrote that among the thing Republicans need to consider is running ads in languages other than English, and Democrats do.  A similar thing can be said about campaigns aimed at legislating English as the official language, either of the federal or state governments.  Such actions are insensitive to the diverse population of the United States, and communicate a lack of tolerance to minority groups.

Immigration reform itself may not be a panacea for the Republican party.  But, it can be the first step to changing the party's image provided that harsh-toned rhetoric that appears intolerant of anyone who isn't an English-speaker of European descent is also eliminated.

By:  William J. Kovatch, Jr.
(703) 837-8832
info@kovatchimmigrationlaw.com

Is Immigration Reform Around the Corner?

One of the emerging themes from the aftermath of the 2012 presidential election is the notion that the Republican Party must evolve to appeal to demographics other than caucasians.  More specifically, analysts say that Romney lost the Latino vote by a margin of 70% to 30%.  This is the widest margin since Bob Dole lost the White House in 1996.  Latinos are the largest growing ethnic group.  With the changing American electorate, many are saying that the Republicans must attract more Latino voters to be competitive in future elections.

The first step, according to conservative talk show host Sean Hannity, is "to get rid of the immigration issue altogether."Hannity surprised many in his audience by announcing that he has "evolved" on the issue of immigration reform.  Hannity urged that securing the borders had to be the top priority, but that there ought to be a "pathway to citizenship" for those who are already here and who do not have a criminal record.

Hannity is not the only conservative voicing a willingness to address immigration reform.  Speaker of the House of Representatives , John Boehner, stated, "A comprehensive approach is long overdue, and I'm confident that the president, myself, others can find the common ground to take care of this issue once and for all."

On the campaign trail, Republican Florida Senator, Marco Rubio, addressing the issue of young people brought to this country as children, stated that the United States need to find a solution, more permanent than the President's Deferred Action for Childhood Arrivals program, that was "humanitarian," and "that solves their problem but that doesn’t encourage illegal immigration in the future."

Given these statements by leading conservatives, there appears to be a possibility that immigration reform will be on the agenda for the next Congress.  The big question is what that reform will look like.

In one of the rare instances where Republican candidate Mitt Romney addressed immigration during the Fall campaign, he stated that graduates with degrees in math and science should "get a green card stapled to their diploma."  In September, a bill written by the Chairman of the House Judiciary Committee Lamar Smith, came up for a vote.  The bill would have increased the number of visas made available for graduates with advanced degrees in science and technology, but would have also eliminated the diversity visa program.  Representative Michael McCaul from Texas likewise mentions ending the diversity lottery while increasing the number of visas for graduates with advanced math and science degrees when discussing immigration reform.

The time may very well be right for comprehensive immigration reform.  But exactly what shape that reform will take, and whether it will include a pathway to citizenship for the undocumented aliens currently in the United States remains to be seen.

By:  William J. Kovatch, Jr.
(703) 837-8832
info@kovatchimmigrationlaw.com

Election Results Bring Greater Certainty to Deferred Action Program

The re-election of President Obama may spark a greater number of applications for deferred action.  The Deferred Action for Childhood Arrivals program offered a promise to certain young aliens present in the United States illegally that the Government would not seek their removal or deportation.  The program also offered an opportunity to receive the legal authorization to work in the United States.

The President's program would provide this promise for two years.  At the end of the two years, deferred action could be renewed.  However, the program was the result of an exercise of executive discretion, and not law.  This meant that the program could be rescinded at any time.  Indeed, the grants of deferred action themselves could be rescinded.

President Obama's opponent, Mitt Romney, had expressed that he would terminate the program if he were elected.  However, he promised that any grants of deferred action under the program before his presidency would be honored.

Romney's campaign statements, and the close presidential race, left many uncertain as to the future of the deferred action program.  Would the information disclosed through the application process be used for enforcement purposes once the program had been terminated?  Would something else replace the program, or would the Federal Government pursue enforcement more vigorously?

The election should allay some fears.  Already, thousands of applicants have been granted deferred action.  However, only a small fraction of the estimated number of those aliens who could potentially benefit have actually applied.  With a greater certainty that the program will likely be around for a few years longer, this may prompt those who were hesitant to apply.

Of course, before applying, it is a good idea to consult with a legal professional knowledgeable of the program and of the risks and benefits of applying.

Here is an article discussing the greater certainty some feel about the deferred action program.

Guidelines on the deferred action program can be found on the USCIS website.

More information on deferred action can be found here.

By:  William J. Kovatch, Jr.
(703) 837-8832
info@kovatchimmigrationlaw.com

Gang-Related Asylum Cases

A few years ago, as I sat in Immigration Court waiting for my case, one of the cases that went before me applied for asylum based on the fear of gang-related violence in Central America.  I listened as the Immigration judge admonished the lawyer to be sure that he read the latest Board of Immigration Appeals case on the subject, In re S-E-G-.  The judge indicated that he would have very little patience for any gang-related asylum claims which did not meet the BIA's new social visibility standard.

With all due respect, the Immigration Judge's attitude on the subject was entirely inappropriate.  To be sure, Immigration Judges are bound by BIA decisions.  But, the BIA is not the final word on interpretations of U.S. immigration law.  Rather, legal interpretations made by the BIA are subject to legal review by the various circuit courts of appeals in the United States.

Since S-E-G, at least two circuits have rejected the BIA's social visibility standard.  Judge Posner of the Seventh Circuit found that the standard "makes no sense," and noted that some groups to which the BIA had extended asylum protection would not meet this new standard.  Specifically, homosexuals in a homophobic society could pass for heterosexuals, and indeed had an incentive to do so to avoid persecution.  Likewise, women who had not undergone female genital mutilation would appear no different from other females in society.  Yet, both social groups had received asylum protection under BIA decisions.

The UN Human Rights Committee has also criticized the BIA's social visibility standard as being inconsistent with UNHRC guidelines.  Such guidelines are often used by the BIA and U.S. courts to interpret U.S. asylum law.

Currently, there is a split among the U.S. circuit courts on the issue of social visibility.  Under these circumstances, it is entirely reasonable for those with gang-related asylum claims to adopt a strategy to press for Supreme Court review.  Although the path would be difficult in some circuits, the possible severity of the consequences of deportation would argue to press for clarity from the highest court on whether this standard should stand.

I go into more detail in this article.

A recent briefing on legal issues surrounding gang-related asylum claims can be found here.

By: Willliam J. Kovatch, Jr.
(703) 837-8832
info@kovatchimmigrationlaw.com

Even a Deferred Adjudication is a Conviction for Immigration Purposes

Deferred adjudication programs can offer a break to first time criminal offenders.  The idea is that a formal adjudication of guilt is withheld.  If the defendant shows a time of good behavior, often one year, then charges can be dismissed or reduced.

 But, what appears to be a good deal for criminal purposes could land a non-citizen defendant into hot water for immigration purposes.  This is because of the broad definition of "conviction" under U.S. immigration law.  A conviction includes not only a formal adjudication of guilt, but also any admission of guilt or of facts sufficient to find guilt, so long as some form of punishment is given.

In most deferred adjudication programs, the defendant has to admit guilt, or the judge has to find that the prosecutor has alleged sufficient facts to find guilt.  The result is usually some form of a suspended sentence, or some form of probation.  But, this is enough under immigration law to be considered a conviction.

This means that upon acceptance of a deferred adjudication program, immigration authorities can commence removal proceedings.

The defendant in this article from the Oregonian found that out the hard way.  According to the Oregonian, he worked as a cashier and would give his family unauthorized discounts or ring up false returns.  The result was a felony conviction which could be reduced to a misdemeanor.  However, because there is a felony conviction, which was likely considered an aggravated felony for involving a crime of theft for which a sentence of one year or more was imposed, it triggered ICE to commence deportation proceedings.

Given the broad definition of "conviction" under U.S. immigration law, it is advisable that a non-citizen defendant facing criminal proceeding receive accurate immigration advice.  In that way, an informed decision on whether to accept a plea bargain, accept deferred adjudication or push for a trial, can be made.

By:  William J. Kovatch, Jr.
(703) 837-8332
info@kovatchimmigrationlaw.com

Loans to Apply for Deferred Action?

According to Fox News Latino, an organization in Los Angeles is making loans to immigrants who want to apply for the President's Deferred Action for Childhood Arrivals program.  Fox reports that the Binational Front of Indigenous Organizations (or Frente Indigena de  Organizaciones Binacionales -- FIOB) is offering loans of up to $1,000 to complete the application process.  To qualify, according to Fox, the immigrant must show that they have completed the forms and that they cannot afford the $465 fee.

A search of the FIOB website, http://fiob.org/, turns up no information on the loans.

Presumably, the $1,000 loan would cover the application fee, mailing costs, copying costs and a lawyer's fee.

The Fox article makes no mention of whether the offer for such loans is limited to residents of the Los Angeles area.

By: William J. Kovatch, Jr.
(703) 837-8832
info@kovatchimmigrationlaw.com

Social Security Numbers may be a Tricky Issue for Some Deferred Action for Childhood Arrivals Applicants

Those who apply for benefits under the President's Deferred Action for Childhood Arrivals program may face a tricky question when it comes to completing the application forms.  Both the form I-821D and the I-765 ask for the applicant's Social Security number.  The issue is that for many who have been residing in this country without legal immigration status, they may likely have been working illegally as well.  In some instances, in order to get the work, they may have been using a fake Social Security number.

As if anticipating this problems, the USCIS Frequently Asked Questions website comments that applicants are to disclose only the official Social Security number issued to the applicant by the Social Security Administration.  That is, disclose only your own Social Security number, and not any other number you may have been using in order to obtain work.

The potential trap here is that if a person uses a Social Security number that belongs to someone else, and does so knowing that the number belongs to someone else, they that amounts to the crime of aggravated identity theft.  If your application for deferred action reveals information showing that you committed aggravated identity theft, then it is very likely that USCIS will refer your case to ICE for possible removal proceedings.

Those who have used other Social Security numbers need to be very careful if they choose to apply for deferred action.  Your best bet is to consult with a lawyer to make sure you are aware of the risks. 

I go into more detail about Social Security numbers and deferred action in this article.

By:  William J. Kovatch, Jr.
(703) 837-8832
info@kovatchimmigrationlaw.com

Some Expressing Relief Upon Receiving Deferred Action

Some recipients under the President's Deferred Action for Childhood Arrivals program are expressing relief.  But, an issue that this article raises towards the end, questions remain concerning a permanent solution that could lead toward permanent residency and citizenship.

American Immigration Center on Who the DREAMers Are

The Immigration Policy Center of the American Immigration Council has issued its detailed estimates of exactly who the DREAMers are.

DREAMers are young people who have been brought into the United States at a young age, and have grown up knowing nowhere but the United States as home.  The DREAMers have no legal immigration status.  But, many have attended school in the United States and hold U.S. high school diplomas.

The term "DREAMers" comes from the DREAM Act (Development, Relief, and Education for Alien Minors), a proposal that was introduced in Congress to provide a pathway for legal status to these individuals.  In 2010, the DREAM Act was passed by the U.S. House of Representatives in 2010, but filibustered in the Senate.  The filibuster effectively killed the bill, despite the fact that a majority of Senators, 55, supported it.

The American Immigration Council provides a detailed analysis of where the DREAMers come from, and where they are in the United States.  The DREAMers are those who could potentially benefit from the President's Deferred Action for Childhood Arrivals program.

The American Immigration Council's DREAMers estimates can be found here.

By: William J. Kovatch, Jr.
(703) 837-8832
info@kovatchimmigrationlaw.com

Deferred Action for Childhood Arrivals: American Immigration Council Practice Advisory

The Legal Action Center of the American Immigration Center has issued a practice advisory on the President's Deferred Action for Childhood Arrivals (DACA or Deferred Action for DREAMers) program.  Practice advisories are generally in depth legal analyses of a specific topic.  The American Immigration Council publishes these advisories to assist immigration lawyers in their practice.

The practice advisory, issued on October 25, 2012, provides a thorough discussion of the legal issues surrounding the deferred action program, from eligibility to the legal issues surrounding the application process.

One such legal issues concerns the disclosure of Social Security numbers.  Applicants are required to disclose their Social Security numbers both on Form I-821D and I-765.  USCIS has made it clear that the applicant should disclose only that Social Security number officially issued to the applicant by the Social Security Administration.  The American Immigration Council states that applicants should be careful about what evidence they submit to show physical presence, in order to avoid disclosing the use of other Social Security numbers.

The practice advisory can be found here.

By:  William J. Kovatch, Jr.
(703) 837-8832
info@kovatchimmigrationlaw.com

Deferred Action for Childhood Arrivals (DREAMers) and Driver's Licenses

Under the President's program, deferred action can provide a person with a promise not to be deported and work authorization.  But, will it allow recipients to get a driver's license.

In general, that issue depends on state law.  Arizona and Michigan have both announced that they will not issue driver's licenses to those who receive deferred action.

What about Virginia?  Section 46.2-328.1 of the Code of Virginia clearly provides that anyone in an approved deferred action status may be issued a driver's license.  This law was on the books long before the President's program.

In August, the Virginia DMV confirmed that it was going to comply with Virginia law and issue driver's licenses to those who receive deferred action under the President's program.

The ACLU is already planning a lawsuit to challenge the decision to deny driver's license to DREAMers in Arizona.  There may be a valid federalism claim.  That is, if the U.S. Government has express authority over immigration issues, and if federal law is the supreme law of the land, then the states cannot do any action to countermand federal action.  We'll watch the Arizona case and see how that plays out.

By:  William J. Kovatch, Jr.
(703) 837-8832
info@kovatchimmigrationlaw.com

Business Professionals from Canada and Mexico: The TN Visa

Citizens from Canada and Mexico may apply for temporary admission to the United States to engage in business activities at a professional level.  This is known as the TN non-immigrant classification.

The TN visa is a result of the North American Free Trade Agreement.  Appendix 1603.D.1 of Annex 1603 of the NAFTA provides a list of professional activities that are eligible for TN classification.  Generally, the professional activities require a bachelor’s degree or higher.  Among the professionals listed are lawyers, engineers, accountants, computer systems analysts, teachers and graphic designers.

The visa is initially issued for a three year period.  It is a multi-entry visa, which means that the visa holder may travel outside of the United States and return during the three year period without applying for a new visa.  The visa holder may apply for an extension while in the United States.  Extensions can be granted in up to three year intervals.

Canadian citizens may apply at a U.S. port of entry.  A citizen of Mexico must apply at a U.S. consulate in Mexico.  To apply, the applicant must show proof of citizenship, and a letter from the prospective employer stating the applicant’s professional capacity, the purpose of the stay, the length of stay, and the applicant’s educational qualifications. The applicant may also need to provide credential evaluations.

There are no limits on the number of extensions that a person may apply for.  However, the U.S. Government must be convinced that the proposed stay is temporary.  That is, the applicant must show that the work will end at a predictable time, and that the applicant will return to his or her country once the work is completed.

More information on the TN visa can be found at the U.S. State Department's website.

By:  William J. Kovatch, Jr.

(703) 837-8832

info@kovatchimmigrationlaw.com