Tuesday, December 11, 2012

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

Sunday, December 9, 2012

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.

Saturday, December 8, 2012

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

Friday, December 7, 2012

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

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

Thursday, December 6, 2012

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 unityOne Republican proposal on STEM worker visas was brought to a vote in September of this yearThe plan would have increased the number of visas available for STEM workers by 50,000, while eliminating the diversity visa programThe 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

Tuesday, December 4, 2012

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

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

Sunday, December 2, 2012

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

Saturday, December 1, 2012

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