Ramifications of White House Green Card Ban

On April 22, 2020, President Donald Trump signed a presidential proclamation suspending the entry of aliens who are outside of the United States, and who either do not currently have a valid immigrant visa, or who do not have an official travel document permitting that alien to travel to the United States.  An immigrant visa is one that permits an alien to live in the United States permanently.  Such immigrants are legal permanent residents, or, colloquially, are said to hold a green card.  The proclamation is effective April 23, 2020 at 11:59pm, eastern daylight savings time.

President issued this proclamation in response to the COVID-19 crisis.  As of April 21, 2020, the Centers for Disease Control and Prevention state that there are currently 802,583 cases of COVID-19 in the United States.  The disease has caused 44,575 U.S. deaths.

To slow the spread of the disease, the vast majority of states have issued stay-at-home orders, closing non-essential businesses.  As a result, over 22 million people have filed for unemployment benefits.  Trump has expressed his desire to begin re-opening the country, and putting people back to work.  He claims that the proclamation banning new green cards is necessary to protect the jobs of those Americans currently out of work.

On one hand, the White House has tailored this proclamation somewhat narrowly.  The green card ban does not affect doctors, nurses, healthcare workers and medical researchers working on combatting the spread of COVID-19, or their spouses and children under age twenty-one.  Certain family-based immigrants also escape Trump's green card ban.  They include: (1) spouses of U.S. citizens; (2) children, under age 21, of U.S. citizens; (3) prospective adoptees of U.S. citizens; (4) members of the U.S. Armed Forces; and (5) spouses and children of U.S. Armed Forces members.

Other immigrants not affected by the ban are: (1) foreign investors (these are foreigners who have either invested $1 million in the United States and employ ten people, or invested $500,000 in a distressed area and employ five people); (2) Iraqi and Afghani translators; (3) Iraqis and Afghanis who provided special services to the U.S. Government; (4) aliens whose entry would be in the national interest of the United States.

The ban does not affect those who already possess an immigrant visa, or those who are in the United States and applying for an immigrant visa.  Thus, an H-1B specialty worker, that is, an alien worker with a temporary employment visa whose job requires a bachelor's degree at a minimum, may still apply for an immigrant visa. There is a question, however, of whether such aliens may leave the United States, have their green card issued at a consulate in a foreign country and return to the United States.  If legally possible, such aliens may want to try to adjust to status while still present in the United States.

The ban also does not affect those currently in removal proceedings in the United States, or people who are seeking asylum, withholding of removal, or protection pursuant to the Convention Against Torture.  Moreover, law enforcement agencies may still request that individuals necessary for their objectives be permitted to enter the United States.

This is due to the limits to the president's immigration power.  In 2018, the Supreme Court held, in the case of Trump v. Hawaii, that the president has broad powers to suspend the entry of aliens who are trying to come into the United States.  With respect to aliens already present in the United States, Article I of the U.S. Constitution gives Congress the power to regulate immigration and nationality.

In the introduction to the proclamation, Trump notes that while the U.S. Department of Labor  is responsible for issuing labor certifications, such certifications take time to adjudicate, and therefore do not reflect the current U.S. labor market.  A labor certification is a determination that there are no U.S. workers who are ready, willing and able to accept a specific job with a U.S. employer.  U.S. employers must obtain a labor certification before petitioning for an alien worker to receive an employment-based visa.  The employer is required to demonstrate, by engaging in certain recruitment methods, that it is not able to fill a needed position with a U.S. worker.  It is a challenging and rigorous process, that can take over a year for the Labor Department to grant.

The proclamation is set to expire sixty days after the effective date.  However, it may be extended as necessary.

The President has further called on the Secretary of Labor and the Secretary of Homeland Security, in consultation with the Secretary of State, other measures that may be appropriate to stimulate the U.S. economy, ensuring that U.S. workers get priority.  This may mean that while temporary employment visas are unaffected by this proclamation, such visas in the future may be subject to restriction.

By: William J. Kovatch, Jr.

References

Proclamation Suspending Entry of Immigrants Who May Present a Risk to the U.S. Labor Market During the Economic Recovery Following the COVID-19 Outbreak (April 22, 2020).

Trump v. Hawaii, Slip Op. No. 17-965 (June 26, 2018).

Centers for Disease Control and Prevention, "Coronavirus Disease 2019."

Chapman, Steve, "Trump's immigration ban won't help fight COVID-19," Chicago Tribune (April 22, 2020).

Chalfant, Morgan and Bernal, Rafael, "Trump signs executive order limiting immigration," The Hill (April 22, 2020).

Kapur, Shahil, "Trump Halts Immigration for 60 Days.  Here's What the President's Order Means," NBC News (April 22, 2020).

Perper, Rosie, "Trumps signs executive order suspending immigration into the U.S. for 60 days," Business Insider (April 22, 2020).

Williams, Pete, "Does Trump have the authority to halt immigration?", NBC News (April 21, 2020).

Temporary Restraining Order Blocks Trump Administration from Implementing Rule Requiring New Immigrants to Have Health Insurance

On November 2, 2019, Judge Michael Simon of the U.S. District Court for the District of Oregon issued a nation-wide temporary restraining order ("TRO"), preventing the Trump Administration from implementing its new policy of requiring aliens applying for visas to become lawful permanent residents to demonstrate that they will be covered by an approved health insurance plan within 30 days of entering the United States.  The Trump Administration was set to implement the policy on November 3, 2019.

A group of plaintiffs filed a lawsuit challenging the policy on October 30, 2019.  The followed up by filing a motion for a TRO on November 1, 2019.  The Court held an emergency hearing on November 2, 2019.  The parties presented oral arguments at the hearing, but did not have time to file written arguments.

The Government had argued that the plaintiffs made their own emergency, by delaying until a few days before the policy was to go in effect to file their complaint and motion.  Judge Simon disagreed, noting that the Presidential Policy announcing the new policy was published on October 4, 2019, and that under the circumstances, filing a complaint twenty-six days after the issuance of the Proclamation was not an unreasonable delay.

Pursuant to the Presidential Proclamation, if an applicant for an immigrant visa could not show that he or she would be able to purchase an approved health insurance policy within 30 days of entering the United States, they would be deemed inadmissible as likely to become a public charge, and barred from entering the United States.

The Court first noted that Congress had addressed the public charge grounds of inadmissibility in the Immigration and Nationality Act ("INA").  Congress provided that a number of factors should be examined to determine whether a person is likely to become a public charge, which include the alien's age, health, family status, assets, resources, and financial status, and education and skills.  No one factor was to be determinative.  The statute did not mention a person's health insurance status as one of those factors.

Moreover, the Proclamation listed a number of health insurance plans that would acceptable.  The Court found that almost all of the listed types of insurance plans would be unavailable to most intending immigrants.  In addition, the Proclamation excluded any health insurance plan purchased through a state's marketplace pursuant to the Affordable Care Act (also known as Obamacare) if the state subsidized the plan.  Thus, the Court noted that the Proclamation excluded the one type of health insurance plan many intending immigrants would be able to afford.  Furthermore, the Court noted that Congress had rejected a proposal to consider the receipt of non-cash benefits from the government in making the public charge consideration.  The Presidential Proclamation, therefore, was inconsistent with the congressional intent as expressed through the INA.

Because this was an extraordinary measure being taken by the Court at such an early stage in the lawsuit, Judge Simon limited the TRO to 28 days, unless extended by the Court.  The Court further scheduled another hearing on November 22, 2019.

By:  William J. Kovatch, Jr.

How the Diversity Visa (the Lottery) Actually Works

President Donald Trump has expressed his distaste for the diversity visa on numerous occasions.  In the Rose Garden on February 15, 2019, Trump exclaimed, "And then you have the lottery.  It's a horror show, because when countries put people into the lottery, they're not putting you in; they're putting in some very bad people in the lottery.  It's common sense.  If I ran a country, and if I have a lottery system of people going to the United States, I'm not going to put in my stars; I'm going to put in people I don't want."

Trump continued with his criticism in a campaign rally in Cincinnati on August 1, 2019, stating, "And you pick people out of a lottery.  Well let's see, this one is a murderer, this one robbed four banks, this one I better not say, this one another murderer, ladies and gentlemen, another murderer.  Do you think [these countries] are going to put their great citizens . . . into the lottery?  Look at the people they put into these lotteries."

Trump's message has been consistent.  In 2017, Trump told graduates f the FBI National Academy, "They have a lottery. You pick people. Do you think the country is giving us their best people? No. What kind of a system is that? They come in by lottery. They give us their worst people, they put them in a bin, but in his hand, when he’s picking them is, really, the worst of the worst. Congratulations, you’re going to the United States. Okay. What a system — lottery system."

It is actually quite amazing.  Everything Trump says about the diversity visa lottery is completely wrong.  Not one bit of it is true.  The governments of foreign countries play no role in who applies for a diversity visa through the lottery system.  There is no bin.  No names are drawn from a hat.  Those who win the lottery, and thus have a chance to immigrate to the United States, are vetted to ensure they have no criminal record.  Indeed, in order to obtain the visa, a lottery winner must have a certain level of education or skill to ensure they will not be a drain on the U.S. welfare system.

Through the diversity lottery, visas are made available for 50,000 people each year.   The idea is to give people from countries that have traditionally sent fewer immigrants to the United States the chance to immigrate to the United States.

If a country has sent 50,000 or more immigrants to the United States in the last five years, then people from that country may not receive a diversity visa. Based on this criteria, people from Canada, Mexico, the Philippines, the Peoples Republic of China, El Salvador, Haiti and South Korea, to name a few, are not eligible.

The diversity visas are distributed by region, with people from the regions sending the fewest immigrants to the United States in the previous five years receiving the most visas. The regions which currently receive the most visas under the program are Africa and Europe. No one country can receive more than seven percent, or 3,500, of the visas available for that year. The visas are distributed at random.

To apply, a person enters the lottery online during the registration period. Winning the lottery does not guarantee that the applicant will receive the visa. Rather, the applicant must meet certain additional requirements. The applicant must have graduated high school, or have spent two out of the last five years in an occupation requiring at least two years' training or experience.

A person does not need to meet the eligibility requirements in order to apply online. This has led to a number of disappointed lottery winners. That is, a person can win the lottery only to learn that he or she does not have the required education or work experience to receive the visa.

The be able to immigrate to the United States, a person who receives a diversity visa must still be admissible pursuant to U.S. immigration law.  That means the person may not have committed certain crimes, such as murder, theft or sexual assault.  The person cannot have certain communicable diseases, be a habitual drunkard, be likely to become a public charge, or be considered a threat to national security.

To summarize, a person desiring to immigrate to the United States enters the diversity visa lottery.  That person's government has nothing to do with the application.  Foreign countries do not put people's names into a bit, or a hat, or a box.  An individual applies through the internet by going online.  A computer program picks names randomly.  In order to come to the United States, the person just have a minimum level of education or work experience, and cannot have committed certain crimes.

Thus, when Trump describes the diversity visa, he is engaging in nothing more than fear mongering.  This fear mongering fits in with his overall approach to immigration, where he manipulates the fear of his followers to promote more restrictive immigration policies.  He ignores studies which show immigrants as less likely than those born in the United States to commit violent crimes, instead painting all immigrants as potential threats to the public safety.  Education and access to accurate information can prevent Trump from manipulating the ignorance of his followers to pervert immigration law and policy.

By:  William J. Kovatch, Jr.

Putting the 9th Circuit's Decision Concerning Trump's Travel Restrictions into Perspective

On the evening of February 9, 2017, the U.S. Court of Appeals for the Ninth Circuit issued an order denying the Government’s motion for a stay of a temporary restraining order from a U.S. District Court in Washington State preventing the Government from enforcing an executive order signed by President Trump which put a temporary halt to the admission of refugees, and to the admission of aliens from seven countries which have been deemed to be a danger to national security.  The case is entitled, The State of Washington, et al. v. Donald Trump, et al.

Immediately, both sides took to the airwaves and to the Internet attempting to turn the decision into a bigger deal than it really is.  Both sides have an incentive to engage in a publicity war and court public opinion.  The opponents of the executive order have an interest in giving the impression that this decision is a major victory against the Trump Administration.  Likewise, the proponents have an interest in creating a public perception that the judiciary needs to be reigned in with more favorable presidential appointees.

In this publicity battle, it is important to keep the 9^th Circuit’s decision in perspective, and consider what it is that the Court did and didn’t do.

This is not a decision on the ultimate merits of the executive order.  That is, the 9^th Circuit did not find conclusively that the executive order was unconstitutional.  The sole issue before the Court was whether the temporary restraining order (TRO) should remain in place while the case is pending for a decision on the merits before the U.S. District Court.

A TRO is meant solely to maintain the status quo while a case is pending.  That is, where there is an allegation that an action is illegal and that the action will cause irreparable harm, a TRO is meant to prevent one side from engaging in that act until the court can decide the merits of the case.  When a TRO is granted, a party can seek a stay from an appellate court.  That is, the party can go to a higher court, and argue that the TRO should not be enforced because the TRO will cause that party harm pending litigation.

With that perspective in mind, it is important to note that the 9^th Circuit itself recognized that its decision was only preliminary, and issued at a very early stage in the litigation, before a full record could be created on the merits.  Nonetheless, the 9^th Circuit’s decision did make some very important points.

First, the 9^th Circuit determined that the states of Washington and Minnesota had standing to establish the lawsuit.  U.S. federal courts do not issue advisory opinions.  That is, federal courts will not weigh in on whether an act by Congress or the President is constitutional in the abstract without there being a case or controversy.  To have a case or controversy, some party must suffer some harm because of the act.

In this instance, the Court recognized that state run colleges were branches of the state governments.  State run colleges have an interest in presenting a quality educational program, which includes foreign students, professors and lecturers.  Indeed, the state schools act as the petitioner in student visas.  Many of the students, professors and lecturers found themselves aggrieved by executive order, as they could not travel abroad and return, or they could not enter the United States to be part of the school’s program.  Therefore, the states, through state-run schools, presented a case or controversy.

Second, the 9^th Circuit ruled that the Executive Branch’s actions in the area of national security were not entirely unreviewable by the courts.  If an Executive action in the area of national security affected individual rights protected by the Constitution, that action could be reviewed by the courts.

Next, the Court addressed the elements necessary for granting a stay.  In doing so, the Court considered:  (1) the likelihood of success on the merits; (2) would the party suffer irreparable harm absent the stay; (3) whether a stay would cause substantial injury to other interested parties; and (4) where the public interest lies.  The Court found that the Federal Government’s showing on the first two factors was lacking.

When considering the likelihood of success on the merits, it is important to remember that decisions concerning a stay are issued at an early stage of the litigation.  The appellate court recognizes that the record has not been fully developed.  And thus it should not be taken as an authoritative sign that one party will ultimately prevail.

Nonetheless, the 9^th Circuit did find that the executive order deprived certain parties of the constitutional right to due process before an interest can be taken away from the government.  Due process requires, at a very minimum, a party with a protected interest must have the right to notice and an opportunity to be heard.  The executive order made no provisions for notice and opportunity.  Therefore, to the extent that a party had a protected interest, the Federal Government could not carry its burden that the state governments’ arguments would necessarily fail.

The Court noted that the right to due process is not limited to citizens, but rather applies to all persons within the United States (whether present legally or illegally), as well as to certain persons seeking re-entry into the United States.

Specifically, permanent residents have an interest in traveling and re-entering the United States.  Likewise, those who have been issued non-immigrant visas (these are visas allowing a person entry for a temporary time for example to work or go to school) have an interest in having that visa honored and being permitted entry into the United States.  Before infringing on those interests, permanent residents and visa holders must be given notice of the Government’s intent and an opportunity to be heard.

In this regard, the Court found that statements made by White House counsel to the effect that the executive order would not affect permanent residents was not sufficient.  Interpretations by White House counsel are not authoritatively binding.

The Court declined to narrow the impact of the TRO, either in terms of who the TRO covered or the fact that the TRO was national in scope.  The Court stated that the Federal Government had not offered an alternative set of people that the TRO would cover that would include all persons with a protected interest.  Additionally, uniformity of enforcement with respect to immigration issues was desirable on a national level.

Concerning the argument that the executive order infringed on religious rights, the 9^th Circuit merely stated that it was too early in the litigation to make such a determination.

Finally, with respect to the balancing of hardships and the public interest, the Court found that while the Federal Government has an interest in combatting terrorism, the Government had not shown an immediate need to implement the order.  Specifically, there was no showing that any alien from one of the seven countries had perpetrated an attack against the United States. This was in contrast to the substantial injury that persons with protected interests would suffer if the travel restrictions remained in place. Regarding the discretionary waiver provisions of the executive order, the Federal Government offered no explanation as to how they would function.

There is much in this decision that is useful to the immigration law practitioner.  Specifically, the recognition of a protected interest in those who already hold permanent residency or visas to re-entry to the United States, and the requirement that such interests cannot be infringed upon without due process is helpful.  Likewise, the recognition that the Federal Government cannot shield its actions from judicial review merely by claiming it is a matter of national security is in line with prior Supreme Court precedent.

But it should be noted that the case is far from over.  Litigation over the merits, wherein both sides will better develop the factual record and their arguments, continues at the U.S. District Court level.  After that, there would still be an opportunity for an appeal to the 9^th Circuit and potentially the Supreme Court.  It may take a long time before the case is ultimately decided.

By:  William J. Kovatch, Jr.

For an appointment call (703) 837-8832

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H-1B Cap for Fiscal year 2015 Met

On April 7, 2014, U.S. Citizenship and Immigration Services received enough H-1B petitions to account for the annual quota for fiscal year 2015.  In fact, USCIS announced that it had received enough petitions to account for the 20,000 H-1B visas set aside for alien holding advanced degrees from U.S. schools.

H-1B visas are also known as specialty worker visas.  They are visas that allow a person to come to the United States temporarily to work for a U.S. employer.  To qualify, the alien worker must be coming to perform a job that requires the equivalent of a bachelor's degree or higher.

H-1B visas are initially granted for three years.  The visas begin on October 1, the start of the fiscal year.  Application can be submitted up to 6 months before the start of the fiscal year, or April 1.  There are 65,000 H-1B visas available every year.  Another 20,000 H-1B visas are available for alien workers who hold an advanced degree from a U.S. institution.

In some years, the annual quota is not met until later in the year.  However, when U.S. employers need skilled foreign workers, the H-1B quota can be met early in the H-1B filing season.  If more than enough H-1B petitions are received by USCIS before April 7, a lottery is held to see which applicants receive the available visas.

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

Marriage Equality and Full Faith and Credit

I had my first consultation with a same sex couple in a post Defense of Marriage Act (DOMA) world. Without giving away any specific facts, this was a gay couple in a long term relationship living in Virginia seeking immigration advice. I suggested that if they were to get married in the District of Columbia, we could file a visa petition on behalf of the non-citizen spouse. But, there would be one issue that could complicate matters. 

That is, under current Virginia law a same sex marriage performed in a state where it is legal will not be recognized. I warned that USCIS could use that as a reason to deny the petition. That is, while the marriage would be legal where it was performed, it would not be legal in the state of residence. 

In my honest opinion, I don't think this Administration would split hairs like that. To the contrary, given how quickly USCIS approved a visa petition for a married gay couple two days after the Supreme Court decision striking down DOMA, I think this Administration would likely approve a petition involving a DC marriage even if the couple is living in Virginia. Nonetheless, my opinion could be wrong, and thus I had to warn my potential clients up front. 

But this does bring up an interesting issue. The Constitution requires the states to give full faith and credit to the actions and records of another state. Thus, a marriage performed in Ohio, for example, must be recognized in Virginia. 

Still, I believe that some states will stick to their guns, and continue to refuse to recognize same sex marriages until forced to do so by the Supreme Court. I think Virginia and North Carolina are among those states. 

The next round of litigation may be over the full faith and credit clause of the Constitution. In fact, I would not doubt that some organization has already drafted up the Complaint, ready to file for the right case. In the end, I believe that same sex marriages will have to be recognized in all states.  Otherwise, the full faith and credit clause would be meaningless. Virginia may not be required to allow same sex couples to marry within its borders. But eventually, Virginia may be required to recognize a DC same sex marriage as legal. 

By: William J. Kovatch, Jr. 

(703) 837-8832

Info@kovatchimmigrationlaw.com

Supreme Court Decision May Bring Changes to Immigration Law

Today, in the case of United States v. Windsor, the U.S. Supreme Court affirmed the holding of the U.S. Court of Appeals for the Second Circuit which found the Defense of Marriage Act to be unconstitutional.  The Defense of Marriage Act, or DOMA, provided that the Federal Government could not recognize same sex marriages as legal for the purposes of Federal law.

The case itself involved a lesbian couple, who at the time could not marry in their home state of New York (this has since changed as New York legalized same sex marriages).  The couple went to Ontario, Canada, where same sex marriage was legal, and wed.  The couple moved back to New York.  When one spouse died, the surviving spouse sought to take advantage of the marital deduction under the Federal Estate Tax.  This was prohibited under DOMA.  The surviving spouse sued, and won before the U.S. Court of Appeals for the Second Circuit.

In affirming the Second Circuit's decision, the Supreme Court first noted that the definition of who can get married has been an issue left to the several states.  When a state has chosen to recognize same sex marriages as legal, the effect of DOMA to prohibit Federal benefits to those married couples violated the Equal Protection clause of the U.S. Constitution.

The decision itself involves Federal Estate Tax law.  However, under the same logic, there is no reason why it cannot also be applied to U.S. immigration law. 

U.S. immigration law itself does not define "marriage" or "spouse."  However, several immigration benefits are open due to marriage.  Up until now, DOMA has been the main impediment to having the Federal Government grant those benefits to a foreign born spouse of a same sex marriage.

For example, the foreign born spouse of a U.S. citizen is considered to be an "immediate relative," and as such is entitled to an immigrant visa without waiting in line under the preference system.  With DOMA being found unconstitutional, a U.S. citizen should be able to file an I-130 visa petition on behalf of a same sex spouse, so long as the marriage itself is legal.

Also, in many instances, when a person is granted a visa, that person can obtain a visa for certain derivative beneficiaries.  A specialty worker with an H-1B visa, for example, can have a spouse receive a temporary visa as well.  Under the Windsor decision, that H-1B visa holder should be able to apply for a derivative visa for a same sex spouse so long as the marriage is legal.

The Obama Administration is very likely the best administration to test this theory.  In September of last year, the Administration announced that long-term same sex partners would be considered U.S. relatives for the purposes of granting some form of discretionary relief, such as deferred action or prosecutorial discretion.  With such a track record, it seems likely that the Administration would now look favorably on a visa petition filed by a U.S. citizen on behalf of a same sex spouse.

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

Want to Help a Brother or Sister Come to the U.S.? You May Need to Act Soon!

The so-called "Gang of Eight" unveiled its immigration reform proposal in the Senate today.  The proposal contained a lot of changes; too many to detail in a blog entry such as this.  It does appear that that in order to account for the undocumented aliens who may be permitted to stay in the United States, other visa categories may be restricted or eliminated altogether.  The full text of the 844 page immigration reform bill, titled the "Border Security, Economic Opportunity, and Immigration Modernization Act," can be found at this link.

One of the more surprising proposals is the elimination of permanent residency visas for brothers and sisters of U.S. citizens.  Currently, a U.S. citizen can petition for a visa for a foreign-born brother or sister.  A very limited number of such visas are available on an annual basis, meaning that there is currently a backlog of approved visa petitions waiting for a visa to become available.  Dubbed category F4, for most countries visas for brothers or sisters of U.S. citizens are just becoming available for petitions which were filed on or before May 1, 2001.  For brothers and sisters from the Philippines, visas are just becoming available where the visa petition was filed on or before October 1, 1989.

The bill will now be introduced in the Senate, and will go through debate and "mark-up."  Mark-up is where amendments to the bill can be considered.  Even if the bill passes the Senate, it must pass the House of Representatives as well.  This means that it is likely that the bill which was introduced today will undergo numerous changes should it become law.

Nonetheless, the proposal to eliminate the brothers and sisters of U.S citizens category should cause some degree of urgency for those who wish to assist their sibling in coming to the United States.  If a citizen wants to help a sibling, that citizen should not delay in filing the visa petition.  Waiting to file could mean that the citizen and the sibling have lost their opportunity to obtain a permanent residency visa.

If you want to consult with an immigration attorney about filing a sibling petition, or for any other immigration matter, call me at (703) 837-8832 for an appointment.

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

Beware of Overreacting to the Boston Attack Based on Fear and Speculation; Justice Shall Prevail

My thoughts and prayers go out to the victims and their families, as well as to all of the people of Boston.  Words cannot describe the sorrow, and even the anger I feel right now.  I can only hope that the full force of justice is brought down on the cowards who perpetrated such an evil and horrific act.

At the same time, I cannot adequately express the admiration I have for the people of Boston and how they have responded; from the police and emergency workers who responded in the face of danger, to the every day people giving a hand to the injured.

But we are now entering a very dangerous time.  I am not talking about the potential for follow-up attacks.  I am talking about the urge to speculate and overreact after such a horrific act of evil has been committed.

As I write these thoughts, there is very little that we know.  We don't know who did this.  We don't know why.  But as in any senseless act, we seek answers.  And at time, when we look for answers and try to make sense of the senseless, our fears lead us to dangerous speculation.

This is a time when yellow journalism flourishes.  Unconfirmed rumors abound, which tend to play upon our biases and our fears.  And sometimes, it is the unconfirmed rumors and the speculation that pushes us to overreact and blame the wrong people.

As an example, one of the headlines on the Drudge Report says, "Young Person Here on Student Visa."  Yet, when you click the link, you see that there is no suspect in custody.  There is just a vague reference to a person in whom the authorities have some interest, stating that he is here on a student visa.  Another link on the Drudge Report highlights an allegation that a "Saudi was acting suspiciously."  Yet, when you click on the link, there is no reference in the article of the nationality of any individual involved.

Likewise, I have been watching Sean Hannity's coverage on Fox News.  Mind you, I am a fan of Hannity and am sympathetic to many of his views.  But, I can describe his coverage of this event as nothing but irresponsible.  Indeed, one of his so-called experts was Mark Furhman, a notorious former Los Angeles police officer who not only was discredited twenty years ago in connection with the Nicole Brown Simpson case, but who has been convicted of perjury.  With no information whatsoever, Furhman continually referred to a "Middle East" style explosive devise, insinuating that this was an act of Middle Eastern terrorism.

Indeed, even former Pennsylvania Governor and Homeland Security Secretary Tom Ridge (a man whom I respect), while noting that much of the information on the explosive devices will be protected by investigators, could not help but speculate publicly about Middle Eastern terrorism.

The danger of such irresponsible speculation at this stage in the development of the story is that it is designed to play on our emotions.  It is designed to manipulate our fears.  You put out there concepts like a suspicious Saudi, Middle Eastern terrorism and a student visa holder, and suddenly you will have people blaming Arabs and the immigration system, all without concrete information.

There is a danger that such a reaction of emotional speculation will derail the push for much needed immigration reform.  There is a danger of blaming an entire group of people, namely Arabs, when we just do not know enough yet.

It is at times like this that we must remember that we are the United States of America.  We built our Constitution on individual freedoms and due process of law.  The Federalist Papers speak of the need to temper the passions of the masses, so that we can approach governance in a deliberative fashion.  We cannot let passions, fear and speculation shape our response to this evil and senseless act now.  We must let justice take its course, based on facts and evidence.

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

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

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: 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.

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

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

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