Same-Sex Spouses Now Eligible for Green Card

Last Wednesday, June 26, 2013, the  U.S. Supreme Court decision striking down the Defense of Marriage Act DOMA) was a great victory for same-sex couples. With the end of DOMA, a U.S. citizen or legal permanent resident can immediately  petition their same-sex spouse for permanent residence.
A couple needs only to be legally married in a U.S. state or a foreign country for immigration spouse rules to apply.

Long Awaited Immigration Reform Begun

The long journey to comprehensive immigration reform has begun, as you might expect for Washington, with a single memo. Eight senators, four from each party, released it on Monday, January 28, 2013: a statement of principles behind a deal to overhaul the system in one big bill. It calls for more border and workplace enforcement, more visas for needed workers and legalization — with a path to citizenship — for 11 million undocumented immigrants. A bill should be introduced in the Senate in the spring or summer.  Stay tuned.

Obama Administration's Version of DREAM Act

Effective immediately, certain young people who were brought to the United States through no fault of their own as young children and meet several key criteria will be able to remain in the United States without fear of deportation and receive a work permit.

Who Is Eligible?

The following persons are eligible to remain in the U.S. and receive a work permit if they:
1.  Have come to the U.S. under the age of 16;
2.  Have continuously resided in the U.S. for at least 5 years preceeding June 15, 2012 and are physically present in the U.S. on June 15, 2012;
3.  Are currently be in school, have graduated from high school, have obtained a GED, or have been honorably discharged from the Coast Guard or Armed Forces of the U.S.;
4.  Have not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise pose a threat to national security or public security;
5.  Not be above the age of 30.

Call our firm today toll free at 1-800-794-4546 to see if you qualify to remain in the U.S. legally and receive a work permit. 

USCIS Releases Information on Automatic Extension of F-1 Student Status for Those with Pending H-1Bs

Questions & Answers

Q1. What is “Cap-Gap”?
A1. Current regulations allow certain students with pending or approved H-1B petitions to remain in F-1 status during the period of time when an F-1 student’s status and work authorization would otherwise expire through the start date of their approved H-1B employment period.  This is referred to as filling the “cap-gap,” meaning the regulations provide a way of filling the “gap” between the end of F-1 status and the beginning of H-1B status that might otherwise occur if F-1 status is not extended for qualifying students.

Q2. How does “Cap-Gap” Occur?
A2. An employer may not file, and USCIS may not accept, an H-1B petition submitted more than six months in advance of the date of actual need for the beneficiary’s services or training.  As a result, the earliest date that an employer can file an FY 2013 H-1B cap-subject petition is April 2, 2012 for employment starting not before October 1, 2012.  If USCIS approves the H-1B petition and the accompanying change of status request, the earliest date that the student may start the approved H-1B employment is October 1, 2012.  Consequently, F-1 students whose periods of authorized stay expire before October 1, 2012, and who do not qualify for a cap-gap extension, are required to leave the United States, apply for an H-1B visa at a consular post abroad, and then seek readmission to the United States in H-1B status, for the dates reflected on the approved H-1B petition.

Q3. Which petitions and beneficiaries qualify for a cap-gap extension? 
A3. H-1B petitions that are timely filed on behalf of an eligible F-1 student and request a change of status to H-1B on October 1, 2012 qualify for a cap-gap extension.
Timely filed means that the H-1B petition (indicating change of status rather than consular processing) was filed during the H-1B acceptance period, which begins Monday April 2, 2012, while the student's authorized F-1 duration of status (D/S) admission was still in effect (including any period of time during the academic course of study, any authorized periods of post-completion Optional Practical Training (OPT), and the 60-day departure preparation period, commonly known as the “grace period”).

Once a timely filed request to change status to H-1B on October 1, 2012 has been made, the automatic cap-gap extension will begin and will continue until the H-1B petition adjudication process has been completed.  If the student’s H-1B petition is selected and approved, the student’s extension will continue through September 30, 2012 unless the petition is denied, withdrawn, or revoked.  If the student’s H-1B petition is not selected, the student will have the standard 60-day grace period from the date of the rejection notice or their program end date, whichever is later, to prepare for and depart the United States.
Students are strongly encouraged to stay in close communication with their petitioning employer during the cap-gap extension period for status updates on the H-1B petition processing.

Q4. How does a student covered under the cap-gap extension obtain proof of continuing status?
A4. The student should go to their Designated School Official (DSO) with evidence of a timely filed H-1B petition (indicating a request for change of status rather than for consular processing), such as a copy of the petition and a FedEx, UPS, or USPS Express/certified mail receipt.  The student’s DSO will issue a preliminary cap-gap I-20 showing an extension until June 1, 2012.

If the H-1B petition is selected for adjudication, the student should return to his or her DSO with a copy of the petitioning employer’s Form I-797, Notice of Action, with a valid receipt number, indicating that the petition was filed and accepted.  The student’s DSO will issue a new cap-gap I-20 indicating the continued extension of F-1 status. 

Q5. Is a student who becomes eligible for an automatic cap-gap extension of status and employment authorization, but whose H-1B petition is subsequently rejected, denied or revoked, still allowed the 60-day grace period?
A5. If USCIS denies, rejects, or revokes an H-1B petition filed on behalf of an F-1 student covered by the automatic cap-gap extension of status, the student will have the standard 60-day grace period (from the date of the notification of the denial, rejection, or revocation of the petition) before he or she is required to depart the United States.
For denied cases, it should be noted that the 60-day grace period does not apply to an F-1 student whose accompanying change of status request is denied due to the discovery of a status violation.  The student in this situation is not eligible for the automatic cap-gap extension of status or the 60-day grace period.  Similarly, the 60-day grace period and automatic cap-gap extension of status would not apply to the case of a student whose petition was revoked based on a finding of fraud or misrepresentation discovered following approval.  In both of these instances, the student would be required to leave the United States immediately.

Q6. May students travel outside the United States during a cap-gap extension period and return in F-1 status?
A6. No. A student granted a cap-gap extension who elects to travel outside the United States during the cap-gap extension period will not be able to return in F-1 status.  The student will need to apply for an H-1B visa at a consular post abroad prior to returning.  As the H-1B petition is for an October 1, 2012 start date, the student should be prepared to adjust his or her travel plans, accordingly.

Q7. What if a student’s post-completion OPT has expired and the student is in a valid grace period when an H-1B cap-subject petition is filed on their behalf?  It appears that F-1 status would be extended, but would OPT also be extended?
A7. F-1 students who have entered the 60-day grace period are not employment-authorized.  Consequently, if an H-1B cap-subject petition is filed on the behalf of a student who has entered the 60-day grace period, the student will receive the automatic cap-gap extension of his or her F-1 status, but will not become employment-authorized (since the student was not employment-authorized at the time H-1B petition was filed, there is no employment authorization to be extended).  

A8: Yes. The 90-day limitation on unemployment during the initial post-completion OPT authorization continues during the cap-gap extension.
A8: Yes. The 90-day limitation on unemployment during the initial post-completion OPT authorization continues during the cap-gap extension.

Q9. What is a STEM OPT extension?
A9. F-1 students who receive science, technology, engineering, and mathematics (STEM) degrees included on the STEM Designated Degree Program List, are employed by employers enrolled in E-Verify, and who have received an initial grant of post-completion OPT employment authorization related to such a degree, may apply for a 17-month extension of this authorization.  F-1 students may obtain additional information about STEM OPT extensions on the Student and Exchange Visitor Program website at www.ice.gov/sevis.

Q10. May a student eligible for a cap-gap extension of post-completion OPT employment authorization and F-1 status apply for a STEM OPT extension while he or she is in the cap-gap extension period? A10. Yes.  However, such application may not be made once the cap-gap extension period is terminated (e.g., if the H-1B petition is rejected, denied, or revoked), and the student has entered the 60-day departure preparation period.

Q11. In recent years, employers have been able to file H-1B cap-subject petitions after April 1, and have not always requested an October 1 start date.  However, some students’ OPT end dates were nevertheless shortened to September 30, even though their H-1B employment would not begin until a later date.  What should the student do to correct this?
A11. The student should contact their DSO.  The DSO may request a data fix in SEVIS by contacting the SEVIS helpdesk.

Q12. If the student finds a new H-1B job, can he or she continue working with his/her approved EAD while the data fix in SEVIS is pending?
A12. Yes, if the (former) H-1B employer timely withdrew the H-1B petition and the following conditions are true:
USCIS has issued the following Questions & Answers that address the automatic extension of F-1 student status in the United States for certain students with pending or approved H-1B petitions (indicating a request for change of status from F-1 to H-1B) for an employment start date of October 1, 2012 under the Fiscal Year (FY) 2013 H-1B cap.

Q13. If the student has an approved H-1B petition and change of status, but is laid off/terminated by the H-1B employer before the effective date, and the student has an unexpired EAD issued for post-completion OPT, can the student retrieve any unused OPT?
A13. Yes. The student will remain in student status and can continue working OPT using the unexpired EAD until the H-1B change of status goes into effect.  The student also needs to make sure that USCIS receives a withdrawal request from the petitioner before the H-1B change of status effective date.  This will prevent the student from changing to H-1B status.  Once the petition has been revoked, the student must provide their DSO with a copy of the USCIS acknowledgement of withdrawal (i.e., the notice of revocation). The DSO may then request a data fix in SEVIS, to prevent the student from being terminated in SEVIS on the H-1B effective date, by contacting the SEVIS helpdesk.
If USCIS does not receive the withdrawal request prior to the H-1B petition change of status effective date, then the student will need to stop working, file a Form I-539 to request reinstatement, and wait until the reinstatement request is approved before resuming employment.

Q14. In cases where a student is authorized to work OPT past the H-1B change of status effective date, can the student continue working on OPT if a request to revoke/withdraw the H-1B change of status is submitted to USCIS?
A14. If the H-1B revocation occurs before the H-1B change of status effective date, the student may continue working while the data fix remains pending, because the student will still be in valid F-1 status.
If the H-1B revocation occurs on or after the H-1B change of status effective date, the student will need to stop working before the H-1B change of status effective date, apply for reinstatement, and wait until the reinstatement request is approved before resuming employment.
NOTE:  This is NOT a cap-gap situation since the student has an EAD authorizing OPT beyond the H-1B change of status effective date.

Q15. Do students remain in valid F-1 status while the request to change the OPT end date is pending?
A15. If the H-1B revocation occurs before the H-1B change of status effective date, the student is still deemed to be in F-1 status while the data fix is pending.
If the H-1B revocation occurs after the H-1B change of status effective date, the student will not be in valid F-1 status and will therefore either need to apply for reinstatement or depart the United States.

Unlawful Presence in the United States Before April 1, 1997

Good news for those filing for green cards who have unlawful presence in the United States.  San Jose USCIS Office confirms that it still will not count unlawful presence in the United States before April 1, 1997 for purposes of an unlawful presence bar.  This was in question after the recent 9th Circuit Court of Appeals decision in Carrillo de Palacios v. Holder.

Small Businesses A Target of USCIS Fraud Investigation

Small companies petitioning for foreign workers face a higher scrutiny from USCIS, and thus should ensure that every aspect of their H-1B Petition is carefully reviewed and prepared by a competent immigration attorney.  The consequences of unintended inconsistencies could be a delay in bringing required talent on board the company, or a denial of the H-1B petition and losing the worker entirely.

According to the recent May 18, 2012 release of confidentail internal USCIS guidance, USCIS has been instructed to target small businesses or new companies who want to hire foreign workers for fraud investigations.  According to a USCIS internal memo released May 18, 2012, USCIS should presume fraud when two of the following conditions exist:

          1.  Petitioning companies with a gross annual income of less than $10 million;
          2.  Petitioning companies which employ less than 25 employees;
          3.  Petitioning companies that were established within the last 10 years.

When an immigration officer initially handling the petition finds two or more of the above conditions exist, then the officer is instructed to further review the H-1B filing for the following:

          1.  presence of fraudulent information relating to the Petitioning company or sponsored foreign worker, and/or any forged documentation;

          2.  reported business was non-existent, suggested by a review of independent sources that reveal fictitious or inconsistent addresses in the petition, a questionable organizational chart is present in the record, there are photos of the purported business in a staged setting, there is evidence in the H-1B filing or otherwise uncovered that point to business zoning inconsistencies, or the Petitioning

companys website contains information inconsistent with the information in the H-1B petition; or
          3.  inconsistent or otherwise questionable evidence regarding the proposed job duties and/or the foreign worker's qualifications to perform those job duties.  In other words, the actual job duties are significantly different from the job position listed on the Labor Condition Application (LCA); 
work experience letters without signatures; missing addresses and/or telephone numbers for the      company; required skills, age or education discrepancies or mismatches.

When the above conditions are met, the immigration officer should refer the H-1B case to an immigration fraud unit (CFDO) for further scrutiny to rule out fraud in the petitioning process.

Moreover, the immigration officer initially handling the case is also instructed to review the filing not only for fraud, but for technical violations, including whether:

           1.  the physical job location is not listed on the Form I-129 Petition and/or LCA;
           2.  the beneficiary is not receiving the prevailing wages as listed on the LCA (salary discrepancies or mismatches);
           3.  any misrepresentation regarding the Beneficiary's current or prior immigration status (passport, I-94 or visa discrepancies);
           4.  any evidence that the Beneficiary paid the ACWIA filing fee associated with the H-1B filing fee;
           5.  any conflicting information about the business or its operations;
           6.  the facility would not be appropriate for the type of work to be performed ( for example, Petitioner claims to have 100 employees and the worksite is zoned for a residential apartment);
           7.  the job offered is inconsistent with the normal activities of the business.

Petitioning employers are advised to be diligent when preparing and submitting H-1B petitions to USCIS to ensure as much as possible that they obtain needed foreign talent.

LAC Wins Release of H-1B Fraud Documents for AILA

On May 18, 2012, USCIS released in full the remaining contested documents in a FOIA lawsuit brought by the American Immigration Council’s Legal Action Center (LAC) and Steptoe & Johnson LLP on behalf of AILA.  AILA v. DHS, filed in July 2010, sought the public release of records concerning USCIS fraud investigations in the H-1B program. USCIS’s H-1B visa review and processing procedures have caused confusion and concern among U.S. businesses that legitimately depend on temporary foreign workers with specialized knowledge to operate successfully. Since 2008, USCIS has implemented new, more stringent procedures and have dramatically increased the frequency of unannounced worksite inspections, yet has kept the rules and guidelines related to the review process secret.

In its initial response to the suit, USCIS released only a few heavily redacted documents. Later, in response to AILA’s motion for summary judgment, USCIS released additional records, but continued to withhold unredacted versions of critical records. Finally, in response to the district court’s grant of partial summary judgment to AILA in March 2012, which found USCIS’s explanations for withholding the records insufficient, USCIS released in unredacted form the remaining contested documents: 1) an October 31, 2008 USCIS memorandum on H-1B Anti-Fraud Initiatives, 2) an H-1B Petition Fraud Referral Sheet , and 3) a Compliance Review Report.

This lawsuit is part of the LAC’s continued effort to increase transparency and promote accountability regarding DHS enforcement practices. Read more about the lawsuit on our here.

Update on the New ICE Policy on Prosecutorial Discretion

The Chief Counsel’s office that handles cases in the San Francisco immigration court appears to be approving requests to administratively close deportation cases for young persons who were brought to the U.S. with their parents while still minors, are in the U.S. without legal status and who are currently attending college.  If this applies to you or your family member, seek the advice of a competent immigration attorney to determine whether it is appropriate to try to close your deportation case.

New USCIS Medical Form

For those filing a green card application, you should be aware that USCIS has a new medical form, Form I-693 as of November 1, 2011.  To ensure no delays in your green card case, ensure that your Civil Surgeon, or USCIS approved physician, uses the new form.   Civil surgeons completing medical examinations between Nov. 1 and Dec. 31, 2011, should use the new form dated 10/11/11. However, USCIS will continue to accept the previous version, dated 7/20/10, for examinations completed between Nov. 1 and Dec. 31, 2011. Beginning Jan. 1, 2012, civil surgeons must use the new version of the form.  If a medical examination completed on or after Jan. 1, 2012, is reported using an outdated form, USCIS will reject the form, requiring the applicant to return to the civil surgeon and resubmit the new form.

Stepped Up On Site Inspections for H-1B Visa Holders in the Bay Area

USCIS has recently notified local immigration attorneys that the FDNS (Fraud Detection and National Security) has stepped up its local inspections of H-1B temporary workers in the Bay Area.  USCIS started on-site fraud inspections related to nonimmigrant visa petitions in 2008. Since then, thousands of worksite inspections have taken place.  In July 2009, FDNS implemented the Administrative Site Visit and Verification Program (ASVVP) to conduct unannounced site inspections to verify information contained in certain visa petitions.  USCIS provides petitioners and their representatives of record (if any) an opportunity to review and address the information before denying or revoking an approved petition based on information obtained during a site inspection.

The following scenario is typical for a site visit.  FDNS inspectors will show up unannounced at the work site, and ask for the employee.  The employer is not necessarily notified of the visit when the inspector arrives, but the employee can notify the employer or HR of the visit.  The Inspector will usually ask to see the employees desk, and ask questions related to the employee's I-129 Petition job duties.  Note that the Inspector does have a DHS badge, but it is generic, and does not have a name on the badge.  If employer's are uncomfortable, they can ask that the review be rescheduled, which may or may not be honored. The visit does not include a review of the public access file, which is DOL's responsibility.

The site visits may occur at the H-1B employer’s principal place of business and/or at the H-1B nonimmigrant’s work location, as indicated on the Form I-129 petition (regardless of whether the work location is controlled by the H-1B employer). The employer may request that its immigration attorney be present during the site visit. However, FDNS officers will not typically reschedule a site visit so that an attorney may be present. FDNS has stated that it will allow counsel to be present by phone, if requested.

The American Immigration Lawyer's Association (AILA) recommend the following:

Clients should be advised to retain complete copies of their I-129 petitions and supporting documents in a confidential file maintained by the designated company official. Should the company elect to submit to interview by an FDNS officer, the designated official should retrieve this documentation and review it prior to meeting with the officer. Some clients may find it advantageous to stage a mock visit under the supervision and direction of counsel and subject to the attorney client privilege, so as to better prepare the designated official for possible interrogation regarding a random petition selected by counsel. Be careful to refrain from coaching the witness during the mock session and always have a firm representative present to memorialize the session in the event you are later accused of coaching.

If an FDNS officer requests information from the employer and the employer can not provide accurate information without further research, the employer should indicate this to the FDNS officer. The employer should not “guess” about any information provided during the site visit. If the employer is unsure about some requested information, the employer may want to indicate that he/she will follow up with the FDNS officer to provide accurate information after such information is obtained. This is especially important for representatives who do not have access to information being requested by the FDNS officer and there are no other company representatives available to answer the questions during the unannounced visit.

Should Technology Be Tempered With a Social Conscious?

In May 2011, three Chinese dissidents and Human Rights Law Foundation in Washington filed a lawsuit in the Federal District Court in San Jose, California, accusing Cisco Systems, Inc. of designing products to help the Chinese government persecute members of China's banned spiritual group, Falun Gong.  The issue in his cases is whether U.S. comanies can be held liable if foreign governments use their product to repress the rights of their citizens.  China treats political dissent as a crime and heavily filters the Internet to suppress it. Since February, the Chinese government it has stepped up its efforts to quash its detractors, detaining dozens of dissidents mostly for writing articles critical of the government.

On September 9, 2011, Human Rights Law Foundation amended its original complaint, saying it had new evidence that Cisco customized its products specifically to enable the authorities to persecute members of Falun Gong, some of whom were allegedly tortured and killed by the Chinese authorities.  The lawsuit said Cisco "willingly and knowingly provided Chinese officials with technology and training to access private Internet communications, identify anonymous web log authors, prevent the broadcast and dissemination of peaceful speech, and otherwise aid and abet in the violation of...fundamental human rights."  The new evidence includes a PowerPoint presentation from Cisco that describes a specific line of products "as the only product on the market capable of recognising over 90 percent of Falun Gong pictures." 

This lawsuit folows a string of lawsuits against large technology companies such as Yahoo, IBM and Microsoft for aiding in human rights abuses.

Cisco denies that the company has aided the Chinese government in persecuting its citizens who advocate for human rights, commenting that this technology is sold in worldwide markets.

Immigration News

Good News—Children of K-1 Fiancée Now Protected From Aging Out After They Enter the U.S.! 

In its June decision in Matter of Le, the Board of Immigration Appeals resolved the issue of whether the child of a fiancée of a U.S. citizen (a K-2 visa holder), who legally entered the U.S. under the age of 21, is eligible for adjustment of status even after turning 21. The Board concluded that the age of the child is “fixed” at the time the child is admitted to the United States. Previously, the Department of Homeland Security denied many adjustment of status applications, or green card applications for children who entered as a K-2, arguing that the K-2 child was ineligible for a green card because they had turned 21 after entering the U.S, but before the green card application was decided. Now, as long as a K-2 child is under 21 and enters the U.S., they can still obtain a green card as a K-2 even if they later turn 21 before the green card application is decided.

Beware—If ICE Takes You Into Custody, They Don’t Have to Tell You Your Rights!

The Board of Immigration Appeals recently held that noncitizens arrested without a warrant need not be advised of their rights under immigration regulation 8 C.F.R. 287.3(c)—including their right to an attorney and notification that any statements made can be used against them—until after a Notice to Appear has been filed with an Immigration Court. A Notice to Appear is the document that formally places a person in deportation or removal proceedings.  Be aware that if you are taken into ICE custody and questioned, what you say can be used against you later.  Ask for immigration counsel before answering any questions.

Alabama Anti-Immigrant Law Blocked

Yesterday, U.S. District Judge Sharon Blackburn blocked Alabama's immigration law for up to 30 days, saying more time is needed to consider various challenges to the statute.  Most of the statute's provisions were scheduled to become law on Thursday. The federal judge will consider the legality of the new law and rule on the specific requests for preliminary injunction by September 28. A preliminary injunction would stop some or all of the law from going into effect, but would not overturn it.

The law, signed by Gov. Robert Bentley on June 9, makes it a state crime to be an undocumented alien in Alabama. It also gives law enforcement the ability to detain those they have "reasonable suspicion" of being in the country illegally, and also provides non-criminal sanctions to businesses that knowingly hire undocumented aliens.

California Dream Act

 On July 25, 2011, Governor Jerry Brown signed a bill that will let students who are in the U.S. with no legal status receive private financial aid at California's public colleges, even as debate continues over a more contentious bill that would allow access to public funding.  The Democratic governor signed AB130 at Los Angeles City College. It is the first of a two-bill package referred to as the California Dream Act, which is aimed at getting financial aid for college students in the country illegally.

In practical terms, it would mean that those students who already qualify for in-state tuition under a 2001 state law could apply for private funds donated to schools. Currently, undocumented immigrants are ineligible for any financial help, including private scholarships.

The Act will open a window of opportunity for those students who, through no fault of their own, were brought here illegally, who studied hard and earned a spot in a college or university but now can't afford it.  Brown told a crowd of about 100 students and community leaders who gathered inside the city college’s library that “It's crucial that we invest in every child that lives and is born in this state. Signing this Dream Act is another piece of investment in people because people drives the culture, the economy."

The governor did not address the second bill in the package, which is more controversial because it would allow illegal immigrants to receive state-funded scholarships and financial aid. That bill, AB131, is in the state Senate.  The legislative package authored by state Assemblyman Gil Cedillo, D-Los Angeles, differs from the federal Dream Act, which would include a path to citizenship for those bought to the country illegally as children.

Anti-Immigrant Legislation Backfiring Against State Law Makers

     While the authors and supporters of state level anti-immigrant legislation received some national attention initially, the legislation now seems to be backfiring against them. Last Friday, enough signatures were certified to initiate a recall election against Arizona Senate President Russell Pearce this November. This will be the first recall election of a state legislator in Arizona history. 

     Moreover, in Georgia, there is evidence that the anti-immigrant legislation is backfiring as well.  The state’s agricultural industry is suffering because it cannot now find enough workers to harvest their fields.  Harvesting is hard labor, with low wages, and predominantly done by immigrants without status.  

     As well, in Alabama where the most aggressive anti-immigrant legislation has recently been passed, school principals and church leaders have been required to police for immigration status.  Many church leaders say they will disobey the law because it is unjust. Other outcries focus on the massive amount of paperwork the law requires in a state with severe educational budget cuts. 

San Francisco Immigration Judge Offers Reprieve to Same Sex Partner of U.S. Citizen

Alex Benshimol, a 47-year-old Venezuelan man who over-stayed his visa and married his American spouse Doug Gentry, has just been granted a two-year deportation reprieve from immigration judge Marilyn Teeter in San Francisco. Immigration and Customs Enforcement (ICE) has 60 days to pursue the deportation or let it drop altogether. The judge has scheduled the next hearing in 2013 if ICE moves forward.

An American who marries a same-sex immigrant in one of the states that allow gay marriage cannot sponsor his or her spouse for a green card, due to the federal Defense of Marriage Act (DOMA), which defines marriage as between a man and a woman only.  Immigration judges around the country are growing more reluctant to deport same-sex spouses of American citizens, particularly after the Department of Justice announced the Obama administration would no longer defend DOMA in court in February. Since the Justice Department's position is that DOMA is unconstitutional, immigration judges , who are themselves a part of the Justice Department, find it increasingly contradictory to deport people who would otherwise qualify for citizenship if the law did not exist.

Gone, But Not For Good: Drug Convictions Now Remain Convictions for Immigration Purposes Despite Being Eliminated at the State Level

Today the Ninth Circuit Court of Appeals overruled the prior Lujan-Armendariz decision and held that “rehabilitative relief” will no longer eliminate a first conviction for simple possession of a controlled substance or a similar other minor drug offense. Generally, rehabilitative relief is expungement or other withdrawal of plea after successful completion of probation, such as, in California, under Deferred Entry of Judgment, a record clearance under California Penal Code Section 1203.4, or Prop 36. The good news is that the decision will apply only PROSPECTIVELY. This means that persons who had sought and obtained rehabilitative relief for simple drug possession or a lesser offense can still consider their drug convictions eliminated for immigration purposes.  On the contrary, convictions received after the date of publication of the decision in mid-July 2011 will not be able to expunge their simple drug possession conviction and eliminate it for immigration purposes. 

This is a major departure from prior immigration law in the 9th circuit, in which California is included.  If you or a family member have pending drug charges, seek the advice of a competent immigration and criminal defense attorney immediately.  Entering a plea of not guilty to simple possession or under the influence of a controlled substance can have devastating effects for a non-permanent resident who later seeks a green card or cancellation of removal.

Good Things Come to Those Who Ask

I recently had a permanent resident client who was convicted of possession of a controlled substance and grand theft.  This rendered the client deportable, and he was taken into immigration custody in San Jose and placed in deportation proceedings by the Immigration and Customs Enforcement (ICE). San Jose ICE transfered the Client to a detention facility in Tacoma, Washington. 

In addition to being deportable, this client is also subject to mandatory custody under current immigration law. This means that the law requires that such a person be kept in immigration custody throughout the duration of the removal or deportation proceedings. The immigration judge does not have the authority to let that person out of custody. Normally, no immigration bond would be set.

Despite knowing this, I contacted the ICE Duty Attorney in Tacoma and inquired about ICE's postion on bond for this client.  I was apprised that ICE's local policy was to not assert mandatory detention if the client did not come into their custody in the first instance.  As my client was first taken into custody in San Jose, and later transferred to Tacoma, no mandatory detention would be asserted.  I requested that bond be set for the client, ICE did not contest the bond request, and the Immigration Judge set a very reasonable bond.  The client is now home with his family.

The moral of this story is to be proactive on behalf of the client, even when the law appears to not be in their favor.  You don't know what you'll get until you ask.

Are You Here Illegally? ICE May Be Nice!

On June 17, 2011, U.S. Immigration and Customs Enforcement (ICE) issued a Memorandum to all ICE offices guiding them on exercising prosecutorial discretion in not taking enforcement action to remove from the United States certain individuals illegally in the U.S. and what factors to take into consideration.  ICE’s purpose in issuing the memo is to ensure that their limited resources are used wisely and in line with the agency’s priorities.

More than ever, it is important to consult with a competent immigration attorney to discuss your immigration situation, especially if you or a family member has been contacted by ICE, taken into custody, placed in deportation proceedings or have been ordered removed by an immigration judge.

Factors to Consider When Exercising Prosecutorial Discretion

When weighing whether an exercise of prosecutorial discretion may be warranted for a given person, ICE officers, agents, and attorneys should consider all relevant factors, including, but not limited to:

• the agency's civil immigration enforcement priorities;

• the person's length of presence in the United States, with particular consideration given to presence while in lawful status;

• the circumstances of the person's arrival in the United States and the manner of his or her entry, particularly if the alien came to the United States as a young child;

• the person's pursuit of education in the United States, with particular consideration given to those who have graduated from a U.S. high school or have successfully pursued or are pursuing a college or advanced degrees at a legitimate institution of higher education in the United States;

• whether the person, or the person's immediate relative, has served in the U.S. military, reserves, or national guard, with particular consideration given to those who served in combat;

• the person's criminal history, including arrests, prior convictions, or outstanding arrest warrants;

• the person's immigration history, including any prior removal, outstanding order of removal, prior denial of status, or evidence of fraud;

• whether the person poses a national security or public safety concern;

• the person's ties and contributions to the community, including family relationships;

• the person's ties to the home country and conditions in the country;

• the person's age, with particular consideration given to minors and the elderly;

• whether the person has a U.S. citizen or permanent resident spouse, child, or parent;

• whether the person is the primary caretaker of a person with a mental or physical disability, minor, or seriously ill relative;

• whether the person or the person's spouse is pregnant or nursing;

• whether the person or the person's spouse suffers from severe mental or physical illness;

• whether the person's nationality renders removal unlikely;

• whether the person is likely to be granted temporary or permanent status or other relief from removal, including as a relative of a U.S. citizen or permanent resident;

• whether the person is likely to be granted temporary or permanent status or other relief from removal, including as an asylum seeker, or a victim of domestic violence, human trafficking, or other crime; and

• whether the person is currently cooperating or has cooperated with federal, state or local law enforcement authorities, such as ICE, the U.S Attorneys or Department of Justice, the Department of Labor, or National Labor Relations Board, among others.

This list is not exhaustive and no one factor is determinative. ICE officers, agents, and attorneys should always consider prosecutorial discretion on a case-by-case basis. The decisions should be based on the totality of the circumstances, with the goal of conforming to ICE's enforcement priorities.

Beware! Checking Your Mail Could Get You Deported.

Reynaldo came to the U.S. from the Philippines nine years ago on a tourist visa and never went back. He left in the Philippines five children and a wife, and decided to work here to support them. Though sad without his family, he sacrificed being with them so he could give them a better life in the Philippines.

Year after year, he worked long hours and saved all the money he could, living humbly in a rented room. Every month for nine years he has sent money home to his family. Because of his sacrifice, his family lives comfortably and his two oldest daughters are in nursing school in the Philippines.

But last month, Reynaldo’s loving daughter unknowingly caused her dad’s deportation when she sent him a package from the Philippines. The package went through customs at the airport in San Francisco, and Reynaldo went there to pick it up. When trying to retrieve the package from the Department of Homeland Security’s Customs and Border Protection, he was asked for his ID. When he couldn’t produce a valid ID, he was questioned regarding his immigration status in the U.S.

This questioning led to Reynaldo being placed in deportation proceedings because he has no legal status here in the U.S. He faces certain deportation because he does not qualify for any relief from deportation. His daughters’ nursing careers are now uncertain, and his family will suddenly be without income.

Beware, if you or someone you know has overstayed a required deadline to leave the U.S. and is here illegally, think carefully about coming into contact with the Department of Homeland Security. The consequences could be severe if you have no relief from deportation. If you are placed in deportation proceedings, immediately seek help from a knowledgeable immigration attorney to see what defense you might have from deportation. It could make all the difference in your future.