Immigration Law

Immigrants don't want to become citizens.

The number of eligible immigrants submitting citizenship applications continues to increase. Due to huge backlogs in the system, the majority of applicants must wait years to hear a decision. Several factors determine an immigrant's eligibility, and meeting all of the requirements is not easy. In order to apply for naturalization, immigrants must pass background checks, verify they have paid their taxes, take a U.S. history and civics test, and prove they have resided in the United States (with lawful permanent resident status) for five years, among other regulations. In fact, only 7 percent of Hispanic immigrants surveyed as part of a Pew Hispanic Center study said they didn't want to become citizens.

Immigrants Won't Learn English.

Immigrants to the U.S. may not speak fluent English right away, but polls show that after 15 years, 75 percent of first generation immigrants speak English proficiently. The ability to speak the language increases significantly with succeeding generations: 91 percent and 97 percent of second and third generation immigrant families, respectively, speak English.

Immigrants don't pay taxes.

Despite the fact that most immigrants are unable to benefit from federal and federal-state assistance programs, the majority pay income tax or have taxes withheld from their paychecks; all immigrants pay sales and property taxes. Both legal and undocumented immigrants can't claim social security benefits, a tax refund or other welfare benefits.

Immigrants bring crime to the areas in which they settle.

Reliable statistics on the activities of undocumented immigrants are hard to find, but a recent study by the National Bureau of Economic Research found that newly arrived immigrants are particularly unlikely to be involved in crime. This may stem from an immigrant's drive to find (and keep) work and avoid being deported, as well as their desire to become a naturalized citizen.

Most Immigrants are undocumented and have crossed the border illegally.

Those who believe the aforementioned myth may be surprised to learn that two-thirds of immigrants are either naturalized citizens or have obtained some kind of lawful status, according to the American Civil Liberties Union (ACLU) https://www.aclu.org/. Nearly half of all undocumented immigrants entered the U.S. on temporary visas as students, tourists or workers, and are considered undocumented only because their visas expired and they didn't leave the country. Pew Hispanic Center statistics state that one third of all immigrants are undocumented, one third have some form of legal status and one third are naturalized citizens. This applies to immigrants from Latin America as well as those from other parts of the world.  If you need legal assistance, call us now for your complimentary initial in-office consultation, Franz Cobos, Esq.

 Individuals wishing to enter and reside in the United States may be able to file an extreme hardship waiver with the U.S. Citizenship and Immigration Services (USCIS) to overcome challenges that would normally bar entrance. Perhaps counter-intuitively, extreme hardship waivers do not involve hardships faced by the individual entering the U.S. Instead, they involve the hardships that would be experienced by a citizen or lawful permanent resident who is already in the U.S. if a person outside the U.S. were barred from entry. The hardship must be proved in two parts: 

1. The citizen or resident must prove that he or she will experience extreme hardship within the U.S. if the foreign individual is not allowed to enter the U.S.
2. The citizen or resident must prove that he or she will also experience extreme hardship if he or she must move to the foreign individual’s country because the applicant is not allowed to enter the U.S.

The resident or citizen is most often the child, parent, spouse or fiancé of the person outside the U.S.

What Sorts of Hardships Experienced Within the U.S. Can Lead to the Approval of an Extreme Hardship Waiver?

The USCIS needs to be informed of the specific hardships the citizen or lawful permanent resident will face if 1) a foreign national isn’t allowed to enter the U.S., and 2) to the citizen or resident remains in the U.S. Hardships in this category that the USCIS often approves include:

• Loss of financial support that the citizen or resident would have received from the alien had he or she been allowed to enter the U.S.
• Loss of support and subsequent care required by the citizen or resident in the event of a medical emergency
• Mental health issues on the part of the citizen or resident that would be exacerbated if the alien is not allowed to enter the U.S.

What Sorts of Hardships Experienced Outside the U.S. Can Lead to the Approval of an Extreme Hardship Waiver?
The USCIS will also want to know what kind of hardships the citizen or lawful permanent resident will face if he or she is forced to leave the U.S. and join the alien in his or her country, if the alien isn’t allowed to enter the U.S. Hardships in this category that the USCIS often approves include:
 

• Difficulty adjusting to a new country
• Lack of educational, medical and financial resources in the foreign country
• Lack of health insurance in the foreign country
• Mental health issues on the part of the citizen or resident that would be exacerbated if he or she is forced to leave the U.S.

Another hardship that can result and that the USCIS may consider is the loss of a “pillar of the community” in the U.S. if the citizen or resident leaves the U.S.

Why Can’t the Applicant Simply Enter the U.S. Via Normal Channels?
Extreme hardship waivers are intended for use by individuals who face various barriers to entry to the U.S. that extend beyond the usual difficulties that immigration and entry most often involve. These barriers can result from:

• A crime committed in the U.S.
• Failure to disclose an expunged crime committed in the U.S.
• A lie told in an interview with a U.S. immigration official
• A previous record of illegally entering or leaving the U.S.
• Marital status fraud

When applying for an extreme hardship waiver, you may need to use tax, health, criminal, loan and other documents to prove hardship. To ensure your best chance of approval, we can handle this matter for you.  Call us now for your complimentary initial consultation, Franz Cobos, Esq.

 

Section 212 of the Immigration and Nationality Act (INA) bars individuals from entry in the United States for a variety of reasons.  These include terrorism-related inadmissibility grounds (TRIG). 

Regardless of whether a person is coming to the U.S for tourism or employment, and regardless of whether he or she has married a U.S. citizen or won a visa lottery, TRIG may bar entry completely.

Types of Terrorism-Related Activities That May Be Covered

Terrorism-related activities include some that are violent and illegal, others that involve association with and support of causes or people involved in terrorism.  For example, a person who engages in terrorist acts, who has received military training from a terrorist organization, who has incited terrorist activity, or who has endorsed or espoused terrorism would be inadmissible.  So too would a spouse or child of anyone who engaged in terrorist activity during the preceding five years.

The INA's definition of terrorist activity covers various types of sabotage, assassination, kidnapping, hijacking, and other acts commonly associated with terror. 

"Engaging in Terrorist Activity" can involve planning and carrying out a terrorist act, but it can also be recruiting others to act, providing support, fundraising, or other help.  Providing a safe house, transportation or fake documents might constitute material support of a terrorist group.  So would feeding members of the group, distributing literature, or making a modest financial contribution.

Categories of Terrorist Organizations

Terrorist organizations are divided into three tiers:

• Tier I includes Foreign Terrorist Organizations  (FTO) that threaten the security of the U.S. or U.S. citizens. 

• Tier II includes groups on the Terrorist Exclusion List (TEL).  These are organizations that carry out or provide material support for terrorist acts that are unlawful under U.S. law or the laws of another country.

• Tier III involves groups of two or more, organized or not, that are engaged in terrorist activity.  A less formal designation than the others, Tier III changes from time to time and determinations of who is affected are made on a case-by-case basis.

Exemptions

The Secretary of State and the Secretary of Homeland Security can exempt some individuals from TRIG.  Exemptions have been issued to people who acted under duress, to people who provided voluntary medical care, and to selected individuals with existing immigration benefits.  Because the definition of terrorist activity is broad, potentially encompassing freedom fighters, group exemptions have been given to a number of organizations ranging from the All Burma Students Democratic Front to the Democratic Movement for the Liberation of Eritrean Kunama.

Being involved in terrorism is a serious matter and can have an effect on the ability to obtain U.S. citizenship.  For more information regarding TRIG or if you think you might be exempt from exclusion, contact us today.  Franz Cobos, Esq.

The Immigration and Nationality Act (INA) requires employers to verify the identity of their employees and their eligibility to work in the U.S.  To comply, employers must retain original I-9 Forms for current employees and, for former employees, keep them for at least three years.  These need not be submitted to the government but must be available for inspection.  From time to time, U.S. Immigration and Customs Enforcement (ICE) ask to inspect the forms. 

What Does an Inspection Entail?

An employer who receives a Notice of Inspection must produce its I-9s, usually within 3 business days, and may be asked for payroll records, employee lists, articles of incorporation, and business licenses.  ICE may ask the employer to bring the documents to an ICE field office, or officials may visit the employer.  At the inspection, in addition to printed documents, the employer must retrieve any electronically stored documents requested and provide the ICE officer with the hardware and software needed to view them.  The employer must also provide an electronic summary of information in the I-9s, if one exists.

What Happens Afterwards?

After reviewing the I-9s, ICE may send the employer one or more of the following:

• Notice of Inspection Results, also known as a compliance letter, informing a business that it is in compliance. 
• Notice of Discrepancies, informing the employer of problems with the employer's I-9s and documents submitted by the employee.  The employer must provide a copy of the notice to the employee, who then must prove to ICE that he or she is eligible to work.
• Notice of Technical or Procedural Failures, listing technical violations and giving the employer ten business days to correct them.  If not corrected in time, these failures may become "substantive "violations."
• Notice of Suspect Documents, stating that ICE has found an employee unauthorized to work.  The employer must terminate the employee or face penalties.  ICE gives the employer and employee an opportunity to show that this finding is in error.
• Warning Notice, notifying the employer that there are substantive verification violations, but that the circumstances do not warrant a fine.
• Notice of Intent to Fine (NIF), informing an employer that it has been found to have knowingly hired and employed ineligible workers.  The employer must cease and may face fines and criminal sanctions.  An NIF may also be sent for technical errors that an employer failed to correct.

What If ICE Decides to Fine an Employer for Violations?

In response to an NIF, employers may seek a hearing before an Administrative Hearing Officer or try to reach a settlement with ICE.  If an employer does nothing, ICE will issue a Final Order.

Civil fines can be as low as $110 and as high as $1,100 for each employee, depending on mitigating and aggravating factors.  Serious violations may also lead to prosecution for knowingly hiring unauthorized workers, document fraud, harboring, and other crimes.  With the high stakes involved in being accused of I-9 violations, it is best to contact us to discuss the matter as early as possible.  Franz Cobos, Esq.

 

The Immigration and Nationality Act (INA) makes it illegal for employers to knowingly hire undocumented workers and requires employers to verify each worker’s identity and eligibility by completing the I-9 Form. An employer’s failure to complete the I-9 Form can result in criminal and civil penalties.

The INA also protects individuals from employment discrimination based upon national origin, citizenship or immigration status. The Office of Special Counsel for Immigration Related Unfair Employment Practices (OSC) enforces the INA’s anti-discrimination provisions.  Victims of discrimination may file a complaint with the OSC to seek back pay, reinstatement and other remedies.

With so much at stake and so many potential pitfalls, it is important for all employers to familiarize themselves with the requirements and implement policies and procedures to ensure compliance.

Employers are prohibited from:

• Discriminating on the basis of citizenship or immigration status, with respect to hiring, firing, recruitment or referral. This rule applies to employers of four or more employees.
• Discriminating on the basis of national origin, with respect to hiring, firing, recruitment or referral. This rule applies to employers of between three and 15 employees. Employers may not extend different treatment to different individuals based on their birth place, country of origin, native language, ancestry or because they may look or sound “foreign.”
• Requesting more or different documents to verify a worker’s employment eligibility. An employer may not request different or additional documents for determination of citizenship or national origin than those documents specified on the I-9 Form.  Furthermore, an employer is not permitted to reject genuine-looking documents.
• Retaliating against an individual who files charges with the OSC, cooperates with an investigation or contests an action that may be considered discriminatory or in violation of the INA.

To improve compliance in your employment procedures, consider implementing the following practices:

• Refrain from using discriminatory language in job postings, such as “green card only” or “U.S. citizen only,” unless it is required by law or by a government contract.
• In completing the I-9 Form, do not request specific documents over other permitted documents. Each employee is permitted to present any document from the list of acceptable documents stated on the form.
• Refrain from selectively verifying work eligibility for only certain employees based on their citizenship status or national origin; whatever your policy, make sure it is applied consistently to all employees.
• Avoid the appearance of discriminatory practices by verifying employment eligibility only after you have made a hiring decision, and give the employee three days to provide the required documentation.
• Do not immediately terminate an employee if you receive a “no match” letter from the Social Security Administration. While such a letter may mean the individual is not authorized to work in the United States, it is also possible that there is a discrepancy in the record due to a clerical error or legal name change.
• If you suspect that an employee is not legally eligible to work in this country, notify the employee and request valid employment eligibility documents before terminating or suspending employment.

We have the business and immigration law expertise to assist you.  Call and schedule your consultation today.  Franz Cobos, Esq.

The Supreme Court of the United States has repeatedly held that the protections of the US constitution are limited to U.S. citizen, but individuals maintain certain rights regardless of their immigration status. Every person has the right to equal protection under the law and to due process.  This means that a person accused of not maintaining legal status in the United States has the right to defend him or herself against removal from the country. Similarly, where there are criminal allegations against an undocumented immigrant, that person has all the same rights as would an American citizen. This includes the right to confront witnesses in a trial, the right to representation, and the right against unreasonable searches and seizures by the police.

Regardless of immigration status, everyone has a right to free speech, freedom of religion, and freedom to peaceably petition the government. Undocumented children in the United States have a right to free public education. Publicly funded hospitals are required to provide medical care to all patients. They are prohibited from discriminating against a person based on immigration status. Undocumented immigrants are permitted to file lawsuits against other people and the government for claims arising out of negligence, just like any other person in the United States.

It is, however, against federal law to hire someone who is undocumented. It is the responsibility of the employer to ensure that every employee hired is legally permitted to work. Nonetheless, once a person is hired, that individual is entitled to some rights in the workplace. He or she must be paid the minimum wage. It is improper for an employer to prohibit anyone from forming a union. If an undocumented immigrant is injured on the job, he or she is entitled worker’s compensation and disability if it is part of the employer’s normal practice. Undocumented workers are protected from workplace discrimination and sexual harassment by federal law as well.

Many undocumented immigrants are victims of crimes and are afraid to come forward to the police for fear of deportation. This goes against public policy, so in 2000, the federal government created a new visa to allow undocumented immigrants to stay in the country legally for up to four years if that person is the victim of a qualifying crime. This visa is called a U visa and is an important tool to protect undocumented people from crime.  If you or a loved one need legal representation, call now, we here to help.  Franz Cobos, Esq.

For undocumented immigrants, one of the biggest obstacles to living a mainstream life in the United States is the inability to obtain a driver’s license. This is troublesome for a number of reasons. In most parts of the country, it is nearly impossible to travel any distance without driving since public transportation is often unreliable and time-consuming. Other alternatives, such as walking and biking are only viable in good weather and for relatively short distances. Relying on others for transportation is not only undependable but requires a degree of indebtedness many travelers want to avoid.

A study by Temple University shows that laws preventing undocumented immigrants from holding a driver's licenses interferes with basic human rights. Without the ability to drive themselves to interviews or employment, most potential jobs are hopelessly out of reach. Moreover, children’s education is often compromised, and it becomes difficult to deal with medical emergencies. Inability to travel by car negatively impacts economic mobility, safety, and self-worth, and exacerbates the ever-present fear of deportation.

Immigrants who drive are, in some locations, pulled over more frequently than other drivers due of ethnic profiling, and are often forced to pay heavy fines. Not only do the fines have a negative economic impact on those already struggling financially, but such drivers, if found guilty, may have their licenses suspended indefinitely. This creates far-reaching problems for these individuals if and when they do obtain green cards and apply for driver's licenses. Repeat offenses can result in jail time which will adversely affect any attempt to obtain documentation through the legal process.

On the plus side, a valid driver’s license issued in the driver’s home country can be used legally in the United States. Some states require an International Driver’s Permit, a multi-language document. This permit should be issued by the applicant’s home country. Scam artists who sell false permits in the United States, however, are all too common. Immigrants need to be cautioned to be aware of such costly and dangerous swindles. 

Once the driver's license from a driver’s home country expires, the individual is expected to either apply for a driver’s license in his or her state of residence or stop driving altogether. Currently, only 11 states and Washington DC allow undocumented immigrants to apply for a license.  These states are California, Washington, Nevada, Utah, Colorado, New Mexico, Illinois, Maryland, Delaware, Connecticut, and Vermont. Each of these states has its own rules and regulations for individuals obtaining licenses without a social security number.  Our firm is in the best position to provide you guidance about these regulations.  Call us for a consultation today.  Franz Cobos, Esq.

The Internet can be a very hostile place, with trolls and bullies lurking around every corner. So it came as a big surprise when a photo of an illegal immigrant graduating from college went viral, not for generating an outpouring of xenophobia and hate, but of support.

The popular blog Humans of New York (HONY) was bombarded with positive comments after it posted a picture of a young lady in cap and gown with her accompanying quote “I’m an illegal immigrant.” Many commenters offered words of encouragement, with several noting that she is the living embodiment of the American Dream.

Others pointed out that the young woman's comment could be interpreted as a joke. If she were in this country on an educational visa, it would technically have expired the moment she got her diploma. 

Although the public is supportive of immigrants working towards a better life, immigration officials are not allowed to give you a free pass just because you are in school. Student visas are relatively easy to obtain compared to other types of visas, so there is really no reason not to have legal status while you are in school.

If you are an immigrant and are pursuing the American dream via starting your own business or seeking employment with a business within the United States, you may qualify for a different type of visa.  For example, those looking to work in the United States can apply for H1B, H2B and L1 visa’s among others.

If you are an immigrant, and your American Dream involves getting a college education, graduate degree, working for an American company or starting your own business within the United States, we strongly recommend hiring an experienced immigration attorney.  We can help you navigate the system.  Call us today for a consultation.  Franz Cobos, Esq.

Ever since the post-Civil War adoption of the 14th Amendment to the Constitution, all persons born on American soil have been automatically granted citizenship. This policy was common sense in the era it was adopted, a time when international travel was cumbersome and relatively rare, but today its wisdom is being questioned. Is birthright citizenship being abused by people who want to short-circuit America’s labyrinthine immigration law?

The Citizenship Clause of the 14^th Amendment states:

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”

From the moment it was adopted, this clause has motivated foreigners to give birth in America. For many years the number of these birth-tourists were limited by the nature of travel, but in today’s world, where air travel drastically cuts down the time it takes to get from one country to another, the path to citizenship guaranteed by the 14^th Amendment is well-trod.

Stories abound of pregnant women visiting the U.S. on tourist visas who stay long enough to have their children, get American birth certificates and passports for them, then go back to their native countries, American tot in tow. The Chinese film industry even made a popular romantic comedy about the practice. 

Having a child that is an American citizen does not, however, guarantee that the child will grow up in America, or allow the family of the child to stay in this country indefinitely. Unless the parents have legal status in the United States, the entire family must return to their home country. It is not until an American-born baby is 21 that they are able to come to the United States and stay without being in school or having to show that they have a legal guardian here.

Once they reach the age of majority, the birthright citizen can enjoy the full benefits of citizenship, and can even sponsor his or her parents’ applications for citizenship.  It is important to remember that having an American-born child is a way to short-cut the system, but will likely take at least 21 years to capitalize on the investment.. In most cases applying for citizenship through other means will be just as fast.

“Give me your tired, your poor,

Your huddled masses yearning to breathe free,

The wretched refuse of your teeming shore.

Send these, the homeless, tempest-tost to me,

I lift my lamp beside the golden door!”

This, according to Emma Lazarus’s famous poem “The New Colossus,” is what the Statute of Liberty cries to the world. It is a reminder that America opens its doors to the most desperate of immigrants, those whose very life is threatened if they return to their home country.  In this day and age many of these immigrants are refugees seeking asylum.

A refugee is “someone who is unable or unwilling to return to and avail himself or herself of the protection of his or her country of nationality or, if stateless, country of last habitual residence because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.”

There are actually two paths to asylum self-proclaimed refugees can take, known as affirmative and defensive asylum respectively. Which path is appropriate depends largely on the filer’s current immigration status.

Affirmative asylum is available to refugees who have been physically present in the United States for less than a year, regardless of their immigration status. An application for affirmative asylum is filed directly with U.S. Citizenship and Immigration Services (USCIS). If a self-proclaimed refugee has been physically present in the United States for more than a year, he or she can still apply for affirmative asylum if he or she can show that circumstances that materially affect his or her eligibility for asylum have changed, or that extraordinary circumstances delayed his or her filing. He or she must apply for affirmative asylum within a reasonable amount of time given the circumstances.

Defensive asylum, as the name suggests, is a defense to deportation. It is filed with the immigration judge presiding over the self-proclaimed refugee’s removal proceeding.

The key to success in both affirmative and defensive cases is proving the applicant is truly a refugee as defined above. How the evidence is presented depends on the type of asylum.

Affirmative applications for asylum are heard by USCIS Asylum Officers. The process is a non-adversarial interview. Defensive applications are heard by Immigration Judges in adversarial (court-like) proceedings.

If you are in deportation proceedings and/or believe that you may be a refugee, you should contact us now for a consultation in order for us to assist you.  Franz Cobos, Esq.