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Immigration Law

Saturday, May 30, 2015

Immigration Bonds


Non-citizens believed to be in the country illegally can be taken into custody and held by the Department of Homeland Security’s (DHS) Immigration and Customs Enforcement (ICE) branch. Just like in the criminal law system, detainees may be given the option to post a bond and be released from detention while they await judgment.

A bond is a monetary promise that the detainee will comply with the government’s demands and show up when required if they are released from custody. A bond is not a fine; it does not put an end to the issue at hand, it merely allows the detainee to live at home rather than in government custody while his or her case is processed.

Whether a bond is available and how much it will be depends on several factors. The minimum amount ICE can set for a bond is $1,500, but it can be set at a much higher rate as well. ICE will take into consideration the length of time the detainee has lived in the United States, whether he or she has family in the United States, the detainee’s employment history and criminal record, and whether the detainee has any past immigration law violations. There is no way to predict exactly what amount ICE will set a bond at, but an experienced attorney can provide a likely range.

If the detainee thinks his or her bond is too high, he or she can appeal ICE’s decision to a judge. Once the bond is finalized, it can only be challenged if the detainee’s circumstances change. For example, if the detainee has a criminal charge pending when bond is set that is later dismissed, the detainee can ask that bond be lowered.

While it is the detainee that might be challenging the bond amount, the detainee is not usually the one paying the bond. Immigration bonds must be paid by someone who is in the country legally. This can be a relative, friend or professional bondsman; it doesn’t matter as long as the person can prove he or she is in the country legally and can provide the government with a cashier’s check in the bond amount.

If all the government’s conditions are met, the bond money is returned to the lender at the close of the case. It does not matter if the detainee wins the case and gets to stay in the United States or loses and is deported; if the detainee always appeared when required by ICE, the bond money is returned.

If you or your loved one is involved in an immigration matter, call us, we have the expertise you need.  Franz Cobos, Esq.


Thursday, March 12, 2015

4 Ways to Obtain a Green Card

A green card is a document issued to non-U.S. citizens who have been given permission to live and work in the U.S. for an indefinite time period. Immigrants can acquire a green card through a variety of ways, but the government limits the number of green cards issued each year, and those seeking permanent resident status must meet certain eligibility requirements.

Below are the four ways in which a non-U.S. citizen can become a green card holder.

  1. Through family
    • An immigrant may be eligible to get a green card if they are an immediate relative of a U.S. citizen, have a family member who falls into a preference category, or a family member who is currently a green card holder.
    • A non-U.S. citizen may also qualify for a green card if they fit into a special category, including a battered spouse or child, or a widow(er) of a U.S. citizen, among other unique circumstances.

  2. Through employment
    • Green card hopefuls may be eligible to immigrate based on employment or a job offer. For this option, employers are required to obtain a labor certification and complete other documentation.
    • Investors and entrepreneurs who seek to make an investment in a business, and therefore create U.S. jobs, may qualify.
    • An immigrant may be allowed to file for themselves through self-petition if they fall within a certain category, such as Aliens of Extraordinary Ability, or if they are granted a National Interest Waiver.
    • Specialized categories of jobs may allow immigrants to acquire a green card, such as: broadcasters, Afghan/Iraqi translators, International Organization Employees, and religious workers, among others.
  3. Through refugee or asylee status
    • If someone is admitted to the U.S. as a refugee or as a qualifying member of an asylee, they may apply for a green card one year after their entry into the U.S. Those granted asylum in the U.S. may apply one year after the grant of asylum status.
    • Refugees are allowed to remain in the U.S. indefinitely.
  4. Other ways to obtain a green card
    The majority of immigrants gain permanent legal status in the U.S. through the aforementioned means, but there are other ways to acquire a green card.
    • Diversity Immigrant Visa Program, often referred to as the "Green Card Lottery" because it draws from entry selections at random. This program allows for 50,000 visas annually.
    • K Nonimmigrant, which includes those who are affianced to a U.S. citizen and their minor children.
    • Legal Immigrations Family Equity (LIFE) Act. This provision requires the immigrant to be a beneficiary of a labor certification application and other similar official procedures.
    • Special Immigrant Juvenile Status (SIJ) Status allows abused, abandoned or neglected foreign children in the U.S to acquire a green card in order to live and work permanently in the U.S.

Thursday, February 12, 2015

Returning to the United States after Deportation

Each year, hundreds of thousands of individuals are deported from the United States. For many of these people the dream of living and working in the U.S. is far from over. Unfortunately after deportation, the path to reenter and live in the U.S. is incredibly difficult. Depending on the reason for removal and number of violations, a deported individual may have to wait several years before reentry or they may be permanently banned from ever returning to the United States.

If you or a loved one has been removed and now want to return to the U.S., it’s important that you first identify whether or not an Order of Removal was issued. This order will impact your options for reentry. In some cases, you may have been granted voluntary departure (rather than an Order of Removal) which may make the process of returning an easier one.   If you’re unsure of the type of order, you should contact an immigration attorney who can help you obtain your U.S. Citzenship and Immigration Services (USCIS) and Immigration Court Records.

If you do have an Order of Removal against you, you may not be able to re-enter the United States for a set time period ranging from 5-20 years. If a removed individual is perceived as posing a threat to national security or has been convicted of a felony, he or she may be permanently banned from the country.

If you have a new basis on which you are looking to return to the United States (e.g. you have been offered a job with an emerging tech company in Silicon Valley or a relative who can now sponsor you) during the time period that you are ineligible, you may be able to return by filing a waiver request,  Form I-212, “Permission to Reapply For Admission Into the United States After Deportation or Removal” which essentially requests that the immigration authorities consider the new situation and forgive the past removal.  Along with the form, you may be required to submit supporting documentation showing proof of sponsorship or employment, moral character and even evidence of rehabilitation (if you were arrested during your time in the United States).

Depending on the grounds for your removal, you may have to wait a certain length of time before filing the request. An immigration attorney can help you better understand your options, assist with the form and compilation of supporting documentation to ensure have the best chance of successfully reentering the United States.  Call us for a consultation.  

 


Thursday, January 8, 2015

Master Calendar Hearings

The first stage in the removal (deportation) of a foreign national is a Notice to Appear (NTA) at a Master Calendar Hearing.  The purpose of the hearing is not to reach a final decision on removal, but to obtain basic information about the case and create a schedule for it to proceed.  It also is an opportunity for the court to outline all of the legal rights available to the foreign national, including the right to answer charges, present evidence, examine witnesses and, if the respondent lacks counsel, make use of any free or low-cost legal service providers who may be available.

The Notice to Appear contains the date, time and location of the hearing, usually at least ten days later.  A foreign national (the "respondent") who receives a notice must attend in person, with or without an attorney.  Failure to attend, or even showing up late, can result in denial of an application and deportation "in absentia."  The respondent should bring the Notice to Appear and any official identification documents.  Family members can attend.

The Notice to Appear also contains allegations about the respondent's illegal status in the United States.  The respondent, with the help of an attorney if possible, should examine these allegations carefully and be prepared to deny them and correct any inaccuracies.

The Master Calendar Hearing itself is brief, though it may take hours for a case to be called.  When the respondent's name and Alien Registration Number are announced, the respondent and counsel, if any, appear before an Immigration Court Judge.  The court will generally provide an interpreter, if needed.

The judge may ask for basic information, such as name, address, and the languages the respondent speaks.  The judge then reviews the charges.  The respondent can deny some or all of the government's allegations and point out any factual errors regarding names, dates, places, or other details.  The respondent can designate—or refuse to designate— a "country of removal," i.e. where to be sent if deported.

The respondent can also state the basis of a claim for relief from removal from the United States.  These may include:

  • Asylum based on persecution in the immigrant's home country. 
  • Marriage to a US citizen.
  • Cancellation of removal for qualifying lawful permanent and non-permanent residents.
  • Adjustment of status from non-immigrant to a lawful permanent resident.
  • Voluntary departure.

At the conclusion of the hearing, the judge gives the respondent a deadline for submitting further applications or documents.  The judge may schedule another Master Calendar hearing for the case, or set a date for an individual hearing on the merits.  The respondent may ask for more time to retain an attorney, submit documents, or prepare for the next hearing.

If you have been notified that you will be subject to a Master Calendar hearing and are at risk of deportation it is imperative to hire an experienced immigration law attorney to protect your rights.  Call us for a consultation.


Sunday, November 16, 2014

Will Marriage to a U.S. Citizen Make an Undocumented Immigrant Legal?

 

 

Under the laws of most states, a United States citizen can marry an undocumented immigrant.  Regardless of whether the marriage is legal, however, the marriage may not confer legality upon the undocumented spouse's immigration status.

Usually, an immigrant who marries a U.S. citizen becomes an "immediate relative" and is eligible to apply to the United States Citizenship and Immigration Service (USCIS) for a green card, i.e. lawful permanent residence.  After the marriage, the U.S. citizen spouse can file Form I-130, Petition for Alien Relative and the immigrant can file Form I-485 seeking Adjustment of Status to permanent resident.

If the spouse is here illegally, however, the couple may encounter some obstacles.  The spouse's illegal presence may mean that using Form I-485 to apply for permanent residence is not an option.  The undocumented spouse must first leave the United States and rely on  processing by a U.S. Department of State Consulate abroad before returning.  Once outside the U.S, however, he or she may be barred from returning to the U.S. for years because of laws designed to punish and deter illegal immigration.

According to Section 212 of the Immigration and Nationality Act, if the spouse was present unlawfully for more than six months but less than a year, he or she would be barred from returning to the U.S. for three years.  If present for more than a year, the spouse would be barred for ten years.

Under a recent change in immigration law, undocumented immigrants can apply for a provisional waiver of the three- or ten-year ban.  If granted, the undocumented spouse would still have to leave the U.S. and apply at a consulate for reentry, but would not barred from returning.

Undocumented spouses must also meet the requirements that any documented spouse would have to meet.  They might have to show that they are not inadmissible for other reasons, such as a criminal past, a dangerous communicable disease, or a need for public assistance.  The marriage to an undocumented immigrant, like a marriage to a legal immigrant, would also have to be genuine and not a ploy to help the immigrant spouse get citizenship.

As the consequences of remaining in the country illegally can be severe, if you or your spouse is undocumented and intends to apply for citizenship based on the marriage, you should contact an immigration attorney as soon as possible.


Monday, November 3, 2014

I have a Green Card . . . and a Criminal Conviction: Can I Travel Abroad?

Lawful permanent residents (LPRs) also known as “green card holders” who have criminal convictions may encounter problems when attempting to re-enter the United States after traveling abroad and should consult an immigration attorney before planning any trips outside of the country.

In 2003, the Department of Homeland Security implemented an airport screening system to identify green card holders with past criminal convictions. Even if a permanent resident has previously been re-admitted to the United States without encountering any problems, he could find himself subject to “removal proceedings” upon a subsequent return to the U.S. based on old criminal convictions.

Upon returning to a U.S. airport or border transit area, LPRs who have a prior criminal conviction may be identified and diverted to “secondary inspection” for questioning. Typically, they are then given an appointment with the Deferred Inspections Unit which will verify the criminal record and serve the permanent resident with a Notice to Appear for a deportation hearing in U.S. Immigration Court. Travelers with criminal records can also be detained on the spot in certain instances, typically based on the date of their conviction and the type of offense.

The Department of Homeland Security’s criminal conviction database is vast and highly efficient. Criminal convictions, even those that may have taken place many years in the past, are quickly identified by the authorities and can be used to threaten one’s status as a permanent resident and subject the resident to deportation. These same risks are also present when one submits an application for green card renewal or U.S. citizenship.

Though not every criminal conviction may lead to inadmissibility, certain types of convictions can have serious consequences on one’s immigration status.  These include:

  • Conviction of a crime involving moral turpitude
  • Conviction of a controlled substance violation
  • Conviction of multiple crimes

Depending on the type and number of convictions, and when they occurred, the federal authorities may pursue removal proceedings.  During these proceedings, an immigration judge may exercise his authority to cancel a green card and order an immediate deportation of the immigrant.

When you travel abroad and return to the U.S., you force the government to make a decision whether to re-admit you, initiate proceedings to cancel your green card or deport you. It is vital that you understand the potential consequences before you travel beyond American borders to ensure you make an informed decision.
 


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