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Not all Drug Crimes are Aggravated Felonies.

Posted on December 23, 2009 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I am a Lawful Permanent Resident and have been convicted of a drug crime of possession. I have heard that there is no chance to win in Immigration Court. Is this true?

Answer: Since 1996, the list of crimes constituting aggravated felonies was increased tenfold. Since that time, there have been numerous Petitions for Review filed in Circuit Courts of Appeal to determine which crimes actually fall under the ambit of an aggravated felony.

One such crime deals with convictions for drugs. Under the Immigration and Nationality Act Section 101(a)(43), a ‘drug trafficking’ crime is considered to be an aggravated felony. Thus, the critical point is what is considered to be a drug trafficking crime. The case Cazarez-Gutierrez v. Ashcroft has ruled on what they consider to be a drug trafficking crime.

Petitioner Jesus Aaron Cazarez-Gutierrez (“Cazarez-Gutierrez”) appealed the decision of the Board of Immigration Appeals (“BIA”) finding him statutorily ineligible for cancellation of removal because he was convicted of the “aggravated felony” of a “drug trafficking crime.” Id. People who have their ‘Green Cards’ and are long time lawful permanent residents in the U.S. are generally eligible for what is known as cancellation of removal. This is where the immigration judge essentially decides whether all of the resident’s equities outweigh the crime.

A lawful permanent resident is eligible for discretionary cancellation of removal if he: (1) has been lawfully admitted for permanent residence for not less than five years; (2) has resided in the United States continuously for seven years after having been admitted in any status; and (3) has not been convicted of any aggravated felony. 8 U.S.C. § 1229b(a). If cancellation of removal is granted, then the resident is given his or her ‘Green Card’ back and allowed to stay in the United States.

However, if one has been convicted of an aggravated felony, they are not eligible for Cancellation of Removal. Thus, in Gutierrez, supra, the immigration court and the BIA ruled that he was ineligible for cancellation of removal because he was convicted of an aggravated felony.

The first two elements of eligibility for cancellation of removal are not at issue. This case turns upon whether Cazarez-Gutierrez’s state-court felony conviction for possession of methamphetamine is an aggravated felony for immigration purposes.

In January 1999, an Immigration Judge (“IJ”) found Cazarez-Gutierrez removable because of his conviction, but exercised his discretion to grant him cancellation of removal. The government appealed the decision, arguing that the IJ had abused his discretion in granting Cazarez-Gutierrez cancellation of removal. On August 30, 2002, the BIA reversed the cancellation of removal, holding that Cazarez-Gutierrez is statutorily ineligible for cancellation of removal because his conviction for possession of methamphetamine is an “aggravated felony”.

The court went into some analysis of how other circuits have ruled. It stated that Congress had passed these laws in order to try to give some uniformity to the immigration laws. Therefore, this court ruled that a state drug offense is an aggravated felony for immigration purposes only if it would be punishable as a felony under federal drug laws or the crime contains a trafficking element. It followed the general reasoning of the Second and Third Circuit Courts of Appeal and rejected the contrary view put forth in the Fifth Circuit Court of Appeal. Given the strong desirability of uniformity in the application of immigration law, the court ruled that it should interpret immigration law to be nationally uniform absent clear indication that Congress intended otherwise.

In analyzing the intent of Congress to make the laws uniform in this type of case, the court referred to the development of the definitions of “aggravated felony” and “drug trafficking crime” in the INA and how it showed that Congress intended a federal definition for those terms.

In summary, the court held that a state drug offense is not an aggravated felony for immigration purposes unless it is punishable as a felony under the CSA or other federal drug laws named in the definition of “drug trafficking crime,” or is a crime involving a trafficking element. Cazarez-Gutierrez’s offense, possession of methamphetamine, was not punishable as a felony under federal law and involves no trafficking element. Therefore, his offense is not an aggravated felony for immigration purposes, and the BIA erred in finding Cazarez-Gutierrez statutorily ineligible for cancellation of removal.

Thus, you should apply for and be eligible for cancellation of removal in order to keep your Lawful Permanent Resident Status.

Filed under: Aggravated Felonies, Immigration, Immigration Law, immigration provisions, USCIS | Tagged: , | 3 Comments »

Will my son be sent back home?

Posted on December 16, 2009 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I am a lawful permanent resident and have petitioned my wife and son many years ago. Just recently I found out about the V Visa which allowed my wife and son to come to the United States and reside with me while we are waiting for the visa number to become current. However, my son is going to be 21 years old in two months. I have been told by USCIS that he will have to return home and he can no longer reside here on the V Visa. I have missed him so much that I cannot bear to be separated for years to come. Is there anything I can do?

Answer: Actually, there was just a case that came out in the Ninth Circuit Court of Appeal. Therefore, if you live in the jurisdiction of the Ninth Circuit (basically the Western United States), then you are in luck.

In this case, the court held that Immigration regulations terminating V nonimmigrant status the day before the visa holder’s 21st birthday, was contrary to Congress’ intent to reunite families when it enacted the Legal Immigration Family Equity Act (“LIFE Act“).

As background: the LIFE Act added a new nonimmigrant visa category, INA § 101(a)(15)(V). Spouses and children of lawful permanent residents who have been waiting for permanent resident status for at least three years are eligible for V visas. These V visa holders are entitled to certain benefits, including employment authorization. The INS regulations implementing INA § 101(a)(15)(V) provide that V visa status “will be granted a period of admission not to exceed 2 years or the day before the alien’s 21st birthday, whichever comes first.” Upon termination of V nonimmigrant status, the individual is no longer eligible for employment authorization.

In this Ninth Circuit case, the government argued that, the court should allow the USCIS regulations to stand. The court ultimately disagreed, stating “[w]e do not owe deference…to agency regulations if they construe a statute in a way that is contrary to congressional intent or that frustrates congressional policy.”

The court concluded that Congress did not directly speak to the issue of whether a person could lose V status by turning 21. The court found that the LIFE Act made clear that a person over the age of 21 was not eligible to receive a V visa but that the statute was silent regarding whether a person over the age of 21 who has been issued a V issue is able to continue to hold that visa. Thus, the court concluded that Congress’ intent was ambiguous.

The court noted that the LIFE Act provided three ways that V visa status may terminate and that aging-out was not one of those ways. Thus, applying the presumption that “when a statute designates certain . . . manners of operation, all omissions should be understood as exclusions,” the court concluded that “[s]ince Congress explicitly enumerated circumstances by which V Visa benefits are terminated, the presumption is that Congress purposely excluded all other possible means, such as aging-out.” The court further found that its conclusion was supported by: (1) statements in the congressional record regarding another LIFE Act provision (adjustment of status under INA § 245(i)); (2) “the general rule of construction that when the legislature enacts an ameliorative rule designed to forestall harsh results, the rule will be interpreted and applied in an ameliorative fashion;” (3) and the rule of lenity (in immigration cases, “doubts are to be resolved in favor of the alien.”).

Thus, the court invalidated the age-out provisions of the V Visa. Thus, your son can legally stay with you under the V Visa even though he will be older than 21 years of age. This is a significant victory for immigrants as it shows the power of the family unit and how Immigration cannot simply make arbitrary regulations.

Filed under: Immigrant Visa, Immigration Law, immigration provisions, LIFE Act, V VISA | Tagged: , | Leave a comment »

Jumping Ship is a thing of the past

Posted on December 16, 2009 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I am a member of the crew on a luxury ship. I know many of my friends have basically ‘jumped ship’ once they got to the U.S. They would just be on the crew list and then once came to the U.S. they would jump ship, not return and are now illegally living in the U.S. Some have been deported and others cannot find work. Why does the U.S. make it so easy to do this?

Answer: Previously, the law permitted a crew member to enter the United States on the basis of a crew manifest that has been given visas by a consular officer. However, this does not require a consular officer to visa a crew manifest and it authorizes the officer to deny admission to any individual alien whose name appears on a given visas crew manifest. However, in most instances, each and every crew member was not interviewed for the visa. It was the ‘crew manifest’ that was used. Now, the Crew List Visa has been eliminated.

Question: Why Has the Department Eliminated the Crew List Visa?

Answer: The Department has eliminated the crew list visa for security reasons. Since the September 11, 2001 attacks, the Department has reviewed its regulations to ensure that every effort is being made to screen out persons whom they deem to be undesirable. By eliminating the crew list visa, the Department will ensure that each crewmember entering the United States is be required to complete the nonimmigrant visa application forms, submit a valid passport and undergo an interview and background checks. Additionally, visas issued after October 26, 2004 have a biometric indicator. This means crew list visas would necessarily be eliminated by that date.

Question: Won’t this now make it more difficult for crewman to get visas in the first-place?

Answer: Regarding difficulties for crewmen obtaining individual visas caused by last-minute scheduling, the Department recognizes the problem, but continues to believe that the security of the U.S. demands individual crew visas despite the dislocations that the requirement may cause initially. Nevertheless, the Department hopes that shipping companies and unions will encourage their employees and members to obtain visas where there is a reasonable possibility that a crewman may be required to enter the U. S. at any time.

Thus, as with most immigration related visa issues, it is getting more difficult to enter the U.S. Hopefully, this increased scrutiny and way of issuing visas will not hamper or impair the shipping industry into the U.S. Many ships change schedules during the last minute, or have to get crew persons to work the ships at a moments notice. If they cannot get the proper people to man and work the ships, it is possible that this new regulation and way of individually issuing visas to crewmembers will have an effect on the U.S. economy. Additionally, for those people who ‘jumped ship’, it is likely that they can and will still continue to do so as they will still be in the U.S. upon arrival. Clearly, persons should not do this and should find alternatives around coming to the U.S. and staying illegally. However, the new policy of issuing visas individually to crew members may not have the desired effect that the U.S. intends.


Filed under: Immigration Law, immigration provisions, Nonimmigrant Visa, USCIS, Visa | Tagged: , | Leave a comment »

Is Immigration suffering or being helped by DHS?

Posted on December 16, 2009 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: Last year, the Department of Homeland Security came into being. I have many friends who are having lots of problems with immigration. Is the DHS helping or hurting these people?

Answer: March 1, 2004 marks the one-year anniversary of the Department of Homeland Security’s (DHS’s) assumption of U.S. immigration functions. There are several problems that exist within the agency. 1) Inadequate Coordination: Because enforcement and adjudications are two sides of the same coin it would be to the benefit of all if there were close coordination from DHS and between the DHS and other federal agencies including the State Department, Department of Justice, FBI, and CIA. However, this has yet to be realized.

Next, inadequate funding long has characterized adjudications. Especially in light of this historical underfunding, it is imperative that the US Citizenship and Immigration Services (USCIS) be accorded adequate resources to do its job. Direct congressional appropriations are necessary in order to ensure that the USCIS lets the appropriate people into the country and bars those who mean to do us harm, and adequately delivers services.

Question: I also have many friends over the last year who have received answers to their applications. For one reason or another, it always boils down to a “no”.

Answer: This is a definite problem. The DHS must change the culture of “No”. There have been widespread reports of unfair, arbitrary and inconsistent adjudications. Reinforcing this view are the increased numbers of unnecessary requests for additional information that contribute to the dramatic slowdown in the processing of petitions and applications. While our immigration system has long been characterized by backlogs, delays, and inadequate funding, current backlogs and delays have reached historical levels. Many organizations and individuals are reporting severe delays in processing that have negatively impacted American business and family members. USCIS needs to efficiently and fairly adjudicate petitions and applications.

Question: I have read a report that the number of B2 Visitor Visas has been denied and cut drastically over the last couple of years. Is this really what DHS wants?

Answer: The Importance of Immigration at our Ports of Entry must be recognized. Our national and economic security depends on the efficient flow of people and goods at these ports. Unfortunately, current reports suggests that the Custom and Border Protection Bureau (CBP) is giving inadequate attention to immigration and is initiating polices that do not reflect the intricacy of the subject and its importance to our country.

Question: My family has appointments at the U.S. Consulate, but there have been numerous delays. Is this also a problem?

Answer: With the Department of Homeland Security’s authority to establish and administer rules governing the granting of visas, it is vitally important that visas be granted to the people who come to build America and denied to those who mean to do us harm. We must balance our national security and economic security needs by recognizing that the U.S. is tied to the rest of the world economically, socially, and politically. However, severe delays at the consulates continue to hamper the visa issuance process, with serious consequences for businesses, families, schools and others in the United States. The gridlock that has paralyzed the visa issuance process in the past two years must be resolved – the agencies charged with clearing security checks must be motivated to give these operations the priority that they deserve.
Thus, there are a great many items that must be worked upon. It is a constant balancing of safety verses allowing immigrants into the U.S. Hopefully, in the near future, there will be a comprehensive policy to deny visas to persons who would be a danger to our society, but to allow those into the U.S. for legitimate means.

Filed under: B1/B2 Visas, Department of Homeland Security (DHS), Immigration Law, immigration provisions, USCIS | Tagged: , | Leave a comment »

I can file online!

Posted on December 16, 2009 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I have heard that in the past the USCIS has accepted work permit applications online and that this program has been very effective. Why do they not accept more types of forms online?

Answer: Actually, USCIS expanded their e-filing service online as of May 26, 2004. Now, the U.S. Citizenship and Immigration Services (USCIS) include six new forms for customers to apply for immigration benefits online to expand its E-Filing program.

Initially, when the Internet-based customer service initiative began last year (May 2003), it allowed customers to file for two of the most frequently used applications online: Application to Replace a Permanent Resident Card (Form I-90) and Application for Employment Authorization (Form I-765).

With the addition of the six new forms online, E-Filing now supports eight forms that account for more than 50% of the total volume of benefits applications USCIS receives annually. Since the establishment of E-Filing, more than 115,000 customers have chosen to apply online for immigration benefits.

Question: Can you let me know which new forms are now accepted online?

Answer: Form I-90, Application to Replace a Permanent Resident Card; Form I-765, Application for Employment; Form I-129, Petition for a Non-immigrant Worker; Form I-131, Application for Travel Document; Form I-140, Immigrant Petition for Alien Worker; Form I-539, Application to Extend/Change Non-immigrant Status; Form I-821, Application for Temporary Protected Status; Form I-907 and Request for Premium Processing Service Why Use E-Filing.

Question: Is E-filing difficult to do?

Answer: E-Filing is quick, easy and convenient because it allows you to complete and submit applications at any time, from any computer with Internet access. After filing online, you will receive instant electronic confirmation that your applications were received. You can then schedule an appointment, if necessary, to visit an Application Support Center at a convenient time – by calling the National Customer Service Center. You can schedule the appointment for the collection of a digital photograph, signature, and fingerprints. You would pay fees online with a credit or debit card or through the electronic transfer of U.S. funds from your checking or savings account. You do not need to obtain a money order or a cashier’s check.

Filed under: Immigration, Immigration Law, immigration provisions, Online Filing, USCIS | Tagged: , | Leave a comment »

What’s happening in Immigration?

Posted on December 16, 2009 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I have heard a lot is happening in Congress about various immigration bills relating to the rights of immigrants. Can you give us an update of what types of bills are currently in Congress and what may have recently passed?

Answer: In a significant victory, House members defeated an amendment proposed that sought to prohibit the use of funds to provide assistance to any state or local government entity or official that prohibits or restricts the sharing of an individual’s citizenship or immigration status with the Bureau of Immigration and Customs Enforcement.

The Civil Liberties Restoration Act of 2004 introduced in House and Senate Legislation introduced on June 8 would address policies implemented since September 11 that have debased our country’s fundamental commitment to individual liberties and due process. These policies, including detentions for months without charges, secret hearings, and ethnic profiling, signal a sea change in our government’s policies and attitudes towards immigrants.

With the introduction of the Civil Liberties Restoration Act of 2004 (CLRA) take a giant step towards redressing these abuses and reining in executive branch overreaching.

The Civil Liberties Restoration Act would roll back, in a targeted and responsible manner, the excesses of the government’s response to the threat of terrorism.

The bill includes the following provisions that seek to ensure that immigrants are treated with the fairness and respect that our Constitution requires:

End Secret Hearings. The CLRA would end the government’s ability to issue a blanket order closing all deportation hearings to the public and to family members of detainees, while permitting the closure of hearings or a portion of hearings on a case-by-case basis to preserve the confidentiality of asylum applications or when national security interests so require.

 Ensure Due Process for Detained Individuals. The CLRA would provide minimum due process safeguards to individuals who are jailed on suspicion of immigration violations by giving them timely notice of the charges against them and assure that immigration authorities and judges make fair, individualized bond determinations.

Establish Independent Immigration Court. The CLRA would establish an independent immigration court within the Department of Justice and promote fair hearings by a competent, independent and impartial tribunal.

End Special Registration. The CLRA would terminate the troubled National Security Entry-Exit Registration System while encouraging fairness and a concentrated focus on those who pose a threat to the national security or safety of Americans.

Make Penalties Commensurate with Violations. The CLRA would assign reasonable penalties, commensurate with the technical nature of the violations, for noncitizens’ failure to register or provide timely notification of address changes.

 Require Accurate Criminal Databases. The CLRA would facilitate better law enforcement practices by requiring that the National Crime Information Center database relied upon daily by state and local law enforcement comply with minimum accuracy requirements.

 Ensure Access to Evidence. The CLRA would ensure that people who are charged with a crime based upon national security surveillance under the Patriot Act would see the evidence against them in the same manner as people charged with a crime based upon other kinds of classified information.

 Mandate Reports on Data-Mining. The CLRA would require the government to submit a public report to Congress on data-mining activities in order to protect the privacy and due process rights of individuals and to ensure accurate information is collected and used.

In a Supreme Court case as of yesterday, they basically stated that war is not a blank check for the President to just hold people in detention. They must be afforded various rights. Hopefully, this bill will pass in some fashion to give back fairness and rights that have been slowly taken away from the immigrants.

Filed under: Civil Liberties Restoration Act (CLRA), Congress, Immigration Law, immigration provisions, USCIS | Tagged: , | Leave a comment »

Why should I become a U.S. Citizen?

Posted on December 16, 2009 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I have been a Lawful Permanent Resident for many years. Many of my friends have become U.S. Citizens (USC) as have many of my family members. However, I just do not know why I should become a U.S. Citizen. Can you advise me?

Answer: The Constitution gives many rights to citizens and non-citizens living in the United States. However, there are some rights the Constitution gives only to citizens, like the right to vote. When you are naturalized, you will be given the right to vote. Having a U.S. passport is another benefit of citizenship. A U.S. passport allows citizens the freedom to travel. In addition, citizens receive U.S. Government protection and assistance when abroad. Additionally, while no one should go and commit crimes, persons whom are only Lawful Permanent Residents can be put into deportation proceedings and deported. This is not true of U.S. Citizens. In fact, once you become a U.S. Citizen, it is incredibly difficult to take away your citizenship. Regarding the crimes, many times people will just be in the wrong place at the wrong time. Because of that they will just take a plea bargain. Of course, if they only have their Green Cards, they could be put into deportation for the same reasons as stated above. To be a U.S. Citizen, is simply a much safer way of living here.

Question: Are there increased responsibilities if I become a U.S. Citizen?

Answer: The Oath of Allegiance includes several promises you must make when you become a U.S. citizen, including promises to: give up prior allegiances to other Countries; support and defend the Constitution and the laws of the United States; swear allegiance to the United States; and serve the country when required. Citizens have many responsibilities other than the ones mentioned in the oath. Citizens have a responsibility to participate in the political process by registering and voting in elections. Serving on a jury is another responsibility of citizenship. Finally, America becomes stronger when all its citizens respect the different opinions, cultures, ethnic groups, and religions found in this country. Tolerance for differences is also a responsibility of citizenship. When you decide to become a U.S. citizen, you should be willing to fulfill the responsibilities of citizenship.

You will have to honor and respect the freedoms and opportunities citizenship gives you. Once you become an American Citizen, and participate in all that this country has to offer, you will truly become an American.

Filed under: Immigration, Immigration Law, immigration provisions, Naturalization, U.S. Citizens | Tagged: , | Leave a comment »

My mother is a drug addict

Posted on December 16, 2009 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I am 16 years old and came to the U.S. many years ago when I was a small child. I have no legal status in the U.S. and have been put in foster care homes for what seems like all of my life. My father left when I was a baby and my mother has been in and out of rehab because she is a drug addict. Is there anything I can do to try to get legal status in the U.S.? I have no other family in the U.S. and am desperate.

Answer: Yes. You might qualify for what is known as the Special Immigrant Juvenile petition. Generally, this includes those juveniles deemed eligible for long-term foster care based on abuse, neglect, or abandonment.

Question: What are the basic requirements for this type of visa?

Answer: You would need the consent of the Secretary of the Department of Homeland Security (DHS) for all of these types of cases. There is also express consent required by a juvenile court showing dependency. Express consent means that the Secretary, through the CIS District Director, has determined that neither the dependency order nor the administrative or judicial determination of the alien’s best interest was sought primarily for the purpose of obtaining the status of an alien lawfully admitted for permanent residence, rather than for the purpose of obtaining relief from abuse or neglect or abandonment. In other words, express consent is an acknowledgement that the request for this type of classification is real.

Question: Procedurally, what must I do to apply for this type of petition? Also, if I am successful, what does the approval of this petition mean?

Answer: This type of petition if approved will grant you lawful permanent residency in the U.S. In other words, you will be able to obtain the Green Card. First, the special immigrant petition must be filed by what is known as the I-360 Special Immigrant Petition. Because the petition must be approved before you turn 21 years of age, you should also simultaneously submit the Adjustment of Status Application to speed up the process.

Question: What type of documents do I need to help support the application?

Answer: The Form I-360 must be supported by the following: 1) Court order declaring dependency on the juvenile court or placing you under the custody of an agency or department of a State; 2) Court order deeming that you are eligible for long-term foster care due to abuse, neglect, or abandonment; 3) Determination from an administrative or judicial proceeding that it is in your best interest not to be returned to your country of nationality or last habitual residence; and 5) Proof of your age.

The Adjustment Application must also be supported by the following documentation: 1) Your birth certificate or other proof of identity; 2) A sealed medical examination; 3) Two ADIT-style color photographs; and, where applicable, also supported by evidence of inspection, admission or parole. Since you are over 14 years old, you must also submit a Form G-325A (Biographic Information) and if you have an arrest record, you must also submit certified copies of the records of disposition.

Question: What if I am inadmissible on some other ground?

Answer: Actually, with this type of petition, there are many provisions of the law that are excepted from inadmissibility statutes. Many of the other grounds of inadmissibility can be waived.

Since you have no other way to adjust status to that of a lawful permanent resident, you should start on this application as soon as possible.

Filed under: Immigration Law, immigration provisions, Special Immigrant Juveniles, USCIS, Visa | Tagged: , | Leave a comment »

My Adopted Son is a U.S. Citizen

Posted on December 16, 2009 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: My wife and I were unable to have our own children. Therefore, we looked to adopt a child. Because this took years in the U.S., we decided to do an international adoption which has turned out to be much quicker. However, now that the adoption has gone through, we are unsure what must be done to bring our adopted child into the United States. Can you help?

Answer: Yes. Eduardo Aguirre, Director of U.S. Citizenship and Immigration Services (USCIS), today announced an important step toward the fulfillment of the Child Citizenship Act (CCA). USCIS is launching a CCA Program to simplify and streamline the process by which parents obtain a Certificate of Citizenship for their children.

“I want prospective parents, who are seriously considering international adoption, to know that the process just got a little easier. This program will help parents to more rapidly realize the privileges of American citizenship for their children. It accelerates reassurance of their child’s citizenship status,” said Director Aguirre.

One of the Director’s eight strategic initiatives, the CCA Program will eliminate the backlog of N-643 forms (Application for Certificate of Citizenship in Behalf of an Adopted Child) relating to children affected by the CCA. Additionally, the program will soon automatically provide Certificates of Citizenship to certain adopted children within 45 days of entry into the United States. These Certificates of Citizenship will be produced and mailed to the parents without application and without fee.

Managed from the USCIS Buffalo, New York District Office, the program will initiate 45-day processing for children who fall within the Immediate Relative visa category. This will be for adoptions whereby adoptions are made final overseas. This program will eliminate the issuance of a Permanent Resident Card for newly entering children, since these cards are not applicable to U.S. citizens.

Question: What must I do to fall under this program?

Answer: Assuming you are a U.S. Citizen and your child is under 18 years old, he or she will be considered to be an Immediate Relative. You must petition him or her for lawful permanent residency. Once this is done, then the adopted child can enter the United States. The moment the child takes one step in the United States, he or she will automatically become a U.S. Citizen. According to the new policy, the Certificate of Citizenship should be sent within about 45 days.

Filed under: Adoption, CCA, Immigrant Visa, Immigration Law, immigration provisions | Tagged: , | Leave a comment »

We Have Hope Yet!

Posted on December 16, 2009 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: Ever since 1996 when the immigration laws changed to make it much more difficult for immigrants to come to the United States and to stay in the United States, many of my friends have been deported, and many more have had no hope of staying here legally in the United States. Is there any hope that any new laws might change this?

Answer: Actually, you are not alone. There are many people in Congress who have submitted bills which would allow people who have suffered from the 1996 laws and who are currently suffering to fall under new provisions of law to help them. While none of the following bills are actually law as of the present, they are at least on the table. This means that the anti-immigrant movement shown in the 1996 laws is showing Congress that it is harsh, unfair and a burden to families trying to meet the American dream. Here are some of the bills proposed in Congress right now:

The Development, Relief, and Education for Alien Minors (DREAM) Act of 2003: Introduced on July 31 by Senators Orrin Hatch (R-UT) and Richard Durbin (D-IL), S. 1545 would amend the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 to again permit states to determine residency for in-state tuition purposes. The DREAM Act also would grant conditional permanent resident status to young people who came to the U.S. before the age of 16, have good moral character, have lived in the U.S. at least five years at the time of enactment, and have graduated from high school.

The Family Reunification Act of 2003: Introduced on June 24 by Representative Barney Frank (D-MA), H.R. 2585 would amend the INA to permit certain long-term permanent residents to seek cancellation of removal.

The Student Adjustment Act of 2003: Introduced on April 9 by Representatives Chris Cannon (R-UT), Howard Berman (D-CA), and Lucille Roybal-Allard (D-CA), H.R. 1684 would amend the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 to permit states to determine state residency for in-state tuition purposes and would also provide for the adjustment of status of certain undocumented college-bound students.

The Central American Security Act: Introduced on March 17 by Representative Tom Davis (R-VA), H.R. 1300 would amend § 202 of the Nicaraguan Adjustment and Central American Relief Act (NACARA) to make certain Salvadorans, Guatemalans, and Hondurans eligible for relief under this section, and would give those individuals with applications for relief currently pending under § 203 the option of having their applications considered as applications for adjustment under § 202.

The Unity, Security, Accountability, and Family (USA Family) Act: Introduced by Representative Luis Gutierrez (D-IL) on January 29, H.R. 440 would: provide legal permanent residence to immigrants who have been living in the U.S. for 5 years or more; grant conditional legal status and work authorization to all law-abiding immigrants living in the U.S. for less than 5 years; repeal the 3- and 10-year bars to admissibility and the provisions that render aliens removable from the U.S. for having committed certain minor nonviolent offenses; and create an improved system of accountability that allows critical resources and manpower to be redirected to fight the war on terror.

The Legal Immigration Family Equity Act (LIFE Act) established a nonimmigrant category within the immigration law that allows the spouse or child of a U.S. citizen to be admitted to the United States in a nonimmigrant category. The admission allows the spouse or child to complete processing for permanent residence while in the United States. It also allows those admitted in the new category to have permission for employment while they wait processing of their case to permanent resident status.

Question: Are any of these items law yet?

Answer: Not yet. However, these are only a few of the bills in Congress at this time. However, we should write our representatives in Congress, and show our support for these bills. Hopefully, they will pass in the near future.

Filed under: Congress, DREAM Act, Immigration Law, immigration provisions, USCIS | Tagged: , | Leave a comment »

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