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Title: Why am I penalized because my father became a U.S. Citizen?

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

Question: I have seen your previous articles on the new Age-Out provisions of the law just recently passed. My father filed a petition for me around 1993. I am from the Philippines. He was a Lawful Permanent Resident at the time. Three years ago he became a U.S. Citizen. I was actually called for the interview at the U.S. embassy in the Philippines, but when they found out my father was a U.S. Citizen, they said my visa number was not current and made me leave. Can I still avail of this new law?

Answer: Yes. The President of the United States has just signed a bill referred to as the Child Status Protection Act. While a large part of the bill deals exclusively with persons who are going to ‘age-out’ or turn 21 years old, there is a very specific provision in the bill for people in your situation. It is specifically for persons who are the unmarried sons or daughters of a Lawful Permanent Resident parent. Once petitioned, the visa number availability falls under a certain preference category for Lawful Permanent Residents. That parent petitions them and at some later point naturalizes and becomes a U.S. Citizen. This now moves the petition into a different category where the wait for most of the rest of the world (other than the Philippines) is considerably shorter.

Question: What exactly does this bill do?

Answer: It gives you the right to write the Attorney General and tell him that you do not want the preference to automatically change. In other words, for people in your exact situation, you can make an election for the preference to stay exactly the same as if your mother was still a Lawful Permanent Resident

Question: What exactly does that do?

Answer: It means that you do not have to wait another 5 years to get your Green Card. Let’s pretend that your mother is still a Lawful Permanent Resident. If the priority date is current now, you can apply right now for Lawful Permanent Residency without waiting another 5 years. You will be able to be joined with your family years earlier.

Question: My friend is in the same situation, but she got into the U.S. and her kids did not. Can her children avail of this section?

Answer: Most probably not. Once there has either been a final Adjustment of Status or issuance of Lawful Permanent Residency, the law seems to indicate that derivative beneficiaries (i.e. the children) are no longer eligible. However, if it is still pending, then the law can be taken advantage of.

Question: It seems as though this law just came out. My mother filed the petition for me many years ago. Can I still take benefit of this new law?

Answer: The answer is yes. The law allows you to take advantage of this law if the petition for your family preference was filed, but a visa has not yet been issued, or you have not yet adjusted your status. Also, the petition for the family preference can be pending as of now either with the Department of State or the Department of Justice. It is a very nice law for people especially from the Philippines. Therefore, anyone who has been waiting years for this petition to become current, only to learn that they must wait many more years after becoming a U.S. Citizen, should take advantage of this law right away.

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Title: ESSENTIAL WORKERS HELP OUR ECONOMY Part II

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

Question: What are Essential Workers?

Answer: “Essential Workers” are the unskilled and semi-skilled workers employed in all sectors of our economy. Essential workers include restaurant workers, retail clerks, construction trades people, manufacturing line workers, hotel service workers, food production workers, landscape workers, and health care aids. It includes a multitude of other types of professions. These individuals often work in the jobs that many Americans do not choose, but which are “essential” to keep our economy and our country growing.

Question: Are there not enough U.S. workers for these jobs?

Answer: The demographics say no. By 2010, total civilian employment is projected to be 167.8 million, but the total civilian labor force is expected to be 158 million, more than nine million more jobs than people.

New jobs will increase dramatically by 2010, boosting the demand for Essential Workers. Bureau of Labor Statistics (BLS) projections indicate that the U.S. will create 22 million new jobs by 2010. During this period, the service-producing sector alone is expected to create over 12 million new positions. Along with this growth, 57% of all job openings will be for “Essential Worker positions” and will only require moderate or short term on the job training.

Unskilled and semi-skilled occupations have the highest projected growth rate. The Department of Labor ranked the top 30 occupations with the largest projected job growth from 2001-2010. Of the occupations listed, 16 require unskilled or semi skilled laborers.

The U.S. is not producing enough new workers. More than 60 million current employees will likely retire over the next 30 years. After 2011, the year in which the first of the Baby Boomers turns 65, their retirement rates will reach proportions so huge that, barring unforeseen increases in immigration and/or participation rates among the elderly, there will be a reduction in the total size of the nation’s workforce.

Employers are doing the “right” things. Essential Worker employers have led the way in welfare-to-work, school-to-work and other initiatives that have been successful in reducing welfare rolls and getting graduates jobs, but these efforts still are insufficient. Employers are raising wages, offering improved benefits, signing bonuses and relocation pay.

Question: Isn’t there already a visa category for essential workers that these employers can use?

Answer: Yes and No. The H-2B temporary visa program is useful only for employers who can establish that their need for foreign workers is temporary (seasonal, a one-time occurrence, or a peak load or intermittent need). If the employer’s need is year-round or does not fall into one of the definitions used by the Department of Labor or Immigration Service, the employer cannot use the H-2B classification to fill labor needs. A nonimmigrant visa category does not exist for employers who need workers for more than one year or for employers who have permanent or long-term jobs, for example in the health care, retail, hospitality and other industries. Even for employers with truly temporary needs, the H-2B category backlogged and fraught with bureaucratic red tape that makes it extremely time-consuming and difficult to use. The permanent immigrant category for non-professionals in occupations that require less than two years’ experience is virtually useless; only 5,000 visas are available annually, and the backlog of waiting cases is over ten years long. As a result, employers often are forced to send their work overseas, cut back, or close their doors.

Question: With concerns about national security, is now the time to look at a temporary worker program?

Answer: Yes. A temporary worker program would help control immigration by legalizing the flow of people seeking to enter and leave this country. It would help satisfy the U.S. demand for workers and provide a legal and safe mechanism for workers to enter and leave the U.S.

Question: What needs to be done to be able to increase the number of immigration workers for these types of petitions?

Answer: U.S.-Mexico should resume immigration talks. Just prior to the September 11th attacks, President Fox and President Bush had just begun discussing a migration plan for comprehensive immigration reform between the U.S. and Mexico. Now, a year later, it is time for “los dos amigos” to renew their commitments to one another and resume their discussions on immigration initiatives that will benefit both our countries such as: an earned legalization program; an expanded permanent visa program; an enhanced temporary visa program; border control cooperation and economic development in Mexican immigrant sending regions.

The immigration reform proposal mirrors the recommendations by a bi-national working group from the Carnegie Endowment for International Peace and the Autonomous Technological Institute of Mexico (ITAM) that call for both countries to reach a “grand bargain” that included various legalization measures for undocumented Mexicans in the United States, expanding the legal work visas available to migrants, equalizing the treatment of Mexican citizens under NAFTA immigration provisions, cracking down on immigrant smugglers and preventing dangerous border crossings.

Congress needs to update our immigration laws and policies to reflect the needs of our economy. The United States needs a regulated, workable immigration system that allows foreign nationals to work here when there is evidence of a shortage of available U.S. workers, and that allows those individuals already here and working to obtain legal status. Our laws also should allow those individuals to obtain green cards immediately when there is a permanent job.

Essential Worker Immigration Coalition (EWIC). A coalition of employer associations from sectors of the economy that rely heavily on essential workers, including hospitality, retail, restaurants, construction, recreation, transportation and others (including AILA), has been formed in Washington to work toward a broad solution to the essential worker issue. The agenda of this coalition includes reforming the current temporary visa category (H-2B), creating a new and longer-term nonimmigrant visa for essential workers (similar to H-1B), increasing the available green cards for essential workers and providing for earned adjustment for essential workers already in the U.S.

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Title: I’m over 21, but the law says I’m under 21

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

Question: I know that the Child Protection Act has been passed on August 6, 2002. However, I am still confused if I fall under this provision. Can you help to clarify?

Answer: Yes. The Child Status Protection Act (CSPA) makes certain allowances for people who have become older than 21 years old, but can still have their applications processed as though they are under 21 years old.

IMMEDIATE RELATIVES: The first category is Immediate Relatives. These people will be able to be considered to be able to immediately apply to adjust their status to that of a Lawful Permanent Resident, even though they may be over 21 years old. If you are in the U.S. and want to adjust your status to that of a Lawful Permanent Resident, there are a couple of grounds upon which to do this under the Immediate Relative provisions of the CSPA.

If you are under 21 years old when a petition is filed for you by your U.S. Citizen parent, you will be considered to have not ‘aged-out’ even if your status is not adjudicated until after you are 21 years old. The critical factor will be when the initial I-130 is filed. It is how old you are on the date the I-130 is filed that will determine if you remain a “child” for purposes of not ‘aging-out’.

Question: What if my parent was a Lawful Permanent Resident when the I-130 was filed, and later became a U.S. Citizen?

Answer: In that case, the critical date that will determine if you are a child who will not age-out will be the date your parent became a U.S. Citizen, not the date the I-130 was filed. For example, let us say that the I-130 was filed when you were 18, and your parent naturalized when you were 20 year old. In this example, even if the adjustment was not done until after you were 21 years old, you would be considered to remain at 20 years old and therefore, not to have aged-out when you turn 21 years old. It makes it critically important that your parent become a U.S. Citizen right way if they are eligible if you happen to be less than 21 years old.

Question: What if my parent is not eligible to become a Naturalized U.S. Citizen? Can I still avail of the CSPA?

Answer: In this case, the date that the Immigration and Naturalization Service will look at to determine if a person is a ‘child’ under the CSPA will not be when the I-130 is filed, nor when the parent would become a U.S. Citizen, but rather, when the priority date becomes current. It is critically important that if you fall under this category, that you make certain that you file for Adjustment of Status within ONE year of the priority date becoming current. Otherwise, you cannot fall under the provisions of the CSPA.

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Is there hope for me in deportation proceedings?

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

Question: I have been in the United States for 13 years and have worked illegally the entire time. My boss just came to me last week and said the Social Security Department has sent him notification that there is something wrong with my Social Security Number and that he must terminate my position. Two days later I got a letter from the Immigration and Naturalization Service that I am in deportation proceedings. Do I have any hope?

Answer: First, the Social Security Department has been getting much stricter on notifying employers when a Social Security Card does not match the employees information. Previously, they had done this only when there was an employer with a large amount of employees who had incorrect information (e.g., fake social security cards.) However, in the current world we live in, they are now sending employers the request for confirmation of the Social Security Card if a single employee’s information does not match. Under the immigration laws, they are then forbidden to keep the employee hired without violating the law.

Unfortunately, you are now in Removal Proceedings and the INS will try to have you deported. Fortunately, the United States has several options for people in Removal (or deportation) Proceedings even if they have worked out of status and are here in the United States illegally. There is what is known as Cancellation of Removal. In order to qualify for this type of relief, you need several things. First, you must have been physically present in the United States for at least ten years. Secondly, you must have good moral character. Finally, you must have an immediate Lawful Permanent Resident Relative or United States Citizen who will suffer extreme hardship if you are deported or removed from the United States.

Question: I do have two United States Citizen Children. However, how would I possibly show or prove that they would suffer extreme hardship if I were deported?

Answer: You have actually hit on the most difficult part of a Cancellation of Removal case. It is showing the extreme hardship. Previously, if you had children that were of at least five or six years old, it was not difficult to prove this issue. Then the Board of Immigration Appeals came out with a case that basically made it incredibly difficult to meet the extreme hardship burden. Recently, the Board of Immigration Appeals has seemed to back off of such a stringent interpretation of the issue of showing extreme hardship. It is known as the Recinas case and was decided less than one month ago. In fact, the exact terminology that you must consider is ‘exceptional and extremely unusual’ hardship. Therefore, the hardship associated with a normal deportation will not suffice. However, under Recinas, you do not need to show that the hardship would be unconscionable. In deciding a Cancellation of Removal claim, consideration and evidence should be given to the age, health and circumstances of the family members. Some of the factors would include how a lower standard of living or adverse country conditions in the country of return might affect those relatives.

Question: What type of factors should I present to show the hardship?

Answer: In addition to the above, try to show all U.S. Citizen family members who interact with your children (such as a Grandmother or Grandfather.) Present evidence on how little knowledge they have of their home country, or how they may not know the language and culture of the home country. Present evidence showing financial, emotional and medical hardships. Also, show that there are no other realistic means for you to ever immigrate to the U.S. again. Basically, it is not easy to obtain Cancellation of Removal, but if all the evidence is presented and all of the different factors are taken into account regarding the hardship, there is a chance you will be granted your Lawful Permanent Residence based upon Cancellation of Removal.

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New Hope for Aliens in Removal Proceedings

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

The Board of Immigration Appeals issued a decision, In re Ariadna Angelica Gonzalez, et al. (23 I & N Dec. 467, Interim Decision #3479, BIA 2002) on September 19, 2002 that seems to ease some of the restrictions on applying for cancellation of removal.

When an alien is placed into removal proceedings (previously referred to as deportation proceedings), there is a type of relief known as cancellation of removal. If the Immigration Judge grants the relief, then the alien will be granted lawful permanent residence in the United States. To qualify for this relief, one must show that he or she has been physically present in the United States for at least ten years prior to being placed into removal proceedings. Next, the alien must show they have good moral character and have not been convicted of certain crimes. Finally, the most difficult element to prove for this type of relief is to show that an immediate family member who is either a United States citizen or Lawful Permanent Resident will suffer exceptional and extremely unusual hardship if the he or she is removed from the United States.

Prior to In re Gonzalez, it appeared as though only those aliens in removal proceedings who had a United States son or daughter who suffered from some type of sever medical trauma would be granted cancellation of removal. Naturally, most people in proceedings could never meet such a high standard. This type of standard was not only restrictive, but unrealistic for most people to meet. Congress has allowed aliens without legal status in removal proceedings to apply for this type of relief. They have intended that long term residents should be given a real chance to be able to continue their lives in the United States without having their families torn apart and separated for years or for the rest of their lives.

The problem is with the term ‘exceptional and extremely unusual hardship.’ Clearly, any family who is separated by removal of one of its members from the United States will suffer hardship. However, for those who want to win the cancellation of removal cases, they must present facts showing that they will suffer exceptional and extremely unusual hardship. When this law was passed under the Immigration and Nationality Act section 240, there were no precedent decisions as to what constitutes this type of hardship. In reality, each Immigration Judge could have their own interpretation as to what type of hardship will fall under this standard. Previously, the Board of Immigration Appeals has issued very harsh decisions as to what constitutes this high standard of hardship. Subsequent to the issuance of those decisions, it has been practically impossible to ever get a grant of cancellation of removal from an Immigration Judge.

In re Gonzalez moves the pendulum back and gives the attorneys and the judges some realistic direction on what constitutes ‘exceptional and extremely unusual hardship’. In this case there was a single mother of six children and no family ties in Mexico. Four of her children were United States citizens. She has lawful permanent resident parents and five of her siblings are United States citizens.

The factors the Board of Immigration Appeals considered in assessing the hardship included the heavy financial burden imposed on her by having to support all of her family in her native country, the lack of any familial support for her children, the lack of any family in her native country, the children’s unfamiliarity with the Spanish language and the unavailability of any other means of immigrating to the United States.

In re Gonzalez makes it clear that ‘unconscionable’ hardship need not be shown. In deciding a cancellation of removal case, the age, health, and other circumstances of the relative must be considered if they are to live in a country with a lower standard of living.

The financial hardship on the alien was a determinative factor. The Board of Immigration Appeals noted that her children were not receiving any type of financial assistance from their father. Additionally, the Board of Immigration Appeals noted that should she be removed from the United States, it would be unlikely that she would be able to legally return to the United States in the foreseeable future.

The Board of Immigration Appeals stated that they must consider the ‘totality of the burden on the entire family’ that would result from the removal of the mother from the United States. Thus, a cumulative analysis must be made as to all of the factors relating to the hardship.

Prior to this decision, getting the Immigration Judge to grant a cancellation of removal was rare. Now, aliens in removal proceedings can present a myriad of evidence to meet the high standard of hardship that their families will suffer if they are removed from the United States.

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Immigration Article: Can I still Change my Status?

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

Question: I know that the immigration laws now only allow me to come into the U.S. on a Visitor Visa for only 30 days. I was planning to go to the U.S. to visit, and then later, if I found a good job offer, to change my status to some type of working status. Additionally, if I later decided, I was going to change my status to that of a student. Can I still do this?

Answer: It appears that it will be much more difficult to change your status in this type of situation. Normally, when visitors came to the U.S. under the B1/B2 Visa, they had six months. At some later point after entering, they would be able to change their status. Please note that some rumors have been spreading that there is no more change of status applications being accepted. This is simply not true. Rather, it is the effect of applying for a change of status once you enter the U.S. that is the problem.

Question: Can you elaborate on what exactly is the problem?

Answer: Actually, when you come in on a Visitor Visa, you are supposed to be doing exactly that. VISITING! That means going to Disneyland, visiting relatives, and having a good time. It does not mean going to school, getting a job or applying for the Green Card. If you come to the U.S. and within 30 days apply for a change of status to some other type of status such as student or worker, the INS may not believe that you intended to ever really visit the U.S. They may assume that you used the Visitor Visa as a means to get into the U.S. so that you could do what you really wanted to do (such as work or go to school.)

Question: What if I come to the U.S. on a Visitor Visa and then marry my girlfriend in order to get the Green Card?

Answer: Again, the INS would look at this as fraud. In fact, if you get married within less than 60 days after entry to the U.S. on the Visitor Visa, you are presumed to have committed fraud. Not only will the application for Lawful Permanent Residency be denied, you could very well get deported because of the fraud.

Question: What are the consequences of doing the change of status right after entering the U.S.?

Answer: First, they could deny your change of status application and you could go out of status. Next, the INS may very well assume that you committed fraud. That is, when you got the Visitor Visa and entered the U.S. that you did not really intend to visit, but rather, intended to go to school or to work in the United States. If that happens, you could be deported because you committed misrepresentation and fraud. The fraud will stay with you forever and never goes away. If you ever want to reenter the U.S., you will need to get a Fraud Waiver. Those are not easy waivers to obtain.

Question: What is the best way to avoid these drastic consequences?

Answer: First, the way that people come into the U.S. is probably going to change. You must decide whether you want to go to school or work since these are the options you might be considering. If you are intending on going to school, then you should get the I-20 and apply for the Student Visa from your home country. Then, when you enter the U.S., you will be entering as a Student, not a Visitor. Alternatively, if you want to work in the U.S., you should have your sponsor file the petition prior to you getting to the U.S. Therefore, you will not have any allegations by INS that you committed fraud. You need to be very careful if you come to the U.S. with a Visitor Visa and then change your status right away. Obviously, since you only will be getting 30 days in the U.S., you must strongly consider not getting a change of status in the U.S.

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Will my attorney tell INS about me?

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

Question: I have been in the United States for many years. I think there were several things I could have done in the past to help my situation, but did not know exactly what to do. Unfortunately, I let the opportunities pass because I was afraid to see a lawyer. To be honest, I was afraid they would turn me in to INS. Can you tell me what I can do?

Answer: First, you should not be afraid to see a lawyer. Lawyer’s have what is known as the Attorney-Client Privilege. This means that whatever you say to a lawyer cannot be discussed with anyone. If it is, then there is a very serious violation of the Professional Ethics of Responsibility.

Question: What is the reason for the Attorney-Client Privilege?

Answer: Actually, it is meant to protect people in your exact situation. People must not be afraid to see a lawyer to help them. If they thought that the lawyer would either tell someone, or turn them into INS, people would either not come for help, or would not tell the whole story. Naturally, if they did not tell the whole story, the lawyer could not fully represent them.

I have had clients in the past who did not tell me they had prior deportation orders. When the time came to submit everything, these people could have easily been detained and deported. Luckily, I found out the truth. However, had I not found out the truth, there cases would have been severely compromised.

Question: What happens if I get laid off or have a disagreement with my attorney? Can he or she then turn me in to INS?

Answer: No, the attorney-client privilege stays in tact forever. This means that years after the case is over, the attorney can still not disclose the facts of the case. Immigration is a very unique area of law. This is because many times people are afraid of being deported and assume that an attorney is an American who would either be working on behalf of the government or under an obligation to inform the government. While in some countries that may be true, it is not true in the U.S. An attorney is a person who wants to represent you to help you with your immigration problem. You need not be afraid to go into the office of an attorney. There are many constraints on what an attorney can and cannot do. All of these restraints are made to protect the public. Many times you are afraid and alone. Do not let another opportunity pass to obtain legal status because you think the attorney will call INS. You will only be hurting yourself in the future. In most cases, by helping yourself, you will also help your family. If you want to make absolutely certain that it will not be disclosed, make certain the attorney you are seeing is a licensed attorney. Only after you see an attorney and fully discuss every detail of your case can you get full and complete representation.

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