Traffic tickets lead to deportation for illegal aliens

U.S. Immigration has announced a priority effort on immigration enforcement. This has resulted in significantly more deportations for criminal infractions. In fact, the fiscal year 2012 target of 210,000 was exceeded by 15,390 as the total number of ICE deportations for criminal immigrants was 225,930. The trend will continue and probably increase in 2013 as immigration continues to be a national political issue. Those who are not in full compliance with immigration rules, visas, and other paperwork are at a greater risk of enforcement activity.

The latest tactics used by ICE include deportations for traffic violations and other low-level criminal offenses. ICE has been systematically trolling state motor vehicle records for traffic ticket information on any foreign-born driver. ICE has also been deploying ICE agents to traffic safety checkpoints conducted by local police departments for on-the-spot processing of immigration violations. These measures are Washington-approved and have proven effective, so expect them to increase in 2013.

Many people don’t like the cost of hiring an attorney for traffic matters or other low-level violations. However, there may be more than a fine and your insurance rate at issue if you are an illegal alien or out of status on your visa. You could face deportation proceedings. On a pure cost-effective analysis, the cost of an attorney to represent a defendant in a traffic matter is generally far less than at immigration proceedings. A good attorney may be able to avoid a conviction violation that could potentially result in deportation. Thus, investing in good representation fits squarely with the old adage “pay (less) now or pay (more) later.”

Illegal aliens are encouraged to contact an attorney with experience in both traffic and immigration matters if they find themselves facing these serious circumstances. Be sure your attorney is both aware of your immigration status and is knowledgeable in the collateral consequences of traffic and criminal violations.

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Path to Citizenship: Do I qualify for a Green Card?

One of the most popular questions that we get as immigration attorneys is: “How do I become a citizen?” Many clients ask this question with the expectation of a simple two or three step process. The reality is that not many people are eligible for immediate citizenship, and will need to obtain Permanent Residency (also commonly referred to as the “Green Card”) for a few years before pursing U.S. citizenship.

The next question that arises is: “How do I get a Green Card?”  This question is also a loaded one that requires an analysis of each individual situation to decipher what options are available to the potential immigrant.  The ability to apply for a Green Card, and eventually citizenship, is dependent on the visa that the applicant currently holds, or is eligible for.

Below you will find a list of some of the immigrant visas that give rights equivalent to Green Cards. Once you have determined which category (or categories) you may qualify under, you can apply for the applicable visa. Once you have completed all the steps required for your specific visa and have entered the country successfully, you are considered a Permanent Resident of the United States and can live and work in the U.S. Generally, after a period of 3-5 years (depending on your Green Card), you may apply for citizenship. It is important to note that additional restrictions and requirements may apply based on your individual circumstances.

The options that follow do not include the non-immigrant visas that may provide a path to permanent residency/citizenship. In general, non-immigrant visas cannot be converted to an immigrant visa because of the “intent” requirement. A non-immigrant (i.e. those in the U.S. under an F-1, J-1, L-1etc.) enters the U.S. and during the visa process demonstrates a “non-immigrant intent” by showing that they have no plans to remain in the U.S. past their authorized stay, and will return to their home county upon expiration of their visa. However, due to the unpredictability of life, there are certain situations that allow for a non-immigrant to convert to an immigrant. This is discussed further in the article Path to Citizenship: Can I adjust my mom-immigrant status?

Employment-based Immigration

There are four types of employment visas that provide a path to citizenship. An immigrant must qualify for one of these categories to enter/stay in the U.S. under an employment-based Green Card.  These categories are separated based on the job requirements and the qualifications of the applicant.

  • EB-1: Priority Workers
  1. Worker demonstrates extraordinary ability in the sciences, arts, education, business or athletics. These achievements must be recognized in the worker’s field. No offer of employment is required.
  2. Worker must demonstrate international recognition for outstanding achievement in a particular academic field with at least 3 years of experience in teaching or research in the area. An offer of employment from a university or other institution of higher education is required.
  3. Or, worker must have been employed outside of the U.S.  for at least 1 year in the preceding 3 years with the organization (U.S. employer). The employment must have been in an executive or managerial capacity with the same company, its affiliate or subsidiary.
  • EB-2: Second Preference
  1. The job that the worker is applying for must require an advanced degree. The worker must possess an advanced degree or its equivalent (BA plus five years progressive work experience in the field).
  2. The worker must have a degree of expertise significantly above the ordinary in the area of the sciences, arts or business.
  3. Or, qualified foreign-trained physicians who will practice in under-served areas in the U.S.
  • EB-3 Skilled or professional workers
  1. Worker must be a “skilled worker” whose job requires a minimum of 2 years training or work experience and is not a seasonal or temporary position.
  2. Worker must be a “professional” whose job requires a U.S. BA degree or its foreign equivalent and is a member of the profession.
  3. Or, worker must be a person performing unskilled labor which requires less than 2 years of higher education, experience or training which cannot be considered a temporary or seasonal position
  • EB-4 Special Immigrants

Workers who are considered “special immigrants” fall under one of the following categories:

  1. Religious Workers
  2. Broadcasters
  3. Iraqi/Afghan Translators
  4. Iraqis Who Have Assisted the United States
  5. International Organization Employees
  6. Physicians
  7. Armed Forces Members
  8. Panama Canal Zone Employees
  9. Retired NATO-6 employees
  10. Spouses and Children of Deceased NATO-6 employees
  • EB-5 Investors

All EB-5 investors must invest in a new commercial enterprise that creates at least 10 full-time U.S. jobs within its first 2 years of operation with a required investment of $1,000,000. This investment must be “at risk” with no guarantees being made to the investor. This shows the USCIS that the investment will actually be used towards creating jobs in the U.S.

In certain cases, the required investment amount is reduced to $500,000. This is when a business is established in an area with an unemployment rate of 150% or more above the national average.

Family-based Immigration

Another way to obtain a Green Card is through a family member who is either a U.S. citizen or a Green Card holder (Permanent Resident).  Not all family-based visas are quick and easy. In fact, many of them have a wait time from 5 years up to and even exceeding 20 years.  The categories are as follows:

  1. 1.       An immediate relative of a U.S. citizen, this includes spouses, unmarried children under the age of 21, and parents of U.S. citizen petitioners 21 or older. This category is considered IMMEDIATE FAMILY (spouses of U.S. citizens, children of U.S. citizens who are unmarried and under 21 or parents of U.S. citizens. The petitioning citizen must be 21 or older.) and these visas are available immediately. This means that once the application is submitted, it is immediately processed. These applications usually take 6 – 12 months.
  2. A family member of a U.S.      citizen fitting into a preference category, this includes unmarried sons or daughters over the age of 21,      married children of any age, and brothers and sisters of U.S. citizen      petitioners 21 or older.

Depending on which preference category the family member falls under, the wait time to process these applications is anywhere from 1-20 years. The preference categories are as follows:

First:  (F1) Unmarried sons and daughters of U.S. Citizens;

Second:  Spouses and children, and unmarried sons and daughters of Permanent Residents: (F2A) spouses and children of Permanent Residents and (F2B) unmarried sons and daughters (21 years of age or older) of Permanent Residents;

Third:  (F3) Married sons and daughters of U.S. citizens; and

Fourth:  (F4) Brothers and sisters of adult U.S. citizens.

  1. A member of a special category, this can include a battered spouse or child , a fiancé(e) or child of a fiancé(e), or a widow(er) of a U.S. Citizen.

Green Card Lottery

The Diversity Immigrant Visa Program makes 50,000 diversity visas available annually, drawn from random selection among entries of individuals who are from countries with low rates of immigration to the United States.  While there is no fee to enter the lottery, if you win, you will need to pay the application fee and additional surcharges should you wish to proceed with the process. In addition, applying and “winning” the Green Card Lottery does not guarantee a Green Card, but rather allows you to apply for the visa. You will still need to go through the application process and qualify for the Green Card.

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Path to Citizenship: Can I adjust my non-immigrant status?

A non-immigrant visa is issued to an applicant when he or she has demonstrated that he/she qualifies for the visa. Depending on the type of visa issued (student, visitor, H1-B worker, other temporary/seasonal workers etc.), there are some options to adjust non-immigrant status to immigrant status (Permanent Resident). Many visa-holders have experienced a change or circumstances over the years, since the original visa was issued.

 Most non-immigrant visas cannot be directly adjusted due to the statements the applicant makes when applying for the visa. When most non-immigrants apply for a non-immigrant visa to the U.S., one of the most important declarations (and supporting documents submitted) is that they swear they have non-immigrant intent. A U.S. immigration consulate official is required to assume that every applicant has immigrant intent. That is, they intend to immigrant or remain in the U.S. permanently to live and work regardless of whether or not they are applying for a non-immigrant visa. The sworn statement to the contrary puts a non-immigrant in the position to be awarded a non-immigrant visa.

Proving non-immigrant intent is a huge burden that must be met. The applicant must demonstrate that they have no plans to remain in the U.S. past their authorized stay and that they have ties to their home country that will require their return after their visa has expired (this includes family, money, property etc.)

Once the burden is met, immigration officials do not make it easy to retract the intention. This proves to be difficult to adjust the status of a non-immigrant to immigrant. However, there ARE options available based on each individual situation. It is best to contact an immigration attorney to determine your options. U.S. immigration law does recognize that circumstances change, in good faith and over time.

Not all non-immigrant visas require the applicant to show non-immigrant intent. These cases allow for what the USCIS calls “dual intent”. Dual intent is where a non-immigrant applies for the non-immigrant visa and while in the U.S. under that visa, is allowed to apply for permanent residency if they qualify by any other means. For example, a non-immigrant with an H1-B can apply for different employment visas while under their H1-B and have an employer petition for an immigrant visa.

This process is not black and white and takes a lot of time. The process is full of pitfalls for the unwary visa holder. Investing in professional guidance can enhance your ability to achieve your goals without the expense of returning home and interrupting your employment obligations. This can be especially useful when families have relocated and started the process of establishing new roots as ex-patriots of another country. It is important to know and understand what status you are applying for and how it will affect your future. Discussing your situation and future plans with an immigration attorney will help you determine what options will help you with your immediate and future plans.

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Global Entry Program: line bypass for international travel

Recently, U.S. Customs and Border Protection (CBP) has introduced a program allowing pre-approved travelers to go through an expedited clearance process when travelling back into the United States. The program was intended to assist frequent international travelers save time while travelling; however, it can be used by any applicant who qualifies for the program. Some of the basic requirements are that the applicant:

  • Is a U.S. Citizen or lawful Permanent Resident;
  • Has never been convicted of a criminal offence in any country;
  • Has never been found in violation of customs, immigration or agricultural laws;
  • Is not subject to an investigation by any State, Federal or Local law enforcement agency; or
  • Has not provided false or incomplete information on their application.

These requirements are not a complete list and the CBP may deny your application based on other reasons. (e.g. a failed background check).

The program uses automated kiosks at select airports where approved travelers present their Passport or U.S. Green Card, put their fingertips on the scanner to verify their fingerprints and make a customs declaration. Once the traveler is cleared, the kiosk provides a transaction receipt and instructs them to baggage claim/exit area. This is not to say that the traveler will be cleared every time. CBP reserves the right to select travelers for further examination upon entry into the U.S. based on random selection.

Obtaining Global Entry membership requires clearance via a rigorous background check and interview before being permitted to enroll in the program.

To apply for a Global Entry Membership, visit www.globalentry.gov and complete an online application. A non-refundable application fee (currently $100) is required per applicant at the time of application. Upon review of your application, you will be requested to schedule an interview at one of the Global Entry Enrollment Centers (located at the nearest participating airport) where the officer will determine your eligibility, take your photo and collect any biometric information (i.e. fingerprints). You will need to take your travel documents (passport or Green Card) with you in addition to a valid form of government-issued identification with a photo (i.e. Driver’s License or ID Card).

Any violation of the program’s terms and conditions (i.e. lying on the application or a misrepresentation on your customs declaration) will result in appropriate enforcement action and revocation of the traveler’s membership privileges. While you can always reapply for a Global Entry card, once you have violated the program’s terms, it will appear in their system and it is up to the reviewing officers to determine if you are eligible for another card.

Not all airports have Global Entry kiosks. A list of the designated airports as well as additional information can be found at http://www.globalentry.gov .

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Naturalization/Green Card Affirmation

Business owners, officers and managers have to show proof of citizenship or permanent residency. In addition to a copy of a legible copy of a naturalization certificate or green card the applicant should also an attorney’s affirmation stating the copy is a true and complete copy of the original document. (Divisional Order #807, September 19, 1996)

A copy of sample attorney’s affirmation should be made part of the license file. There is language on some of the SLA forms for this situation, however, if you need to create your own form, you can use the following sample template.

Sample Naturalization or Attorney Green Card Affirmation

State of New York

County of

                The undersigned, an attorney at law duly admitted to practice in the State of New York, affirms under the penalty of perjury that:

  1. 1.       He has compared the annexed copy of (naturalization certificate or green card) with the original; and
  2. 2.       The annexed copy is a true and complete copy of the original (naturalization certificate or green card).

This affirmation is given to the Division of Alcoholic Beverage Control knowing that they will rely upon same in connection with the license application of                                                                                                                                                                                                                            .

                                        City, New York

                                        Date

                                                                                                                                                                                       

Attorney At Law, New York Bar Member       

Address

While this affirmation is directed to an SLA license application, it can be adapted and be used for almost any situation where an original document is available but not being submitted (to avoid loss or because it is required to be on your person at all times). Another alternative is to contact the government agency that issued the original document and obtain a certified copy of the official document. These can take several weeks to obtain in some cases and can have fees of as much as $50. The attorney affirmation, when it will be accepted, is a great low-cost alternative.

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Terminating out-of-status employees

The termination of employees who have H-1B visas is permitted, but it requires employers to take additional steps.

The employer should write a certified letter to USCIS providing the date of termination and asking to revoke the H-1B petition. In addition to notifying USCIS, the employer should inform the anti-fraud section of the U.S. consulate in which the visa stamp was originally issued that the H-1B petition has been withdrawn; and notify the U.S. Department of Labor that the employer is withdrawing the LCA. The employer must ensure that the H-1B worker has been paid in accordance with the terms of the LCA.

The employer also is liable for reasonable costs of the return transportation of the foreign national abroad, meaning the employer must pay for the foreign worker’s travel to his or her last place of residence. This obligation does not extend to family or such things as furniture or other belongings.

The employer must have evidence of a proper or bona fide termination in a clear and unequivocal notification in writing to the foreign national worker that the relationship has been terminated, as well as in the information about the termination provided to USCIS. Otherwise, the U.S. Department of Labor may determine the employee was put on nonproductive status and the employer will be liable for wages until the termination is bona fide.

The employer should keep documentation of all the steps it has taken. If the foreign worker refuses the ticket or cash to pay for a ticket, the employer should have the foreign worker sign a statement with independent witnesses if possible, stating clearly that he or she declines acceptance of the ticket or cash. The offer and the ticket should be open for a certain time to be used by the foreign national employee. I suggest 15- 30 days might be appropriate. It is best to use a travel agent they can trust and order a one-way nonrefundable ticket for the employee to be used by a certain date. That way, if an employee does not use the ticket, the employer is not out any money, but has fulfilled his requirement under immigration law with respect to transportation home. The employer cannot force an employee to accept the ticket but can prove it complied by offering it.

Before terminating an employee in H-1B status, the employer must consider whether oral and/or written promises were made in terms of future extensions, contractual obligations. Other important circumstances from a labor and employment standpoint include whether the worker is pursuing a green card, strikes, layoffs and other labor/union issues. When terminating an H-1B employee, there is the risk of being sued under state contract law. Generally speaking, the employer’s submission of a petition to USCIS seeking permission to employ the beneficiary for a specified term does not constitute an implied contract for a fixed term. However, if the employer’s offer letter to the beneficiary—or other writing—creates an inference that the employer is guaranteeing employment for the length of stay approved by USCIS, then the H-1B worker may sue the employer for breach of contract under applicable state law.

Employment termination for immigrants often has dire consequences for foreign national employees residing in the US or in the green card process, so there are plenty of incentives for legal claims. The employer should carefully drafting the offer letters and immigration benefit policies to reduce liability and potential employee lawsuits. Employers should be crystal clear in making sure that at-will policies specifically cover H-1B employees, and in outlining the conditions for and limitations on immigration sponsorship.

To avoid committing fraud, employers should not generate fake paychecks post-dating the termination date in order to make it appear that the employee remained in H-1B status pending the filing of a new petition by a successor employer. Frequently, terminated H-1B workers request or demand evidence of continued employment under threat of filing a complaint with the Wage and Hour Division for violating the LCA regulations or the taking of some other legal action. This should not be an excuse for violating the law and the penalties are likely to be much greater than any liability you had for the employee complaint even if it was true. In many cases the employer has fully complied with its legal duties and has no reason to fear a complaint (other than the mere hassle of dealing with it).

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Problems for illegal immigrant attorneys

I read an article in the January 2013 ABA Journal about the “Dream Bar,” law school graduates who are illegal immigrants and seek to be admitted to practice as attorneys in various states. I am conflicted on this issue.

On one hand, the child of an illegal immigrant did not fail to follow immigration law, so should he/she pay for the sins of the parent or other relatives? It is easy to feel for the plight of these incredible law graduates who have a lot to offer and will undoubtedly be a great asset to the legal community. They really are trying to do everything right and have unfortunate circumstances to bear.

However, the article discussed whether public policy should favor inclusion in these circumstances on the basis of “state or local benefit.” Are attorneys any more of a benefit to the public at large than other professions? I am not convinced they are and point to the over-abundance of attorneys nation-wide. More importantly, I am not sure I favor a “free pass” for relatives of illegal immigrants because it only provides a tangible benefit that will inevitably encourage non-compliance with immigration laws. I am not opposed to immigration; in fact I am married to a non-citizen, and my legal practice includes immigration work. I favor immigration and free movement between countries as long as all of the rules are followed. “Cheating” is not something that sits well with me in most situations. If illegal immigrants are ware that they are harming the future of not only themselves, but spouses, children and other relatives, I believe they will be more likely to comply.

The article also discusses how there are different types of out of status immigrants and this should play a role in the decision making process. As attorneys, we pledge to uphold the law. If we are not in compliance, I am not convinced it matters much how or why. In other situations, it is black and white – you are or are not in compliance with the law. I do recognize the inherent irony in admitting a law breaker to the group of law enforcing professionals.

This situation is a difficult one, for so many reasons. I am not sure how to feel. Can you persuade me one way or the other?

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Options to adjust from non-immigrant to permanent resident status

The most common question I hear as an immigration attorney is “How do I get my Green Card?” Unfortunately, there is no clear-cut answer. This question is one that requires an understanding of each individual’s personal and professional situation to present the options available for Permanent Residency.

Most believe that once they receive a non-immigrant visa (student, visitor, temporary worker) and enter the U.S., adjusting their status to “immigrant” is easier. This is not the case. In fact, in most cases, this process makes it more difficult to obtain an immigrant visa.

The difficulty is that non-immigrant visa holders must show intent to leave the country upon the termination of their visa during the application process. When the non-immigrant then applies to adjust status, the first thing the immigration officer questions is the applicant’s original non-immigrant intent. This means that when you applied for a non-immigrant visa, you stated that your time in the U.S. would be temporary. When you later apply for a green card, you are showing that you wish to live in the U.S. permanently, and the USCIS may think that you were not being honest in your original non-immigrant application.

This is not to say that it is impossible to adjust your non-immigrant status to become a permanent resident. Many applicants are successful in doing so every year. It is just important to understand what options are available and when the best time is to apply for each option.

Some of the most common applicants that are adjusted are:

  1. Student visa to permanent employment visa (time sensitive and requires job offer and sponsoring company);
  2. Student visa to H1-B status (requires sponsoring company) to permanent employment visa;
  3. Temporary worker to permanent employment visa; or
  4. Any non-immigrant visa to permanent resident via spousal petition by U.S. citizen spouse.

These options are just some of the most common routes, but they may not be available for everyone. Figuring out your personal and professional goals will help map out what immigration options would be most beneficial to your situation. As stated before, every situation is different, so reach out to an immigration specialist and see what your options are!

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Citizenship Requirements for SLA Annual Permits

New York Alcohol and Beverage Control law prohibits the traffic in alcoholic beverages to all except citizens of the United States or a reciprocal treaty country. This restriction applies only to those annual permits which authorize traffic in alcoholic beverages. The SLA differentiates between those classes of annual permits which authorize “traffic in” alcoholic beverages and those which do not authorize such traffic. (Divisional Order # 362, December 1, 1953)

The following annual permits authorize traffic in alcoholic beverages and citizenship of U.S. or a reciprocal treaty country is required:

  1. Drug Store (Sect. 95)                                          Class 644
  2. Alcohol Distributor Class A (Sect. 92A)          Class 633
  3. Alcohol Distributor Class D (sect. 92A)          Class 636
  4. All classes of annual permits which are auxiliary to licenses and issued only to licensees, e.g. HOP permits, Credit permits, and Retail Beer Permits (Brewers and Wholesalers).

The following annual permits do not authorize traffic in alcoholic beverages and therefore citizenship is not a requirement:

  1. Solicitor’s (sect .93)                                       Class 641
  2. Industrial Alcohol                                          Class 630
  3. Industrial Alcohol Manufacturers              Class 631
  4. Alcohol                                                             Class 632
  5. Alcohol Distributor Class B                         Class 634
  6. Alcohol Distributor Class C                         Class 635
  7. Broker’s                                                           Class 642
  8. Trucking                                                          Class 643
  9. Warehouse                                                      Class 645
  10. Bottlers                                                            Class 646
  11. Steamship or Aircraft                                   Class 637 and 638
  12. Manufactures non-beverage                       Class 639
  13. Hospital                                                           Class 640
  14. Negotiator                                                       Class 647

If you have questions about whether you qualify, you can contact the SLA call center or work with an experienced liquor license attorney.

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Citizenship Requirements for NYS Alcohol License Applicants

Often the ownership of stock of the corporation by non-citizens is a bar to approval of an application for a liquor license.

The Alcoholic Beverage Control Law provides that a corporation may be licensed to sell alcohol if each of the principal officers and more than half of its directors are citizens of the United States or a “treaty country”. “Treaty countries” are nations with which the United States has treaties of freedom and equality granting reciprocal rights for the citizens of both countries. This list of countries can be found online at http://travel.state.gov/visa/fees/fees_3726.html.

Working with an experience liquor attorney can help determine if you qualify as a citizen of one of the treaty countries.

This does not apply to individual or partnership applicants. A license or permit shall not be issued to a non-citizen unless the individual or each member of the partnership is a citizen of the United States or a country that has a treaty granting reciprocal rights. (Divisional Order # 349, May 19, 1953). In some cases, forming a corporate entity will allow a non-citizen to own a business retailing alcohol.

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