Advantage of Hiring an Attorney for Marriage Based Immigration Application

by Nicklaus Misiti

Recently a potential client entered our office distraught.  She had just received notice that her completely lawful marriage had raised a number of red flags and that immigration had called her back for a 2nd interview or what is called a Stokes Interview.

A Stokes interview occurs where immigration suspects the marriage is not a good faith marriage and that it was just arranged for immigration purposes.  The Stokes interview takes each party into separate rooms and asks a series of questions to determine if they are lying or telling the truth.  At the end the parties are brought together to explain and discrepancies.

After briefly discussing her case with her we quickly realized that she had a bona fide marriage and that her main issue was she had tried to save a few dollars by not having an attorney prepare her application for her.  She simply wanted to save some money so she and her husband decided to try to do it themselves.  Now she was on the verge of a nervous breakdown thinking her application would certainly be denied at the Stokes interview and that she would separated from her family and deported.

We assured her we could help her and at this point she realized it was well worth the money, as it was obvious to her she should have hired us from the beginning.   After asking her a few questions we determined the interviewer had been highly inappropriate with her.  He had attempted to intimidate her and even asked her questions about how her husband could have “loved her.”

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Comparing Canada’s Business Investment Program with the EB-5 Immigrant Investor Program of the United States

by Jovi Federici, Legal Intern

Canada’s Business Immigration Program (BIP), similar to the EB-5 Investment Immigrant Program in the United States, facilitates immigration to Canada based on business investment. There are, however, some very important differences between Canada’s BIP and the EB-5 program in the United States, which should be explored in order to fully understand the program.

The purpose of the BIP is to promote economic development and employment in Canada, with a specific interest in encouraging international trade. The BIP includes three classes of immigrants who seek permanent residence in Canada: Investor, Entrepreneur, and Self-Employed. Immigrant investors engage in a passive investment, and the program is split between a Federal program and a Quebec program. Immigrants who express a desire to live in Quebec should follow the Quebec program, which is similar to the Federal program except that it is only for applicants seeking to reside in Quebec and Quebec guarantees the investment instead of the Federal government. Also the investment proceeds are allocated to Quebec only. Generally s peaking, processing time for the Quebec program tends to be less than the Federal program, although this is not always the case.

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Deportation

by Amelia Wong, Legal Intern

Who can be deported?

Anyone who is not a United States citizen can be deported. This means that Green Card holders and foreign spouses of United States citizens could be deported, as well as any other non-citizen.

Why are people deported?

People who are not United States citizens can be deported for various reasons. Individuals may violate immigration laws by overstaying a visa, entering illegally, having false papers, joining in a fake marriage, or any number of other reasons. In certain cases, an individual could be deported for being an inadmissible alien by having serious physical or mental problems, being a Nazi or terrorist, or having past criminal convictions.

Individuals may also be deported for committing serious crimes or immoral behavior, which may include domestic violence, tax evasion, drug use, or felonies.

Lastly, an individual can be deported by simply having a previous deportation order that was not carried out.

How is deportation handled?

Because authorities may not notice when individuals are not citizens and are not legally allowed to be in the United States the deportation process is not automatic.

Although the Immigration and Naturalization Service handled deportation until 2002, the Department of Homeland Security now handles deportations.

At removal hearings, the department has to prove that the individual is in the United States unlawfully.

The deportation process begins when an individual receives a written notice, which notifies him or her of deportation. This written notice is better known as notice to appear and/or a notice of hearing. The notice also tells the individual that a removal hearing will follow.

The removal hearing is a court procedure where an individual can tell the judge why he or she should be able to stay. If the hearing is skipped, the judge decides whether the individual is allowed to stay or not. If the judge decides to deport the individual in his or her absence, it will take ten years for the individual to be able to fight his or her case through the court system.

During this time, some people are taken into immigration detention whereas others may be allowed to stay at home until the hearing.

Can a person fight against deportation?

An individual may choose to fight deportation at the removal hearing. This can be done in many ways. One may agree, for example, that he or she is in the United States illegally but claim that he or she should be allowed to stay for various reasons. These reasons could be that the government made a mistake and the individual does not actually qualify for deportation, the individual has lived in the country for many years and is of good “moral character”, or the individual has at least one family member who is a citizen or lawful permanent resident of the United States and who would feel the individual's removal to be a unnecessary hardship.

Another way to fight deportation would be for the individual to argue that they have been in the United States for less than a year, and should be allowed asylum from persecution in his or her home country due to race, religion, nationality, political beliefs, or social group.

Lastly, an individual may choose to prove that he or she is a lawful permanent resident who has committed a crime, but the crime was not that serious and deportation would be more harmful than staying in the United States.

What happens if the judge decides on deportation?

If the judge does decide to deport an individual, he or she can appeal it; there is a special process for appealing in immigration court.

After the removal hearing, the individual must appeal to the Board of Immigration Appeals. This board is a special administrative court that only hears appeals of immigration matters.

During the time of appeal, the individual may be held in custody by immigration authorities or may be released from custody depending on whether or not the court finds him or her to be a risk to flee.

What happens if the first appeal fails?

If the Board of Immigration Appeals rules against the individual, he or she may choose to appeal its decision to the federal appeals court in his or her area. The individual can also choose to appeal to the appeals court, which will go to the Supreme Court. However, the Supreme Court takes very few immigration cases and will focus only on those that may improve United States law.

Does an Immigration lawyer help?

Appeals have the risk of being very expensive and could force the individual to be held in detention for a prolonged period of time. Having the help of an immigration attorney is recommended in appealing an immigration case in order to assure the quickest, best outcome possible for the individual and his or her family.

Many people choose to receive help from an immigration lawyer, but unlike the criminal court, it is not an individual's right to have a lawyer in immigration court. Although there are many organizations and groups who will help families in their time of need, the government will not provide a family with a free immigration lawyer.

Do you want more information?

For more information or to schedule a free consultation please contact Misiti Global, PLLC by Nicklaus Misiti at (212) 537-4407 or by filling out the convenient form on our website http://www.misitiglobal.com.

Legal Permanent Residence

by Amelia Wong, Legal Intern

According to the United States Citizenship and Immigration Services, an “LPR” is a legal permanent resident. This means that the resident is allowed to live and work in the United States on a permanent basis.

There are a number of ways for a person to become a Legal Permanent Resident in the United States.

Many people who are not citizens of the United States, for example obtain Green Cards for lawful permanent residency. These people may have a family member who is a citizen of the United States, and that family member has applied for legal permanent residence status in order for the nonresident to remain in the United States legally. If the process is approved, the non-resident will receive a green card as proof of legal permanent residence. Because he or she has been granted legal permanent residence status through a family member, it is possible for the person with legal permanent resident to apply for citizenship and become a United States citizen after about five years.

Another way a person may become a legal permanent resident is through his or her place of employment. The person’s job may offer immigration or work visas which allow non-citizen workers to be able to work in the United States. This visa allows said person to become a legal permanent resident, so that he or she will not be deported without reasonable cause.

Similarly, a person can become a lawful permanent resident by claiming refugee or asylum status. In the case that an individual receives refugee or asylum status, the person has proven that he or she was persecuted for his or her beliefs in another country and has therefore found it impossible to live in that country without risk of more persecution. If refugee or asylum status is pursued the legal permanent residence status can be filed through a humanitarian organization or even by oneself.

Some other people who could obtain legal permanent residence status could be:
• an Amerasian child of a United States citizen
• an American Indian born in Canada
• an armed forces member
• a Cuban native or citizen
• a person enrolled in the diversity immigrant visa program
• a Haitian refugee, through the Help Haiti Act of 2010
• a person who fits the Indochinese Parole Adjustment Act
• an informant
• a Lautenberg parolee
• a person who fits the Legal Immigration Family Equity Act
• a person born to a foreign diplomat in the United States
• a victim of criminal activity, or victim of trafficking

Obtaining a Green Card is also possible through special categories of jobs. These jobs include being:
• an Afghan or Iraqi translator,
• a broadcaster
• an International Organization Employee
• an Iraqi who assisted the United States government
• a NATO-6 nonimmigrant
• a Panama Canal Employee
• a Physician through the Physician National Interest Waiver
• a religious worker

Similarly, special categories of family exist when attempting to obtain a Green Card. They include:
• battered spouse or child
• K nonimmigrant
• V nonimmigrant
• widow

It is helpful to talk to an expert in order to see if you or a person you know qualifies for any of these special categories. There are often many questions at the beginning of the LPR process.

Even after one has been granted a green card, he or she may have various questions. For example, some people may not know that it is possible to renew or replace a green card by filing a Form I-90 online or on paper, or that is also possible to remove conditions on a green card, and travel outside of the United States with a green card.
There are also various rights that the card holder has and responsibilities the card holder should adhere to. As mentioned before, it is always best to talk to a trained professional about any questions your or someone you know might have.

As you can see, becoming a legal permanent resident is a complicated process, but it offers many benefits. It is important to have effective, professional, expertise in your corner in order to make the legal permanent residents process have the best opportunity for success.

For more information or to schedule a free consultation please contact Misiti Global, PLLC by Nicklaus Misiti at (212) 537-4407 or by filling out the convenient form on our website www.misitiglobal.com.

EB-5 Investment Based Green Card

Under section 203(b)(5) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(5), 10,000 immigrant visas per year are made available to certain qualified individuals seeking permanent resident status on the basis of their engagement in an investment within the United States.

The requirements for an investment based green card are an investment of at least $1 million dollars or $500,000 in an area with high unemployment.  The petitioner must show that the money used for the investment comes from a lawful source and that it will create a minimum of 10 jobs.  The investor can create a business in the United States or invest in an already established business.  They can also invest through a government approved regional center.

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Boiler Plate Law for a Motion to Reopen due to Ineffective Assistance of Counsel and Lack of Notice

Ineffective Assistance of Counsel
The Board of Immigration Appeals (“BIA”) has determined the criteria for ineffective assistance of counsel in Matter of Lozada, 19 I&N Dec.637 (BIA 1988) [where ineffective assistance of counsel claims raised must:
(1) Have motion supported by affidavit setting forth agreement and representations by counsel;
(2) Inform counsel against whom the claim is made and give counsel opportunity to respond;
(3) Reflect in the motion whether a bar charge has been filed and if not, why not?
A motion to reopen premised on ineffective assistance of counsel must comply with the requirements set forth in Matter of Lozada, 19 I. & N. Dec. 637 (B.I.A. 1988),3 and establish that “counsel’s performance was so ineffective as to have impinged upon the fundamental fairness of the hearing,” Jian Yun Zheng v. U.S. Dep’t of Justice, 409 F.3d 43, 46 (2d Cir. 2005) (quoting Saleh v. U.S. Dep’t of Justice, 962 F.2d 234, 241 (2d Cir. 1992)). To show fundamental unfairness, the applicant must allege sufficient facts to show that competent counsel would have acted otherwise and that the applicant was prejudiced by his counsel’s performance. Romero V. INS, 399 F.3d 109, 112 (2d Cir. 2005).
Generally there is a 90 day time limit for filing motions to reopen due to ineffective assistance of counsel, however, the court will toll such a deadline and the tolling will continue until the date the alien learns of the ineffective assistance as long as the alien exercises due diligence. Cekic v. INS, 435 F.3d 167 (2d Cir. 2006).
Lack of Notice
In absentia order may be rescinded only if:
1) a motion to reopen is filed within 180 days of the date of the order and the person demonstrates there were exceptional circumstances; or
2) a motion to reopen is filed at any time and the person can demonstrate that failure to appear was due to lack of proper notice in accordance with INA section 239 or that he/she was in state or federal custody and the failure to appear was through no fault of his her own.
Exceptional circumstances are defined as circumstances “beyond the control of the alien” such as battery or extreme cruelty to the alien or any child or parent of the alien…” (See INA240 (e)).
A respondent can move to reopen a hearing on a showing of reasonable cause for their absences. Matter of Haim, 19 I&N Dec. 641 (BIA 1988). In order to reopen, the respondent need not demonstrate a prima facie case for relief nor exceptional circumstances for failure to appear. A showing of reasonable cause is sufficient. Matter of Ruiz, 20 I&N Dec. 91 (BIA 1989); Matter of Haim, supra. Also a respondent is not required to show prejudice in order to rescind an order of deportation entered in absentia. Matter of Grijalva, 21 I&N Dec. 472, 473 n.2 (BIA 1996).

I-9 Audits and Immigration

I-9 audits have replaced the immigration “raids” of years past as the modern day method to curtail the hiring of illegal and undocumented workers. Typically raids went after the worker and placed them in deportation proceedings, however, an I-9 audit targets the employer and can result in heavy fines and possible criminal penalties.

The frequency of I-9 audits have and will continue to increase. ICE has already issued more than $2.5 million in fines to employers across the nation this year for knowingly hiring illegal immigrants, and nearly 48 employers have been arrested on criminal charges. ICE issued nearly $7 million in fines and arrested 196 employers in 2010. ICE feels punishing the employer is the most effective deterrent to illegal immigration and has plans to continue and expand I-9 audits for at least the next few years.

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The Anchor Baby Myth

Immigration has become a hotly contested issue with strong feeling on each side. Unfortunately, we have allowed our emotions to get the best of us, at the expense of an honest debate. No where is this more clear than with the recent coining of the phrase anchor babies. The term anchor baby refers to a mother who takes advantage of our countries long-standing belief in birth right citizenship by sneaking across the border and having her child here. Birth right citizenship is the Constitutional guarantee that when a person is born within the US they are automatically a citizen, even if their parents entered illegally.

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The Dream Act Explained

Immigration laws offer harsh punishments for individuals who do not cross the border lawfully. With rare exception a person who enters this country without inspection at a port of entry cannot receive a lawful status without returning to their home country to process the paperwork and often leaving the United States triggers a 3 or 10 year bar from them returning.

This could be argued as a just punishment for individuals who usurp our immigration laws and cross our border illegally. Clearly it would an injustice to the millions of individuals who apply lawfully, pay filing fees, and wait a number of years if illegal entrants were rewarded for their behavior with a legal status. Thus, in most cases the law is arguably just.

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Immigration Benefits for Military Personnel

The first U.S. casualty of the war in Iraq surprisingly was not a US citizen. Instead he was a Guatemalan orphan, Marine Lance Corp. Jose Gutierrez, who made his way to the United States to find a better life. He joined the Marines to earn money for college and to support his family still living in Guatemala.

Non-citizen soldiers have fought and died in every conflict the United States has been involved in. As of June, 114,601 men and women not born in the United States were serving in the military. This number makes up almost 8 percent of the 1.4 million active-duty members of the military. Of these, more than 12 percent did not have U.S. citizenship.

Despite their many sacrifices it is estimated that this country has deported over 4000 non-citizens who served honorably in the military since World War II. This does not need to be the case as now service in the military makes it very easy to gain citizenship quickly.

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