A new immigration law might be coming!  Many will benefit, but not all.  Don’t be tricked!

We have all heard the talk and promise of new immigration laws over the past few years.  Until now, these new laws have only been just that, talk and promises.  Now, finally, there appears to be a new legal option coming that could benefit thousands of non-citizens who are in the United States without lawful status.

This new law will not be an amnesty, however, and many people will not be able to use this new law.  It is extremely important that you understand what this new law will do and what it will not do.  There will surely be notarios and immigration attorneys who will take advantage of this new law to sell you something that will only result in deportation.

The current problem for many potential immigrants:

Many immigrants in America cannot get their residence (green cards) while in the United States because they have an immigration violation (unlawful entry or visa overstay).  We call this a bar- or a ground of inadmissibility.  If these immigrants leave the country to reenter through the US Consulate abroad, however, they will be barred for 3 (or 10) years for having been in the United States without lawful presence.

There is a waiver application for this inadmissibility bar, but the immigrant cannot apply until AFTER they leave the United States.  Now, it is impossible to know if the waiver will be approved until the immigrant leaves the United States.  The wavier application can take many months to process, and, if it is denied, the immigrant will be stuck out of the country for 3 (or 10) years.

What will the proposed change do?

The proposed change will allow for immigrants to apply for the waiver BEFORE they leave the United States.  With this new law, the immigrant will not have to wait many months outside of the United States waiting for the decision on the waiver application, and, if the waiver application is denied, the immigrant will not be stuck out of the United States.

 Who will this new law help?

The new law will only apply to immigrants who:

1)    are seeking lawful permanent residence (green card);

2)    who cannot adjust their status within the United States because they have more than 180 days of unlawful presence in the United States;

3)    who have a US Citizen spouse or child who will suffer extreme hardship if the immigrant is not allowed to return to the United States.

What will the proposed change in the law NOT do?

This proposed change in the law is very specific and will ONLY help those immigrants who will be inadmissible for a visa at the US Consulate because they have more than 180 days of unlawful presence in the United States.

This new law WILL NOT help an immigrant has other grounds of inadmissibility:

- If you have a criminal ground of inadmissibility, this law WILL NOT help you.

- If you have a prior deportation bar, this law WILL NOT help you.

- If you have multiple unlawful entries, this law WILL NOT help you.

- If you are inadmissible because of document fraud, this law WILL NOT help you.

- If you are inadmissible because misrepresentation this law WILL NOT help you.

- If you are inadmissible because of marriage fraud, this law WILL NOT help you.

- If you do not have a U.S. citizen spouse or child who will suffer extreme hardship without you, this law WILL NOT help you.

When will this law be ready?

This proposed change is not official yet.  The USCIS has said that it will not be ready until the end of the year.  This means that nobody will be able to apply until the end of 2012, at the earliest.  Be very careful not to be tricked- notarios or attorney might try to sell you a case before the law is official.

We are very optimistic about this proposed change in the law.   Many immigrants will be able to benefit from the change, but not everyone.  Many notarios and attorneys will use this change in the law to take advantage of immigrants who are not eligible.  Be careful.

Human trafficking, also known as trafficking in persons, is a form of modern-day slavery in which traffickers lure individuals with false promises of employment or coercion into forced labor. Traffickers often take advantage of poor, unemployed individuals who lack access to social services. The victims are then sold and forced to work for little or no pay. Many of the victims are transported to other countries, and not allowed to return home.

In recent years the United States and seen an increase in human trafficking within its borders. In response to this growing problem, Congress enacted the Victims of Trafficking and Violence Protection Act of 2000 (VTVPA). Div. A of Pub. L. No. 106-386, § 108. The act increased criminal penalties for those convicted of trafficking in humans. The act also allows people who have been victims of human trafficking to apply for 3-year temporary visa called the T visa that can eventually lead to permanent resident status. Congress allocated 5,000 T visas per year. The act protects victims of human trafficking and allows victims to remain in the United States to assist in the investigation or prosecution of their human traffickers. The T visas are issued for three years. After the three year period, T-1 visa holders are eligible to obtain a green card. T visa holders can also receive work authorization.

There are several requirements a victim must show in order to obtain a T visa. The principle requirement is that the person has been a victim of “severe trafficking in persons” as defined by 22 U.S.C. §7102. Proving that a person is victim of “severe trafficking” requires showing that the person was brought to the United States either for sex trafficking or labor trafficking. Sex trafficking is the recruitment, harboring, transportation, provision, or obtaining of a person for the purpose of a commercial sex act where the “commercial sex act is induced by force, fraud, or coercion, or the person being induced to perform such act is under 18 years of age.” Labor trafficking is the “recruitment, harboring, transportation, provision, or obtaining of a person for labor or services through the use of force, fraud, or coercion for the purpose of involuntary servitude, peonage, debt bondage, or slavery.”

Additionally, an applicant for a T visa must:  1) be physically present in the United States or at a port of entry on account of trafficking, 2) comply with any reasonable request from a federal, state, or local law enforcement agency for assistance in the investigation or prosecution of human trafficking, and 3) demonstrate that they would suffer extreme hardship involving severe and unusual harm if they were removed from the United States.

If the victim was under the age of 18 at the time of the victimization, or if they are unable to cooperate with a law enforcement request due to physical or psychological trauma, they may qualify for the T nonimmigrant visa without having to assist in investigation or prosecution. Additionally, a victim of human trafficking may be able to apply for derivative immigration status for certain members of their family.

In 1990, Congress created a category for Special Immigrant Juvenile Status (SIJS) to address the need for legal relief for such unaccompanied children.  SIJS is an immigration benefit available to undocumented children in foster care (or those in guardianships or adoptions), who have been the victims of abuse, abandonment or neglect.  SIJS is designed to enable such children to become legal permanent residents (also called a “green card,” though the card is no longer green), irrespective of their unlawful status.  Under normal family-based immigration processing, an undocumented child must rely upon their U.S. citizen or resident parent to petition for a permanent visa on their behalf.  With SIJS, however, an undocumented child does not need the assistance of a family member to obtain protection and lawful permanent resident status.  Additionally, SIJS status exempts undocumented children from various grounds of removal from the United States, including inadmissibility based upon entry without inspection, failure to maintain valid nonimmigrant status, misrepresentation, unlawful presence, or being a stowaway or public charge.

The statutes establishing eligibility requirements for the SIJS have recently gone through significant reform.  In December 2008, Congress passed legislation expanding the SIJS eligibility requirements, which now include undocumented children who have been declared dependent on a juvenile court, whom a juvenile court has legally committed to, or placed under the custody of, a State agency or department, or, who has been placed under the custody of an individual or entity appointed by a State or juvenile court.   The state court must find that reunification with one or both of the parents is not viable due to abuse, neglect or abandonment, or a similar basis found under State law.  The SIJS petitioner must also demonstrate that it would not be in their best interest to be returned to their home country, or that of their parent’s.  To be eligible, the undocumented child must be under 21 years old and unmarried at the time of filing for SIJS status.  Importantly, the United States Citizenship and Immigration Services will not deny a child’s petition for having age-out, as long as the child submitted the petition while under 21.

If the undocumented child applies for this status and is successful, s/he may remain in the United States, work legally, qualify for in-state tuition at college, and in five years apply for U.S. citizenship.  This legal remedy is not free of risk, however, as the undocumented child could be placed in removal proceedings and deported if their petition is denied.

The Immigration and Nationality Act (INA) provides for mandatory detention of non-citizens with criminal convictions, including aggravated felonies, violations of controlled substance laws, multiple convictions, and in most cases, crimes involving moral turpitude.  INA 237(c).  The INA also provides that the U.S. Immigration and Customs Enforcement (ICE) may arrest and detain any non-citizen, even if they do not have any criminal record, pending the determination of whether they are removable from the United States. INA § 236(a).  For years, the detention of non-citizens was primarily reserved for those with criminal convictions; however, ICE is increasingly arresting and detaining non-citizens without criminal records.

The detention of a non-citizen by ICE is generally initiated one of three ways.  First, a non-citizen who has been arrested and is in the custody of local or state authorities will be transferred to ICE custody at the conclusion of the criminal proceedings.  ICE does this by putting a “hold” on non-citizens in state or local custody, and it then has 48 hours to take them into custody from the time the non-citizen would have been released.  Second, ICE also takes an increasingly large number of non-citizens into custody during immigration raids at worksites.  Finally, when non-citizens make applications for immigration status or various benefits, they now must submit to security clearances and/or fingerprints, thereby notifying ICE of their presence and potential deportability.  Thus, a non-citizen may inadvertently initiate the process of detention and removal when applying for citizenship, renewal of green cards, employment authorization, or even simple status inquires into their case.

Once ICE has the non-citizen in custody, it generally has up to 48 hours to notify the non-citizen of alleged grounds for removability by way of a charging document known as the “notice to appear.” At this point, ICE may release from custody, on bond of at least $1,500.00, those non-citizens who do not have any criminal convictions, or who have only been convicted of certain minor criminal offenses.  For non-citizens in Alachua County, ICE will generally transfer them to a processing facility in Jacksonville, FL, where the initial bond determination is made.  If the non-citizen is not released on bond, ICE can transfer them to any detention facility in the country.  While most non-citizens from the Alachua County area are transferred to the Krome, Broward, or Glades detention centers in South Florida, others are sent as far as Texas or Arizona, creating obvious difficulties for families and legal representation.

ICE will then file the notice to appear with the Immigration Court having jurisdiction over the area of detention.  Non-citizens not subject to mandatory detention may seek a hearing for bond re-determination before the Immigration Court, where they must convince the judge that they are not a flight or safety risk, and, in many cases, that they are eligible for some form of relief from deportation.  If bond is denied, the non-citizen will be detained during the pendency of their removal hearings, which can take anywhere from several weeks to over a year.

While non-citizens without lawful status, and legal permanent residents (green card holders) with certain criminal convictions, are potentially subject to detention, there are ways to minimize the risk of being taken into ICE custody.  Obviously, if possible, avoiding custody by state or local authorities can make a tremendous difference. Similarly, caution should be used when submitting any affirmative request for immigration benefits, including citizenship.  Further, for those non-citizens living under a looming threat of detention, taking advance action, such as signing a power of attorney for financial decisions, and resolving child custody issues, can minimize the disruption for family members in the wake of an arrest.

In 1994, Congress passed the Violence Against Women Act (VAWA), which provides immigration relief to victims of domestic violence at the hands of U.S. citizens and permanent residents.  Under normal immigration processing, an immigrant must rely upon their U.S. citizen or resident spouse to petition for a permanent visa on their behalf.  In situations of domestic abuse, U.S. citizen and resident petitioners often use an immigrant’s lack of lawful status, and the threat of deportation, as a tool to control and intimidate the battered immigrant.  Victims of domestic violence are often paralyzed by the fear of physical retaliation or being reported to U.S. Immigration Agents for deportation.  Under VAWA, a battered spouse (or child) has the ability to self-petition for their immigrant visa, without the sponsorship or consent of their abusive U.S. citizen or permanent resident family member.

To be eligible for relief under , an immigrant must show that: 1) they entered into the marriage in good faith; 2) during the marriage, they resided with the U.S. citizen or permanent resident spouse, who battered or subjected them to extreme cruelty; and 3) they are a person of good moral character.  Importantly, battered immigrants, whose abusers are also undocumented aliens, are not eligible to apply for VAWA status.  An alternate process, the U Nonimmigrant Visa, exists for those whose abusers are not U.S. citizens or permanent residents; however, applicants for a U-Visa have to meet additional requirements to qualify for this immigration relief.

The self-petition for a visa is the first step in a two-step immigration process resulting in a green card.  The visa petition establishes the qualifying family relationship, or the employment based labor certification; however, an immigrant must still establish that they are eligible for permanent residency, i.e., that they are not inadmissible for a variety of reasons, including criminal convictions, immigration violations (illegal entry or visa overstay), health-related grounds, etc.  Many immigrants can have an approved family-based or employment-based visa petition; yet they cannot take the final step to convert their approved visa petition into a green card, unless and until they are eligible to submit an application for adjustment of status to lawful permanent resident. Some battered immigrants may file their petition concurrently with an application for adjustment of status to lawful permanent resident, which would also provide them with authorization to obtain employment, a restricted social security card, a driver’s license and various other benefits.

VAWA is far from perfect, and abuses of this form of relief exist; however,  VAWA is a piece of immigration reform that has undoubtedly provided protection for some our society’s most vulnerable people.  If you have an immigration-related issue or question, feel free to contact me at 352-378-5603 or evan@evangeorge-law.com.

Possibly more than any other area, criminal defense intersects with immigration law, with potentially grave consequences for a noncitizen facing criminal charges. Over the past decade, and especially in the aftermath of the 9-11 terrorist attacks, the funding, resources and vigilance of U.S. immigration enforcement agencies has spiked dramatically. In this climate, criminal defense attorneys play a vital role in ensuring that a plea agreement or underlying conviction does not, inadvertently, have serious collateral consequences for their client’s immigration status.

The removal of noncitizens from the United States, including legal permanent residents (green card holders), is separated into charges of inadmissibility and deportability.

Inadmissibility deals with noncitizens who are seeking admission into the United States, or who are physically present without ever being inspected or admitted.

Deportability, rather, deals with noncitizens who are subject to deportability for violating the terms of their visa, for example, by overstaying their lawful period of stay, accepting unauthorized employment, or committing certain criminal offenses.

The Immigration and Nationality Act (INA) lays out a long list of grounds for removal that varies significantly based upon whether the noncitizen is subject to inadmissibility or deportability, especially in the criminal context.

The question of whether a certain crime triggers a noncitizen’s removability varies tremendously, based upon the nature of the offense, the state exercising jurisdiction, the potential sentence, the actual sentence, and the noncitizen’s criminal record.  In the immigration context, there are various types of convictions that render a noncitizen removable, however the primary grounds of criminal removability are categorized as crimes involving moral turpitude, aggravated felonies, violations of controlled substance laws, and multiple convictions.  A crime involving moral turpitude is an undefined concept in immigration law and essentially covers acts that are inherently base, vile, or depraved.  Aggravated felonies are defined under the INA and carry severe consequences; however, they are not necessarily always felonies under state law.  The determination of whether an offense is properly classified as a crime involving moral turpitude or an aggravated felony is based upon an analysis of the state criminal statute, and not on the underlying conduct involved in the offense.

Based upon the particular conviction, a noncitizen might be subject to removal, mandatory detention pending removal, and in some cases a permanent bar from returning to the United States.  In other cases, a conviction might not trigger removal, but will preclude a finding of good moral character, which is essential for various forms of immigration relief, as well as for eligibility for naturalization.  Importantly, in the immigration context, a noncitizen can face removal based upon an offense where there is no underlying conviction according to state law, provided that there is some form of sentence ordered by a judge.

Immigration Attorney in Gainesville, Florida.

The Law Office of Evan D. George is an immigration and nationality law practice, with expertise in deportation defense, family and employment based visas, bond hearings, political asylum, citizenship, and criminal related matters. The Law Office of Evan D. George is committed to client service and satisfaction; Mr. George personally handles all essential aspects of case preparation and client communications. Prompt and direct communication is a top priority of our office. We are located in Gainesville and Ocala FL, and regularly serve clients throughout Florida and around the United States.

The Law Office of Evan D. George has expertise with permanent and temporary employment visas, including H-1B and J-1 visas, labor certifications (PERM), national interest waivers, and aliens of extraordinary ability. We handle cases for all family based immigration matters, including visas for fiances, spouse, children, parents and siblings.

Mr. George has extensive experience assisting clients in deportation defense, including representing political asylum seekers from all over the world who fear persecution on account of their political opinion, race, religion, nationality, sexual orientation, and ethnicity. The Law Office of Evan D. George regularly handles immigration cases involving criminal convictions.