Criminal Immigration Defense in Federal Court

In New York, over twenty percent of residents are foreign-born. Many of them are non-citizens who may be easily subject to detention and deportation for criminal convictions. Immigration crimes face very arduous opposition in Federal Court.

Crimes may involve anyone who facilitate illegal immigration. Even lawful permanent residents may be removed, arrested, or denied naturalization.

Federal criminal charges implicate complex procedures and trials. Understanding the broad immigration consequences of a conviction for a non-U.S. citizen requires a special knowledge and the ability to see and asses the case from many angles.

Immigration crimes usually include illegal entry or re-entry and marriage fraud. The hardest consequences you could face for them, are: denial of naturalization, bar to re-entry, and removal.

If you enter the United States illegally, crossing land or sea borders without authorization by an immigration officer or without a visa issued at a consulate, you commit an EWI, Entry Without Inspection. The law will require you to leave the U.S. and ask for help in a consulate abroad, where you will be assessed for your eligibility to receive a visa.

In addition, pursuant to the Immigration and Nationality Act (INA), an individual who is unlawfully present in the United States for more than 180 days but less than one year, will not receive a visa to the United States during a period of three years (Three-year ban).

A person unlawfully present for more than a year, will not get a visa for a period of 10 years (Ten-year ban).

An alien living in the U.S. for more than one year, who is removed or have left the United States and then tries to commit unlawful re-entry, will receive a permanent prohibition of entry (Permanent ban). People sentenced in Federal Courts for unlawfully re-entry, usually receive a two years prison sentence.

Marriage fraud occurs when the marriage is contracted under false pretenses, in order to avoid the immigration laws of the United States. As a matter of fact, immediate relatives of a U.S. citizen, may obtain permanent residency or even the Green Card. Marriage fraud is a federal felony offense that carries serious punishments and immigration consequences. The Immigration Marriage Fraud Amendments Act of 1986 amended section 1325 by adding 1325(c), which provides a penalty of five years imprisonment and a $ 250,000 fine for any “individual who knowingly enters into a marriage for the purpose of evading any provision of the immigration laws”. Moreover, the alien may be removed from the United States and he/she will not be allowed to get any future visa or the Green Card .

The United States Citizenship and Immigration Services (USCIS) is authorized to cancel any citizenship or naturalization certificate in case that it was illegally obtained or created by fraud.

The United States Sentencing Commission (USSC) was established in 1984 to create sentencing guidelines for the Federal Courts and recollecting data on federal criminal cases convicted under the Federal sentencing guidelines.

If you are facing federal charges, it is critical to consult with an experienced criminal attorney as soon as possible. Your criminal defense lawyer has to handle your case properly preventing immigration problems. He/she will be able to achieve the best possible outcome in a given case.

When you do need a lawyer?

It doesn’t matter what you have been charged with, whether a misdemeanor or felony, DUI or traffic ticket – you need acriminal defense lawyer.  If you had a broken bone you probably wouldn’t operate on yourself, you would need a doctor.  By the same token, if you’re going to court for a criminal immigration offense – you need a lawyer.

Issues in Employment

Issues in employment are the most trying for the employee.  There are several problems that may arise in the employment relationship which I am adept at helping employees to resolve with their employers.  The most common employment related accident is the personal injury that results in a Worker’s Compensation claim.    Additional work related problems are discrimination in the hiring or promotion process, wrongful discharge, sexual harassment and wage and hour problems, etc.

Worker’s Compensation is insurance employers are required to carry, which protects the employee from financial loss due to injury caused in the workplace.    Employees can recover under worker’s compensation even if their own unsafe act at work contributed to the accident.  For example, an employee can recover for the loss of an eye, even though that loss was due to the employees own failure to wear safety glasses.  Of course, disciplinary action can possibly take place for that unsafe act, but such action does not affect the employee’s ability to be compensated for the accident.   I recommend that employees who are injured on the job cooperate fully with their employer during the investigation and treatment process following an injury, but I also recommend that the employee consult an attorney prior to signing documents the company presents after the accident or during the settlement process.

Employment Discrimination can occur in many ways.  Typically, it can be shown through the employer treating one class of persons differently than another.    For example a company cannot consider age, race, color, gender, religion or disability in the hiring process.  Additionally, the company cannot implement policies that tend to discriminate against a certain class.  For example, an arbitrary lifting requirement of 100 lbs. tends to discriminate against women, so the company will have to show that the operation requires such a rule and that no accommodation is available.  There are many tricky issues in the employment discrimination area, so it is best to consult an attorney if you feel you are being treated differently than others due to your class membership.

Sexual Harassment is not always an obvious act such as a supervisor offering desirable job assignments if the employee will sleep with him.  It can also be shown if the environment created is offensive or hostile.  Sexual comments, lewd jokes, etc. can help create such a hostile environment.  Employee do not have to put up with such a workplace environment under any circumstances.  Unfortunately, employees often have to resort to legal action to put an end to the activities causing the hostile environment.

What is Passport Fraud?

Title 18, United States Code, Section 1543 makes it illegal for anyone to make, forge, counterfeit, mutilate or alter any passport with the intent that it be used. It also criminalizes anyone who uses or attempts to use any such passport.

Fraudulent passports pose a significant risk because they can be used to conceal the true identity of the user and potentially facilitate other crimes, such as international terrorism and drug trafficking. There are many different reasons a person might commit passport fraud. Some use passports to enter a country illegally in order to work or take up residence.

People on the run from law officials may use fake passports to avoid detection while traveling. Fake or illegally obtained passports are also used by people trying to get into a country for the purpose of perpetrating crime, such as terrorist acts or drug smuggling.

In the United States, the crime is a federal felony as well as a criminal immigration law violation, and may result in a minimum prison sentence of ten years, a $250,000 fine, or both. If the fraud involves trafficking in narcotics, the penalty increases to up to 15 years in prison. If international terrorism is involved, the penalty is up to 20 years. Additional charges will be imposed if the person is caught engaging in any of these activities.

If you have been accused of passport or any other immigration fraud, you should hire a lawyer immediately.

Immigration Trends

Immigration to the United States is not totally determined by shifts in flow that occur as a result of lawmakers revising the allocations.

Immigration to the United States plummeted in the middle of the 20th century largely as a result of factors brought on by the Great
Depression and World War II.

There are a variety of “push-pull” factors that drive immigration.

Push factors from the immigrantsending countries include such circumstances as civil wars and political unrest, economic deprivation and limited job opportunities, and catastrophic natural disasters.

Pull factors in the United States include such features as strong employment conditions, reunion with family, and quality of life considerations.

A corollary factor is the extent that aliens may be able to migrate to other “desirable” countries that offer circumstances and opportunities comparable to the United States.

Department of Homeland Security, Office of Immigration Statistics, multiple fiscal years. Aliens legalizing through the Immigration Reform and Control Act of 1986 are depicted by year of arrival rather than year of adjustment.

The annual number of LPRs admitted or adjusted in the United States rose gradually after World War II, as Figure 1 illustrates.

The DHS Office of Immigration Statistics (OIS) data present those admitted as LPRs or those adjusting to LPR status.

The growth in immigration after 1980 is partly attributable to the total number of admissions under the basic system, consisting of immigrants entering through a preference system as well as immediate relatives of U.S. citizens, that was augmented considerably by legalized aliens.19

The Immigration Act of 1990 increased the ceiling on employment-based preference immigration, with the provision that unused employment visas 19 The Immigration Reform and Control Act of 1986 legalized 2.7 million aliens residing in the United States without authorization.

In addition, the number of refugees admitted increased from 718,000 in the period 1966-1980 to 1.6 million during the period 1981-1995, after the enactment of the Refugee Act of 1980.

Many LPRs are adjusting status from within the United States rather than receiving visas issued abroad by Consular Affairs before they arrive in the United States.

In the past decade, the number of LPRs arriving from abroad has remained somewhat steady, hovering between a high of 481,948 in FY2012 and a low of 358,411 in FY2003.

Adjustments to LPR status in the United States have fluctuated over the same period, from a low of 244,793 in FY1999 to a high of 819,248 in FY2006.

As Figure 2 shows, most of the variation in total number of aliens granted LPR status over the past decade is due to the number of adjustments processed in the United States rather than visas issued abroad.

In any given period of United States history, a handful of countries have dominated the flow of immigrants, but the dominant countries have varied over time. Figure 3 presents trends in the top immigrant-sending countries (together comprising at least 50% of the immigrants admitted) for selected decades.

The figure illustrates that immigration at the close of the 20th century was not as dominated by 3 or 4 countries as it was earlier in the century.

These data suggest that the percountry ceilings established in 1965 had some effect.

As Figure 3 illustrates, immigrants from only three or four countries made up more than half of all LPRs prior to 1960.

By the last two decades of the 20th century, immigrants from seven to nine countries comprised about half of all LPRs and this pattern has continued into the 21st century.

Although Europe was home to the countries sending the most immigrants during the early 20th century (e.g., Germany, Italy, Austria-Hungary, and the United Kingdom), Mexico has been a top sending country for most of the 20th century and into the 21st century. Other top sending countries from FY2001 through FY2010 are the Dominican Republic, El Salvador, Colombia and Cuba (Western Hemisphere) and the Philippines, India, China, South Korea and Vietnam (Asia).

 

US Immigration Law Handbook

Hand Book of Immigration Law

Immigration Law Course Outline

A Guide for New Immigrants

IMMIGRATION AND NATIONALITY ACT

Guidance for Completing Form I-9 (Employment Eligibility Verification Form)

Fundamentals_of_Immigration_Law

Immigration and Nationality Act

THEORIES OF IMMIGRATION LAW

ILLEGAL IMMIGRATION REFORM AND IMMIGRANT RESPONSIBILITY ACT

INTRODUCTION TO IMMIGRATION LAW

On Normative Effects_stamped

A comprehensive collection of historical and current documents on immigration law and policy

 

The Role of Governmental Agencies in the EB-5 Program

The organizational structure of the EB-5 program can be quite complex.

Let‟s take this time to clarify the various US governmental agencies associated with the program.

To begin with, there is the United States Citizenship and Immigration Service or USCIS, which is at the forefront of the EB-5 field. This agency is charged with the review and approval of all regional centers across the United States from its headquarters in Laguna Niguel, California.
It is also responsible for the review and determination of all petitions for conditional residency with the filing of a form called the I-526-Immigration Petition by Alien Entrepreneur.

This essential, yet seemingly simple form will be discussed in future chapters.

Upon receiving regional center designation, a regional center agrees to abide by the regulations governing the program, and verifies such compliance in their annual compliance report.

This annual report is submitted to and reviewed by the USCIS. Upon submitting the I-829 petition, requesting the lifting of conditional residency, the USCIS is also responsible for determining the legitimacy of the application.
As you can see, USCIS oversees the entire EB-5 process.

Therefore, it is imperative for you, as a sponsor or investor, to be well organized throughout the process right from the beginning. Please consider acquiring a large three ring binder with many transparency pages to contain all of your U.S. immigration documents and receipts.

You will receive many documents from your attorney and from the government; therefore it is essential that you maintain all records in a sensible and organized manner.

Keep a list of each and every document, receipt or instruction you receive as it is easy to get confused with the multitude of documents and legal complexities.

The other government agency that you, as an investor, will need to address is the U.S. State Department.

This agency will review the individual immigrant investor application and assess whether there is any basis for inadmissibility.

There are various reasons to support a rejection of the application which include but are not limited to: prior criminal record, fraud convictions, etc.

Thus, while an approval of the I-526 application is laudatory, it is not the final step until the State Department issues its sealed envelope of approval.

Following the State Department‟s approval, the investor and his or her family will physically enter the US and will be inspected at a port of entry.

This inspection is conducted by the Department of Homeland Security. An officer will review the approval notice and stamp, an approval called an I-551, to ensure and date the formal entry into the U.S.

Once the new resident has been admitted, he or she will undertake all normal internal applications with which a U.S. resident must comply. These include but are not limited to acquiring: a U.S. social security number from the Social Security Administration, a driver‟s license from the Department of Motor Vehicles of the State in which he or she will live with his or her family, and we also recommend a state identification document.

Which USA Visa is the Best?

We are often asked for this. All wants to know what the best USA visa for their is. The answer is always the same: It depends!

Are you coming to the U.S. just to visit on holidays? Do you want to attend school here? Work here? Do you have family here? These are all things that can affect which visa you should be applying for.

Of course, you can always consult with our experienced immigration attorneys and we are happy to help you determine which visa is best for you –New Jersey Immigration lawyers or New York Federal Deportation Lawyer

We have also put together the following guide, which gives an idea about the various visas and which one might be best for you.First of all, though, it’s important to know the 3 general visa categories.

Nonimmigrant Visas
Nonimmigrant isas are temporary and may include various temporary work, study and holiday isas, all of which offer the opportunity to stay in the US for a few years.

The essential thing to know about nonimmigrant visas is that they are reserved specifically for those who don’t intend to try to immigrate or remain in the US. Most of these visas require applicants to prove that they will stay in the country only temporarily— for example, by maintaining a permanent residence in their home country.
Visa types that fall into the nonimmigrant visa category include the B-i visa for individuals wanting to temporarily enter the US for business purposes, the B-2 visa for those wishing to come to the US for tourism, pleasure or medical treatment, the M and F isas for students wishing to study at a US academic institution and the J visa for those wishing to do an educational exchange in the US.

Immigrant Visas.
 Immigrant visas are for those wiio wish to legally immigrate to the United States, meaning they want to live and work in the country permanently. The requirements for immigrant visas are generally the most stringent— and will require the greatest amount of time and paperwork.

There are various routes to permanent residency (a green card) in the US. These visas most often require sponsorship, either by an immediate family member (like a spouse or fiance(e), parent, brother or sister) or by an employer.
An exception to the sponsorship requirement is offered by the Diversity Immigrant Visa Program, which provides visas to residents of countries with low rates of immigration to the US without requiring a sponsor. Special immigrant visas are also available for certain religious workers and adopted children, among others.

Dual-Intent Visas.
 Dual-intent visas are interesting because though they are technically not an immigrant visa, they waive the major requirement of nonimmigrant isas: proving you do not plan to remain in the US. Dual intent basically means that the visa holder does intend to immigrate at some point in the future, although he or she currently wishes to maintain nonimmigrant status in the US.
Visa types that fall into the dual-intent visa category include the H-iB visa for specially* occupations, such as academics or physicians, and the L-i visa, which is designated for intra-company transfers. Note that the L-i visa is specifically designated for employees who are in an executive, managerial or othenvise specialized role in the company. Dual intent also extends to H-4 and L-2 dependents of H-i and L-i visa holders.

WHAT IS A VISA?

Under the U.S. Immigration law, U.S. Visas allow entry into and travel within the country. The two main types of visas issued to individuals seeking to relocate to the United States permanently are:

–   Non-immigrant visas, for visitors traveling to the U.S. for a specific time. If an alien from another country wants to enter the U.S. temporarily, he or she must apply for a non-immigrant visa.

–   Immigrant visas, for those who wish to live permanently in the United States.

 The U.S. Department of State (DOS) manages consulates and embassies around the world, where applicants must start their application process.

More precisely, a U.S. Visa is an official authorization that is attached to the passport, which permits entry into the country and travel within it. Citizens of a foreign country who seek to enter the U.S. for a short period must comply with U.S. visa immigration law and specific procedures to apply for a non-immigrant visa. Usually, the application process has to be done in the country where the applicant resides, at a consulate or embassy.

If the applicant has criminal conviction, he/she may be found inadmissible under criminal and immigration laws.

There are different types of non-immigrant visas, which are classified by the reason the visitor is seeking to enter the U.S. These include:

–        foreign government officials

–        visitors for business and for pleasure

–         aliens in transit through the United States

–        treaty traders and investors

–         students

–         international representatives

–         temporary workers and trainees

–         representatives of foreign information media

–         exchange visitors

–         fiancés of U.S. citizens

–         intracompany transferees

–         NATO officials

–         religious workers, etc.

Most non-immigrants can be accompanied or joined by spouses and unmarried child under 21 years old, or dependent, children. In general, students and business people are among the majority.

Each non-immigrant visa is given an expiration date according to what the law allows.

As for immigrant visas, a person who wishes to immigrate to the United States must have a petition approved by the USCIS before applying for an immigrant visa. The petition is generally filed either by qualified relative or a potential employer at a USCIS office in the United States. Types of immigrant visas are:

–         family-based visas

–         employment-based visa

–         special immigrant visa

–         Diversity visa

WHO CAN BE AN IMMIGRATION SPONSOR?

The individual completing and executing THE AFFIDAVIT OF SUPPORT Form is called a “sponsor.” To qualify as a sponsor the individual must be (i) be age 18 or older, (ii) a U.S. citizen or national, or a lawful permanent resident of the United States, and (iii) live in, hold domicile, in the United States, Washington D.C. , or a U.S. territory or possession.

Additionally, the sponsor must be:
– The individual who executed/filed Form I-130 immigration petition, “Petition for Alien Relative” on behalf of the individual seeking permanent resident status.
– The individual who executed/filed Form I-129F, “Petition for Alien Fiancé(e)” on behalf of the foreign national fiancé(e).
– The petitioner of Form I-140, “Immigrant Petition for Alien Worker”, where the petitioner or petitioning company s owner(s) is a relative of the beneficiary and the relative owns 5% or more of the company.
– The parent(s) adopting an orphan.

An additional person if the original “sponsor” does not meet the financial requirements. Such an individual is called a “joint sponsor.” Where necessary, more than one joint sponsor may be used, however each individual must personally qualify as a “sponsor.” Each joint sponsor is “jointly and severally liable” on the affidavit for any criminal or immigration violation of the immigrant.

What are the Financial Requirements the “Sponsor” Must Meet?

The sponsor must have an income or assets or a combination thereof that meets at least 125% of the stated poverty guidelines. In deference to the sacrifices made by our U.S. armed forces, sponsors on active duty in the U.S. Armed Forces need only meet 100% of the stated poverty guidelines. Moreover, all household members of the sponsor are considered when determining whether the sponsor meets the poverty guidelines. Under this provision, members of the household may even include individuals whom the sponsor does not directly support. The following persons are considered household members of the sponsor:

– Individuals related, by blood, marriage or adoption, to the sponsor, such as a spouse and all children. “Children” are considered as persons under age 21, irrespective of parental custody.
– Parent(s) of the sponsor are also included in this determination if residing with the sponsor.
– Any other person listed as a dependent on the sponsor s IRS income tax return.
–  Any person for whom the sponsor has previously executed an AFFIDAVIT OF SUPPORT.

PROCESS FOR REQUESTING TEMPORARY SPECIALTY WORKER VISA

In order to present your “Application for a temporary Worker Visa” you must be eligible.

You must first have a job offer from an American employer for duties to be performed in the U.S.

imust be offered at least the prevailing wage that is paid in the same city for that type of job or the

-actual wage paid to co-workers by the employer)

You must qualify for the job you have been offered with the correct background.

You must be performing services in a specialty occupation with a college degree or its equivalent in work experience unless you are a known fashion model.

You must not have been convicted of any criminal immigration offense.

You must not be subject to any deportation proceeding.

Considerations: When you qualify for a Temporary Specialty Worker Visa, your spouse and unmarried children under age 21 can obtain visas simply by providing proof of their family relationship to you. Your family members can stay in the U.S. legally.

Family and Employment-Based Preferences

Within each family and employment preference, the INA further allocates the number of LPRs issued visas each year.

The family preferences are based upon the closeness of the family relationship to U.S. citizens and LPRs.

The employment preferences are based upon the professional accomplishments and skills needed by U.S. employers.

As Table 1 summarizes the legal immigration preference system, the complexity of the allocations becomes apparent.

Note that in most instances unused visa numbers are allowed to roll down to the next preference category.

Employment-based visa allocations not used in a given year roll-over to the family preference categories the following year, and vice versa.

Table 1. Legal Immigration Preference System Category Numerical limit Total Family-Sponsored Immigrants Immediate relatives Aliens who are the spouses and unmarried minor children of U.S. citizens and the parents of adult U.S. citizens Family-sponsored Preference Immigrants 1st preference Unmarried sons and daughters of citizens 2nd preference (A) Spouses and minor children of LPRs (B) Unmarried sons and daughters of LPRs 3rd preference Married sons and daughters of citizens 4th preference Siblings of citizens age 21 and over Employment-Based Preference Immigrants.

1st preference
2nd preference 3rd preference— skilled 3rd preference— “other” 4th preference 5th preference
Priority workers: persons of extraordinary ability in the arts, science, education, business, or athletics; outstanding professors and researchers; and certain multi-national executives and managers Members of the professions holding advanced degrees or persons of exceptional abilities in the sciences, art, or business

Skilled shortage workers with at least two years training or experience, professionals with baccalaureate degrees Unskilled shortage workers”Special immigrants,” including ministers of religion, religious workers other than ministers, certain employees of the U.S. government abroad, and others Employment creation investors who invest at least $1 million (amount may vary in rural areas or areas of high unemployment) which will create at least 10 new jobs 480,000 Unlimited

This provision states that the employment 3rd preference “other workers” category is to be reduced by up to 5,000 annually for as long as necessary to offset adjustments under NACARA.

As part of the Immigration Act of 1990, Congress added a fifth preference category for foreign investors to become LPRs. The INA allocates up to10,000 admissions annually and generally requires a minimum $1 million investment and employment of at least 10 U.S. workers.

Less capital is required for aliens who participate in the immigrant investor pilot program, in which they invest in targeted regions and existing enterprises that are financially troubled.16 Employers who seek to hire prospective employment-based immigrants through the second and third preference categories also must petition the U.S.

Department of Labor (DOL) on behalf of the alien.

The prospective immigrant must demonstrate that he or she meets the qualifications for the particular job as well as the preference category. If DOL determines that a labor shortage exists in the occupation for which the petition is filed, labor certification will be issued.

If there is not a labor shortage in the given occupation, the employer must submit evidence of extensive recruitment efforts in order to obtain certification.