About Jessica Suotmaa

Jessica Suotmaa is a Freelance Writer, Legal Assistant, and Paralegal Studies student.

How do you prove good moral character?

By Jessica Suotmaa 2

For the purposes of immigration, the United States Citizenship and Immigration Services (USCIS) defines “good moral character” as “character which measures up to the standards of average citizens of the community in which the applicant resides“.   A closer look at the Immigration and Nationality Act (INA) Section 101(b)(f),  which forms the basis of the policy guidance, tells us everything that is not good moral character.  In other words, USCIS has not clearly defined good moral character.

Whenever policy manuals lack a clear definition, it is up to you to prove you are worthy of discretion.  The person who reviews your case, whether an officer or a judge, can exercise discretion. This means they have the power to decide in favor or against you.  It is then up to you to provide enough evidence to convince them you are deserving of the benefit you desire.

Exceptions exist. For example, if you have been convicted of a crime, if you gamble for a living, if you are a “habitual drunkard”, or had an “extramarital affair which tended to destroy an existing marriage“.

If at this point you’re feeling pretty confident about your chances, note that the absence of something does not automatically mean the presence of something. The burden of proof is still on you.

Who needs to prove “Good Moral Character”?

Usually when we think of “good moral character”, we think of Legal Permanent Residents (green card holders) who want to naturalize and become U.S. citizens.  If this is you, then be prepared to provide five years worth of history.

Other situations in which we’ve had to prove “good moral character” includes removal defense, e.g., if you want to qualify for Cancellation of Removal; extreme and unusual hardship waivers (I-601, I-212), Violence Against Women Act self-petitioners (VAWA, I-360), and any request for discretionary relief.  We have prepared requests for discretionary relief with Requests for Joint Motions, Prosecutorial Discretion (PD), and in Immigration Court when we request the Immigration Judge to exercise PD and adjust our clients status in court.

There are certain instances when submitting evidence of good moral character does not help your case, e.g., late-filed asylum applications. If you’re not sure if you should provide proof of your good moral standing, consult an immigration attorney.

How do I prove I have a clean record?

If you know you have never been arrested or convicted of any crime, including DUIs, gambling mishaps, or domestic violence, then all you have to do is send in proof.  You might think immigration is the government, and the government has all your records, but it doesn’t matter. The law states that you have to submit proof of your eligibility, which USCIS will cross-reference with government records.

To do this, we recommend our clients to obtain the following:

  1. An Federal Bureau of Investigation (FBI) background check;
  2. A clearance letter from every location you have lived in over the past 5 years (minimum).

An FBI background check request for personal use requires a simple form and your fingerprint “card” from a live scan location. If you google a local live scan location nearby and ask for an “FBI” background check, they know what to do.  Some locations will even send the request in for you, but if not, you can fill out the form and mail it out with a money order or check. Keep in mind the FBI background check can take up to 12 weeks to process.

A “clearance letter”, sometimes referred to as a “police clearance letter”, used to be obtained from the local police department, but many departments, such as Los Angeles County, no longer provide them for USCIS purposes. Instead, you can obtain a “criminal clearance letter” certifying you have no criminal record from California Department of Justice (DOJ) by calling (916) 227-3822.

If you were living abroad, or are currently in a foreign country, you would need to obtain a Certificate of Non-criminal Record from your country of residence.  The official Travel.State.Gov website lists the name of the necessary document from each country, and which agency to obtain it from.

How do I show old records?

If you have prior arrests or convictions, you will need to provide certified copies of all related documents. This could include police reports from the local precinct documenting the arrest, certified court records, expulsions, and documents verifying completion of parole or community service.

You must submit certified original copies of all documents.

How do I counter negative counts on my record?

When evaluating for discretion, the government weighs the negative against the positive.  Imagine a scale where your negative history weighs three times more than each positive act.  How can you even the scale?

It’s difficult, but not impossible (depending on your individual situation).  We recommend you seek legal representation in assisting you to determine whether or not you are eligible for the relief you seek.

Without examining the details of your case, we can tell you that you would need to have done more good things, be a valuable member of your community, and provide more evidence than a person who does not have a negative history.  These “good things” can include: formal declarations and witness testimonies from you, your friends/neighbors/clients/employers/colleagues, volunteer records, charitable contributions, community participation, and awards of recognition.

What can I do to prepare for future applications?

Now that you know that proving good moral character is not just about avoiding trouble, but also about proving you’re a good person.  The problem many of our clients face is that it’s easy to get in trouble, and those records are usually readily available to be found, but evidence of good deeds often go unnoticed.  Our clients don’t remember every fundraiser they participated in, are not formally in any organization, and feel embarrassed to ask for declarations from their community.

We know it’s difficult, and if it were our case, we’re not sure we would be able to meet USCIS’ 30 day deadlines either. However, if you know you want to naturalize one day, or you have that mishap that happened a long time ago, then let this be your reminder: start today.  Don’t get your FBI criminal summaries and clearance letters just yet, but start keeping track of your time.  Join organizations, make connections, participate in fundraisers, and volunteer on the holidays.  Each time you volunteer, ask for a letter from the organization or fundraiser. When you leave a job, ask for a recommendation letter. Helped out a friend? Ask for a favor.  Remember, the more diverse your proof, the less room for denial by discretion.

 

Do you still have questions on good moral character? Contact our experienced immigration lawyers today!

5 Scams Every Small Business Owner Should Know

By Jessica Suotmaa 0

At the end of the year, many small businesses take stock and plan how to do better in the next year– much like how individuals check their bank accounts and step on their scales to see how they can improve those numbers come January 2019.  The desire to improve is commendable. Yet, where large companies have skilled experts on their payroll to apply tried-and-true strategies, small businesses don’t.  They rely on external professional opinions. As a result, scammers tend to target solo entrepreneurs and small business owners.

1. The “You don’t know anything about SEO or websites” Scam

Nearly every day, we get an email from someone who claims to be an SEO expert.  Granted, a few of these professionals might actually know a thing or two about SEO, but even they make their services sound too good to be true.  These professionals will inform you that if you knew SEO, or had a better website, you would have more customers.  Your website would rank higher on Google Search Results.  Your business would get more exposure, which then would result in more sales, or clients, or fame.

The truth is that you don’t know if they have SEO skills. You don’t know if their website design is better than your current one, or the one you were thinking about designing.  The SEO scammer knows you lack the internet knowledge to question their scam, and will send you “personalized” reports that they can generate with a click of the mouse.  These reports are copy pasted information that will tell you all the things you need to improve–for a price.  All your problems can be solved by throwing money at them.  Don’t forget to ask them how much.

2. The “You Deserve An Award or Feature” Scam

Back in the day, scammers used to sell “directory listings” as a way for small business owners to gain exposure and new clients.  The SEO scam is a modern version of that scam, but there is another scam that is similar: the “Congratulations! You have been featured” scam.

In this scam, you receive an email or phone call about you, or your company, has personally been selected to be “featured” or awarded something.  The scammer provides a lot of details on the publication, company, or organization that is granting you this great honor, and asks you quite a few questions about when you would like to be “honored”.  At the end of the conversation, they will give you a price.  It’s usually a few hundred dollars for an award and a few thousand dollars for a feature.

Many small business owners will think of it as an “investment”, thinking this cost will be offset by the respect having that plaque or print magazine feature hanging on their wall will buy them. If you feel the same way, that’s fine with us, but we think it’s cheaper to self-publish.

3. The “You Can Be Like Me” Scam

The modern day “You Can Be Like Me” scam is usually done by an “influencer“, someone who is popular, has a wide following, and is able to use his or her influence to sell products and services.  First of all, there are plenty of influencers who are not who they say they are, but there are also influencers who are not as wealthy or successful as they claim to be.  They use their popularity to gain free products and services from businesses in exchange for reviews and exposure.  On an initial level, a small business owner can be scammed by a person who claims to be an influencer, but actually only has fake followers. That’s why there’s no ROI.

On a second level, the influencer will sell coaching programs to teach ordinary people how to become like them.  When they target small business owners, or aspiring entrepreneurs, they will highlight how easy it was to get started and how they earn “passive income” and were finally able to quit their nine to five jobs.

On a final level, there are professional coaches who aspire to be influencers.  They sell coaching programs that promise you great things, but it’s almost impossible to verify their credentials. It is also difficult to glean whether or not a coaching program has worked for you.  Are you lagging in progress because your coach is sub-par, because the content doesn’t speak to you, or because you haven’t been putting in enough effort? If something doesn’t work, the coach will say they have a better idea and this next strategy will definitely work for you.  It’s comparable to the blind following the blind.

4. The “Phishing Scam”

Scammers “fish” for your company information via a “phishing scam” by telephone or email.  If by email, they will impersonate a real company, such as Google or Fedex, and ask that you “login” to their fake website that looks exactly like the real website.  If by phone, they will try to “verify” your information over the phone, and expect you to make purchases or pay bills on the phone with them to gain your credit card information.  Avoid this scam by directly typing the URL of the website your trying to access rather than clicking on email links. If you receive an email that you suspect could be a scam, avoid clicking anything and mark as spam immediately.

5. The “Did You Forget” Scam

Scammers know that small business owners tend to have an external accountant, or someone else in the company acting as bookkeeper.  They also know that small business owners tend to be busy and do not have time to mind every single invoice that enters their inbox.  As such, they will often send random invoices, even past due reminders, to pressure accountants to pay off balances immediately.  We have seen emails for services never rendered, hotel vacations in Ventura, and office supplies we didn’t buy. Be careful of email invoices and ensure that every invoice is matched with an internal request.

 

We hope by writing and talking about the five scams we’ve listed, and more, we can help small business owners avoid being scammed.  Remember, if it sounds like it might be too good to be true, it probably is.  For the official Federal Trade Commission anti-scam guide, click here.

Are you worried you might be a victim of a scam? Give us a call and talk to our attorney today.

 

5 New 2019 California Employment Laws Every Business Owner Should know

By Jessica Suotmaa 0

California will implement many new regulations in the coming year. As a small business owner, it’s important to remain up-to-date with new legislation so that you can ensure your business is in compliance with State regulations. As employment defense attorneys, we encourage businesses to take preventative action before they’re sued by their employees. Here’s five ways you can avoid an employment related lawsuit in 2019:

1. Is he/she an Independent Contractor or an Employee?

The ABC test for determining whether your independent contractor is truly an independent contractor or actually an employee was already implemented in April this year (2018).  The California Supreme Court ruled on the subject in its decision on Dynamex Operations West, Inc. v. Superior Court. Since then, to determine whether your worker is an independent contractor or employee, you should ask yourself the following:

A – Is the worker free from your control and direction?

B – Does the worker’s performance take place outside your company’s usual scope?

C – Does the worker primarily function in an external, independent business or trade?

The answer to all three questions should be “yes”, if not, you cannot issue a 1099 for their work. This means many existing 1099 workers, such as freelancers and contractors, can no longer be considered independent contractors.  Also, if you are self-employed and using a 1099, you may need to administer the ABC test on yourself.

Read more on Forbes’ An End of an Era? How the ABC test could affect your use of independent contractors

2. Do I have to pay the $11 or $12 state Minimum Wage?

In 2016 California passed a legislation raising the state minimum wage to $11 an hour for those working in small businesses with fewer than 25 employees.  For businesses with more than 25 employees, the minimum wage is $12 an hour.

3. What about agricultural workers has changed?

Employers of agricultural workers with more than 26 workers will see changes in overtime policy.  Where the current law requires agricultural workers to be paid time and a half after ten hours of work in a day, or sixty hours in a week, the new law reduces the threshold.  In 2019, an agricultural worker working over 9.5 hours in a day, or 55 hours in a week, will be entitled to time and a half.

But what if you don’t have 25-26 agricultural employees? What if you have 10? The law does not go into effect for you until 2022.

4. Do I have to accommodate breastfeeding mothers?

Yes, yes you do.  Federal law requires employers to accommodate lactating mothers by providing them time and place to expunge breast milk, but it did not specify what type of room. As a result, many mothers were required to pump in a restroom, or even take their infant into a restroom with them.  New law, called lactation accommodation, requires employers to provide nursing mothers with a private room that does not have a toilet stall.

5. What about the #metoo movement and Workplace Sexual Harassment?

Sexual Harassment training used to only be required of companies with over 50 employees, but starting in 2019, even small businesses with as few as five employees will be required to provide sexual harassment education.  The new law mandates that, within two years, supervisory staff should have a minimum of two hours of sexual harassment training while non-supervisory staff should have one hour of sexual harassment training.

 

 

Source: https://www.northbaybusinessjournal.com/northbay/sonomacounty/8947388-181/california-employment-law-2019

What does public charge mean?

By Jessica Suotmaa 0

We have noticed conflicting information regarding the recent proposed changes to the existing public charge inadmissibility grounds. To read the actual notice published on October 10, 2018, the Notice of Proposed Rulemaking, from United States Citizenship & Immigration Services (USCIS), please click here. We hope this article will clarify the key questions our clients ask us regarding the current public charge policy, the proposed public charge rule, and how the changes may affect their applications, requests, and motions for adjustment of status.

What does “Public Charge” mean?

A “public charge” is a person who may become dependent on government handouts based on a number of factors, such as whether the person has already received government assistance.

The government determines whether or not an alien will become a Public Charge by considering the following:

  1. Whether the alien currently receive government cash assistance;
  2. whether the alien have received government cash assistance in the past;
  3. the alien’s age;
  4. the alien’s health;
  5. the alien’s family status;
  6. the alien’s assets;
  7. the alien’s resources;
  8. the alien’s financial status; and
  9. the alien’s education and skills.

When does “public charge” inadmissibility matter?

For immigration purposes, “public charge” applies when USCIS has to determine an alien’s admissibility, which can happen in two situations:

  1. When the alien applies to enter the United States;
  2. When the alien applies to adjust status to permanent residence (green card)

The “public charge” inadmissibility does not apply for naturalization purposes (citizenship applications).

What counts towards making one a “public charge”?

Here are a few key factors that count toward whether an alien is considered a public charge:

  • Government cash assistance for the alien;
  • Government cash assistance for the alien’s family if the alien’s overall household income is below Federal Poverty Guidelines;
  • Supplemental Security Income (SSI), such as:

What government benefits do not count towards “public charge”?

USCIS outlines the following non-cash programs as supplemental to your existing income, and therefore do not count towards making an alien a “public charge”:

Cash benefits that you earned also do not count towards public charge. Examples of earned cash benefits include social security benefits, unemployment benefits, government pensions, and veterans’ benefits.

But I’m a refugee/asylee and have no money–will I be denied for being a “public charge”?

USCIS states that the public charge inadmissibility grounds do not apply to everyone and that certain groups may be allowed to enter or adjust status despite falling under the “public charge” determination. These groups include:

  1. Refugees;
  2. Asylum applicants;
  3. Refugees and asylees applying for green cards;
  4. Amerasian Immigrants;
  5. Anyone with approved relief under CAA, NACARA, HRIFA;
  6. T-visa applicants;
  7. U-visa applicants;
  8. T-visa holders trying to adjust status (green card);
  9. U-visa holders trying to adjust status (green card);
  10. Applicants for Temporary Protected Status;
  11. Certain applicants under LIFE Act Provisions.

What if I am in removal proceedings (immigration court)?

The current regulations for determining whether an alien in removal proceedings is a public charge are more strict.  The Board of Immigration Appeals (BIA) has determined that inadmissibility based on public charge is based on the “totality of the alien’s [financial] circumstances at the time of […] application.”

In addition, aliens in removal proceedings can be ruled as public charges if any of the following circumstances apply:

  • mental disability;
  • physical disability;
  • advanced age; or
  • other fact “reasonably tending to show that the burden of supporting the alien is likely to becase on the public”

What are the proposed changes to the existing public charge grounds?

The impact of the proposed rule is twofold:

  1. It would tighten the way the government determines whether you will ever become a public charge;
  2. It would make it more difficult for certain individuals to obtain visas to enter the United States.

For any non-immigrant alien who is already in the U.S. and who may be considered a “potential public charge”, the proposed changes will disallow any extension of stay in the same visa category, hinder them from changing to another non-immigrant visa classification, and prevent them from adjusting their status (green cards).

How will the new rule be more strict on government benefits?

The new proposed rule is less relaxed when it comes to the receipt of benefits.

First, it counts “easily monetized” non-cash benefits as cash benefits, which means it will include SNAP/food stamps, rental assistance, and Section 8 vouchers among others.

Second, it limits the total amount of cash benefits a household can receive within 12 consecutive months to 15% of the Federal Poverty Guidelines.  For example, in 2018 15 percent in a household of one is $1,821, so if an alien were to receive more than $1,821 in a year, then that alien would fall under “public charge” and be ineligible for adjustment of status or admission.

Third, regarding non-cash benefits that are not “easily monetized”, such as Medi-cal or Public Housing, the new rule limits the number of months to 12 in a 36 month period (non-cumulative). This means that if an alien has Medi-cal for more than one year within a three year period, they would be considered inadmissible and ineligible on the grounds of public charge.

Fourth, the proposed rule introduces a new standard, which is the combination of benefits. If an alien is likely to receive a cash or “easily monetizable non-cash benefit” in addition to a non-cash benefit for a period of 9 months or longer, then the alien is automatically considered a public charge.

Finally, the new proposed rule will carefully consider the affidavit of support (I-864) when required in an alien’s application.

What does the new proposed rule NOT do?

The proposed rule does not affect the benefits of dependents or other household members. Any cash benefit for the alien’s dependents would not count towards the alien’s household income.

Certain benefits are also not considered, such as Head Start, national school lunch programs, foster care and adoption, emergency medical assistance, and disaster relief.

What other factors will the new rule consider for public charge?

USCIS states that the following “weigh heavily” in finding an alien is likely to become a public charge:

  1. The alien is not a full-time student and work authorization (work permit) but cannot show current employment.
  2. The alien does not have a good work history.
  3. The alien does not have the experience or training necessary to show “reasonable prospect of future employment”.
  4. The alien currently receives, is certified, or has been approved to receive one of the public benefits above the allowed threshold;
  5. The alien has received one or more of the public benefits above threshold within the last 36 months;
  6. The alien has a medical condition that is likely to require extensive medical treatment or institutionalization that will interfere with the alien’s ability to provide for himself;
  7. The alien has a medical condition that requires extensive medical treatment and it seems unlikely he will be able to afford private health insurance;
  8. The alien has previously been found inadmissible or deportable based on a public charge.

What will prevent me from being considered a “public charge”?

To prove that you are not at risk of becoming a public charge, you can prove that you have sufficient financial assets, resources, and support amounting to at least 250% of the Federal Poverty Guidelines for your household size.

Alternatively, you can prove that you are currently working and have an annual income of at least 250% of the Federal Poverty Guidelines for your household size.

For your reference, for a household of two, say husband and wife, the alien would have to earn at least $41,150 (individual, not combined income). For a household of four, say husband and wife with two kids, the alien would have to earn at least $62,750. For a family of six, say husband and wife and one set of grandparents, the alien would have to earn at least $84,350.

When does the new rule go into effect?

The new rule is still “proposed” (and not “final”), and will be published in the federal registry by the end of the year.  After which, it will be open for “comment” for 60 days.  It is possible that adjustments will be made to the rule, or that it will not pass.

Are you prepared for an ICE RAID?

By Jessica Suotmaa 0

Since the beginning of the year, we’ve seen an increase in ICE employment site raids. Many attorneys discuss what to do when ICE knocks on your door–discussing your rights and responsibility of compliance, but here we’ll be advising the employer.  If you’re small business owner, franchisee, or anyone who employs another person, this is for you.

Why does ICE conduct “raids” and “audits”?

ICE stands for Immigration & Customs Enforcement, which means unless you’re in the import/export business, they are knocking on your door to check for undocumented workers.  An ICE audit requires employers to provide copies of all I-9 forms, which verifies an employee’s employment eligibility, on file with HR.

ICE also arrests employers who grossly break employment laws, and issues fines for employees who are not compliant.

Did you know? An error in record keeping can cost you $224-2,236 per form/employee!

What does I-9 compliance mean?

As an employer, you are required to collect United States Citizenship & Immigration Services (USCIS) I-9 forms from every employee working in the U.S.  The most recent I-9 Employment Eligibility form can be viewed here.

Did you know? 76% of I-9 forms have an error that could result in a fine!

Instructions state you must have the employee fill out the I-9 form first, then within three days of hire examine and verify the employee’s documents. The employee should have provided two forms of identification and have valid employment authorization.

Don’t think the three-day deadline is optional. Employers who are caught with employees whose identifications they failed to verify can be charged for willfully employing illegal aliens.

Backdating forms is also not an option–it is illegal. Falsifying documents is one of the worst crimes a small business owner can commit. In 2015, a small California-based manufacturing company was fined $12,000 for two things: 1. Failure to maintain valid I-9 forms for 18 of its employees. 2. Backdating I-9 forms after receiving an audit notice.  Don’t be like Liberty Packaging Inc.

Once you’ve obtained executed I-9 forms and have verified the IDs, then you must keep the forms for three years from the employee’s first day of employment, or one year after the employee’s last day of employment.

I’m just a small business owner–they won’t audit me

Many of us might think only large companies are audited, but this is not the case. In 2014, ICE conducted 1,320 work site audits, of which fifty percent had under 100 employees (“small” businesses).  Your business might not be on the radar, but if even one employee has an outstanding warrant of arrest, then all of your employees will be inspected onsite.

What do I do if ICE is outside?

  • Ask for identification. Get a business card or take a picture of it with your cellphone.
  • Ask if they have a warrant.
  • Check that the warrant is signed by a judge.
  • Make a copy of the warrant.
  • Give them your lawyer’s business card.
  • Be polite and ssk them how you can help them.
  • Do not be defensive or uncooperative.
  • Ask if they will accept copies instead of originals. If they refuse, then ask that you be allowed to make copies before originals are taken offsite.
  • Ask for an inventory of everything they’ve seized, if relevant.
  • Call your attorney.

Know that you only have to let ICE into private premises if they have a signed warrant to inspect premises. Otherwise ICE can only enter places of business.

Regardless of your circumstances, we do not recommend you to hand over any I-9s without consulting an immigration or employment attorney familiar with I-9s and ICE audits.  Contact our office if you need to speak to an attorney now.

What if I receive a notice of an administrative audit?

If ICE has a warrant for your company’s I-9 forms, you have 72 hours to produce the forms.  We do not recommend you to rush to your HR and produce them immediately. Rather, schedule a date and time for the I-9s to be picked up.  Be sure to make a copy of everything you submit to USCIS or ICE and maintain records of all interactions.

If you have several locations, or your HR is not on site, or you just don’t think you can make the 72 hour deadline, then explain your circumstances and ask for an extension. ICE will normally grant you a short extension.

Finally, if ICE determines you have formative errors in your documents, it will give you 10 days to correct them. If ICE determines you have substantive errors in your documents, it will issue you a notice of a fine or otherwise. If you passed your audit, you will receive a clearance notice.

What can I do to prepare for an audit or raid?

If ICE is outside your door, it’s already a little late. It’s also a little late to start panicking when you receive an audit notice in the mail.  The key is to prepare before a potential audit. Here’s what you can do to ensure your business is ready for an I-9 audit or ICE raid:

  • Take out all your existing I-9 forms and keep them in a separate file
  • Ensure all employees have filled out an I-9 form in its entirety
    • If upon review you discover an employee has not filled out the I-9 at all, then have them fill it out immediately and use the current date. Do not back date.
    • Ensure non-citizen employees fill out either their Alien registration number of I-94 number.
  • Ensure you have filled in Part 2 of the I-9 form in its entirety
    • Fill in any blank spaces with a different colored pen and date accordingly.
  • Fix any errors immediately.
    • Correct and notate the correction using a different colored pen and having the person filling it out initial on the side with a current date.
    • If the error cannot be corrected, fill out a new form and attach a memo as to why a new form was necessary.
  • Shred any I-9 forms you no longer need to keep (3 years, 1 year rule)
  • Keep track of any employees who have Employment Authorization Cards (work permits)
  • Ask HR to keep a schedule of EAD expiration dates and promptly remind employees of the deadlines
  • Ensure you are equipped to produce anything ICE may ask you for, including:
    • List of current employees (not independent contractors)
    • List of recently terminated employees
    • Quarterly wage and hour reports
    • Payroll records
    • E-verify confirmations (if relevant)
    • Business information, including business owner’s social security number
  • Designate someone who will be in charge of monitoring the ICE investigation, keeping records, and notifying your attorney.
  • Have employee rights information available and pass out to all employees.

If you have further questions regarding an ICE raid or administrative audit, contact our office and speak with an attorney.

When it's too good to be true

By Jessica Suotmaa 0

Whether the problem you’re trying to solve is immigration, copyright, or business related is irrelevant when it comes to the importance of Too Good to be True.

It can apply to the paralegal who offers simple solutions to your immigration non-status, promising to handle everything from beginning to end–and for an affordable price!

It can apply to the intellectual property processor who guarantees your intellectual property is all safe with just a single filing–saving you thousands in filing fees!

It can apply to that business opportunity where a small investment on your part guarantees a monetary investment from them–and business! You’ll receive thousands of leads and buy-ins and will earn a fortune in just a few months–no weeks!

If it sounds too good to be true, then it probably is exactly that.

Our law group is one of the few long-lasting law offices in San Gabriel Valley, and a good percentage of our clients have fallen into the trap of “if it sounds good, I’ll take it!” and failed to heed the good ol’ rule of too good to be true.  As a result, clients are often referred to us after sinking tens of thousands of dollars into a failed project that another attorney guaranteed, an immigration application they thought would result in a green card, or a business they thought would fund their retirement.  Instead, they’ve not only lost their initial investment, but they’ve possibly hurt their chances for obtaining the benefit they originally sought. This is especially true for immigration.

As such, we urge you to not believe everything everything they’re selling you and listen to that gut feeling that tells you, this must be too good to be true!

 

How to Handle an Immigration Employer Site Visit

By Jessica Suotmaa 0

If you’re an employer with employment-based petition(s), such as the Form 129 Petition, for your employees, you might find yourself face-to-face with audit officers from the Fraud Detection and National Security (FDNS) department.  FDNS, or a third-party inspector, conducts site visits on behalf of United States Citizenship & Immigration Services (USCIS) to combat L-1 and H1-B fraud, among others.

Often, the visit begins with a phone call to verify the company’s information.  If you have suspicions regarding an upcoming visit, or you receive advanced notification (rare), do contact your legal counsel immediately.

An Inspector Calls

When an inspector shows up and states they’re visiting regarding an employment-based application, always ask for identification. Note the inspector/officer’s name or ask them for a business card. If you have legal counsel, call them and inform them of the situation. Any interview or discussion with the inspector can take place with your counsel present, or present on the line (conference call/speaker phone).

The site visits can take place at any time of day, during business hours. Typically, the visit will last from 15 minutes to 1 hour. The best way you can be prepared for a site visit is to ensure your front desk personnel are aware of the possibility of an immigration inspection.  Your front desk staff should be well-trained and know how to answer the phone, who works in which department, what each person’s title is, and who to contact if an immigration inspector calls.

Inspecting the Business

During a site inspection, you may be asked the following:

  • to procure documents for review
  • to speak with the inspector
  • to speak with whomever signed the petition (if not you)
  • to allow your employee (beneficiary) be interviewed
  • to give a tour of the office
  • to show the inspector the beneficiary’s workstation/office

New office L-1 petitions should be especially careful as to whether they’re current office, employee, or job requirements meet the hopeful specifications in their initial applications.  FDNS often inspects L-1 petitioners with new offices due to their lacking business plans, confusing organizational structures, or managers who wear too many hats (in other words, beware startups!) Inspectors will pay close attention to whether your employee is performing the work described in your petition, possibly asking multiple people to describe their job title and responsibilities for possible discrepancies.

Inspecting the Employee

The beneficiary of the employment-petition (your employee) should be able to answer all questions relating to his or her application truthfully. In other words, he or she should know what was inputted, and be able to repeat the facts correctly. The inspector will ask for a description of the employee’s…

  • day-to-day job duties
  • academic and employment qualifications
  • terms of employment
  • working hours and total work week
  • compensation and pay dates
  • manager’s information
  • the names and titles of people with whom the employee collaborates
  • the details of recent work appraisals.

In addition, the employee should have on hand the following:

  • valid identification documents
  • business card for your company
  • recent pay stubs
  • copy of LCA
  • latest Form W-2

If for some reason you do not have adequate information on hand, you can request an extension, or a second meeting with the inspector.  This would be appropriate if a certain staff member handling the affairs is not present, such as your immigration person, the HR manager, or in-house counsel.  If you do not have the requested documents and need more time to produce them, you can ask for an extension, a follow-up visit, or for USCIS to issue a Request for Evidence (RFE).

The Inspector’s Verdict

While you may try reading the inspector’s expression as they exit the door, keep in mind it’s not a guarantee of the result. The inspector will not tell you onsite whether you have “passed” the inspection. The only way you’ll find out if the inspector found your credible, and your petition valid, is via the mail you receive from USCIS.

If the site visit was to the inspector’s satisfaction, then the petition will be approved. If the inspection was not satisfactory, USCIS can issue an RFE for additional evidence, deny the petition, or even rescind a prior approval (often in the case of L-1 extensions, especially if the initial L-1 was a blanket approval).

 

If you’re expecting a site visit, interested in extending an existing L-1 visa, or petitioning for a new one, please contact one of our experienced attorneys for a qualified answer.

How to ace your L-1 visa interview

By Jessica Suotmaa 0

If your employer has successfully applied for your L-1 employer visa, you may be scheduled for an interview at the nearest U.S. embassy/consulate. Whether you have experience interviewing for a US tourist visa and know the drill, or it’s your first time and you’re incredibly nervous, we have tips to help you better prepare for what to expect.

Be Prepared

Nothing builds confidence like good preparation, and knowing what to expect at the interview is key.  If your company hired an external company to prepare your L-1 visa application, be sure to obtain a copy of the full application, any supplemental documents/evidence that was submitted, and any issues that may have arisen in the process.  Review the file thoroughly and know that there may be questions directly relating to your application.

If you don’t know where to start asking questions, be sure you know the organizational structure of your local company, where your local company stands in relation to the larger company, and how the U.S. subsidiary company is structured.  You should be able to comfortably place yourself in the organizational chart and explain all roles both above and below you.

Be Confident

The consulate or embassy can be a stressful place, depending on where you’re located.  Some locations have such high security that you cannot bring anything with you to keep you occupied, or for additional support, and other locations are much more relaxed.  Certain locations may be crowded with long lines and heavy waiting with random people, which can affect your stress levels if you’re not careful.  Be aware of why you’re there, ignore everyone around you, and most importantly, remember that the denied individuals in front of you will not affect your interview.

Be Truthful

While we encourage every applicant to be confident, we don’t encourage our clients to lie.  Be prepared, know your company and your role well, and answer honestly. If you make a mistake, apologize, correct yourself, and continue. Do not over-explain. Always stick to answering the question and follow up when necessary, but do not go on tangents providing unnecessary information.

Tip: If a question has multiple questions in one, think of them as A), B), and C) stems. Make a mental note, repeat the mental note to the interviewer, and then answer the questions in the order they were asked.

Example:

What is the process in your company to hire and fire an employee and have you had the opportunity to hire or fire anyone before? If so, when did you last fire someone?

A) Company’s process of hiring and firing employees

B) Have I hired/fired anyone?

C) When did I last fire someone?

Then you’d answer: “So you’re asking me for the (A) company’s process for hiring/firing employees, (B) whether I have hired/fired anyone in my present role, and if so, (C) when I last fired someone?” And then proceed to answer with details that directly address the questions.

If you can, we recommend preparing yourself well by playing out the interview at home via role play, or participating in a mock interview with your HR person. If you work for a large organizations with interview preparation sessions, role play sessions, or information sessions–do participate in them. If not, try asking HR if they can prepare you, about previous L-1 candidates, and what HR can provide you to study in preparation for the interview.

 

If you have additional questions about interviewing for an employment-based visa interview at the consulate or embassy, or immigration questions in general, please contact our office and we would be happy to help you.

What is form 220b, Order of Supervision?

By Jessica Suotmaa 2

The form 220b is an “Order of Supervision” is a detailed form with instructions on when, how, and how often you have to check in with Immigration and Customs Enforcement (ICE).  The Order of Supervision is handed out to aliens who are released from detention, released from custody, or who are low-risk and therefore not taken into custody as part of the Intensive Supervision Appearance Program (ISAP).

To be “under an order of supervision” is similar to being “on parole” in that the alien who receives it is “charged” with something (usually a crime, such as “unlawful presence”) and “ordered” to obey certain orders.

The Form 220b is for aliens who are in custody or have been ordered removed by an immigration judge during their removal proceedings.

The Order of Supervision is a privilege, or “conditional release”, offered by the government due to their own inability to deport, remove, or detain the alien, thus allowing the alien “to be at large”.

The first page shows how certain conditions apply, such as:

  • To appear when requested at a time and place specified
  • To appear for medical or psychiatric examination if requested
  • To provide information under oath re: nationality, circumstances, habits, associations, and activities deemed appropriate
  • To not travel outside a specific geographic area for more than 48 hours without first having notified ICE with a list of dates and places for “proposed travel”
  • To notify ICE of any changes in employment or residence within 48 hours
  • To report to ICE in person at the designated office
  • To assist USCIS with obtaining any necessary travel documents
  • …and anything else that may apply in your case

The second page has the following:

  • a photo of the alien
  • the alien’s finger print, and
  • a record of each “report” to ICE (date, time, location, officer)

This page must be brought to each visit. Do not lost it.

On the third page, there is a list of additional conditions that may apply in your case, such as:

  • no association with criminals or gang members
  • registration with a substance abuse program and provide ICE with proof
  • registration in a sexual deviancy counseling program and provide ICE with proof
  • registration as a sex offender with the appropriate agency
  • no criminal activity
  • report to parole or probation officer as required within 5 business days
  • follow all mandated reporting and supervision requirements as outlined by the parole or probation officer
  • follow any prescribed doctor’s orders, whether medical or psychological, including taking prescribed medications
  • make good faith and timely efforts to obtain a travel document and assist ICE in obtaining a travel document
  • submit travel document application to all appropriate embassies and consulates and provide ICE with proof of receipt
  • provide ICE with copies of any and all correspondence related to travel document applications from the embassy or consulate
  • contact the embassy or consulate within 21 calendar days to follow up on application
  • comply with any request from embassy or consulate for an interview and make good faith efforts to obtain travel document
  • participate in a supervised release program

It’s important to note that any violations to the terms checked in the Order of Supervision will transfer your case from the “alien monitoring program” to the Detention and Removal Operations (DRO) program.

Once in the DRO program, ICE will notify the alien re: violation and request an appearance.  If the alien does not check in, then “the case will be referred to the local and fugitive unit for immediate action” where the fugitive unit will “locate and apprehend the subject”.  Meaning an “unlawful alien” or illegal immigrant is upgraded to a “fugitive” status where “fugitive operations” can commence.

Contact Lum Law Group with any questions you may still have on the form 220b, Order of Supervision.

References:

ICE Policy Memo: Eligibility Criteria for Enrollment into the ISAP and EMD Programs

http://www.ice.gov/doclib/foia/dro_policy_memos/dropolicymemoeligibilityfordroisapandemdprograms.pdf

Did your NOTICE TO APPEAR have a date time and place?

By Jessica Suotmaa 2

Since the Pereira v. Sessions decision in June 2018, immigration attorneys have been flooding the courts with variations of motions to reopen and terminate, with the most important being the Cancellation of Removal.  In this post, we’ll review the importance of this decision and how it may affect you.

What is a “Notice to Appear” (NTA)?

A notice of appear is a charging document the government sends or hands to you to inform you that you have been determined “removable” (a.k.a “deportable”).  An NTA will include the following:

  • biographical information
  • nature of proceedings
  • factual allegations
  • charge(s) of removability
  • date and place of proceedings (immigration court hearing)

Why is the Pereira v. Sessions decision significant?

The most significant takeaway from the Pereira v. Sessions decision is the Supreme Court’s decision that the NTA for Pereira was invalid because it failed to include an exact time and place for proceedings.

In the past, many NTAs were issued by other agencies (not the Department of Justice) so they would put “To be decided”, “TBD”, “To be set”, etc. on the NTA and let the immigration court send out a followup “Notice of Hearing” with an exact date, time, and location.  The Supreme Court ruled that a literal interpretation of the law means an NTA without a date, time, and location for proceedings is  invalid. An invalid NTA means that the immigration court has no jurisdiction, or power, over the alien.

In Pereira’s case, the decision means that his NTA was invalid so the immigration court did not have jurisdiction over his case. Since the department of justice (DOJ) did not have jurisdiction over Pereira, he was not technically in removal proceedings. Or at the very least, he should not have been in removal proceedings.

Pereira had been in the US approximately six years before receiving his NTA, which put a stop to his “time in the US” as time in removal proceedings does not count.  After his NTA was ruled invalid, Pereira had accrued enough time (ten years) to qualify for Cancellation of Removal.

What if my NTA didn’t have a time and place but I haven’t been here long enough?

It’s important for anyone with a similar NTA to be aware of the possible consequences. Just because the government served you an invalid NTA at some point, doesn’t mean you will suddenly be able to “get your papers” or live under the radar.  In fact, most likely they will serve you a new NTA with the date, time and location of your next hearing. If that happens, you will still be in removal proceedings.

As we discussed above, in Pereira’s case, he had prepared to ask for relief in the form of Cancellation of Removal.  If you are married to a U.S. citizen, or have a qualifying US citizen family member to petition for you, then you may be able to request relief in the form of allowing you to adjust your status.

A qualified immigration lawyer could analyze your situation and give you a clear idea of what your options may be.  Contact one of the qualified immigration attorneys at Lum Law Group today for a free phone consultation!

 

Does presentation matter with USCIS?

By Jessica Suotmaa 1

Any time we’re filing documents on behalf of clients with the court system, there are court rules on how documents must be presented and filed. Other government agencies, such as the United States Citizenship and Immigration Services (USCIS), do not have set rules on presentation and organization because they allow applicants to apply without a lawyer.  Unfortunately for us, the lack of regulations doesn’t mean we can file a client’s handwritten form with our own handwritten letter, but it does beg the question: does presentation matter?

The official answer is that as long as your writing is legible, you use the right colored paper for the right documents, and your paperwork is not dirty, damaged, or too dark/light to read, it should be fine.

To get to the unofficial answer, we try to put ourselves in the immigration officer’s shoes.

Imagine you’re a government employee in a factory-style assembly line where you only have one very specific duty.

Maybe you’re the person who opens the mail and divides the paperwork and bags the attachments and staples them together.

Maybe you’re the person who goes through the document pile with a checklist to ensure all necessary documents have been submitted.

Or maybe you’re the lucky person who gets to make decisions on the 20-100 cases that land on your desk each day (we’re not sure what their daily quotas are).

Now we don’t know what you think of when you imagine yourself as an immigration officer at USCIS, but here’s what we think:

We think about the number of files coming in, the boring and repetitive tasks associated with each file, and the size of the files our office tends to send out and we feel like giving the officers a hand.

We want to make their jobs just a little easier by organizing the files the best we can according to their requirements.

Here’s how we do it:

  • We carefully review your individual situation and thoughtfully present your case in the most clear and concise way possible.
  • We review the application/petition requirements, list them, and detail all the ways our client meets each requirement along with supporting evidence.
  • We write personalized cover letters with narrative summaries of each of our client’s unique situations.
  • We type up all forms and form attachments to ensure legibility.
  • We include separate document indexes when we have too many exhibits.
  • We divide our file package with colored paper so that each section is clearly separated, or so that each exhibit can be easily found.
  • We label everything, include exhibit tabs, and we staple any odd-sized attachments, such as photos, medical reports, or CD-Roms to the package so as to prevent them from falling out of files.

We hope our clients can appreciate the time we spend organizing and presenting their cases to immigration as it really is not as simple as just printing out forms, making copies, and dropping them off at the post office.  Preparing your case involves so much more attention and effort that we only do because we care enough to do it.

Lum Law Group–we care enough. 

How to prove extreme and unusual hardship for immigration hardship waivers

By Jessica Suotmaa 0

Many of our clients are aware that they need, or will need, a I-601 or I-601A waiver in order to re-enter or apply for a green card in the U.S. Most hardship waivers and relief require proof of “extreme and unusual hardship” to qualify.  Many of our clients feel that they meet the requirements. So the question is, how do we prove to Immigration, United States Citizenship and Immigration Services (USCIS), that our clients have extreme and unusual hardship?

What is “Extreme and Unusual Hardship” anyway?

USCIS has released a list of common factors for extreme hardship.

  • Health 
    • e.g., ongoing special treatment for physical or mental condition, chronic vs. acute or long- vs. short-term care
  • Financial considerations
    • e.g., sale of home/business, cost of care for elderly and sick parents, special education needs of children
  • Education
    • e.g., disruption of current education program,
  • Personal considerations
    • e.g., family connection, length of community/social ties
  • Special factors
    • e.g., fear of persecution, social ostracism or stigma
  • Significant factors
    • e.g. asylum, refugee, or other temporary protection status

This is in no way a complete list. You may have a situation that is not listed but would qualify for extreme and unusual hardship. If you have questions, feel free to ask a lawyer.

Who qualifies for “extreme and unusual hardship”?

USCIS only considers hardship on a “qualifying relative”, not the applicant. Only the applicant’s U.S. citizen parents or spouse qualify for hardship.  The entire application is based on the hardship the applicant’s qualifying relative will suffer if the applicant is deported or not allowed to re-enter the country.

This is not to say you cannot submit items related to, for example, your U.S. citizen children. It just means that any hardship from your children must be presented in relation to how it will pose as hardship to your spouse/parent.

How can I prove “extreme and unusual hardship”?

The specific evidence needed to prove extreme and unusual hardship depends on your individual situation, the factors you qualify for, and the strength of those factors. Having said that, it’s important to know that any statement or explanation should be backed up by evidence. The burden of proving extreme and unusual hardship is on the applicant.

For example, if you claim hardship based on medical or health concerns, you need to submit medical reports and/or a healthcare professional’s statement.  If for some reason you cannot get a copy or a new statement about your condition, you need to explain why.

Here are some examples USCIS has listed in their policy manual:

  • Payroll and tax statements to show employment and business ties
  • Evidence of monthly spending, such as mortgage statements, rental agreements, bills and invoices
  • Medical documentation for any health concerns
  • Expert opinions
  • Records of members in community organizations, volunteer confirmation and evidence of cultural affiliations
  • Birth/marriage/adoption certificates proving family ties
  • Country condition reports
  • Affidavits by qualifying relative declaring personal knowledge of claimed hardships

In addition, our office usually provides a budget template to see if our clients qualify for financial hardship. We research the city, county, and country you’d be living in, and we help you look for jobs, schools, or even medical facilities.

What does it mean to prove “extreme hardship under two scenarios”?

USCIS requires that extreme hardship be proven under two scenarios: 1. where the applicant is deported or not allowed to re-enter, and 2. where the applicant leaves/does not re-enter but the qualifying relative(s) lives with them outside the U.S.

Many of our clients who are “qualifying relatives” will often exclaim that they do not want to consider “the other scenario” because it is not an option for them.  Keep in mind that these scenarios are hypothetical right now, but could become reality should the waiver or relief not be granted. As such, we need to consider them as we would consider any international move: with detail and seriousness. Every claim made has to be supported by evidence.

What is not considered “extreme and unusual hardship”?

The opposite of “extreme and unusual hardship” is common hardship.  Expected consequences of denial or readmission or deportation include:

  • the heartbreak of family separation
  • less income or financial ruin
  • challenges in adjusting to another country
  • poorer education opportunities abroad
  • poorer medical services abroad
  • poorer employment or career opportunities abroad

The USCIS Policy Manual, Volume 9, Part B, Chapter 5, Extreme Hardship Considerations and Factors goes into detail with examples of what counts as “common hardship” and what counts as “extreme and unusual hardship”.

What Immigration's New Policy regarding RFEs and NOIDs means for you

By Jessica Suotmaa 1

United States Citizenship and Immigration Services (USCIS) recently published a policy update and field guide memo regarding the issuance of Requests for Evidence (RFE) and Notice of Intent to Deny (NOID).  The new policy gives adjudicators (aka immigration officers) more power to make discretionary decisions as to whether an immigration application or petition meets the minimum requirements to warrant an RFE or NOID.  The new policy will go into effect September 11, 2018, at which point USCIS adjudicators will have discretionary power in processing immigration cases and will not be required to request for additional evidence or inform petitioners and applicants of an upcoming denial.

What is a “Request for Evidence” (RFE)?

First, we’ll explain what USCIS means by a “Request for Evidence” (RFE) notice.  Applicants and petitioners will receive RFE notices when their application or petition is missing critical information that the immigration officer needs in order to process and decide on their cases.  Previously, immigration officers (or adjudicators) may issue RFE requests for any deficiency.

For example, a I-130 Petition for Alien Relative petitioner who petitions for his father may have neglected to provide his parent’s marriage certificate, but his application is otherwise fine.  On the other hand, an applicant filing a I-601A Waiver may have provided all basic documents, such as birth certificates, marriage certificates, and evidence of long-term residence, but failed to provide proof of extreme hardship to his or her U.S. citizen spouse/parent.

Once this policy is in effect, we can assume that the the I-130 petitioner would still receive an RFE, but the I-601A applicant would not, but would be denied immediately.

Examples of RFE requests include, but are not limited to, providing documentary evidence, applying for a police clearance, attaining an FBI background check, or writing a declaration. RFE requests usually have a set deadline from the date of the letter.

What is a “Notice of Intent to Deny” (NOID)?

A Notice of Intent to Deny (NOID) is exactly as described; it is a letter detailing why your application or petition will soon be denied.  The letter will quote relevant immigration law and describe and explain existing policies that guide the adjudicator into making the decision to deny.

The difference between the NOID and RFE is that with the NOID, the immigration has already come to a conclusion, and any response to the NOID will need to counter the points for denial, if possible. With the RFE, the immigration officer has yet to make a decision, and cannot make one before relevant evidence has been provided.

The policy does not affect NOIDs which must be issued when information not provided by the applicant or petitioner is used to deny. USCIS often cross-checks with other government departments, checking border control records, FBI records, and so forth.  When it does so and discovers facts that negatively affect one’s petition or application, it will issue an NOID to explain the basis of the denial.

Why are they making this policy change?

In the policy update, USCIS states that the change is not meant to discourage people from applying on their own (rather than with the help of a professional), but is meant to discourage people who are applying with USCIS just to have something pending (“‘placeholder’ filings”).

What does this mean for us?

We have had clients hire us half-way into the process because they tried filing on their own, received an RFE, and came to us for help.  When you hire a lawyer to help with paperwork, it means that we will review them for issues and ask you to get more evidence or explain discrepancies. The clients described above were reluctant to cooperate at first, and as a result our RFE response was insufficient, and they received an NOID.  Once our clients realized that just hiring an attorney is not enough if additional documents, declarations, and overall evidence is not provided, then we were able to overturn the NOID and we eventually received an approval.

The purpose of the above example is to emphasize how important client cooperation is to client success.  We need time to carefully examine what we have on hand, or what was previously submitted, what is being requested, and then, and only then, can we provide advice as to what more is needed.  Once we receive all the evidence, we also need time to review, process, and organize the documents into a clear description that accurately describes our client’s individual situation. This new policy means that we will need to be extra diligent, extra careful, and spend extra time on each and every petition/application.

Our job is not only to review your documents and fill out forms for you. In fact, the most important part of our job is to organize your information and prepare it in such a way that the immigration adjudicator can easily and effortlessly review and understand your individual situation.  The presentation of your situation is important, and we take pride in how we take extra steps to meet the silent requirements.

Do you have questions on this new policy update? Contact us today!

Why is California considered immigrant-friendly? About Sanctuary States.

By Jessica Suotmaa 0

While the passing of new year’s reminds us of resolutions and letting go of the past, for Californian immigrants, 2018 marked a new era.  The Sanctuary State bill passed in October of 2017 came into effect January 1, 2018, making California the first sanctuary state ever.

But hold on, what does it mean for California to be a “sanctuary state”?

 

California Values Act SB54

The senate bill limits local and state law enforcement agencies from sharing information with federal agencies, such as ICE.

Whereas in a non-sanctuary state, law enforcement officers can hold a detainee until ICE picks them up, even if they have not been charged.  In California, law enforcement cannot hold a detainee, but they can transfer the detainee to a detention center if the detainee is convicted of one or more of about 800 crimes or is a registered sex offender.

The list of 800 or so crimes include assault, battery, sexual abuse and exploitation, rape, crimes endangering children, burglary, robbery, theft, fraud, forgery, a crime resulting in death, gang/drug/weapon-related offenses, and even some domestic violence offenses and driving under the influence (DUI) felony convictions.  These provisions are from the TRUST Act), where the conviction requirement only stands if the crime was committed (or charged) within 15 years.

In California, law enforcement (e.g., the police) cannot ask someone about their immigration status.  Immigrants who admit to being illegal can also not be arrested just for their immigration status. It’s important to note that while the police cannot arrest someone for their immigration status, ICE officers can.

However, law enforcement can still respond to ICE requests if the detainee has been convicted or charged with a crime in the list.

In some cases, ICE has access to local prisons and is allowed to interview an inmate already in custody.

ICE can also assist local law enforcement in cases where the primary goal is not immigration enforcement.

Hospitals, schools, and courthouses in California are not required to share information with ICE.

Why does bill SB54 matter?

California has about 2.3 million illegal immigrants.  27% of Californians are foreign-born, and roughly every 5th green card is issued to a California resident.  SB-54 bill states three primary reasons why the bill is important for California:

  1. “Immigrants are an Essential Part of California”
    • One in four Californians are immigrants
    • 50% of Californian children have at least one immigrant parent
    • The cost of mass deportations would be too high for our families and communities.
  2. “Entangling Local Law Enforcement Agencies with Immigration Enforcement is Harmful”
    • Prior to TRUST Act (2013), California spent a lot of local resources assisting ICE in detaining illegals e.g., in 2012 California spent $65 million tax payer money to help ICE detail people.
    • Studies show that when illegals are afraid of local law enforcement, they do not report crimes or assist in providing information or acting as witnesses.
  3. “California’s Resources Cannot be Commandeered to Carry Out Deportations”
    • Federal law states that California cannot be required to use local resources to detain and deport illegal residents.

How does California compare to other states?

The Immigrant Legal Resource Center (ILRC) published a report stating facts on today’s state of immigration policies:

  • Department of Homeland Security (DHS) has a budget of over $18 billion.
  • DHS relies on voluntary help from local governments, especially local law enforcement agencies.
  • Local law enforcement agencies have no legal authority to enforce immigration laws.
  • Local law enforcement agencies do not have to assist DHS with immigration enforcement.
  • However, one in four counties will voluntary detain immigrants at ICE’s request.
  • Compared to one year ago, over 400 counties have stronger limitations on immigration enforcement.
  • Some counties have a signed agreement of cooperation with ICE (287(g)).

ILRC has created a color-coded map of the U.S. showing counties by the level of ICE-cooperation.

Map on how ICE-friendly counties are

The greener the county, the more policies it has in place against helping ICE detain and deport illegal immigrants.  From this map, we can see that California is by far the greenest state, making it th

California and Nevada ICE influence

ILRC reminds readers that just because policies are in place, doesn’t mean cities and local authorities agree on the policies. In Orange County, the city of Los Alamitos approves its precedent-setting anti-sanctuary ordinance, whereby the city voted not to follow California’s sanctuary policies. Another example is how the city of Los Angeles may adhere to sanctuary policies, but the smaller cities in Los Angeles county or other counties may not.

To view the interactive map and find your county, visit the Immigrant Legal Resource Center website.

 

Why do you think California is immigrant friendly? Share your reasons below!

5 Things to Know About Sessions' Recent Asylum Decision re: Domestic and Gang Violence

By Jessica Suotmaa 0

We have been carefully following Attorney General Jeffrey Sessions’ review of the domestic violence asylum case (Matter of A-R-C-G-, 26 I&N Dec. 338 (BIA 2014)), which he overturned on June 11, 2018.  While our previous post on Sessions’ asylum decision was rather detailed, this post will outline the top five things you need to know from his decision.

  1. “Particular Social Group” category definition

Sessions states that persecution is usually government persecution, and while he did not define exactly what the catch-all “particular social group” includes, he does list all the boxes the particular case did not check.

The particular social group must…

  1. …be widely “understood to be a societal faction or a recognized segment of the population” in the applicant’s home country.
  2. …have members who share a “common immutable characteristic”, such as one “that either is beyond the power of an individual to change or is so fundamental to individual identity or conscience that it ought not be required to be changed.”
  3. …not be too wide in definition, such as “married women in Guatemala who are unable to leave their relationship”.
  4. …not be too narrow in definition, such as “El Salvadoran women who are unable to leave their domestic relationships where they have children in common”.
  5. …not be helped by the government (when not directly persecuted by the government).
  6. …must be the primary cause for asylum.

In the case of gang violence, Sessions explains how immigration judges have previously determined that victims of gang violence are not a “particular social group” but come from “all segments of society” and cannot be grouped together. So while it seems that gang members are a social group, victims of gang members are unfortunately not.

  1. Burden of Proof

Sessions highlights that the “burden of proof” lays with the applicant, meaning the applicant must show enough evidence to prove her need for asylum. The evidence must meet all the elements for asylum, which is determined by the asylum officer, immigration judge, or the Board of Immigration Appeals (BIA).

An example of bearing the burden of proof is by proving “group membership”. An applicant is expected to know the origins of the particular social group and be able to describe her membership.

  1. Credibility

Sessions has stated that if an applicant’s asylum claim is “fatally flawed in one respect, [then] immigration officers and judges need not examine the remaining elements of the asylum claim”. This basically means the applicant’s story must add up and be fool proof. If there are any question marks that constitute a “flaw” in reasoning, then the asylum application can be instantly denied without further review.

Applicants may notice the results of this decision at Immigration when observing asylum interviews that last mere minutes.

  1. Government’s Responsibility

To qualify for asylum, the applicant must prove that her government is unable or unwilling to protect her. However, if the government has made efforts but “may have problems effectively policing certain crimes”, then that reason alone is not enough to meet asylum requirements. Similarly, if “certain populations are more likely to be victims of crime”, then it is also not enough to qualify.

In the above case of domestic violence, Sessions states that for the applicant to show that the government doesn’t control private behavior well, e.g., the police don’t respond to 911 calls, is not enough. Rather, the applicant must prove that the government is not only aware of the private behavior, but also allows it to occur. If the case is that the government cannot protect the applicant, then the applicant must show evidence of the government’s inability to protect victims like her.

“The fact that the local police have not acted on a particular report of an individual crime does not necessarily mean that the government is unwilling or unable to control crime, any more than it would in the United States. There may be many reasons why a particular crime is not successfully investigated and prosecuted. Applicants must show not just that the crime has gone unpunished, but that the government is unwilling or unable to prevent it.”

  1. Scope

Finally, Sessions reminds that applicants not only have to prove all of the above and any other requirements, but also has to provide evidence as to why escape to the United States is their only option.

“When the applicant has suffered personal harm at the hands of only a few specific individuals, internal relocation would seem more reasonable than if the applicant were persecuted, broadly, by her country’s government.”

 

If you have any questions about how Sessions’ decision reversal may affect your application for asylum or immigration hearing, contact us today to talk to an experienced immigration attorney!

Should I file my USCIS immigration application online?

By Jessica Suotmaa 0

The United States Citizenship and Immigration Services (USCIS) online form processing system is designed for existing lawful permanent residents for quick and easy processing, such as renewing or replacing their green cards, applying for a travel document, or naturalization.  As USCIS has begun modernizing their website and systems, even releasing a mobile application, we wondered why we should prefer one form of application over another. Is there a difference?

To test out the system, we recently filed an I-90, Application to Replace LPR card. In this article, we will share our opinion of the online system.

What are the benefits of filing online?

No paperwork

We opt to go paperless whenever possible, which can be challenging in a law office, but shouldn’t be in our private lives. As such, we truly felt that the process of filling out a form on our cellphones was much easier than filling out an Adobe PDF on the computer, printing it out, signing the form, scanning/copying the signed form, and then buying stamps or delivering the form to the post office.

Pay online

Up till now, we have been able to pay for USCIS filing fees using either a check or money order (cashier’s checks might be an option as well).  Money orders cost money and require upfront payment, while personal checks often give clients stress because they have to maintain a certain balance on their accounts for weeks, if not months on end, while waiting for USCIS to process their check.  If at the time of processing the account does not have enough to cover the filing fees, USCIS rejects the applications and mails the entire package back to us.

Paying for your USCIS filing fees online is like online shopping: you insert your card number and it’s done. Instant, simple, and most importantly: stress-free.

Secure updates

Have you ever filed something and then waited for the results in the mail? Snail-mail can seemingly take forever, especially when coupled with USCIS processing times, and the postal service is not always reliable. Did you move? Was there a typo with your address? Did you forget an apartment number? Whatever the cause, the damage is done. You’ve sent it out and sure, you can make inquiries and address changes, but meanwhile you may not be able to check the online status of your case because you don’t have the receipt with the receipt number (a must!)

USCIS online account creation

In order to file an application online, you first have to create an online account with USCIS. Once submitted, you’ll receive all receipts, updates, and notifications to your account instantaneously.  The system will send you an email notification informing you that you have received an update or notice and you can download the PDF copy of the notice.  A paper copy is also mailed to you.  The online notifications are great for when you’re mobile, when you don’t check your P.O. box every day, or when mail gets lost in the process.  You’ll know instantly if you have a finger print appointment, an interview, or a request for further evidence (RFE).

Updates on my cellphone

Finally, we felt the online application process saved us a lot of headaches as everything was mobile accessible.  If you want to be updated on your USCIS case file with a mobile app, download the iOS version here and the Google Play version here  (note: not an official USCIS application). Would you like to see a review of these apps? Let us know!

How to Check your USCIS case Processing Times Online

By Jessica Suotmaa 0

One of the most common questions we receive in the office is “when will my form be processed?” Or when can I expect to be approved? When will I receive ________? While we can give you an estimate based on United States Citizenship and Immigration Services (USCIS) processing times and our experience with other clients, the best way to check processing times is to view the official website.

Before, checking the processing time “table” on the USCIS website was a long and arduous process. Today, USCIS has changed the format of checking processing times, making it easier for the layman to navigate.

Here’s how to check the processing time of a family-based I-130 Petition for Alien Relative:

  1. Go to USCIS: Check Processing Times website:

      2. Select the form you filed. For our example, we’re selecting I-130.

      3. Select the Processing Center. For our example, we’re selecting California Processing Center.

      4. Find the type of form that’s applicable to you.

Select the “Form Type” that applies to you. For our example, we might look at U.S. citizen filing for unmarried son or daughter over 21, and see that the estimated processing time is 23.5 to 30.5 months, so about 2-2.5 years.  If we filed our I-130 petition in January 2010, we can see from the “Case Inquiry Date” that USCIS is currently processing September 10, 2009, which means that we still need to wait before they will process January 2010.

 

We hope this guide has helped you how to check processing times online. If you have any further questions regarding case processing, feel free to contact our office for more assistance.

Are Administratively Closed Immigration Court Cases still SAFE?

By Jessica Suotmaa 0

On May 17, 2018, Attorney General Jeff Sessions overruled a Immigration Judge’s decision in Matter of CASTRO-TUM, 27 I&N Dec. 187, clarifying that immigration judges and the Board of Immigration Appeals (BIA) does not have the authority to administratively close cases indefinitely. 

What does this mean?

In short, you can no longer request prosecutorial discretion (PD) for immigration court cases to be administratively closed.

If your case was administratively closed, commonly referred to as “having PD”, your case could be reopened by the court or BIA.

What does “Administratively Closed” mean?

“Administrative Closure” means the immigration judge has ordered the case off calendar for the time being.  Usually cases are administratively closed to allow the respondent to receive a decision from United States Citizenship and Immigration Services (USCIS),  e.g. an I-130 petition that would grant them the ability to adjust status in the U.S.

Sometimes, immigration judges have administratively closed cases because respondents did not show up to any of their hearings, and the immigration judge felt that the court did not have the correct address or means to contact the respondent.

For an individual respondent, administrative closure means their case is in limbo: they have no closure.  Respondents with administratively closed cases are not ordered removed, but their Notice to Appear (NTA) remains on file.  They (usually) do not qualify for work permits and cannot adjust for status through their original application (if applicable).  Not every respondent appreciates having their case administratively closed, as was the case in Matter of W-Y-U-, 27 I&N Dec. 17 (BIA 2017) where a Chinese national appealed his administrative closure because he wanted a decision on his asylum case.

Why do Judges “Administratively Close” cases?

The immigration courts have a huge backlog of cases. Transactional Records Clearinghouse identified 658,728 pending immigration court cases as of November 2017.  This total does not include administratively closed cases.  On January 5, 2018, The American Bar Association announced that there were around 350,000 administratively closed cases, making the total “pending” immigration court cases over 1 million. There are not enough judges or courts to handle all of the cases. Administrative closure is a tool for Immigration Judges to manage their case docket.

Why are “Administrative Closures” an issue?

Administrative closures have been argued to be a “cover up” for immigration courts to hide their unmanageable backlog.  The American Immigration Council connects “administrative closure” to “prosecutorial discretion” (PD), which is “the authority of an agency or officer to decide what charges to bring and whether to pursue your case”:

Administrative closure was used extensively as a form of prosecutorial discretion during the later years of the Obama Administration; in particular, the Department of Homeland Security (DHS) often joined in motions to administratively close cases that did not fall within its enforcement priorities.

Out of the 350,000 administratively closed cases (last 22 years), over 200,000 cases were closed during the last four years of the Obama administration. The Immigration Court backlog has also increased exponentially during the Obama years. The BIA has previously held in Matter of Ramirez-Sanchez that PD cannot be given by the Immigration Court or reviewed by the BIA:

The decision to institute deportation proceedings involves the exercise of prosecutorial discretion and is one which neither the immigration judge nor this Board reviews. Once deportation proceedings are commenced, the immigration judge must order deportation if the evidence supports the charge.  

In the more recent case, Matter of WYU-, 27 I&N Dec. 17 (BIA 2017), BIA held that an immigration judge does not have PD:

In considering administrative closure, an Immigration Judge cannot review whether an alien falls within the enforcement priorities of the Department of Homeland Security, which has exclusive jurisdiction over matters of prosecutorial discretion.

This decision prompted Attorney General Jeff Sessions to review old cases, such as the Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012) and the Matter of Reynaldo CASTRO-TUM.

What’s important about Matter of Avetisyan?

In this matter, the respondent had an expired J-1 visa, was out of status, but she told the court that her husband was to be naturalized and could thereby file an I-130 Petition for Alien Relative soon. The Immigration Court gave her five continuances, but the respondent did not have proof of an I-130 approval. Speculating that the immigration court hearings were the reason why USCIS could not process her I-130 (as the physical file has to be sent back and forth between the attorney general’s office and USCIS), the respondent requested administrative closure, which the Immigration Judge granted despite government attorney objections.

Before January 31, 2012, Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012), immigration court cases could only be administratively closed if there was no opposition to the closure. If the individual respondent requested administrative closure, then both the immigration court judge and the government attorney had to approve the decision.  However, Board of Immigration Appeals’ (BIA) decision in Matter of Avetisyan overruled previous guidelines, stating that the immigration court or BIA could decide if a case warranted administrative closure. In doing so, the immigration judge and BIA overruled a previous decision in Matter of Gutierrez.

What’s important about the Matter of Reynaldo CASTRO-TUM?

By overruling the decision in Matter of Reynaldo CASTRO-TUM, Sessions has effectively overruled the decision in Matter of Avetisyan as well. Here’s what the decision basically states:

  • Immigration judges and the BIA do not have authority to “suspend indefinitely immigration proceedings by administrative closure” (overrules Avetisyan and W-Y-U-).
  • The only time immigration judges and the BIA can administratively close a case is “where a previous regulation or a previous judicially approved settlement expressly authorizes such an action”, e.g. when the settlement agreement in American Baptist Churches v. Thornburgh, 760 F. Supp. 796 (N.D. Cal. 1991) required BIA to administratively close all Guatemalan and Salvadorian deportation cases to allow them to apply for asylum under a new class.
  • By law, the Department of Homeland Security (DHS) decides whether to pursue a case and issue an NTA. Immigration judges and the BIA must resolve the case as quickly as possible.
  • If a case needs time, immigration judges are to issue continuances.
  • If a respondent doesn’t show up to their hearing (in absentia), then the immigration judge must order removal in absentia if DHS can prove that they’ve given written notice.
  • Cases that were administratively closed “without requisite authority” will be recalendered on the motion of either party.

In other words, Attorney General Jeff Sessions has decided that while administrative closure is abolished, it is not possible to reopen all the previously administratively closed cases due to the backlog of unresolved immigration court cases. However, any administratively closed case can be reopened by the court or BIA.

 

Feeling confused? Have questions? This blog is not legal advice. Contact our office to speak to an attorney for advice on your case.

 

 

J-, M-, and F-visa holders! Will you be unlawfully present after August 9, 2017?

By Jessica Suotmaa 7

Update:  On August 9, 2018, USCIS updated their previous policy memorandum. 

Under the revised policy memorandum, F- and M- nonimmigrant visa holders who “fall out of status” while their applications are pending but timely applied for reinstatement of status will have their “accrual of unlawful presence suspended while their application is pending.”

On May 11, 2018 United States Citizenship and Immigration Services (USCIS) released a policy memorandum on “…Accrued Unlawful Presence by Non-immigrant Students and Exchange visitors”, which will specifically apply to current F-, M-, and J-visa holders (and their dependents).  The policy is important to existing visa holders who may have violated their visa status or who do not plan ahead to renew their visas to avoid a “gap”.  The policy will come into effect on August 9, 2018.

What does “unlawful presence” mean and what is its significance?

USCIS defines “unlawful presence” as presence in the United States without being admitted or paroled, e.g. crossing the border illegally or as any time after the expiration of lawful presence as authorized by the Department of Homeland Security (DHS).

So what is wrong with unlawful presence? Besides the fact that anyone who accrues “unlawful presence” is breaking the law, if a person accrues enough unlawful presence, they become inadmissible according to Section 212(a)(9)(B) and 212(a)(9)(C)(i) of the Act.  Depending on how long one was illegally present in the U.S., one could be barred from reentering the U.S. for 3 years or 10 years after departure.

In practice, this means a student who studies in the U.S. could overstay his visa, forget to renew in time, or be delayed by his school, and begin accruing unlawful presence.  If enough is accrued, then the student will not be able to renew his F-1 visa and continue his studies, or if he is finished with his studies, will not be able to obtain a non-immigrant visa to return to the U.S. for a visit. Casual tourism aside, said student might need to make a business trip in his future job position, but be banned from obtaining it, which may then affect his career.

When do I begin to accrue “unlawful presence”?

If you failed to maintain your non-immigrant status before August 9, 2018, then you will begin accruing unlawful presence on August 9, 2018 or on one of the following dates, whichever is earlier:
  • The day after your DHS denial for immigration benefit if DHS found you in violation of your non-immigrant status;
  • The day after your I-94 expired;
  • The day after the decision for removal or deportation by an Immigration Judge or the Board of Immigration Appeals (BIA).
After August 9, 2018, you could begin accruing “unlawful presence” on the following:
  • The day after you stop your studies/work/exchange program or the day after you begin engaging in an “unauthorized activity”;
  • The day after you complete your studies or exchange program, including any practical training or grace period, or the day after you begin engaging in an “unauthorized activity”;
  • The day after your I-94 expires;
  • The day after the decision for removal or deportation by an Immigration Judge or the Board of Immigration Appeals (BIA).
If you were wondering, “unauthorized activity” usually refers to working without a work permit.

What if I leave after accruing “some” unlawful presence?

The policy status that you would still accrue unlawful presence, and if you return to the U.S., violate your non-immigrant visa again, the unlawful presence will be consolidated from your previous stay.  In addition, if you re-enter illegally, without being admitted or paroled, the unlawful presence will also be consolidated with any previous unlawful presence.

What if I am only unlawfully present for a few days?

It is difficult to say what would happen.

The policy states that if you are unlawfully present for 180 days or more, whether consecutively or after multiple re-entries, you could be subjected to a 3- or 10-year ban.

It also reminds that recipients of 10-year-bars tend to not be given any non-immigrant visas, admission, or adjustment of status, even after the ten year period has passed unless they are eligible for a waiver.

How Jeff Sessions' Recent Decision Affects Asylum Seekers

By Jessica Suotmaa 0

You may have heard in the news that the current Attorney General, Jeff Sessions, has been making changes this  year.  As the Attorney General, Sessions has the authority to refer cases to himself for review and to overturn a decision by the Board of Appeals (BIA).  Most recently, he rendered moot the 2014 BIA decision re: The right to a full hearing for all asylum and withholding of removal applicants.  

This BIA decision upheld a 1989 ruling where hearings were described as “an essential aspect of the asylum adjudication process for reasons related to fairness . . . and to the integrity of the asylum process itself.” However, the Honduran asylee later withdrew his application and appeal due to marriage to a U.S. Citizen, so Sessions has declared the decision irrelevant (and thereby inapplicable towards future cases).

Where before the Department of Justice (DOJ), Immigration Courts had to allow every asylee and applicant for withholding of removal to appear in front of a judge with a fair chance to present their case even if the USCIS officer denied them based on their asylum application and interview, now cases viewed as frivolous or fraudulent can be denied without the opportunity for a full hearing.

Immigration Court processing backlog in Los Angeles IC Graph credit: Immigration Backlog Tool

Sessions made this decision based on the overwhelming backlog at the Immigration Courts, where cases may remain pending or continued for years on end.  On average, we estimate that before this year, each asylum applicant from China had about three years to live and work before their asylum interview, decision, or Notice to Appear (NTA). Today, new asylum applicants are scheduled for an interview within one month!

What is a merit-less asylum application?

An application for asylum must meet the following federal requirements in order to be legally viable:

  • a history of persecution, or hostilities, based on your race, religion, nationality, membership in a particular social group, or political opinion
  • a well-founded fear of future persecution or ill-treatment based on your race, religion, nationality, membership in a particular social group, or political opinion
  • come from a country with a government that will not help them
Immigration Court backlog by nationalityGraph credit: Immigration Backlog Tool 

What does this mean in practice?

  • Asylum applicants who file their applications without assistance from qualified legal representation may be at a disadvantage.
  • Asylum applicants should prepare better for their asylum interviews and ensure that they have a qualified translator, if necessary.
  • Immigration Court judges can deny an asylum application or application for withholding of removal without even seeing the applicant if he or she finds the application is without merit.
  • Refugees who illegally cross the U.S. border and apply for asylum are detained as “criminals” (entering illegally is a misdemeanor while reentry is a felony) and may be denied near immediately.

What else might Sessions change?

  • Sessions is also reviewing a case that granted asylum to a woman suffering from domestic abuse.  If the decision is overturned, applicants may not be able to qualify for asylum based on domestic violence (also described as “private violence”).