Almost without exception, removal proceedings are lengthy procedures.  So much so, in fact, that it is not unheard of for these proceedings to last several years.  Given the fact that removal proceedings are involuntary, immigrants are sometimes detained when placed in a removal proceeding.  Fortunately, however, these individuals can most times obtain release through bail, and thereby avert incarceration throughout the proceeding.

As with any other legal proceeding, the Immigration Court wants assurance that the alien will appear at his or her scheduled court dates.  As such, bail is always set high enough to ensure that the individual will have adequate incentive to appear at future proceedings.  Immigrants facing removal that cannot come up with bail have the option of requesting a bond redetermination hearing.  At this hearing, the Immigration Judge will review the case and decide whether to grant the alien’s request to remove or reduce the bail amount.

Family members are generally left with the responsibility of posting bail because the person requiring bail is detained.  Family members may find it useful to recruit a bail bondsman to assist with posting bail.  Most bail bondsmen will post bail if the family can come up with ten percent of the bail amount plus collateral.  Depending on the bail bondsman and the amount of the bail, families may have to offer a lien on their home as collateral.  Families who use a bail bondsman must have confidence that the alien will show up for all proceedings, lest they risk losing their collateral.

Immigrants released on bail generally have a long road ahead.  Removal proceedings can be cumbersome and discouraging.  It is best for aliens facing removal to do so with the guidance of an attorney specializing in immigration law.

Investment in a United States enterprise is one of the many ways for individuals to obtain a green card.  However, not just any investment will do, and investors looking to obtain legal residency must invest wisely.  For those investors and entrepreneurs who do meet the requirements for obtaining residency in this manner, the USCIS has allotted 10,000 green cards per year.

To begin with, there are three fundamental requirements that investors and entrepreneurs must meet to be eligible for legal residency through investment:

• They must have their Immigration Petition (Form I-526) approved.
• They must be otherwise admissible to the United States.
• There must be an immigrant visa that is immediately available.

In addition to satisfying these requirements, the prospective immigrant must invest $1,000,000 of capital into a new commercial enterprise here in the United States.  The Attorney General has discretion to lower this amount to $500,000 if the immigrant invests the capital in a targeted employment area.  Either way, the enterprise must provide employment for no less than ten U.S. workers and generally benefit the U.S. economy.

Obtaining a green card through investment can be fraught with complexity.  Foreign investors and entrepreneurs investing capital in the U.S. economy should see to it that the path is paved for their legal residency.  An immigration attorney can help with this process and see to it that everything is properly in order.

A lawful permanent resident may face removal for a number of reasons.  However, residents who succeed in a cancellation of removal proceeding can have the removal set aside and remain in this country.  If an individual satisfies the following three requirements, the presiding Immigration Judge has discretion to cancel the removal: 

• The immigrant must have been a lawful permanent resident for at least five years.
• The immigrant must have continuously resided in the United States for seven years after being admitted in any status.
• The immigrant cannot have any aggravated felony convictions.

The requirement that a lawful permanent resident has seven years of continuous residence after being admitted in any status sometimes causes confusion.  To clarify, the seven years begins to accrue when an immigrant is admitted for any legal purpose, regardless of whether he or she later falls out of status.  So if an immigrant comes here on a work visa and then remains here illegally after it expires, even the period of illegality accrues towards the seven-year requirement.  The important thing is not the immigrant’s status during the seven years, but that the immigrant was admitted legally and remained in this country for the following seven years.  The requirement that the immigrant had lawful permanent resident status for five years can run concurrently with the seven-year requirement.

Even immigrants that successfully meet these requirements cannot be certain that their cancellation will prevail.  Immigration judges have discretion in cancellation of removal proceedings so the manner in which a case is presented is of paramount importance.  Immigrants facing a removal proceeding should counsel with an immigration attorney about cancellation.  Doing so can greatly improve their chances of remaining in this country.

Illegal aliens, by virtue of their status alone, run a heavy risk of being removed to their country of origin.  Before they can be removed, however, the law requires that they receive due process.  This means that even illegal aliens are entitled to a hearing and a fair removal proceeding.  At the removal proceeding, illegal aliens can apply for cancellation of removal.  Applicants who succeed at cancelling their removal can be elevated to permanent resident status. 

Generally speaking, aliens cannot file for cancellation of removal unless they have lived in this country as a person of good moral character for at least ten consecutive years.  Moreover they cannot have certain criminal convictions, and they must have a U.S. citizen or lawful permanent resident family member who would suffer an extreme hardship if they were removed.  If these conditions are met, the Immigration Judge then has discretion to grant cancellation of removal.

Aliens who meet all of the above requirements, but were abused by a spouse or parent with U.S. citizenship or lawful permanent residency status may be eligible for cancellation of removal after only three years of physical presence in the United States.  The same is true for aliens with a child that was victim to such abuse.  Judges have discretion to grant cancellation of removal to these aliens. 

A lot is on the line for an alien seeking a cancellation of removal.  Satisfying the requirements for cancellation may not be enough, as judges have discretionary power in these matters.  Aliens have much to benefit from seeking the assistance of an Arizona immigration attorney that can help present their case for cancellation of removal.

In criminal cases, nonimmigrant defendants need advice about the potential for deportation.

The United States Supreme Court today held that the risk of deportation is so important that a criminal defense attorney has an obligation to advise noncitizens of the immigration consequences of a conviction.  In Padilla v. Kentucky, the criminal defense attorney did not inform his client, Mr. Padilla, that accepting a plea agreement was likely to result in deportation.  In fact, the lawyer told Mr. Padilla not to worry about deportation since he had been in the country so long.  Because Mr. Padilla received bad advice on the risk of deportation, the court ruled that he can seek to have his plea agreement and conviction set aside.

Grant Walker and Kelly Black of our firm can assist criminal defendants and their counsel in evaluating the immigration consequences of guilty pleas.

Lawful permanent residents who commit a crime while residing in the United States may be subject to removal, or deportation. The immigrant will have to appear at a removal hearing, where an Immigration Judge will decide whether he or she can continue residing in the United States. The judge will make two findings: Whether there is removability, and whether the individual qualifies for relief from removal. The outcome of the hearing determines whether the immigrant can continue residing here in the United States.

Lawful permanent residents can be removed for committing certain crimes. Aggravated felonies and other crimes involving moral turpitude are the most common reasons for removal. However, in some instances, lawful permanent residents can have the removal cancelled. Immigration Judges have discretion to cancel removal requirements for lawful permanent residents if the following requirements are satisfied:

• The immigrant must have had lawful permanent resident status for a minimum of five years.

• The immigrant must have resided in the United States for seven continuous years after being admitted in any status.

• The immigrant cannot have an aggravated felony conviction, as defined by the statues.

Because Immigration Judges have discretion when deciding whether to cancel removal requirements, it is important for immigrants to present their case to the court with care. It is quite important for immigrants facing a removal proceeding to seek legal counsel to help with the matter. The application for cancelation is very long and detailed and the rules are very complicated. An Arizona immigration attorney will be instrumental in helping lawful permanent residents succeed in the cancellation of removal requirements.

For more information on this or to schedule a immigration consultation, contact Grant Walker at (480) 464-1111.

Arizona employers are many times unable to find U.S. workers to fill positions necessary for the growth and development of their business. It is quite possible that foreign workers can help employers fill this void, but employers must take initiative for this to work.

The H-1B Visa Program is designed to bring foreign workers in specialty occupations to the United States for employment. Specialty occupations include professions such as doctors and others that require a minimum of a bachelor’s degree or its equivalent.

U.S. employers play an integral role in bringing these professionals to America. Without an employer sponsor, foreign workers simply cannot obtain an H-1B Visa. It is up to the employer sponsor to file the visa application and provide a fair wage to the foreign worker.

Foreign workers can remain in the United States for a maximum of six years on an H-1B Visa. However, the H-1B Visa is portable, so foreign workers can transfer employment, provided they satisfy all of the requirements to do so, and follow the appropriate guidelines. There is a legal process for changing employment that must be completed with the U.S. Citizenship and Immigration service before the change can be made.

The United States Citizenship and Immigration Service only issues 65,000 H-1B Visas per year. Certain exceptions do apply, however, so that not every foreign worker is subject to this limitation. For instance, foreign workers with a Master’s Degree or higher from an American university are exempt from this cap, and the USCIS allows U.S. employers to hire an additional 20,000 of these immigrants annually. Also, certain foreign workers who come to work for universities or non-profit organizations are exempt from the cap.

Many Arizona employers could benefit from sponsoring foreign workers to help with their business. Finding qualified assistance with a business is not always easy to do, and employers who broaden their pool of prospective employees stand to recruit the most suitable professionals. Immigration attorney, Grant Walker, can help employers utilize the H-1B Visa Program to effectively develop their business. Call (480) 464-1111 to schedule a immigration consultation.

A child born outside of the United States since February 27, 2001 to one or more U.S. citizens, can obtain U.S. citizenship even if he or she regularly resides in a foreign country. The Child Citizen Act of 2000 (Section 322 of the Immigration and Nationality Act) makes this possible. To qualify, the child must meet specific requirements, which are as follows:

• At least one parent must be a United States citizen.

• The U.S. citizen parent must have been physically present in the United States for at least five years, two of which were after turning 14 years of age.

• The child must be under the age of 18.

• If the child resides outside of the United States, the U.S. citizen parent must have legal and physical custody of the child.

• If the child resides inside the United States, he or she must have lawful status.

• The child must be unmarried.

Children do not acquire citizenship under Section 322 automatically. They must apply to the U.S. Citizenship and Immigration Service and go through the naturalization process.

Children born before February 27, 2001, to one or more U.S. citizens can establish citizenship under Section 301 of the Immigration and Nationality Act. The requirements under Section 301 can be less onerous than under Section 322 depending on the circumstances.

Time is often of the essence when seeking citizenship under Section 322. Applications must be filed and approved before the child turns 18. Moreover, the child must take the oath of allegiance before his or her 18th birthday if necessary. An immigration attorney in Arizona can help with the process, and provide applicants with peace of mind that their application is properly in order before submitting it for approval. Contact attorney Grant Walker for a an immigration consultation at (480) 464-1111.

In 1999, Congress passed the Nursing Relief for Disadvantage Areas Act (the “Act”), which created the H1-C Visa for foreign nurses. The Act was passed to help relieve the shortage of qualified nurses in the medical community by providing a way for foreign nurses to immigrate to this country. In 2005, Congress reauthorized the Act for three years, but implemented a sunset date of December 20, 2009.

As of December 21, 2009, the H-1C Visa Program has expired. For nurses already here on a H-1C Visa, this expiration has no effect. They can remain in this country until their Visa expires. Moreover, the United States Citizenship and Immigrations Service can still consider petitions for H-1C Visas that were filed before the expiration date. However, because Congress did not reinstate the program, the window for foreign nurses to obtain this status has closed.

The expiration of this program does not mean that foreign nurses will no longer have an opportunity to immigrate here. Foreign nurses can pursue other avenues, such as the H-1B Visa for specialty occupations, or Permanent Residency. And hospitals that relied on the H-1C program can continue to sponsor immigrants for H-1B Visas to fill their need for nurses. Arizona hospital administrators should seek legal counsel to help fill the void that the expiration of the H-1C Visa may create for them.

If this affects nurses in your businesses or family in Mesa, Arizona or surrounding areas, contact attorney Grant Walker for a an immigration consultation at (480) 464-1111.

The United States grants immigrant visas (green cards) to spouses of its citizens under most circumstances.  Marriage to a citizen, however, does not automatically entitle the non-citizen to residency or citizenship.  Some have entered into sham marriages for the sole purpose of receiving a visa, a practice known as “marriage fraud.”

To prevent marriage fraud, the government requires the non-citizen to prove that the marriage is genuine.  In most cases, residency status is granted only conditionally.  The couple must later apply for permanent status, must file the application within specific time limits, and must submit to interviews by government officials who determine whether the marriage is genuine.

If the spouse or fiancé is currently residing outside of the United States, the citizen spouse or fiancé must file an application and gain approval before the spouse or fiancé enters the United States.  However, if the foreign national spouse or fiancé is already in the United States, if he or she entered legally (even if he or she has overstayed the visa period for years and does not currently have legal status), the citizen spouse or fiancé can apply for residency for him or her and the foreign national can stay in the United States while the application is processed.

If the foreign national spouse or fiancé is in the United States having entered illegally, the citizen spouse can still apply for residency but the foreign national spouse must return to his or her home country and finish the process through a United States Consulate in the home country.  For Mexico the consulate is in Ciudad Juarez.   Because of the illegal entry into the country, the foreign national will be subject to a three year bar of inadmissibility if he or she was in the United States illegally for a period of six months to a year.  If the period of illegal presence in the United States was more than one year, the foreign national will be subject to a bar of inadmissibility for ten years – meaning, do not even apply to enter the United States for 10 years.  The United States will waive the bar of inadmissibility for the foreign national in this situation under some circumstances if the parties can demonstrate that a United States citizen will suffer “extreme hardship” unless the foreign national spouse is admitted to the United States.  “Extreme hardship” means something more than being separated from your spouse.  It requires building a legal case that meets the legal standard.

All of these steps should be taken on time and in the right order, or face potential deportation or inadmissibility.  In some circumstances, it can make sense to request a waiver even if the right steps were not taken.

Click here to read this post in Spanish