LIMITATIONS AND RESTRICTIONS ON TRAVEL ABROAD

For those who have newly received their permanent residency, traveling outside of the U.S. is frequently goal since some have postponed foreign travel for years. While it is possible to travel quite freely using the green card, there are some restrictions. The key issue is that it is necessary to continue to permanently reside in the U.S. Otherwise one may run the risk of no longer being considered a permanent resident. Individuals who travel for extended periods may be regarded as having abandoned their permanent resident status. While the I-551 card or green card is the proper document for reentry after an absence of less than a year, permission to reenter is not guaranteed. The green card is only appropriate for entry if the individual has not abandoned permanent residence. The legal requirement is that the absence must be for less than a year and the person must be returning to an unrelinquished, lawful permanent residence after a temporary absence.

Lawful permanent residents or conditional permanent residents who wish to remain outside the U.S. for more than one year, may apply for a reentry permit. A reentry permit allows a permanent resident of the U.S. to reenter the U.S. after traveling abroad for longer than one year but less than two years. However, merely returning to U. S and simply using a reentry permit has little bearing on the question of whether the lawful permanent resident has maintained the intention to remain a permanent resident of the U.S.. In essence, you will need to prove that you will maintain ties to an unrelinquished lawful permanent residence in the United States. To determine whether the ties exist, USCIS looks at various factors, including: locations of family, property holdings, jobs, intention to return to the United States as a place of employment, business, or as an actual home.



IMMIGRATION CONSEQUENCES OF CERTAIN CRIMINAL INVOLVEMENT

Permanent resident status may also be lost by committing certain crimes. Permanent residents remain subject to removal from the United States. There are a number of possible crime-related grounds for removal. Any permanent resident who is arrested for ANY reason should seek immigration advice from an attorney experienced in this area of the law prior to making decisions on how to proceed with the criminal case.

The safest approach is to simply avoid anything that may be construed as criminal activity. Sometimes one is not in full control of a situation. The most common issues that arise for otherwise law-abiding individuals are drunk driving, assault (domestic or otherwise), and shoplifting. Drunk-driving laws in most parts of the United States are quite strict. The alcohol levels needed for a criminal charge vary from state to state. Even a small amount of alcohol consumption prior to driving can result in a criminal charge in many states.



OBLIGATIONS REGARDING ADDRESS-CHANGE NOTIFICATION AND SELECTIVE SERVICE REGISTRATION

Permanent residents must continue to advise the U.S. Citizenship and Immigration Services (USCIS) of any address change within ten days using Form AR-11. Failure to file the form within ten days of moving is technically a removable offense. Each family member must file his or her own form. We recommend filing by certified or other traceable mail.

Male permanent residents, ages 18 to 25 must register for Selective Service. Intentional failure to comply with this requirement can prevent an individual from becoming a U.S. citizen.



CHANGE OF STATUS FROM B-1/B-2 TO H1B

One of the most frequently asked questions about H-1B (specialty occupation) is whether, when, and how a person on B-1/B-2 (temporary visitor) status may change his status to H-1B nonimmigrant worker. Change of status from B-1/B-2 to H-1B is not prohibited, but a person contemplating to do so must be aware of its ramifications.

Change of status from B-1/B-2 to H-1B presupposes that the person is present in the U.S. on temporary visitor status when the H-1B petition is filed. The H-1B petition would specifically request a change of status from temporary visitor to H-1B nonimmigrant worker. A change of status is employed when the B-1/B-2 visitor opts to stay in the U.S. to wait for the approval of his H-1B petition, with the intent to apply for an H-1B visa in the U.S. so they could commence their employment without having to go back to their home country.

A B-1/B-2 visitor status only provides the alien temporary stay in the U.S. While travelers on visitors visa may be given a maximum of six months stay in the U.S., there are often instances where the immigration officer limits the authorized stay to three months or even less. Given this very short period of authorized stay, a B-1/B-2 visitor should carefully evaluate the factors that could affect his maintenance of status in the U.S.

A temporary visitor must depart the U.S. on or before the last day he is authorized to be in the U.S. Failure to depart renders the person out-of-status and consequently, ineligible for change of status to H-1B. The U.S. Citizenship and Immigration Services (CIS) usually takes around 60 to 90 days to issue decisions on H-1B petitions. Even if the alien is granted six months of stay, they may still need to apply for an extension of stay to maintain valid status in the U.S. However, there is no assurance that the application for extension will be granted. Extensions are given only for valid reasons, and a pending H-1B petition is not among them. In the event that the application for extension is denied before the H-1B petition is approved, the alien would need to go back to their home country before their authorized duration of stay expires.

There are cases where the H-1B petition is approved but the request for change of status is not allowed. This occurs when the CIS is uncertain whether the alien will be in valid status when the H-1B petition is granted. Instead of granting the request for change of status, CIS may direct the alien to apply for an H-1B visa in the U.S. consulate office in their home country. In such cases, the alien has to depart the U.S. and obtain a visa from their home country, even if they have a pending or approved application for extension of stay.

Another important consideration is the so-called "60-day waiting period." As a rule, persons who come to the U.S. as temporary visitors on B-1 (business) or B-2 (pleasure or medical treatment) visa must use their visa for the specific purpose for which it was issued. Once a temporary visitor applies for a change of status to H-1B nonimmigrant worker, an issue arises as to his real intention for coming to the U.S. There is a presumption that the alien has a preconceived intent to look for a job if their application for change of status is made within 60 days from entry, for which reason the application may be denied. To avoid the presumption, the petitioning employer will have to wait for 60 days before filing an H-1B petition for the alien.

This brings us to the issue of visa availability. The alien may face the risk of being capped out due to the 60-day waiting period. There is no guarantee that there would be visa numbers still available by the time the petition is filed. There is an annual quota for H-1B visas of 65,000. A visa number must be available at the time the H-1B petition is adjudicated, otherwise, the petition will be returned. CIS starts accepting petitions for a given fiscal year (beginning October 1 and ending September 30) on April 1 (six months before the start of the fiscal year), and stops accepting after the quota has been filled. Historically, the quota always reaches its cap early. For the present fiscal year, the quota was reached as early as May 26, 2006. For the fiscal year 2006, it was reached on August 10, 2005.

Clearly, change of status from B-1/B-2 to H-1B is complicated and the alien attempting to pursue this approach without proper legal guidance is prone to committing mistakes that could cost him money, time, and lost opportunities. If the alien intends to pursue a work opportunity in the United States that they may have found while as a temporary visitor in this country, sometimes it is more prudent to go back to their home country, have the prospective US employer file an H-1B petition, wait for the approval of the petition, and thereafter apply for a visa in their country. Thus, the petition may be filed as soon as the acceptance of H-1B filings is opened and the person need not worry about the issue of preconceived intent or the requirement of maintaining valid status. However, many aliens are concerned about consular official denials. Balancing these concerns is the essence of the legal advice and choices in this area.



IMMIGRATION THROUGH INVESTMENT

Are you waiting for an immigrant visa in order to file your Adjustment of Status petition or are you hoping your labor certification will be approved so you may become a legal permanent resident (LPR) of the United States? If you are trying to become a LPR through employment-based petitions, we have bad news for you. The State Department released its March Visa Bulletin and for employment-based 3 rd category, the priority date is only August 2002. The 3rd employment-based preference covers aliens with offers of employment in the United States. Most of you probably fall under this category if you are professionals with bachelor’s degrees in your fields; skilled workers who are capable of performing a job requiring at least two years of training or experience; and unskilled workers. This means that even if your labor certification is approved you have to wait for your priority date to be current before you can apply for the Adjustment of Status (I-485) petition.

There are several ways to become a LPR in this country. You can get there by marriage to an U.S. citizen, by employment, as a special immigrant, as a person with extraordinary abilities or advanced degrees, or by investment. Since immigrant visas based on employment have become unavailable indefinitely, we will introduce a series of other avenues for an alien to acquire permanent residency in the U.S.

Are you business savvy? Do you like running your own business and be your own boss? Do you have money to invest? If you answer affirmatively to the above questions, you should consider an alternative that will allow you to become a LPR in the U.S. through investments. Under section 203(b)(5) of the Immigration and Nationality Act, immigrant visas are available to qualified aliens seeking permanent resident status on the basis of their engagement in a new commercial enterprise. LABOR CERTIFICATION/PERM is NOT REQUIRED.

This alternative to become a LPR is available to you and your immediate family members when you have invested, or are actively in the process of investing, the required amount of capital into a new commercial enterprise that they have established. You may be eligible by establishing a new commercial enterprise. A new commercial enterprise includes creating an original business, purchasing an existing business and later restructuring or reorganizing the business such that a new commercial enterprise results, or expanding an existing business. The total amount of investment you need is at least $1,000,000 or $500,000 in a "targeted employment area," which is an area that has experienced unemployment of at least 150% of the national average rate and your new enterprise should create 10 full-time employment for qualified individuals.

If you qualify, you should file with USCIS an Immigrant Petition by Alien Entrepreneur with supporting documentation demonstrating that your investments meet all the requirements. Once the petition is approved, you don’t need to wait for an immigrant visa. You may immediately file for Adjustment of Status to obtain legal status as conditional residents for two years. Before the end of the 2-year conditional status, you may file a petition to remove the conditions and become lawful permanent residents.

With the backlog of immigrant visas, becoming LPR’s through investments is one alternative you should consider now.

BUSH'S COMMITMENT TO IMMIGRATION REFORM, POLITICS, OR POLICY?

President Bush announced an immigration reform plan on January 7, 2004 as his administration attempts to obtain more the Hispanic votes for the November election. If enacted, it is clear the changes would be the broadest made to U.S. immigration laws since 1986. It should be cautioned that this is only a proposal, and that any major immigration changes require the consent of congress. In this election year, with Democrats not wishing for Bush to obtain a victory and about 50-70 hard-core anti-immigrant republican congressmen, passage is at best uncertain.

The plan was an attempt to balance the concerns of politically important Hispanic groups seeking to legalize immigrants' status and major employers who want workers for low-paying jobs.

If passed into law, President Bush's plan would permit undocumented foreign nationals to obtain temporary worker status for three years and be eligible for lawful permanent residency through existing employment-based channels. The three-year status would only be renewable once, for a total of six years of temporary status. Under the plan, a person must be an undocumented foreign national with a job at the time of applying for the visa, or a person abroad with a job offer, in order to obtain the temporary worker status. Undocumented foreign nationals will be required to pay a one-time penalty to apply. There will be a system in place for U.S. employers to seek U.S. workers before the nonimmigrant will be granted temporary worker status. If the nonimmigrant loses his/her job, does not follow the terms of the status, or breaks the law, s/he will be required to leave the U.S. Employers are required to inform the U.S. government when a temporary worker starts and ends employment with that employer in what sounds similar to a SEVIS plan for temporary workers. Employers will also be subject to tough enforcement and penalties for hiring undocumented immigrants after the program starts.

Though temporary workers will be permitted to seek lawful permanent resident status, they will be given financial incentives to return to their home countries at the end of their nonimmigrant status. The Administration is attempting to work with other countries to have the temporary workers receive retirement credits in their respective home countries for the time that they work in the United States. President Bush also referred to tax preferred savings accounts as a possibility where the person would obtain the money in the savings account upon his or her departure from the U.S.

President Bush has asked Congress to pass laws that support the plan he described in his speech. This means that, while the President is supportive of the concept of providing legalization opportunities, he has no definite commitment to any particular legislation at this time.

Both pro-immigration and anti-immigration supporters have criticized the Bush proposal. Democrats said the proposal fell far short by failing to ensure long-term illegal immigrants now in the United States could remain permanently, however, this is no a 245(i) law that added many aliens in early 2001, as a general amnesty of the late 1980?s. Both of the proposals allowed a large number of immigrants to become legal permanent residents.

Democratic candidate Sen. John Kerry of Massachusetts said it "rewards business over immigrants by providing them with a permanent pool of disenfranchised temporary workers who could easily be exploited." Another Democratic candidate, Sen. Joseph Lieberman of Connecticut, called the proposal "an election-year conversion."

U.S. Rep. Thomas Tancredo, a Colorado Republican who leads the Congressional Immigration Reform Caucus, who argue for more restrictions, said giving temporary status to illegal immigrants under the proposal was a form of amnesty and therefore a "step backward" Hence, it would be important, at least at this time, for any undocumented alien to place much reliance on the proposals in 2004.  

AVOIDING REMOVAL FOR THE ILLEGAL PRESENT CRIMINAL ALIEN

From reading the title of this column the first reaction of any reader is, or should be --- the only way to avoid being removed (the new Legal term for deportation) if a criminal alien is illegally in the United States is to hide out, and in some cases, marry a U.S. Citizen (valid marriages only please).

Obviously, the best way to avoid removal is to avoid having Homeland Security (the new agency that has assumed the old INS functions) even know you are around. However, any alien charged with a crime, and particularly an illegal alien, does not have that luxury. Indeed, the leading reason that aliens are picked up by Homeland Security is because of criminal related detention. But there are ways to avoid, at least temporarily, Homeland Security even if you are being held for a crime by non-federal authorities.

In a recent case we handled (obviously we cannot tell the name of the client we assisted) the client was an illegal alien with his entire family living Southern California. He had a prior conviction that would have been considered an aggravated felony if he was detained by Homeland Security, meaning little hope of staying in the country. This is not even considering that he was also here illegally.

Homeland Security interviews criminals in jails only after judgment in the criminal matter has been determined. However, they do not conduct these interviews until after a few days of the judgment because it takes about two days for the sheriff to generate these conviction rosters. If the convicted criminal has been released usually (but not always) Homeland Security will not bother to track down the convicted criminal for an interview. They are just too busy.

A judgment in a criminal case is not considered entered until after the judge issues a sentence. Hence, a criminal could plead guilty, but not be sentenced the same day if a lawyer knows the system to arrange to delay sentencing.

So why does delaying sentencing matter? In Los Angeles County, and many other places jails are overcrowded. There are federal decrees to avoid this overcrowding. Also, inmate gets good time credits while they are awaiting hearing, and in some occasions even more while they are waiting than when after they are sentenced. However, judges and prosecutors want to obtain plea bargains quickly to insure convictions and move cases along before witnesses become lost and evidence becomes stale.

In our case we were able to obtain a favorable plea bargain, based in part on evidence we were able to develop that questioned the reliability of the alleged victim, that would have obtained the release of our client, including good time credits, to about 30 days away, which was the trial date anyway. We said that there would only be a deal if we were able to delay sentencing to a date when the accused would be released the day of sentencing.

TRAVEL ADVISORY FOR ALIENS TO UNITED STATES
18 August 2003

Any alien who plans to travel abroad and returns to the United States on time should be aware of important changes in visa application procedures. The Department of State (DOS) recently announced that U.S. embassies and consulates must interview ALL applicants for non-immigrant working visas unless they meet one of the limited exceptions. It will take longer for visa applications to be processed. Changes at U.S. Embassies and Consulates may make it difficult for many executives, managers, professionals, researchers and other fully-authorized foreign workers to have their visa applications processed in time to return to the U.S. when their jobs require. These same changes may complicate trips abroad and the ability to attend professional conferences, business meetings and important personal or family events. It will now be more essential than ever to plan far in advance to the United States.

Over the past two decades an increasing number of American Consular offices exercised their discretion to waive personal interviews for many visa applicants, especially those coming to the U.S. on work visas from Europe, Japan, Australia and other developed countries. Interview waivers, and the increasing use of 'mail-in' and visa courier option, have helped speed up the visa issuance process in the face of persistent staff and budget shortages. That has changed. Almost all temporary visa applicants between the ages of 16 and 60 will be required to schedule personal interviews at an American Consulate.

This new requirement will result in significant delays for nonimmigrant visa appointments. Many visa applicants will likely face a delay of several weeks to several months in order to obtain a nonimmigrant visa appointment at the embassy or consulate in their home country. Furthermore, the DOS expects that for the indefinite future, many embassies/consulates will face processing backlogs to issue the visa even after the interview.

These additional requirements are going to place severe new burdens on nonimmigrant travel and will require extensive advance planning. In order to avoid delays and disruptions to business and holiday plans, travel arrangements should be made months in advance and appointments should be secured ahead of time.

The personal interview requirement may only be waived by an embassy or consulate if it is determined that the applicant presents no "national security concern," AND in the following circumstances:

(1) A child 16 years of age or younger;
(2) A person 60 years of age or older;
(3) A class of nonimmigrant classifiable under the visa categories A-1, A-2, C-2, C-3, G-1, G-2, G-3, G-4, NATO-1, NATO-2, NATO-3, NATO-4, NATO-5, or NATO-6 and who is seeking a visa in such classification;
(4) An applicant for a diplomatic or official visa as described in the Foreign Affairs Manual (FAM) at section 41.26 and 41.27;
(5) An applicant who, within twelve months of the expiration of the applicant's previously issued visa, is seeking re-issuance of the nonimmigrant visa in the same classification at the consular post of the alien's usual residence, and for whom the consular officer has no indication of visa ineligibility or noncompliance with U.S. immigration laws and regulations; or
(6) An alien for whom a waiver of personal appearance is warranted in the national interest or because of unusual circumstances.

Under the current political and immigration climate, we recommend that you do not make international travel plans without checking with a law office or U.S. Department of State website for information on the visa application procedures for American Embassies and Consulates abroad. Keep in mind that the exact procedures and methods to schedule interviews now and after August 1 are subject to change and are different in each country.