The Bill
By now most people have heard about the pending legislation regarding illegal immigration in Arizona. The most controversial features of S.B. 1070 include the following:
- allows a state, county, or town official/agent to inquire the immigration status of an alien if the official/agent has reasonable suspicion that the alien is not in the U.S. legally;
- makes it a criminal trespass if an alien fails to carry proof of his/her legal status in any private or public land in Arizona;
- makes it a crime to transport an illegal alien in Arizona, if the government can prove that the driver knows or reckless disregards of the alien's immigration status;
- allows private citizens to sue the state, county, city, or town for not enforcing federal immigration law.
Problems
While I think we should enforce our federal immigration law, I am very concerned on the negative effects this bill has on people who are in the U.S. LEGALLY.
Vague Definition
First of all, there is no clear definition of "reasonable suspicion." Is speaking English with an accent good enough to cast reasonable suspicion on the immigration status of a person? If yes, then I may be stopped a lot by police officers when I visit Arizona!
Second, how do you define "reckless disregard" of an alien's immigration status? If someone at school/church asked me to give him a ride, should I inquire about his immigration status before saying yes? For example, if a boy who came from Australia had overstayed his visa in the U.S. since age 2 and speaks English with no accent, I probably would not know or check his illegal status and I could get arrested for giving him a ride. What about driving an alien who had overstayed his visa because his flight to go home was cancelled due to natural diasters like earthquake or volcanic ash? Because I knew of his illegal status, I could be arrested when I drove him to the airport and sent him home!
Big Inconvenience, Could Even Be Unconstitutional
It is even more problematic to require an alien to carry proof of legal status whenever he/she is in Arizona. It is true that federal law requires permanent residents to carry their green cards with them wherever they go. But what about citizens? Do all citizens need to bring their birth certificate, naturalization certificate, or passport when they go to shop at a local grovery store or their neighbor's home? If yes, then it would be a big inconvenience for any citizen who lives or visits Arizona. If only naturalized citizens need to do that, then we are definitely making them second-class citizens and it is a clear violation of the equal protection clause of the 14th Amendment. What about non-immigrant visa holders like students or H-1B workers? Do they need to bring their passports or USCIS documents with them wherever they go in Arizona? This could particularly affect those who are visiting from other states. For example, it is totally possible for an H-1B worker who worked in the U.S. after graduation to drive to Arizona to visit the Grand Canyon and got arrested for not carrying his H-1B approval notice to prove his current legal status when he stopped at a gas station! To make things even worse, because it is a crime for not carrying his proof of legal status in Arizona, the poor guy could be deported and barred from entering the U.S. in the future! That does not make sense to me and I hope it will never happen.
Now some people may argue that a driver's license would be a good enough proof for legal status. However, as of 2009, four states still issue driver's license to illegal aliens. Moreover, many states have issued driver's license to students and temporal visitors as long as they can prove their legal status at the time of issuance. Therefore, aliens who have overstayed their visas can nonetheless hold valid driver's license.
Hurting Arizona Financially
Needless to say, allowing private citizens to sue their local government for not enforcing immigration law and attaches civil penalties to it would drain the financial resources of the local government in Arizona. Can a resident of Arizona sue the city officials for not arresting my neighbor who has overstayed his visa? If yes, then people who are running out of money could find a new way to make some.
This legislation could potentially hurt tourism in Arizona as well. Aliens, legal or not, may want to avoid Arizona to ensure they are safe. Would that be a good thing for towns who rely on the millions of tourists who visit the Grand Canyon and other scenic places in the state? I think so.
Conclusion
I know some of the examples I have used are a bit extreme, but those are possible and undesirable effects of the AZ legislation. We should not tolerate any violation of law, but this particular Arizona legislation is going to create more problems than solving them.
Disclaimer: Information included in this post does nto constitute as legal advice and receipt of this page does not establish attorney-client relationship. For specific inquries, please contact my office for an appointment.
4/19/2010
2/26/2010
H-1B Process: Are You Ready to File?
As April 1 is only a few weeks away, those who are lucky enough to have a job offer and find an employer that is willing to petition an H-1B application should start putting their application together NOW. The following is a brief explanation on the process of filing an H-1B application.
Starting from this year, the Department of Labor (DOL) has centralized the process of prevailing wage determination (PWD) for H-1B. You should file ETA Form 9141 through iCert (icert.doleta.gov), a website run by the Department of Labor. Applicants should expect to get the prevailing wage determination back in about 60 days. That means if your employer has not filed a PWD yet, you most likely will not be able to file your H-1B application by April 1.
While your are waiting for your PWD, your employer should inform other U.S. workers that you, an international worker, will be hired. Usually a notice on the company's bulletin board or an email is sufficient (hard notice of soft notice), depending on the usual channel of communication between the employer and the employees. You should receive a copy of the LCA as well.
After informing the U.S. workers about the intent of hiring an international worker and getting the PWD back, your employer should file a Labor Condition Application (LCA) with the DOL through iCert. A LCA will generally be approved within 7 business days unless something in the LCA is inaccurate or incomplete, which will require the employer to correct the information and resubmit the LCA.
After the LCA is approved, you may submit your I-129 application with H-supplement pages filled out and other supporting evidence, such as documents that prove your qualifications.
Disclaimer: Information included in this post does not constitute as legal advice and receipt of this page does not establish attorney-client relationship. For specific inquiries, please contact my office for an appointment.
Starting from this year, the Department of Labor (DOL) has centralized the process of prevailing wage determination (PWD) for H-1B. You should file ETA Form 9141 through iCert (icert.doleta.gov), a website run by the Department of Labor. Applicants should expect to get the prevailing wage determination back in about 60 days. That means if your employer has not filed a PWD yet, you most likely will not be able to file your H-1B application by April 1.
While your are waiting for your PWD, your employer should inform other U.S. workers that you, an international worker, will be hired. Usually a notice on the company's bulletin board or an email is sufficient (hard notice of soft notice), depending on the usual channel of communication between the employer and the employees. You should receive a copy of the LCA as well.
After informing the U.S. workers about the intent of hiring an international worker and getting the PWD back, your employer should file a Labor Condition Application (LCA) with the DOL through iCert. A LCA will generally be approved within 7 business days unless something in the LCA is inaccurate or incomplete, which will require the employer to correct the information and resubmit the LCA.
After the LCA is approved, you may submit your I-129 application with H-supplement pages filled out and other supporting evidence, such as documents that prove your qualifications.
Disclaimer: Information included in this post does not constitute as legal advice and receipt of this page does not establish attorney-client relationship. For specific inquiries, please contact my office for an appointment.
2/01/2010
Advance Parole
If you are applying for adjustment of status (AOS) and need to leave the U.S. before the AOS application is approved, please remember to apply for and obtain an advance parole before you leave the country. The fee of applying an advance parole is included in your adjustment of status application, so you do not have to pay extra to apply for it. However, you need to file an I-131 along with your I-485 to take advantage of this fee arrangement.
If you are a legal permanent resident but need to leave the country for longer than 180 consecutive days, you may also need an advance parole to return to the U.S.
Before an advance parole application is granted, you need to complete a biometric, i.e., have your fingerprint taken by the Application Support Center. If you fail to attend your biometric appointment, your advance parole application may be denied based on abandonment.
Usually an advance parole application would be processed by USCIS within 90 days. If you have not received a decision within 90 days, you may contact the local office of USCIS to follow up on your application.
What if you have an emergency and cannot wait for 90 days? You need to bring documentations to your local USCIS office and show why your advance parole application should be expedited. If the local USCIS office determines that you have a legitimate need to get an advance parole right away, it will likely process and issue an advance parole to you within a few hours.
In short, please remember you have to apply for an advance parole while you are in the U.S and do not leave the country until you have obtained the advance parole.
Disclaimer: Information included in this post does not constitute as legal advice and receipt of this page does not establish attorney-client relationship. For specific inquiries, please contact my office for an appointment.
If you are a legal permanent resident but need to leave the country for longer than 180 consecutive days, you may also need an advance parole to return to the U.S.
Before an advance parole application is granted, you need to complete a biometric, i.e., have your fingerprint taken by the Application Support Center. If you fail to attend your biometric appointment, your advance parole application may be denied based on abandonment.
Usually an advance parole application would be processed by USCIS within 90 days. If you have not received a decision within 90 days, you may contact the local office of USCIS to follow up on your application.
What if you have an emergency and cannot wait for 90 days? You need to bring documentations to your local USCIS office and show why your advance parole application should be expedited. If the local USCIS office determines that you have a legitimate need to get an advance parole right away, it will likely process and issue an advance parole to you within a few hours.
In short, please remember you have to apply for an advance parole while you are in the U.S and do not leave the country until you have obtained the advance parole.
Disclaimer: Information included in this post does not constitute as legal advice and receipt of this page does not establish attorney-client relationship. For specific inquiries, please contact my office for an appointment.
1/29/2010
F-1 International Academic Students
In general, there are a few requirements for an overseas student to apply for a F-1 visa and study in an academic institution in the United States. These requirements generally include:
1. The applicant of a F-1 visa has a foreign residence outside the U.S. and the applicant has to show he/she intends to return to that residence after finishing school in the U.S.
2. The applicant is a bona fide student and is not using the visa for purposes other thana ttending school (such as waiting for an immigrant visa number).
3. The applicant must obtain an I-20 issued by the school he/she intends to enroll.
4. The applicant has sufficient financial resources to sustain his/her study in the U.S.
5. F-1 students are not allowed to attend public high schools for more than one academic year and have to pay the school district/board their tuition prior to issuance of an I-20.
However, meeting these requirements alone may still be insufficient for you to attend a school in the U.S.
Recently, my alma mater, Brigham Young University (commonly known as BYU), has decided to enforce a new policy regarding F-1 international students. The policy requires all new international students (including freshman or transferred students) to pay a $4,000 deposit to an escrow account upon admission and prior to the issuance of an I-20 for visa application. The rationale of the University is that this policy will ensure international students have sufficient funds to complete their education in the U.S.
This will undoubtedly make it harder for international students to attend my alma mater, but it is not illegal for a school to have admission requirements in addition to the ones set forth by the law. Thus, if you are an itnernational student, be sure to check with the institution you plan to enroll carefully to see whether they have specific admission requirements for international students. Otherwise, you may be disappointed or even abandon your plan to study in the U.S.
Disclaimer: Information included in this post does not constitute as legal advice and receipt of this page does not establish an attorney-client relationship. For specific inquiries, please contact my office for an appointment.
1. The applicant of a F-1 visa has a foreign residence outside the U.S. and the applicant has to show he/she intends to return to that residence after finishing school in the U.S.
2. The applicant is a bona fide student and is not using the visa for purposes other thana ttending school (such as waiting for an immigrant visa number).
3. The applicant must obtain an I-20 issued by the school he/she intends to enroll.
4. The applicant has sufficient financial resources to sustain his/her study in the U.S.
5. F-1 students are not allowed to attend public high schools for more than one academic year and have to pay the school district/board their tuition prior to issuance of an I-20.
However, meeting these requirements alone may still be insufficient for you to attend a school in the U.S.
Recently, my alma mater, Brigham Young University (commonly known as BYU), has decided to enforce a new policy regarding F-1 international students. The policy requires all new international students (including freshman or transferred students) to pay a $4,000 deposit to an escrow account upon admission and prior to the issuance of an I-20 for visa application. The rationale of the University is that this policy will ensure international students have sufficient funds to complete their education in the U.S.
This will undoubtedly make it harder for international students to attend my alma mater, but it is not illegal for a school to have admission requirements in addition to the ones set forth by the law. Thus, if you are an itnernational student, be sure to check with the institution you plan to enroll carefully to see whether they have specific admission requirements for international students. Otherwise, you may be disappointed or even abandon your plan to study in the U.S.
Disclaimer: Information included in this post does not constitute as legal advice and receipt of this page does not establish an attorney-client relationship. For specific inquiries, please contact my office for an appointment.
1/10/2010
Facebook Link
Please visit my facebook page, where I often post links and articles from other sources related to immigration law. To access it, please click the facebook badge on the right handside of this blog.
12/11/2009
Global Entry Program
U.S. Cutsoms and Border Protection (CBP) within The Department of Homeland Security has started a pilot program called "Global Entry Program." By paying 100 dollars and going through a rigorous background check beforehand, a U.S. citizen, national, or permanent resident may go through immigration by scanning a passport/permanent resident card, providing a fignerprint, and filling out custom declaration form at a kiosk at major airports in the U.S. without waiting in line to be inspected by an immigration officer. For more information, please go to cbp.gov/xp/cgov/travel/trusted_traveler/gloabl_entry/.
The information provided above is not legal advice and receipt of the information does not establish an attorney-client relationship. For specific inquiries, please contact our office and schedule an appointment.
The information provided above is not legal advice and receipt of the information does not establish an attorney-client relationship. For specific inquiries, please contact our office and schedule an appointment.
12/04/2009
Beware of Immigration Fraud
Earlier this week, worldjournal.com published a news story about how a Chinese female attempted to get a green card by marriage sham but failed. According to the article, the lady agreed to pay her lawyer $30,000 for getting a green card through marriage sham. Later on the lawyer had sex with her. Then the "husband" demanded to have sex with her but she denied. To take revenge, the "husband" did not cooperate with the lady during the USCIS interview and her application was subsequently denied.
A few principles can be learned from this story, regardless of its truthfulness. First, an alien should never attempt to get a green card through any kind of fraud. Commiting immigration fraud is a criminal offense and can be penalized heavily if USCIS discovers that.
Second, a client should not feel threatened or pressured to have sex with a lawyer. Rule 1.8(j) of the American Bar Association's (ABA) Model Rules of Professional Conduct (2009 Edition) states that "[a] lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed between them when the attorney-client relationship commenced." Therefore, a lawyer is likely violating an ethical rule when he/she demands or uses any threat to have sex with a client. If you ever encounter such situaton, you have the right to file a complaint and report that to the bar association in which the lawyer belongs to.
Third, your attorney's fee should be reasonable. Rule 1.5(a) of the ABA's Model Rules of Professional Conduct (2009 Edition) states that "[a] lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses." Therefore, it is your right to compare the rates of different attorneys before deciding which one you would like to hire. Even after you hire an attorney, your attorney should not charge you for a fee that is unreasonably high.
Disclaimer: Information included in this post does not constitute as legal advice and receipt of this page does not establish an attorney-client relationship. For specific inquries, please call my office for an appointment.
A few principles can be learned from this story, regardless of its truthfulness. First, an alien should never attempt to get a green card through any kind of fraud. Commiting immigration fraud is a criminal offense and can be penalized heavily if USCIS discovers that.
Second, a client should not feel threatened or pressured to have sex with a lawyer. Rule 1.8(j) of the American Bar Association's (ABA) Model Rules of Professional Conduct (2009 Edition) states that "[a] lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed between them when the attorney-client relationship commenced." Therefore, a lawyer is likely violating an ethical rule when he/she demands or uses any threat to have sex with a client. If you ever encounter such situaton, you have the right to file a complaint and report that to the bar association in which the lawyer belongs to.
Third, your attorney's fee should be reasonable. Rule 1.5(a) of the ABA's Model Rules of Professional Conduct (2009 Edition) states that "[a] lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses." Therefore, it is your right to compare the rates of different attorneys before deciding which one you would like to hire. Even after you hire an attorney, your attorney should not charge you for a fee that is unreasonably high.
Disclaimer: Information included in this post does not constitute as legal advice and receipt of this page does not establish an attorney-client relationship. For specific inquries, please call my office for an appointment.
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