Summer break is almost over and the new school year is around the corner. If you are a non-U.S. citizen or permanent resident, unless you are a language student who plans to attend a short course for less than 18 hours per week, you need to obtain a F-1/M-1 status before you are allowed to attend a school in the U.S. A F-1/M-1 status may be obtained through consular processing by getting a visa or change of non-immigrant status in the U.S.
USCIS released a specific instruction titled "Special Instructions for B-1/B-2 Visitors Who Want to Enroll in School" yesterday and the instruction is a good reminder of the above-said policy. If you are in the U.S. on a B-2 visitor visa, you must not enroll in a school until your change of status application to a F-1/M-1 student is approved by USCIS. Attending school while you are a visitor is not only a violation of your status but will also make you ineligible to change your status to a F or M status.
On the other hand, if a request to change from B-2 to F-1 status is made within 60 days of a B-2 entry, USCIS will assume that the visitor has a preconceived intent to come to the U.S. to study and the request would likely be denied, especially if the alien has obtained an I-20 before his/her entry as a B-2 visitor.
Therefore, if you want to study in the U.S., you must plan carefully so that you will not be caught off guard.
Disclaimer: Information included in this page does not constitute as legal advice and receipt of this page does not establish attorney-client relationship. For specific inquiries, please call my office and schedule an appointment.
8/20/2010
7/19/2010
USCIS Ombudsman Report (2)
The Ombudsman recommends USCIS provide an option for users to talk to a center representative immediately after reaching the main menu of the toll free number of USCIS. If this recommendation is adopted, it would help a lot.
Any one who has ever used the USCIS toll-free hotline would have frustrating experience to tell you. I still remember the first time I called that hotline, I had waited for over 45 minutes before connecting to an agent. In the last year or two, the waiting time had been significantly cut. Last time when I called I had to wait for about 3 minutes.
Despite this improvement, one thing I do not understand is why we cannot have an option to choose to talk to a representative in the main menu. A lot of times I have to randomly choose an option and either press the wrong button or ignore the instructions before I get connected to a USCIS representative.
Although I hope this option to immediately connect to an officer will come true, I hope users of the toll free hotline will not abuse it. If users want to find out their case status or have simple questions answered, I hope they will utilize the website of USCIS and find out the answers to their questions there. This will help maintain the efficiency of the hotline and allow those who really need the assistance of a representative to get help with the shortest amount of time possible.
Disclaimer: Information included in this page does not constitute as legal advice and receipt of this page does not establish attorney-client relationship. For specific inquiries, please call my office and schedule an appointment.
Any one who has ever used the USCIS toll-free hotline would have frustrating experience to tell you. I still remember the first time I called that hotline, I had waited for over 45 minutes before connecting to an agent. In the last year or two, the waiting time had been significantly cut. Last time when I called I had to wait for about 3 minutes.
Despite this improvement, one thing I do not understand is why we cannot have an option to choose to talk to a representative in the main menu. A lot of times I have to randomly choose an option and either press the wrong button or ignore the instructions before I get connected to a USCIS representative.
Although I hope this option to immediately connect to an officer will come true, I hope users of the toll free hotline will not abuse it. If users want to find out their case status or have simple questions answered, I hope they will utilize the website of USCIS and find out the answers to their questions there. This will help maintain the efficiency of the hotline and allow those who really need the assistance of a representative to get help with the shortest amount of time possible.
Disclaimer: Information included in this page does not constitute as legal advice and receipt of this page does not establish attorney-client relationship. For specific inquiries, please call my office and schedule an appointment.
7/15/2010
Women as a Particular Social Group for Asylum Purposes
A while ago in one episode of "Law and Order: Special Victim Unit", ADA Alex Cabot and Detective Olivia Benson had a discussion on how gender is not a basis for political asylum. Well, this may no longer be the case in states under the jurisdiction of the 9th Circuit, at least for now. On July 12, 2010, the 9th Circuit of ruled in a case named Perdomo v. Holder that being a woman could fall under the definition of "membership in a particular social group" and be eligible to claim political asylum.
Generally, under current law, an asylum applicant has the responsibility to show that the applicant either had suffered past persecution or will face future persecution if the applicant returns to his/her home country. Moreover, the persecution must be based on race, nationality, religion, political opinion, or membership in a social group.
In Perdomo, the petitioner is a female from Guatemala. Ms. Perdomo applied for political asylum and her primary argument was that because of the high murder rate for women in Guatemala, she had established well-founded fear of future persecution. Both the Immigration Judge ("IJ") and the Board of Immigration Appeals ("BIA") denied her asylum application because they did not agree that being a woman from Guatemala was a sufficient to prove fear of future persecution based on membership of a social group. Specifically, the BIA agreed with the IJ that gender alone was "too broad to qualify as a protected social group".
The 9th Circuit used a two-prong approach it had developed in a 2000 case to decide whether being a woman alone can fall under membership in a particular social group for asylum purpose. The first prong is to decide whether members of the "group" are united by "a voluntary association" or "innate characteristics." The 9th Circuit further explained that "innate characteristics" is a fundamental and common traits among the members that they either cannot or should not be asked to changed. The second prong is that the group has to be persecuted because of the innate characteristics. Based on this two-prong test and some precedents from the 9th circuit, the court reached the conclusion that females in a particular country could form a particular social group. Furthermore, the court ruled that the size and breadth of a group alone are not determinative.
This is certainly an interesting case and could possible open the door for many asylum applicants who cannot establish fear of persecution based on the other 4 grounds. We will see the implication of the ruling in the future.
Disclaimer: Information included in this page does not constitute as legal advice and receipt of this page does not establish attorney-client relationship. For specific inquiries, please schedule an appointment with my office.
Generally, under current law, an asylum applicant has the responsibility to show that the applicant either had suffered past persecution or will face future persecution if the applicant returns to his/her home country. Moreover, the persecution must be based on race, nationality, religion, political opinion, or membership in a social group.
In Perdomo, the petitioner is a female from Guatemala. Ms. Perdomo applied for political asylum and her primary argument was that because of the high murder rate for women in Guatemala, she had established well-founded fear of future persecution. Both the Immigration Judge ("IJ") and the Board of Immigration Appeals ("BIA") denied her asylum application because they did not agree that being a woman from Guatemala was a sufficient to prove fear of future persecution based on membership of a social group. Specifically, the BIA agreed with the IJ that gender alone was "too broad to qualify as a protected social group".
The 9th Circuit used a two-prong approach it had developed in a 2000 case to decide whether being a woman alone can fall under membership in a particular social group for asylum purpose. The first prong is to decide whether members of the "group" are united by "a voluntary association" or "innate characteristics." The 9th Circuit further explained that "innate characteristics" is a fundamental and common traits among the members that they either cannot or should not be asked to changed. The second prong is that the group has to be persecuted because of the innate characteristics. Based on this two-prong test and some precedents from the 9th circuit, the court reached the conclusion that females in a particular country could form a particular social group. Furthermore, the court ruled that the size and breadth of a group alone are not determinative.
This is certainly an interesting case and could possible open the door for many asylum applicants who cannot establish fear of persecution based on the other 4 grounds. We will see the implication of the ruling in the future.
Disclaimer: Information included in this page does not constitute as legal advice and receipt of this page does not establish attorney-client relationship. For specific inquiries, please schedule an appointment with my office.
7/13/2010
USCIS Ombudsman Annual Report (1)
On June 30, USCIS Ombudsman January Contreras released the annual ombudsman report. The report has some interesting findings and suggestions and I will discuss some of them in this and next few entries.
One interesting observation the Ombudsman report points out is that the demand for family-based immigrant visas is "very low" in the previous 15 months (p.32). In other words, immigrant visas available to petitioners who have a current priority date exceeds the number of petitioners who actually go to the consulate to apply for an immigrant visa. Why do not applicants, after waiting for so long to have their priority date to become current, go to apply for the actual visa when it becomes available?
Although the actual reasons are not clear, the ombudsman report makes a few guesses, such as change in health, employment, and family situations or financial and economic concerns (p.32). In addition, many petitioners choose not to leave the United States and return to their home country to go through consulate process because of their illegal or problematic immigrant status (p.33). Because many of the low demand, many visas number become unused.
This situation highlights the needs of a comprehensive immigration reform as soon as possible. It is obvious that the wait for these applicants, who have parents, siblings, and children that are citizens and legal permanent residents of the U.S., is simply too long. For example, according to the August Visa Bulletin released yesterday by the Department of State, unmarried children over 21 years old and born in Mexico to a U.S. citizen/legal permanent resident have to wait for about 18 years before they are eligible to apply for a green card. If they get married, they will have to wait in a different category or may even lose their eligibility to migrate to the U.S. (currently there is no immigrant visa category for married children of lawful permanent residents)!
Thus, we can see there is a real need to eliminate this backlog and allow family members of naturalized U.S. citizens and permanent residents to be reunited with them in a more effective manner. Of course some people will argue that those citizens do not need to choose to come to the United States at the first place. But given how many science and engineering graduates in our country are foreign-born and how many of these naturalized citizens gain their residency in the U.S. through jobs that need their advanced skills and knowledge, we simply cannot afford to tell them to all go home or stop coming, then expect our country to remain the same in innovation, technology research, and long-term development.
Meanwhile, it is wise for petitioners to remain alert to the monthly visa bulletin so they can apply for an immigrant visa at their local consulate as soon as a visa number is available to them. If there are concerns regarding prior violation of immigration status or change of family situation, it is a good idea to talk to an attorney instead of simply forgoing the chance to apply for a visa. Many attorneys are willing to give free initial consultation and will keep the content of their consultation confidential, so it would not hurt to talk to them.
Disclaimer: Information included in this post does not constitute as legal advice and receipt of this page does not constitute attorney-client relationship. For specific inquiries, please contact my office for an appointment.
One interesting observation the Ombudsman report points out is that the demand for family-based immigrant visas is "very low" in the previous 15 months (p.32). In other words, immigrant visas available to petitioners who have a current priority date exceeds the number of petitioners who actually go to the consulate to apply for an immigrant visa. Why do not applicants, after waiting for so long to have their priority date to become current, go to apply for the actual visa when it becomes available?
Although the actual reasons are not clear, the ombudsman report makes a few guesses, such as change in health, employment, and family situations or financial and economic concerns (p.32). In addition, many petitioners choose not to leave the United States and return to their home country to go through consulate process because of their illegal or problematic immigrant status (p.33). Because many of the low demand, many visas number become unused.
This situation highlights the needs of a comprehensive immigration reform as soon as possible. It is obvious that the wait for these applicants, who have parents, siblings, and children that are citizens and legal permanent residents of the U.S., is simply too long. For example, according to the August Visa Bulletin released yesterday by the Department of State, unmarried children over 21 years old and born in Mexico to a U.S. citizen/legal permanent resident have to wait for about 18 years before they are eligible to apply for a green card. If they get married, they will have to wait in a different category or may even lose their eligibility to migrate to the U.S. (currently there is no immigrant visa category for married children of lawful permanent residents)!
Thus, we can see there is a real need to eliminate this backlog and allow family members of naturalized U.S. citizens and permanent residents to be reunited with them in a more effective manner. Of course some people will argue that those citizens do not need to choose to come to the United States at the first place. But given how many science and engineering graduates in our country are foreign-born and how many of these naturalized citizens gain their residency in the U.S. through jobs that need their advanced skills and knowledge, we simply cannot afford to tell them to all go home or stop coming, then expect our country to remain the same in innovation, technology research, and long-term development.
Meanwhile, it is wise for petitioners to remain alert to the monthly visa bulletin so they can apply for an immigrant visa at their local consulate as soon as a visa number is available to them. If there are concerns regarding prior violation of immigration status or change of family situation, it is a good idea to talk to an attorney instead of simply forgoing the chance to apply for a visa. Many attorneys are willing to give free initial consultation and will keep the content of their consultation confidential, so it would not hurt to talk to them.
Disclaimer: Information included in this post does not constitute as legal advice and receipt of this page does not constitute attorney-client relationship. For specific inquiries, please contact my office for an appointment.
7/08/2010
H-1B
Every summer, a lot of college graduates enter into the job market. Given the state of the economy, many of the graduates are having a hard time to find a job. This is particularly true for international graduates.
In most situations, prior to their graduation, international students usually apply for work authorization under the optional practical training (OPT) program and then seek employment with their OPT. However, an OPT authorization is only valid for 12 months (and an additional 17 months for students who have graduated from science, technology, and math majors). As a result, many employers are not willing to consider international students because they are not willing to hire someone who may have to leave the job in 12 months or simply do not want to pay the immigration fees to sponsor an international student.
To make things worse, a student under OPT cannot accrue more than 90 days of unemployment. Therefore, unless an international student can find some kind of work within 3 months of the start date of his/her OPT, the student may risk falling out of status. Thus, many international students would have to take low-skill and/or low-salary jobs during their OPT while they seek long-term employment.
For those who are lucky enough to find an employer who is willing to hire and sponsor their work visa petition (usually H-1B visa for college graduates), there is still no guarantee that they will be able to stay in the U.S. and continue to work after their OPT authorization expires. Prior to 2009, H-1B visa applicants usually had to file their petition on the very first day USCIS start accepting petition (usually April 1) because Congress has set a quota for the number of H-1B visas that can be issued in every fiscal year. If an applicant failed to do so, his/her application might not even be considered if USCIS had received sufficient petitions to meet the annual quota. Since 2009, fewer petitions have been filed because 1) fewer employment opportunities are available; 2) fewer employers have the resources to sponsor international graduates; and 3) companies that have received TARP money from the government may not sponsor H-1B petitions.
Although there are fewer petitions, that does not mean approval is automatic. In order to improve the chance of approval, an H-1B applicant should do the following:
A) an applicant should ensure the proposed employment requires a professional to fill it, such as someone with a college degree. If in doubt, it would be wise to check case law and BIA precedents to see whether there are any cases that can support the proposed employment to be qualified for H-1B.
B) An applicant should show a strong connection between the applicant's college education and the proposed job duties. If an applicant is qualified to perform the job duties without his/her college education, then USCIS will likely reject the application. On the other hand, if the applicant's professional qualifications have nothing to do with the applicant's job duties, it is also difficult to get an H-1B visa approved. For example, if a student majored in chemical engineering but his proposed job duties are linguistic in nature, it may be difficult to get an approval by USCIS.
Disclaimer: Information included in this post does not constitute as legal advice and receipt of this page does not constitute attorney-client relationship. For specific inquires, please contact my office for an appointment.
In most situations, prior to their graduation, international students usually apply for work authorization under the optional practical training (OPT) program and then seek employment with their OPT. However, an OPT authorization is only valid for 12 months (and an additional 17 months for students who have graduated from science, technology, and math majors). As a result, many employers are not willing to consider international students because they are not willing to hire someone who may have to leave the job in 12 months or simply do not want to pay the immigration fees to sponsor an international student.
To make things worse, a student under OPT cannot accrue more than 90 days of unemployment. Therefore, unless an international student can find some kind of work within 3 months of the start date of his/her OPT, the student may risk falling out of status. Thus, many international students would have to take low-skill and/or low-salary jobs during their OPT while they seek long-term employment.
For those who are lucky enough to find an employer who is willing to hire and sponsor their work visa petition (usually H-1B visa for college graduates), there is still no guarantee that they will be able to stay in the U.S. and continue to work after their OPT authorization expires. Prior to 2009, H-1B visa applicants usually had to file their petition on the very first day USCIS start accepting petition (usually April 1) because Congress has set a quota for the number of H-1B visas that can be issued in every fiscal year. If an applicant failed to do so, his/her application might not even be considered if USCIS had received sufficient petitions to meet the annual quota. Since 2009, fewer petitions have been filed because 1) fewer employment opportunities are available; 2) fewer employers have the resources to sponsor international graduates; and 3) companies that have received TARP money from the government may not sponsor H-1B petitions.
Although there are fewer petitions, that does not mean approval is automatic. In order to improve the chance of approval, an H-1B applicant should do the following:
A) an applicant should ensure the proposed employment requires a professional to fill it, such as someone with a college degree. If in doubt, it would be wise to check case law and BIA precedents to see whether there are any cases that can support the proposed employment to be qualified for H-1B.
B) An applicant should show a strong connection between the applicant's college education and the proposed job duties. If an applicant is qualified to perform the job duties without his/her college education, then USCIS will likely reject the application. On the other hand, if the applicant's professional qualifications have nothing to do with the applicant's job duties, it is also difficult to get an H-1B visa approved. For example, if a student majored in chemical engineering but his proposed job duties are linguistic in nature, it may be difficult to get an approval by USCIS.
Disclaimer: Information included in this post does not constitute as legal advice and receipt of this page does not constitute attorney-client relationship. For specific inquires, please contact my office for an appointment.
5/27/2010
Can Money Buy a Visa to Live in the U.S.
EB-5 has traditionally been the visa category that allows foreigners to get a green card. However, many foreigners, especially small business owners and small investors, find it difficult to put so much money (at least 500k and 1 million USD in general) at risk in exchange for a visa. Congress has made different efforts to reform the investor visa category, such as the Start Up Visa Act that was introduced in February 2010. But before this bill becomes law, foreigners are bound by the current rules and regulations.
So the question is: what can small owners do to come and work in the U.S. RIGHT NOW? Some short term non-immigrant visas may worth taking a look if you are really interested in coming to the U.S. through investment. The most obvious choice would be the E-2 visa, which allows foreigners to come and work in the U.S. for 2 years if they can invest a substantial amount of money in the U.S. and benefits the economy of the U.S. However, to qualify for an E-2 visa, the applicant must come from a country that has a trade treaty with the U.S. Thus, for example, nationals of China (PRC) will not be eligible to come to the U.S. through an E-visa.
Another common way for investors to come to the U.S. is through the L-1A visa. Some foreigners may consider expanding their overseas companies into the U.S. by setting up a branch or an affiliate in the U.S. The government currently allows investors who act as executives to enter into the U.S. and manage their new branch or affiliate company. Executives for new entities will get a visa that is valid for 1 year and can be renewed for up to 7 years. In additional, current law allows an L-1 visa holder to have an immigrant intent while in L-status, i.e., may apply for a green card and/or adjustment of status while the investor is in L-1A status.
Although these two visas are non-immigrant visas, they may actually serve the interests of investors better. Some potential investors I have talked to actually do not have the intent to move and live in the U.S. permanently. As a result, getting an E or L visa may be a better alternative because the amount of money needed is significantly lower than an EB-5.
Disclaimer: information included in this post does not constitute as legal advice and receipt of this information does not constitute attorney-client relationship. For specific inquiries, please contact my office for an appointment.
So the question is: what can small owners do to come and work in the U.S. RIGHT NOW? Some short term non-immigrant visas may worth taking a look if you are really interested in coming to the U.S. through investment. The most obvious choice would be the E-2 visa, which allows foreigners to come and work in the U.S. for 2 years if they can invest a substantial amount of money in the U.S. and benefits the economy of the U.S. However, to qualify for an E-2 visa, the applicant must come from a country that has a trade treaty with the U.S. Thus, for example, nationals of China (PRC) will not be eligible to come to the U.S. through an E-visa.
Another common way for investors to come to the U.S. is through the L-1A visa. Some foreigners may consider expanding their overseas companies into the U.S. by setting up a branch or an affiliate in the U.S. The government currently allows investors who act as executives to enter into the U.S. and manage their new branch or affiliate company. Executives for new entities will get a visa that is valid for 1 year and can be renewed for up to 7 years. In additional, current law allows an L-1 visa holder to have an immigrant intent while in L-status, i.e., may apply for a green card and/or adjustment of status while the investor is in L-1A status.
Although these two visas are non-immigrant visas, they may actually serve the interests of investors better. Some potential investors I have talked to actually do not have the intent to move and live in the U.S. permanently. As a result, getting an E or L visa may be a better alternative because the amount of money needed is significantly lower than an EB-5.
Disclaimer: information included in this post does not constitute as legal advice and receipt of this information does not constitute attorney-client relationship. For specific inquiries, please contact my office for an appointment.
5/19/2010
Incentives to be Here Illegally
Immigration has definitely been a hot issue ever since Arizona passed SB 1030. However, we need a basic understanding of the law before we can engage in a civil and informed debate, regarless of which side you are on.
First of all, we need to understand who illegal immigrants are. There are three kinds of illegal immigrants: 1) foreigners who enter the U.S. without proper inspection by our custom and immigration officers; 2) foreigners who entered into the U.S. legally but have failed to leave the country after their authorized period of stay expires and 3) those who does not comply with their condition of stay in the U.S., such as students working off campus without authorization.
Second, we need to understand what it means to violate a law and the consequences of different violation. Obviously, there are different kinds of law. Laws that are enacted by the government to protect the society as a whole are generally criminal law. On the other hand, laws that are enated to protect a specific group of citizens and customers are generally civil laws, such as contract. Of course this is a pretty basic generalization and sometimes the two interwine with each other. When someone violates a criminal law, such as committing a murder, the government, i.e., district attorney, will file the charges against the suspect. If the government prevails, the defendant would usually serve time behind the bars. In contrast, violation of civil law does not impose jail time usually. Instead, the offending party would have to compensate the victim in monetary terms.
Third, our legal system has long been a balancing act between mercy and justice. A violation of the law does not automatically put the offending party into jail or impose a fine. Instead, the offending party can raise some so-called affirmative defenses to justify their violation. A classic example would be to kill someone when the defendant himself is in jeopardy of losing his own life if he did not kill.
Our immigration law is a very unique set of law. We punish those who violate our immigration law by expelling the violators from our country. No jail time or fine is imposed for violating our immigration law. In addition, we have allowed affirmative defenses and afford those who are in our country due process to present their case and why they should not be deported in most situations.
I think these are some of the facts we need to understand before we engage in a debate of what we should do with our immigration system. Some people say illegals are illegals and they should be deported. Saying so is simply to saying criminals are criminals and they should be jailed without trial. However, our system does not work this way. In fact, it is the Constitution, which we support and are proud of, that says we cannot put people in jail and expel them out of this country without due process.
Moreover, as much as I hate to admit that, but I think our immigration system provides far too many incentives for people to disobey it. Take a married couple for example. I doubt how many of us would ask our date whether he/she has legal papers. Moreover, if you marry a legal permanent resident/green card holder, you are subject to immigrant visa quota and have to wait for a few years to gain residency in the U.S. Because of the wait, you may have to make a hard choice when your current visa or authorized period of stay expires: do you go home and leave your spouse behind or do you break the law but stay with your family? Why can't our law treat spouses and minor children of permanent residents the same as US citizens, namely giving them residency right away without imposing a quota system? Can you see why our immigration ststem helps create illegals?
Our immigration system does not punish employers who hire illegal aliens hard enough. This is simply a supply and demand calculation. The benefits and costs saved for hiring illegal workers simply outweigh the penalties of breaking the law. Although companies who hire illegals can be subject to criminal liabilities, the burden of proof is often so high that prosecutors simply cannot meet. Again, our system encourages people to break the law.
People often complain that our federal government fails to enforce our immigration law. But how is the federal government going to enforce the law when they do not have funds to hire agents and border patrols that could safeguard our coastline or our land border? Are we willing to pay more taxes and expand our government in the area of immigration?
I think we need to enforce our law, but I also think we need to enact laws that will not encourage people to disobey it. Also, I am not sure how much our country is willing to sacrifice to provide the resources that our immigration authority needs to enforce the law.
Disclaimer: Information included in this post does not constitute as legal advice and receipt of this page does not constitute attorney-client relationship. For specific inquires, please contact my office for an appointment.
First of all, we need to understand who illegal immigrants are. There are three kinds of illegal immigrants: 1) foreigners who enter the U.S. without proper inspection by our custom and immigration officers; 2) foreigners who entered into the U.S. legally but have failed to leave the country after their authorized period of stay expires and 3) those who does not comply with their condition of stay in the U.S., such as students working off campus without authorization.
Second, we need to understand what it means to violate a law and the consequences of different violation. Obviously, there are different kinds of law. Laws that are enacted by the government to protect the society as a whole are generally criminal law. On the other hand, laws that are enated to protect a specific group of citizens and customers are generally civil laws, such as contract. Of course this is a pretty basic generalization and sometimes the two interwine with each other. When someone violates a criminal law, such as committing a murder, the government, i.e., district attorney, will file the charges against the suspect. If the government prevails, the defendant would usually serve time behind the bars. In contrast, violation of civil law does not impose jail time usually. Instead, the offending party would have to compensate the victim in monetary terms.
Third, our legal system has long been a balancing act between mercy and justice. A violation of the law does not automatically put the offending party into jail or impose a fine. Instead, the offending party can raise some so-called affirmative defenses to justify their violation. A classic example would be to kill someone when the defendant himself is in jeopardy of losing his own life if he did not kill.
Our immigration law is a very unique set of law. We punish those who violate our immigration law by expelling the violators from our country. No jail time or fine is imposed for violating our immigration law. In addition, we have allowed affirmative defenses and afford those who are in our country due process to present their case and why they should not be deported in most situations.
I think these are some of the facts we need to understand before we engage in a debate of what we should do with our immigration system. Some people say illegals are illegals and they should be deported. Saying so is simply to saying criminals are criminals and they should be jailed without trial. However, our system does not work this way. In fact, it is the Constitution, which we support and are proud of, that says we cannot put people in jail and expel them out of this country without due process.
Moreover, as much as I hate to admit that, but I think our immigration system provides far too many incentives for people to disobey it. Take a married couple for example. I doubt how many of us would ask our date whether he/she has legal papers. Moreover, if you marry a legal permanent resident/green card holder, you are subject to immigrant visa quota and have to wait for a few years to gain residency in the U.S. Because of the wait, you may have to make a hard choice when your current visa or authorized period of stay expires: do you go home and leave your spouse behind or do you break the law but stay with your family? Why can't our law treat spouses and minor children of permanent residents the same as US citizens, namely giving them residency right away without imposing a quota system? Can you see why our immigration ststem helps create illegals?
Our immigration system does not punish employers who hire illegal aliens hard enough. This is simply a supply and demand calculation. The benefits and costs saved for hiring illegal workers simply outweigh the penalties of breaking the law. Although companies who hire illegals can be subject to criminal liabilities, the burden of proof is often so high that prosecutors simply cannot meet. Again, our system encourages people to break the law.
People often complain that our federal government fails to enforce our immigration law. But how is the federal government going to enforce the law when they do not have funds to hire agents and border patrols that could safeguard our coastline or our land border? Are we willing to pay more taxes and expand our government in the area of immigration?
I think we need to enforce our law, but I also think we need to enact laws that will not encourage people to disobey it. Also, I am not sure how much our country is willing to sacrifice to provide the resources that our immigration authority needs to enforce the law.
Disclaimer: Information included in this post does not constitute as legal advice and receipt of this page does not constitute attorney-client relationship. For specific inquires, please contact my office for an appointment.
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