Immigration

DACA ends March 2018 – Steps moving forward…

Gail Seeram picOn Sept. 5, 2017, the Trump administration announced the orderly phase out of the program known as Deferred Action for Childhood Arrivals (DACA) that was initiated by President Obama. Nearly 700,000 young immigrants who have no legal status in the U.S. benefit from DACA and have valid employment cards so they can work and attend college. All DACA recipients have no criminal history and are law abiding young immigrants who entered the U.S. under the age of 15. The Trump administration has indicated that he is willing to provide some protection to young immigrants but he wants Congress to pass a bill into law. To date, no such legislation has been successfully passed into law and that is why President Obama executed an executive order implementing DACA. Below are common questions about the DACA expiration.

Questions about DACA/Employment Card Phase-out:

  1. Can I renew my DACA before it ends in March 2018? Yes, if your DACA expires between Sept. 5, 2017, and March 5, 2018, U.S. Citizenship and Immigration Services must receive your properly filed I-821D DACA renewal request on or before Oct. 5, 2017.
  2. What is my DACA expired before September 5, 2017 and I did not submit a renewal application? The DACA process is no longer available to you and you cannot file for renewal.
  3. What can I do is I lost my DACA employment card?  You can file to replace your lost DACA employment card.
  4. What will happen to current DACA holders? Current DACA recipients will be permitted to retain both the period of deferred action and their employment authorization documents (EADs) until they expire, unless terminated or revoked. DACA benefits are generally valid for two years from the date of issuance.
  5. When DACA ends, will those cases be referred to ICE for enforcement/deportation? Information provided to U.S. Citizenship and Immigration Services (USCIS) in DACA requests will not be proactively provided to ICE and CBP for the purpose of immigration enforcement proceedings, unless the requestor meets the criteria for the issuance of a Notice to Appear or a referral to ICE (such as criminal conviction or meeting other grounds for removal). This policy may be modified, superseded, or rescinded at any time. 
  6. Can DACA recipients apply for advance parole to travel outside the U.S.? Effective September 5, 2017, USCIS will no longer approve any new Form I-131 applications for advance parole.  USCIS will administratively close all pending Form I-131 applications for advance parole under standards associated with the DACA program, and will refund all associated fees.
  7. What is breakdown of DACA expiration due to DACA phase-out? From August through December 2017, 201,678 individuals are set to have their DACA/EADs expire. In calendar year 2018, 275,344 individuals are set to have their DACA/EADs expire. From January through August 2019, 321,920 individuals are set to have their DACA/EADs expire.

Gail Seeram has been chosen best lawyer 2016 and 2017 by Orlando Magazine.

Gail Seeram
1-877-GAIL-LAW / 407-292-7730.
Email Gail@GailLaw.com.

 


New Policy: Marriage Fraud presumed if marry within 90 days on entry into U.S.

Gail Seeram picAs of 09/18/2017, in a significant change of policy, Secretary of State Rex W. Tillerson wrote that visitors who enter the U.S. must follow through on their “stated plans” for at least three months. “Stated plans” means what they listed on their B-1/B-2 application, what they told the interviewing officer at the Embassy, and what they told the Custom and Border Protection (CBP) officer when they entered the U.S. at the airport.

If a visitor does something inconsistent with what they told the consular official or CBP officer — such as marry an American citizen, go to school or get a job — it will be presumed that they have deliberately lied or committed a fraudulent misrepresentation to gain an immigration benefit. Such a lie would result in revocation of the B-1/B-2 visa, denial of a change in status, and possible deportation from the U.S. A “lie” would also include booking an airline ticket for two weeks and stating to a CBP officer you will stay only two weeks in the U.S. and then once arrive in the U.S. changing your airline ticket to a longer period of time such as 3-6 months.

Changes of plans that occur after three months may still raise red flags and but are not presumed to be the result of “willful misrepresentation,” the cable said. Under previous rules, a change in plans was deemed to be a fraudulent misrepresentation only for the first month after arrival in the United States.

“If someone comes to the U.S. as a tourist, falls in love and gets married within 90 days and then applies for a green card, this means the application would be denied,” said Diane Rish, the associate director of government relations at the American Immigration Lawyers Association. “This is a significant policy change.”

But the new rule does not generally apply to citizens of 38 countries — including most of Europe and longstanding allies like Australia, New Zealand and Japan — who do not need a visa or an explicit travel, business or educational plan before coming to the United States.

Gail Seeram has been chosen best lawyer 2016 and 2017 by Orlando Magazine.

Gail Seeram
1-877-GAIL-LAW / 407-292-7730.
Email Gail@GailLaw.com.


First Steps to Attaining U.S. Citizenship in Orlando

Gail Seeram picThe Naturalization process is required if you want to become a U.S. citizen. Our immigration law office helps many clients attain citizenship in Orlando every year. We are honored to be a part of this exciting time in our clients lives and do our very best to make the process as smooth and simple for you as possible.

Here’s a quick look at the first steps you’ll need to complete in order to become a U.S. citizen.

Early Requirements For U.S. Citizenship Via Naturalization

Be 18 years of age or older.
Have held a Permanent Green Card for at least 5 years.
Able to read, write and speak basic English.
Be of good moral character.
If you meet these four criteria, you can get started on your Naturalization process! The 10-step Naturalization process starts with filing Form N-400 “Application for Naturalization”.

What to Expect of the U.S. Naturalization Process

After you submit Form N-400, you will be contacted to arrange an interview and an English and Civics test. Once approved, you can take part in a naturalization ceremony and take the Oath of Allegiance!

Gail Seeram Helps Immigrants Attain Citizenship In Orlando

Immigration attorney, Gail Seeram, helps immigrants complete their Naturalization paperwork accurately and completely, ensure they meet all Naturalization eligibility requirements, and can provide moral support or clarification during the citizenship interview process. Attorney Seeram’s advice and assistance can ensure your application is not rejected or delayed due to missing or inaccurate information and that you have met all of the necessary requirements for becoming a U.S. citizen.

Gail Seeram has been chosen best lawyer 2016 and 2017 by Orlando Magazine.

Gail Seeram
1-877-GAIL-LAW / 407-292-7730.
Email Gail@GailLaw.com.


Fight Removal With Help From a Deportation Lawyer

Gail Seeram picIf you have been notified that you are to be deported from the U.S. you may think there is no way you can avoid deportation, but that is not necessarily true. Immigration attorneys help their clients fight deportation and removal regularly. A deportation lawyer:

– Investigates the charges against you to ensure accuracy,
– Helps build your defense,
– Presents your case in front of the immigration judge, and
– Helps fill out all of the necessary forms to fight deportation.

Deportation Defense

Gail Seeram is an Orlando immigration attorney with over 17 years of experience. She focuses exclusively on immigration law and helps hundreds of clients in the U.S. every year.

Deportation does not happen right away. There is a removal process that must be followed and you will have a chance to present your side of the situation. You stand a far better chance of convincing the immigration judge to rule against deportation if you have an immigration attorney helping you!

Immigration judges must rule on the evidence they are presented with. They cannot do research for you. They cannot build a legal argument for your case. They will not know anything about your circumstances beyond what you present. These are all things that our immigration lawyer will do for you.

Attorney Seeram will research the charges against you. She will examine all possible defense option. She will present evidence and arguments in your favor to the judge.

There are many ways you might be able to remain in the U.S. with an immigration attorney’s help. You may qualify for asylum. You may qualify for a Green Card. The charges against you may be false or inaccurate and thus invalidate the deportation.

The one thing we want you to remember is that you have options and you are not alone!

If you have received notice that you are to be deported or if you have been detained by ICE, contact our Orlando immigration law office right away. We will quickly evaluate your situation and recommend a best course of action to protect you and your family.

Gail Seeram has been chosen best lawyer 2016 and 2017 by Orlando Magazine.

Gail Seeram
1-877-GAIL-LAW / 407-292-7730.
Email Gail@GailLaw.com.


Immigration Reform Under Trump – Impossible!

Gail Seeram picTrump’s recent actions and words indicate that immigration reform under Trump presidency will be impossible. His latest pardon of Arizona Sheriff Joe Arpaio, a racist who violated the Constitution in his mad pursuit of illegal immigrants is a strong indication of Trump stand on immigration – apprehending illegal immigrants even if in violation of the Constitution. Also, Trump is threatening a government shutdown in terms of not approving the budget if the U.S.-Mexico border wall is not built.

In 2006, Congress unsuccessfully tried passing an immigration bill that required undocumented immigrants to pay a fine and any back taxes to apply for a six-year worker visa but the House did not vote to pass the bill. Again, in 2013, an immigration bill that would grant a 13 year path to citizenship to unauthorized immigrants did not get enough votes to become law.

Immigration reform under Trump is highly unlikely since his priority is appealing to his “America First” base, who have forgotten that their great-grandparents or great-great-grandparents were also immigrants. The only immigration reform under Trump is the inhumane treatment of humans whose only mistake is seeking a better life in the greatest country in the world!

Expanded in-person interviews

U.S. Citizenship and Immigration Services (USCIS) will begin expanding in-person interviews for certain immigration benefit applicants whose benefit, if granted, would allow them to permanently reside in the United States. This change complies with Executive Order 13780, “Protecting the Nation From Foreign Terrorist Entry Into the United States.” More interviews being scheduled means longer delays in receiving interview appointments.

Orlando Field Office Processing Time

The chart below reveals the processing delays in Orlando Field Office. They are working on citizenship applications filed in September 2016 (11 month backlog) and I-485 applications filed in October 2016 (10 month backlog). Please be patience as we are also working through this backlog/delay under the Trump administration. CLICK THE LINK TO LOOK UP PROCESSING TIMES AT OTHER OFFICES.

https://egov.uscis.gov/cris/processTimesDisplayInit.do

Gail Seeram has been chosen best lawyer 2016 and 2017 by Orlando Magazine.

Gail Seeram
1-877-GAIL-LAW / 407-292-7730.
Email Gail@GailLaw.com.


Re-entry After Deportation is Possible Under Certain Circumstances

Gail Seeram picYou may think that deportation is the end of your chances for a life in the United States, but re-entry after deportation is possible if you meet certain criteria.

2 Ways To Qualify For Re-Entry After Deportation

Timing Requirements. The first thing to keep in mind if you want to apply for re-entry after deportation is how long ago you were deported. Anyone who has been deported must wait 5, 10, or 20 years (unless the deportation is permanent) before they can apply for re-entry. How long you much wait to apply for re-entry depends on the reasons you were deported in the first place. Re-entering the country before this time period has passed could complicate your situation and make re-entry more difficult or even make your deportation permanent.
If you do not meet the timing requirements, there may still be ways for you to re-enter the U.S. legally:

Form I-212. Form I-212 “Permission to Reapply For Admission Into the United States After Deportation or Removal” may be submitted if you have a new or separate basis for a Visa or Green Card application. Also known as a waiver request, Form I-212 essentially requests that immigration authorities overlook the grounds for your deportation and give you a second chance.
Form I-601. Form I-601 “Application for Waiver of Grounds of Inadmissibility” is another type of waiver application. This form can be used by immigrants who have been deemed “inadmissible” to the U.S. for many different types of reasons and must usually be filed in conjunction with Form I-212. Form I-212 removes the removal restrictions and Form I-601 removes the grounds for removal.

Help From An Immigration Attorney Is Essential

Re-entry after deportation is a complex process and the slightest misstep could end your chances to return to the United States. It is vital to the success of your application that you get help from an experienced immigration attorney to prove to U.S. Immigration Services that you are deserving of a second chance.

As a foreign national, you will not be provided with an attorney to represent you; you must hire one yourself.

Our Orlando immigration attorney, Gail Seeram, handles re-entry and deportation cases regularly. She ensures that each applicant has all of the necessary documentation in order and helps her clients lay out the best case possible for re-entry.

Gail Seeram
1-877-GAIL-LAW / 407-292-7730.
Email Gail@GailLaw.com.


28% Increase in Orders of Removal Under Trump

Gail Seeram picBetween the time President Donald Trump took office earlier this year and the end of July, nearly 50,000 unauthorized immigrants were ordered removed from the U.S., a 28 percent increase over last year, according to statistics released Tuesday by the immigration review branch of the U.S Department of Justice.

The DOJ’s Executive Office of Immigration Review collected the data, which also indicated that total orders of removal combined with voluntary departures by immigrants in the U.S. between Feb. 1 and July 31 were up close to 31 percent over that same period last year. Final decisions issued by immigration judges also rose 14.5 percent during that time frame this year, the DOJ statement, which featured only timeline statistics, said on Tuesday.

Between Feb. 1 and July 31 this year, 49,983 unauthorized immigrants were ordered removed, compared to 39,113 last year. Another 7,086 unauthorized immigrants agreed to voluntarily depart the U.S., bringing the total removal and voluntary departures so far this year to 57,069. The total orders of removal and voluntary departures in that same six months last year was 43,595.

There was also a total of 73,127 final decisions issued by immigration judges between February and the end of July this year, compared to 63,850 issued in that window last year.

The boost in orders of removal over last year could be the product of Trump’s signing of an executive order on Jan. 25 requiring more stringent enforcement on immigration.

The order called for the hiring of 10,000 more immigration officers, targeted funding for so-called sanctuary cities and revived a controversial information sharing program known as Secure Communities, which allows fingerprints of arrested individuals to be checked against U.S. Department of Homeland Security databases.

According to the DOJ statement on Tuesday, the agency mobilized more than 100 existing immigration judges to DHS detention facilities across the country after Trump signed his Jan. 25 order. More than 90 percent of the cases those new judges oversaw resulted in orders or removal requiring unauthorized immigrants to depart or be removed, the DOJ said.

The Justice Department has also hired an additional 54 immigration judges since Trump took office “and continues to hire new immigration judges each month,” its statement said.

Gail Seeram
1-877-GAIL-LAW / 407-292-7730.
Email Gail@GailLaw.com.


What Are Your Options When You Are Denied An Immigrant Visa (I-130) To The U.S?

Gail Seeram picBeing denied an immigrant visa I-130 to the U.S. can be a devastating setback to your family’s plans for the future, but it doesn’t have to be the end. You’ll be happy to know that just because your application has been denied does not mean you must accept the denial. You have options that can be explored to have your application reconsidered. This is true whether you were located within the United States or outside of the U.S. when you filed the application.

Reasons For Denial

Sometimes I-130 applications are denied due to simple mistakes or missing paperwork. At other times, denials are due to more serious issues. In either case, you will benefit from the help of an experienced Orlando immigration attorney. An immigration attorney can evaluate the situation that led to the denial and recommend steps to correct the problem and, hopefully, have the denial reversed.

Options After An Immigrant Visa Denial

In general, you have two options once an immigrant visa has been denied: appeal the decision or file a new application.

Option 1:

Appeal the Decision. Appeals are directed to the Board of Immigration Appeals (BIA) when the application was filed from within the U.S. The process is as follows:

1. Applicant must file a notice of appeal with its corresponding payment.

2. The BIA sends applicant a briefing schedule. This briefing schedule gives you time to submit a legal brief describing your arguments in support of the appeal. If the legal brief is not sent on time, the appeal is dismissed and you lose your case.

3. Once the legal brief is received by the BIA, the Board will need some time to review the case and make a decision. The total BIA process can take between 8 and 12 months or longer, depending on the complexity of the situation.

4. Once the BIA makes a decision, the case is over. However, in certain cases, you may appeal the BIA decision to the U.S. Federal Court for the Circuit where you live. Again, you have 30 days to file such an appeal.

If you filed your I-130 from outside the U.S. the process is slightly different. In that case, you will need to ask the principal consular officer to review your case. If the officer upholds the decision to deny the application, there is no appeal available, but you can usually start over again by refiling the I-130 petition.

Option 2:

New Application. Sometimes, a better course of action is to accept the original denial, but re-file the I-130 application with additional evidence. A denial does not mean you can’t re-apply for the same family member. Depending on your circumstances, reapplying may take less time that appealing the decision.

Gail Seeram
1-877-GAIL-LAW / 407-292-7730.
Email Gail@GailLaw.com.


Trump Travel Ban Partially Enforced & Reviewed by U.S. Supreme Court

Gail Seeram picOn June 26, 2017, the U.S. Supreme Court decided to hear the case relating to Trump Travel Ban executive order when it reconvenes in October 2017. In the meantime, the Court will allow the administration to implement parts of Trump’s second executive order, which bans the entry of nationals of Iran, Libya, Somalia, Sudan, Syria, and Yemen from the United States and suspends the admission of all refugees for 120 days. In a narrow decision, the Court ruled that the government can only enforce the Trump travel ban against foreign nationals “who lack any bona fide relationship with a person or entity in the United States.” This outcome is both disappointing and confusing.

There is no doubt this standard will create confusion and that, despite the narrowness of the Court’s decision, the administration will attempt to go further than permitted by the Court in deciding who can enter the U.S. In granting a partial stay, the Supreme Court has determined that individuals from the six countries (all of which have Muslim populations of more than 90 percent) and all refugees can be blocked from entering the United States if they lack the requisite relationship to a person or organization

The Trump travel ban (sometimes known as a Muslim Ban) refers to an Executive Order signed by President Donald Trump on March 6, 2017. This Executive Order is the second of its kind and among other provisions, suspends the entry of foreign nationals from Iran, Libya, Sudan, Somalia, Yemen and Syria for a period of 90 days; freezes the refugee admissions program for a period of 120 days; and slashes the refugee numbers by one half. The litigation around Muslim Ban 2.0 was immediate and resulted in two federal court decisions blocking the most controversial portions of the travel ban.

Immigration Courts 500,000 Cases Pending

In the meantime – The New Yorker reports that U.S. immigration courts are facing a backlog of over half a million cases—and each one, on average, takes almost two years to close. Roughly three hundred judges nationwide are responsible for the entire immigration caseload, and hiring is slow—filling a vacancy typically takes about two years, according to the Government Accountability Office. Attorney General Jeff Sessions said that he would try to streamline the hiring process, but in the meantime, judges are being shifted around the country due to the backlog.

Gail Seeram
1-877-GAIL-LAW / 407-292-7730.
Email Gail@GailLaw.com.


How to check processing time for an immigration filing?

Gail Seeram picSince the Trump administration, we have seen longer backlogs and numerous errors in processing immigration petitions filed with U.S. Citizenship and Immigration Services (USCIS). Every year USCIS adjudicates approximately 6 million petitions and applications for immigration benefits, such as naturalization applications, adjustment-of-status applications, change-of-status applications, and employment authorization petitions and applications.

There are a few ways to check on processing time of a pending immigration filing:

1 – Check processing time at a field office or service center – https://egov.uscis.gov/cris/processTimesDisplayInit.do

2 – Check visa availability for a Form I-130 (family-based) or I-140 (employment-based) filed and pending – https://myorlandoimmigrationlawyer.com/visa-processing/visa-immigration-lawyer

3 – Check the status of a petition filed with USCIS based on receipt number – https://egov.uscis.gov/casestatus/landing.do

Gail Seeram
1-877-GAIL-LAW / 407-292-7730.
Email Gail@GailLaw.com.


Trump says Dreamers Stay & DACA (Deferred Action for Childhood Arrivals) will remain in effect

Gail Seeram picThe Homeland Security Department announced on June 15, 2017 that it would keep in place the Deferred Action for Childhood Arrivals (DACA) policy, allowing undocumented immigrants brought to the U.S. as children to remain in the country. In effect, Trump says Dreamers stay and has broken his key campaign promise to terminate DACA and immediately deport all illegal immigrants under the DACA program. DACA recipients will continue to be eligible as outlined in the June 15, 2012, memorandum executed by President Obama.

In June 2012, President Obama announced that certain young people who were brought to the United States as young children, who do not present a risk to national security or public safety, and meet several key criteria will be considered for the relief of deferred action for two years and will be eligible for work authorization. Under this directive, termed DACA (Deferred Action for Childhood Arrivals) individuals who demonstrate that they meet the following criteria will be eligible for deferred action, on a case-by-case basis AND can apply for work authorization in the U.S. if they meet the following criteria:

Were under the age of 31 on June 15, 2012;
Arrived in the United States before turning 16;
Continuously resided in the United States from June 15, 2007, to the present;
Were physically present in the United States on June 15, 2012, as well as at the time of requesting deferred action from USCIS;
Entered without inspection before June 15, 2012, or any lawful immigration status expired on or before June 15, 2012;
On the date of the request, are in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED)
It is important to understand that deferred action is not a legal immigration status. Deferred action is a discretionary decision by DHS (Department of Homeland Security) not to pursue enforcement against a person for a specific period. A grant of deferred action does not alter an individual’s existing immigration status or provide a path to citizenship. Thus, deferred action cannot be used to establish eligibility for an immigration status that requires maintenance of lawful status. Deferred action, however, may allow a person to qualify for certain state benefits, such as driver license, though state requirements vary.

While deferred action does not cure any prior or subsequent period of unlawful presence, time in deferred action status is considered a period of stay authorized by the Secretary of DHS. An individual does not accrue unlawful presence while in deferred action status or while a DACA request is pending if the individual filed a request before reaching age 18. DHS can renew or terminate a grant of deferred action at any time.

Gail Seeram
1-877-GAIL-LAW / 407-292-7730.
Email Gail@GailLaw.com.


Express Deportation Under Trump

Gail Seeram picAccording to the Miami Herald, federal prosecutors in criminal cases are asking district judges to issue what are known as “judicial orders of removal,” which ensure that a convicted foreign national will be deported on completion of the sentence instead of being sent to an immigrant detention center to await proceedings in immigration court and then a deportation order from an immigration judge. The new “express” deportation under Trump, implements the Attorney General’s April 11, 2017, memorandum expressing a “renewed commitment to criminal immigration enforcement,” is purported to shorten the wait time for deportation, bypass backlogs in immigration court, and save the federal government money in housing and food in immigrant detention centers.

The usual legal process for foreign nationals convicted of a crime in federal court was a transfer to immigration authorities upon completion of their prison terms for initiation of deportation proceedings in immigration court. Trump administration officials hope the judicial orders of removal lead to an assembly line of deportations straight from the federal penitentiary and back to the countries from where the foreigners came — a sort of “express deportation” under Trump that skips the legal process in immigration court. Several have already been issued in Miami federal court since Trump took office in January in cases involving sentencing of foreign nationals in felony cases.

Gail Seeram
1-877-GAIL-LAW / 407-292-7730.
Email Gail@GailLaw.com.


Urge Congress to Extend Temporary Protected Status for Haitian Nationals

Gail Seeram picThe Trump administration is considering ending Temporary Protected Status for Haitian nationals, rather than extending the program. Immigration Lawyer Gail S. Seeram has expressed grave concerns regarding this prospect. Not only would the elimination of TPS or Temporary Protected Status for Haiti nationals create immense hardships for close to 47,000 Haitian individuals who have lived in the United States under the program’s protection for more than seven years, it would also adversely impact the U.S. economy and workforce. Show Congress that AILA stands with Haitians by tweeting out your support and by asking members of Congress to urge DHS Secretary Kelly to re-designate TPS for Haiti.

Haiti continues to struggle and Haitian in the U.S. meet the criteria to continue receiving TPA protection.  The Haitian government is unable to meet the basic needs of its people, resolve longstanding human rights problems, or address continuing humanitarian crises, even as a new crisis emerged. In October 2016, Hurricane Matthew, a devastating storm, hit Haiti’s southwest. President Privert estimated the losses surpassed the entire national budget and warned of an impending serious food crisis, driven by the loss of crops from the storm.  How can the U.S. return Haitians in the U.S. to such devastating conditions?

Gail Seeram
1-877-GAIL-LAW / 407-292-7730.
Email Gail@GailLaw.com.


U.S. Department of Homeland Security New Social Media Screening for Immigration Benefit

Gail Seeram picThe Immigration and Customs Enforcement pilot program for Social Media Screening for Immigration Benefit, which began last August, uses social media screening in the visa issuance process and beyond. While the inspector general report was redacted, it revealed that the agency is using a “web search tool that specializes in social media data exploitation by analyzing social media data and funneling it into actionable information,” to “help identify potential derogatory information not found in government databases.”

The report redacts the duration of Social Media Screening for Immigration Benefit, but it is clear the test program involved more than a one-time check of public-facing social media posts.

The Citizenship and Immigration Service’s social media screening for Immigration Benefit was launched in April 2016. Under that pilot, USCIS screeners requested social media information from visa applicants, then checked the information against a tool developed by the Defense Advanced Research Project Agency. USCIS concluded that the tool afforded a low “match confidence,” and that manual screening delivered better results. The IG report redacts data on the number of accounts USCIS was able to confirm using the DARPA tool, and the number it was not able to confirm.

Our recommendation is for anyone seeking an immigration benefit in the U.S. (whether non-immigrant or immigrant) to disable to close all social media accounts.  Social Media Screening for Immigration Benefit has been widely used to assess an applicant’s eligibility for an immigration benefit and whether fraud has been committed.  In most cases, Social Media Screening for Immigration Benefit has resulted in denial of the benefit sought.

Gail Seeram
1-877-GAIL-LAW / 407-292-7730.
Email Gail@GailLaw.com.


Immigration Cases Administratively closed being placed back on Court Docket

Gail Seeram picImmigration and Custom Enforcement (ICE) has confirmed it is now re-calendaring or placing back on court docket immigration cases that were previously administratively closed in an exercise of prosecutorial discretion (PD), including cases where there is an arrest or conviction subsequent to the administrative closure. ICE also said that if there was an arrest or conviction prior to administrative closure, that should not trigger a motion to recalendar, nor are they seeking to recalendar all of the cases that were administratively closed for prosecutorial discretion.  However, in some jurisdictions, local ICE offices are seeking to recalendar prosecutorial discretion cases where there was no intervening arrest or conviction.

When is Prosecutorial Discretion Used in Immigration Enforcement?

Prosecutorial discretion may be exercised at any stage of an immigration case. Specifically, prosecutorial discretion may be exercised when deciding whether to: issue a detainer; initiate removal proceedings; focus enforcement resources on particular violations or conduct; stop, question, or arrest a particular person; detain or release someone on bond, supervision, or personal recognizance; settle or dismiss a removal case; stay a final order of removal; pursue an appeal; and/or execute a removal order. Examples of the favorable exercise of prosecutorial discretion in the immigration context include a grant of deferred action; a decision to terminate or administratively close removal proceedings; a stay of removal; or a decision not to issue a charging document in the first place.

Who Exercises Prosecutorial Discretion?

ICE, USCIS, and CBP officers have the authority to exercise prosecutorial discretion. Because prosecutorial discretion is a process that determines whether the government is going to pursue enforcement in a case, the initial decisions are made by those immigration officers assigned to the case. Once the initial decision is made to issue a Notice to Appear (a document that formally initiates removal proceedings by charging an individual with immigration violations), further decisions about continuing the government’s case will be made at higher levels within ICE or DHS.  Ultimately, the Secretary of Homeland Security, as the official within the executive branch specifically charged with enforcing the Immigration and Nationality Act, is in a position to exercise prosecutorial discretion over every case.

Gail Seeram
1-877-GAIL-LAW / 407-292-7730.
Email Gail@GailLaw.com.


739,478 Overstay in the U.S. in 2016 

Gail Seeram pic

U.S. Custom and Border Protection provides data on departures and overstays, by country, for foreign visitors to the United States who entered as nonimmigrant visitors and were expected to depart in fiscal year 2016. The report specifies that U.S. Customs and Border Protection (CBP) processed 50,437,278 in-scope nonimmigrant admissions at U.S. air and sea ports of entry who were expected to depart in fiscal year 2016—of which 739,478 overstayed their admission, resulting in a total overstay in the U.S. of a rate of 1.47 percent.

Out of the total population, of the more than 21.6 million Visa Waiver Program (VWP) visitors expected to depart the United States in fiscal year 2016, 147,282 overstay in the U.S., with 128,806 suspected in-country overstays (a .60 percent suspected in-country overstay rate for VWP travelers). Of the more than 13.8 million non-VWP visitors—excluding Canada and Mexico—expected to depart the United States in fiscal year 2016, 287,107 overstay in the U.S., with 263,470 suspected in-country overstays. This resulted in a 1.90 percent suspected in country overstay rate.

Of the 1,457,556 students and exchange visitors scheduled to complete their program in the United States in fiscal year 2016, 79,818 overstay in the U.S. beyond their authorized window for departure, resulting in a 5.48 percent overstay rate. Of the 79,818, 40,949 are suspected in-country overstays (2.81 percent).

DHS conducts the overstay identification process by examining arrival, departure and immigration status information, which is consolidated to generate a complete picture of an individual’s travel to the United States. Due to continuing departures and adjustments in status, by January 10, 2017, the number of suspected in-country overstays for fiscal year 2016 decreased to 544,676, resulting in a suspected in-country overstay rate of 1.07 percent.

DHS anticipates that these overstay in the U.S. numbers will shift over time as additional information is reported. Specifically, the overall suspected in-country overstay rate will continue to decline as the number of individuals who have departed or transitioned to another immigration status after their initial period of authorized admission ended grows.

Gail Seeram
1-877-GAIL-LAW / 407-292-7730.
Email Gail@GailLaw.com.


Special Considerations for Newlywed Couples who are applying for Permanent Residence “Green Cards”

SafiyahThis article is designed to help in guiding couples through the permanent residence “green card” process for their spouses, parents, biological children, step-children, adopted children, step-children, and siblings. By far most of our clients are couples who are going through the immigration process. In this article I will focus on couples who are newlyweds.

Our firm loves working with newlywed couples because we have the opportunity to save that couple time and money by getting their immigration process done the right way the first time. With all permanent residence “green card” petitions that are based on a marriage Immigration is going to focus on two main things. Immigration is going to focus on couple’s finances and joint life. In addition, Immigration is going to focus on the couple’s children and family ties. Most newlywed couples that we meet have neither an established history of joint finances or children.  Consequently because most newlyweds do not have an established joint financial history and they have no children newlyweds have a greater burden to prove to Immigration that they have a genuine relationship.

In addition to having a greater burden of proof most newlyweds do not have experience with the procedural process of filing and getting an immigration case approved. In my practice we have re-filed immigration cases for couples whose cases were initially denied because they inadvertently failed to submit a document to Immigration before a deadline. The procedural requirements are simple but they are lengthy. As a result there are many occasions where a case can be denied or substantially delayed because of a procedural mistake. Procedural mistakes can result in denials of immigration petitions. In addition, once a case is denied the couple has lost all their filing fees and they will now have the laborious and expensive job of re-filing their case with Immigration.

The best ways to get your spouse’s permanent residence “green card” case approved begins before the couple says their  “I dos.” Every day we show our clients the best ways to get their green card cases approved the first time while reducing their processing times and helping them to avoid the immigration red flags that result in denials and deportations. In this month’s article I have listed the top two things that you can start doing today to get your case on the road to an approval so that you and your spouse can enjoy your “happily ever after.”

Tip Number One: Document Your Courtship

When most applicants apply for permanent residence they provide Immigration with documentation that they have acquired after they are married. This action appears to be the most logical thing to do since the application for permanent residence is based on marriage to the United States Citizen. Consequently, most applicants are not aware that Immigration is not only interested in the couple as a married couple but also Immigration is interested in the couple’s life before marriage. Therefore couples should keep careful records of their relationship, their courtship, and engagement prior to their marriage.

At our first meeting with a couple we do our best to get to know more about the couple’s relationship so that we can provide customized advice for their specific situation. Not every couple’s relationship is the same.

Tip Number Two: Assemble Your Personal Documents.

Normally a couple’s first discussion about the foreign spouse’s immigration status usually begins after the couple has already gotten married.  Rather the best time to talk about the foreign spouse’s immigration status is when the couple has decided that they wish to build a life together. It is important know how and when the foreign national entered the United States. The couple should also start assembling or obtaining their birth certificate, divorce decree(s), passports, I-94 card, and visa stamps and all other personal documents.

Readers of Kotch Magazine who are engaged or married to a foreign national spouse may contact the Byars Firm for a complimentary immigration consultation. Couples may also access the Byars Firm’s immigration Facebook group that was designed to give free tips and general information about the permanent residence “Green Card” process at https://www.facebook.com/groups/greencardforcouples/.

Safiya Byars

Founder and Senior Partner of Byars Firm
3720 Chamblee Dunwoody Road, Ste. D2,
Chamblee, GA 30341
678-736-5600/404-992-6506
Email sbyars@byarslawgroup.com.

Disclaimer:This article is provided as a public service and is not intended to establish an attorney-client relationship. Any reliance on the information contained herein is taken at your own risk. The information provided in this article should never replace informed counsel when specific immigration-related guidance is needed. 


BEST PRACTICES WHEN APPLYING FOR IMMIGRATION BENEFITS

SafiyahFamily immigration law is an area of law that provides immigration benefits to family members. As I am writing this article I am currently preparing to serve as the chair for the 2015 Family Immigration Continuing Legal Education Class for immigration attorneys in the state of Georgia. In preparing for that program I have decided to list a number of issues that myself and my colleagues thought would be beneficial to you if you are getting ready to apply for your immigration benefits.

In the area of immigration most people are lulled into the comfort of relying on the internet, Immigration’s website, or their family and friends. Some individuals are lucky in that they rely on these sources and receive an approval on their case. This is called gambling. As an immigrant myself I tell my clients do not take a gamble on your case. Your immigration case has a direct impact on your life. You owe it to yourself and your family to ensure that your case is done correctly the first time.  If you have chosen to take a gamble on your case then this may mean that your case was not that important to you or you already know that you do not qualify for the immigration benefit and you have decided to intentionally provide incorrect/incomplete information in the hopes that Immigration will overlook it and approve your case.  A summary of the issues raised by myself and other attorneys are as follows:

  1. Tell the truth and tell it to your attorney first.

It is important to understand that everyone’s case is unique. Whenever you are applying to Immigration there are two main concerns that you should have. The first concern should be the law. Does the law actually provide an immigration benefit that can benefit me. The second concern is the facts of your case. The facts of your case is what makes your case unique. Everyone’s situation is always a little bit different from another case. Facts that are extremely important usually are concerned with unauthorized employment, criminal arrests, convictions, and the details of your family relationship.  However, the facts about your relationship with your spouse is also extremely important if you are applying for immigration benefits based on your relationship with your spouse. As such, the best time to tell the entire truth about your case is to your attorney. In addition, the best time to tell your attorney is before he or she files your case with Immigration. Your attorney will then be able to advise you on the best course of action. In some cases Immigration is able to forgive certain violations.  However you must disclose to Immigration in order to be forgiven. The one caveat is please disclose all the good and the bad information to your attorney first.

  1. The Immigration Officer is your friend. Do your best to make the Immigration Officer’s job as easy as possible.

At the Immigration appointment Immigration Officers have limited time in which they must complete an interview. They also have a schedule of interviews that they must complete for the day.  As such, Immigration Officers prefer to review cases that are organized. They also prefer when the applicants are prepared for their interview. Consequently, it is important to keep in mind that the Immigration Officers have limited time and therefore it would be beneficial to be thorough in your preparation. I have seen many cases that are delayed and then denied because the applicants were simply not prepared and/or they did not bring the appropriate documents to their interview. Immigration Officers take your case and their jobs very seriously and therefore you should take your case seriously as well. If you are not adequately prepared the Immigration Officer will assume that you are lying or committing fraud on your case. Once Immigration makes a finding of fraud against you your case will become substantially more difficult to be approved. As such the bottom line is to ensure that you are organized so that you will make the Immigration Officer’s job as  easy as possible.

  1. Maintain credibility.

The best way to maintain your credibility with Immigration is to answer all questions in full. Before you answer any questions on your applications please consult an attorney. Most applicants do not realize that the immigration forms have language that states that when you sign your application you are signing under penalty of perjury. This means that if you answer a question with incorrect or incomplete information then you may have just committed perjury. Later at the interview if it comes to light that you provided incorrect or incomplete information the officer may consider this is to be fraud/misrepresentation.  The best way to maintain your credibility is to remain consistent in your answers and documents when you initially file your case and then later on at your interview.

Safiya Byars

Founder and Senior Partner of Byars Firm
3720 Chamblee Dunwoody Road, Ste. D2,
Chamblee, GA 30341
678-736-5600/404-992-6506
Email sbyars@byarslawgroup.com.

Disclaimer: This article is a broad overview. This article is not legal advice and should not be taken as legal advice. This article is provided as a public service and is not intended to establish an attorney-client relationship. Any reliance on the information contained herein is taken at your own risk. The information provided in this article should never replace informed counsel when specific immigration-related guidance is needed.

 


Green Card” Permanent Residence (FAQs)

SafiyahThese common questions that we receive from prospective clients who are getting ready to pursue their permanent residence “green card’ through their spouse, may be insightful.

  1. Question: I am engaged and my fiancé and I want to know more about the immigration process to obtain my permanent residence.

Answer: The best time to learn about the “green card” process for a couple is when you are engaged. The immigration process will not actually begin until you are married.  However, for newlyweds Immigration always evaluates the couple’s relationship prior to their marriage as well as after they have tied the knot.  The immigration process will begin with the filing of your immigration petitions. The second step is the pending phase where you can continue to build your case in anticipation of your interview. The third step is the “green card” interview. Based on the unique facts of my clients’ cases I usually discuss the processing times and our case strategy at our consultation.

  1. Question: My husband and I are newlyweds and we are trying to figure out how to start the immigration process.

Answer: The best way to start the immigration process is to start gathering all of your personal items such as your birth certificates, passports, visa, I-94 card, marriage certificate and divorce decree(s) if any. The next step is to schedule a consultation to gain detailed information on the immigration process.

  1. Question: I entered the United States on someone else’s visa and now I am getting married. My wife to be and I want to apply for permanent residence in the United States. Can I apply for permanent residence?

Answer:  Generally individuals who have legally entered the United States and are now married to US citizen may apply for permanent residence despite the fact that they have overstayed their visa or they have worked without immigration’s permission. However, the key point is that the applicant is required to prove legal entry. If you entered on someone else’s documents then this is not legal entry. If there is no legal entry the applicant will have to explore some other options in order to gain permanent residence through his/her spouse.

  1. Question: Presently my driver’s license is expired and I need to work. Will I be able to obtain my work permit and get a new license while my green card case is pending?

Answer: Generally the answer is yes. If you are eligible to apply for permanent residence “green card” in the United States, Immigration will provide you with a work permit while your case is pending. Once you have received your work permit you may present that document to your local DMV office to obtain a new license.  If you do not have a social security card you may also present your work permit to your local social security office to obtain a social security number.

  1. Question: I have heard from many individuals that the immigration process is very long. If I hire an attorney will my processing time be reduced?

Answer:  Whenever you submit your petition to Immigration there is a suggested processing time based on Immigration’s current workload. The processing time can be drastically extended if you did not submit a complete application or if your documents have not established that you are eligible for your benefits. As a result of that, Immigration may request additional documents or send a notice that they intend to deny your case. All of these actions will delay your case and add to your processing time.  For our clients we work to ensure that they receive the shortest processing times by preparing their case to avoid the unnecessary delays due to Immigration’s request for evidence and Immigration errors.

  1. Question: My husband and I have already attended my green card interview. However, we just received another notice for a second interview. What is going on? Why does Immigration want to interview us again?

Answer: The second interview is what is normally known as the “fraud interview.” This mean that Immigration does not believe that there is sufficient evidence or testimony to prove that you and your husband have a genuine marriage. At this point, you will need to rebuild your case to now convince the Immigration Officer that you are in fact a real couple. This is a very high burden. You should consult or hire an attorney immediately. We handle “fraud interviews’ on a consistent basis and we have been successful.

  1. Question: My wife and I applied for my permanent residence and my case was denied. Should we file an appeal or should we just reapply?

Answer: The decision on whether or not to file an appeal or re-file your case is based on the reason for the denial of the first petition. If Immigration denied your case over a minor procedural issue and they made an error I would suggest an appeal. If Immigration denied your case because you did not prove that you were eligible for your benefits it may be beneficial to re-file your case or file an appeal. The best way to decide on this matter is to consult an attorney.

  1. Question: If my permanent residence case was denied will I be deported?

Answer: The answer is yes and no. Once your immigration case is denied Immigration can forward your file to the Immigration Court for removal proceedings. In that case you will be required to go to court and prove that you have legal status or that you are reapplying for legal status. In some cases your immigration file is not transferred to the Immigration court and that allows you time to decide if you wish to file an appeal or re-file your case with immigration. Ultimately if you are placed in removal proceedings and you have no legal status and you have no way to acquire any legal status the Immigration court will order removal. If you have a denied case your best option is to consult with or hire an attorney to help you to file an appeal, re-file your case, or defend you in Immigration Court.

Bonus: If you are engaged or married and you wish to learn more about the “green card” process contact an immigration attorney who will answer your questions and provide you with some helpful tips on acquiring your new immigration status.

Safiya Byars

Founder and Senior Partner of Byars Firm
3720 Chamblee Dunwoody Road, Ste. D2,
Chamblee, GA 30341
678-736-5600/404-992-6506
Email sbyars@byarslawgroup.com.

Disclaimer: This article is a broad overview of common immigration questions. This article is provided as a public service and is not intended to establish an attorney-client relationship. Any reliance on the information contained herein is taken at your own risk. The information provided in this article should never replace informed counsel when specific immigration-related guidance is needed.


Prove Domestic Abuse And get or keep your green card

PAULA D'AGUILARIn order to become a Citizen of the United States (USC), one must first have been a lawful permanent resident (LPR) – or have a green card – for a specified number of years; so the critical question for the vast majority of persons is: “How do I get a green card?”

Generally speaking, a petition is usually filed on behalf of an alien by some one else, such as an employer, or a family member. There are many exceptions to this general rule however, and sometimes it is familiarizing ourselves with the exceptions, rather than the rule, that may get us results! One such exception falls within the realm of domestic abuse.

There is legislation allowing a person to self-petition and become a lawful permanent resident upon proving that he or she is a person of good moral character, is married to a USC or LPR, the marriage was entered into in good faith and, during the marriage, the alien “…has been battered or has been the subject of extreme cruelty perpetrated by the alien’s spouse…”. Similar provisions also give residence to an abused child or abused parent of a USC or LPR.

Given that basic premise, potential clients have asked me lots of questions:

Q: I have never called the police on him, because I was afraid of what he would do, so how am I going to be able to prove that he is abusive?

A: Of course, if there are police reports, psychological evaluations and photographs showing wounds, it would be easier to prove your case, but those things are not always available or necessary, especially where there are credible sworn statements by persons having specific knowledge of what you have been going through.

Q: My husband has never hit me, but I am so afraid of him because of his threats. He pointed a gun at me once, and then laughed and told me it was not loaded.

A: If you feel afraid of your husband, and do not share in his idea of a “joke” like that, please know that abuse does not have to be physical. It can be mental or psychological.

Q: I divorced my husband a year and a half ago. Is it too late to file this self petition?

A: Even in certain situations where the parties are already divorced, or where you have learned that the marriage was bigamous, so he technically was not even legally your husband, the basic provisions may still apply.

Q: I already got my green card, and I did not tell the Immigration Authorities (CIS) about my wife’s abuse because I did not want to get her in trouble. She has four children. But now I have to file the second petition to get my ten year card, and she has told me she is not going to do anything more to help me.

A: Failure to timely file to remove the conditions on your residence can lead to you being placed in deportation proceedings, so just not filing is not an option. Specific provisions are in place in situations like this too, where it is time to file but the abusive, controlling, dominating spouse refuses to cooperate with you in the process.

* * * * * * * * *

The purpose in providing this information to the public is to encourage you, or a family member or friend in this situation, to discuss your case with a competent immigration attorney, to determine if you could qualify under the law without waiting for your spouse to submit that petition for you.

Attorney Paula S. D’Aguilar

Member of the New York Bar

954-583-3805 or

daguilarlaw@bellsouth.net


How to help children navigate the U.S. immigration laws

Understanding the law can be helpful for your biological, step, adopted and married children

PAULA D'AGUILARA distraught client explains: “My son went for an interview at the American Embassy two days ago, and he was denied. What do I do now?” You may have heard some horror stories about a husband petitioning for his wife and children overseas, (or vise versa) and the children having to be left behind when the mother’s immigrant visa is approved but not the children; or you may have heard of situations where some of the children got through and others did not.
There might be just one child left behind who does not qualify for the immigrant visa to come to the U.S., and that can be devastating to a whole family structure. We will explore in this article some of the issues which must be considered before a child finally joins his or her parents in the US.
The first phase is the petition to the United States Citizenship and Immigration Services (CIS) [no longer INS], and the issue here is “Will the petition be approved?” Several factors are relevant in this phase, such as: the age of the child, the immigration status of the parent, the marital status of the child, and the actual relationship of the parties.
The second phase is called the immigrant visa processing, when the child is overseas, or adjustment of status, when the child is already in the U.S. These factors come into play again in the second phase of the process, and additional factors, such as the child’s criminal record, also become relevant before final approval for residence. (In many cases, there is a long waiting game between the two phases, which we will address in a future article.)

My daughter is already over 21. Can I petition for her?

Generally speaking, the term “child,” as defined by the Immigration and Nationality Act, refers to an individual under the age of 21. Thereafter, she is classified as the “son” or “daughter” of the American Citizen (USC) or lawful permanent resident (LPR). No matter what the age of the child, your petition may be approved. The age of the child becomes relevant, however, in determining whether the child is then treated as an “immediate relative” and can immediately move to the second phase, or whether he or she falls under a preference category, and must be subject to a waiting period, pursuant to a quota set by Congress, for an immigrant visa number to become available. After the child turns 21, she is said to “age out,” and moves to a different category. The Child Status Protection Act provides a formula by which some qualifying children
may still be treated as a “child” and subject to the immediate relative processing, despite
having technically aged out by turning 21.

One of the twins is married. Can I petition for him as well?

The answer is yes, if you are a USC. Note, however, that they will fall under different preference
categories. The married child, son or daughter falls under what is known as the 3rd preference
category, and is subject to a much longer waiting period, generally. If you are an LPR, however,
a petition for a married child cannot be approved under the U.S. immigration laws. Green card
holders may petition for their unmarried children only – whether never previously married, or
previously married but now divorced.

My daughter will be getting married in four months. Is it ok to submit a petition for her now,
or should I wait until after the wedding?

Again, the answer would be in the affirmative if you are a USC. However, if you are an LPR, who
will not be gaining U.S. citizenship through naturalization before the date of her marriage, it
would be unwise to file the petition. It would be a waste of your money. If that beneficiarychild,
(or son or daughter – now that you understand the distinction) gets married even one day
before you become a USC, the petition must be denied, under U.S. immigration laws. Always
wait for your citizenship before submitting a petition for a married child or one who insists on
getting married before the visa processing is complete.

The petition I filed for my daughter was approved four years ago, and her interview at the
Embassy is coming up in five weeks. Can she marry her live-in boyfriend now so that he can
be interviewed at the same time and come up to the US with her and their two children?

Yes, if you are a USC. If an LPR petitions for an unmarried son or daughter, however, please
warn that child never to get married until after his or her residence is granted, or unless the
petitioner first becomes a naturalized American citizen. That rule is firm, up to the date that the
individual enters the U.S. on his or her immigrant visa. In other words, entry into the U.S. marks
the date that the lawful permanent resident status is granted, so disclosure of the child’s
marriage prior to the interview would lead to a denial.
Similarly, marriage after the immigrant visa is obtained, but prior to the subsequent entry into
the U.S., can lead to an ultimate denial. If there is indeed such a marriage within that time
frame, but it was not disclosed upon entry, proceedings to rescind the residence may be
commenced whenever the authorities become aware of the marriage. “How would they ever
know?” is a tempting question, but remember, if you got married, you may want to petition for
that spouse to come and live with you in the U.S. at some point, and the marriage certificate
will disclose the relevant date. Always be truthful in your response to any questions posed by
the examiner. The advice would, therefore, be to always seek legal counsel from a competent Immigration Attorney before you make any such moves. Your future depends on it.

I just got married and I want to file for my wife and her two children. They are not my children. Is that possible?

Yes, whether you are a USC or an LPR, you may petition for residence for your step-children.

My sister just died and I want to adopt my nephew and bring him to the U.S. Can that be done?

Without going into the entire huge topic of adoptions, suffice it to say that a petition, whether by a USC or LPR, can be approved, if the adopted child is under the age of 16 at the time the adoption takes place. However, do not rush into such an adoption without legal advice. You may adopt the child in his home country and find that he is not eligible for U.S. immigration benefits, which would further devastate the child’s situation, and yours. Complications include proving that you have lived with the child for two years; and time constraints involve having to wait until two years after the adoption is finalized, before initiating the petition process with the immigration authorities. Special rules apply where the petitioner is a USC and the child is classifiable as an “orphan.” Let’s leave that subject for another article.
The answers given above relate to filings on behalf of a child of a mother, or of a father, where the father was married to the mother at the time of the child’s birth, or prior to the child’s 18th birthday. Separate rules apply when the father marries the mother only after the child turned 18, or was never married to the mother. The next article in this series will deal with the special subject of “fathers.”

Attorney Paula S. D’Aguilar, member of the New York bar, has been practicing Immigration Law for more than thirty years. She maintains offices in Fort Lauderdale, Florida and may be reached at 954-583-3805 or via daguilarlaw@bellsouth.net to schedule a private, confidential appointment. Phone consultations may also be arranged.


From Illegal Immigrant to Permanent Resident

GRACE FOLTZIn the United States, illegal immigration refers to the act of foreign nationals violating American immigration policies and laws through the entering or remaining in the country without receiving proper authorization from the federal government.  You may be termed an “illegal immigrant” in one of the following ways:

Illegally Entering the United States: Referred to as “Border Crossing Card Violator” these individuals enter the United States via illegal entry. A common method of border crossing is to hire professional organizations who smuggle illegal immigrants across the United States’ borders. The Mexican/American border is the most common access point for illegal immigration. This method of illegal entry accounts for roughly 6.5 million illegal immigrant statuses in the United States.

Overstaying your Visa: 

The individual entered the United States in a legal fashion (obtained a visa) but stayed beyond the allotted time period in the nation or violated the terms of legal entry. Roughly 5 million migrants entered America with a legal visa. Tourists and students are the most common groups to secure visas before travelling to the United States. Their status of a legal migrant changes to “visa overstay” once the individual remains in the United States after their authorized time of admission has expired. The time allotted by a visa will vary based on the visa class the individual secured. The majority of these illegal immigrants enter the country with tourist or business visas. 

Border Crossing Card Violations:  The Border Crossing Card is a form of identification that enables an individual to cross into the United States for a limited amount of time. These entries accounts for the majority of registered nonimmigrant entry into America.

Laws Surrounding Illegal Entry or Over-Staying:

An immigrant may be classified as illegal for the following three reasons: the individual enters without inspection or authorization, the individual stays beyond an authorized period following legal entry, or the individual violates the terms of legal entry.

The laws related to illegal entry or overstaying are found in Section 1325 in Title 8 of the United States Code. This section, titled “Improper Entry of Alien” will provide a fine or imprisonment (or both) for any immigrant who:

  1. Enters or attempts to enter America at any time or location other than what was    designated by the United States Government immigration official, or
  2. Any individual who eludes inspection or examination implemented by the United States Government and its immigration agents, or
  3. Any individual who attempts to enter the United States by providing a false or misleading representation of oneself or through a willful concealment of fact.  For instance, if you provide a false passport, driver’s license or pretend to be anyone else, you will be charged with attempting to enter the United States in an illegal fashion.

The maximum prison sentence for an individual caught in the act of violating immigration policy is 6 months for the first offense and additional 2 years for any subsequent offense.

How does the United States Enforce Illegal Immigration Laws?

The United States government is attempting to crack-down on illegal immigration. If you have over-stayed your visa or illegally crossed the border, chances are the United States government will uncover documentation that leads to your imprisonment or deportation. The following methods are used by the United States government to curb and reveal cases of illegal immigration:

Protection at the Border: The United States Customs and Border Protection agency is responsible for arresting individuals who attempt to illegally enter the United States. The United States Border Patrol is a uniformed law enforcement agency that is responsible for deterring, detecting and subsequently apprehending those individuals who enter the United States in an illegal fashion—without permission from the government and outside the designated points of entry.

Workplace Investigations: The United States government conducts audits on employment records (the Immigration and Customs Enforcement Agency initiates the audits) to reveal any discrepancies with regards to identification records and the documentation itself. Workplace audits may result in deportation if absolute evidence of illegal immigration is uncovered. Immigration authorities, during workplace investigation, will alert employers of mismatches between an employees’ social security card and the actual identification information of the card holder. In addition to employment records, an immigrant’s visa is perpetually updated and observed by the United States government. Simply put, the government will know, through your employer, as to when your visa expires.

What is the Punishment Associated with Illegal Immigration?

Individuals who are caught illegally immigrating will face detention, imprisonment or deportation. Annually, the United States holds roughly 300,000 illegal immigrants in immigration detention centers. An illegal immigrants’ deportation is determined in administrative or removal proceedings, held by the government in accordance with United States immigration law. A removal proceeding is typically conducted in an immigration court and held by an immigration judge. If the individual is found guilty of illegally immigrating, he/she may be sent back to their home country and barred from re-entry to the United States. Complications in deportation will arise when the parents are deemed illegal immigrants, but their children were born in America.

Laws Surrounding Deportation:

If you do not have a visa, a green card or citizenship in the United States and are currently living in the country, you are subject to deportation. Getting deported is a very serious aspect of immigration law; it is the process of the United States government removing illegal immigrants from the country. Deportation may eliminate your ability to secure a visa in the future. The United States Government may deport you for the following reasons:

  • If you enter the United States while being deemed “legally inadmissible” by theimmigration laws of the federal government
  • Entering the country without a legal visa
  • Failure to renew a conditional permanent residency visa
  • Aiding an illegal immigrant with entering the country
  • Conviction of a criminal offense
  • Endangering national or public security
  • Participating in afraudulent marriage for the purpose of securing an immigrant visa

Grace Foltz

     BSC JD

Archived Edition 

Disclaimer:This article is provided as a public service and is not intended to establish an attorney-client relationship. Any reliance on the information contained herein is taken at your own risk. The information provided in this article should never replace informed counsel when specific immigration-related guidance is needed.