IMMIGRATION BLOG

Date: 11/10/2016 3:40 PM EST

The election of Donald Trump has sent shock waves throughout the United States and across the world.  As a candidate, President-elect Trump ran on a platform that included building a wall across the border between the United States and Mexico. Then he promised to enacted rules that affect the entry of both Muslims and refugees from the Middle East.  He also vowed to undo all of the executive orders signed by President Obama.  Many people are concerned about the effect his election will have on immigration and immigration reform.  The short answer is that no one really knows the initial priorities of the Trump administration.  As for the Trump administration's approach to immigration, there are a few things to keep in mind.

First, mass deportations are not very likely. People placed in removal proceedings have due process rights. The extents to which they slow or prevent removal (deportation) vary depending upon the situation, but there are protections for people whom the government decides it wants to remove.  It is important to remember that there has not been an "amnesty" under the Obama administration.  Although, the number of people in removal proceedings may have recently decreased, the number of people removed during his administration is larger than that of his Republican predecessor, George Bush.

Second, House Republicans have expressed interest in immigration reform, although it is not clear the shape it would take.  The Obama Administration called for comprehensive immigration reform. House Speaker and former vice-presidential candidate Paul Ryan has called for piecemeal changes to the current system.  We will probably have a better sense of the Trump's ideas and policies as his inauguration grows nearer.


Finally, much depends upon on how Trump emerges as President.  His rhetoric during the campaign was inflammatory, yet he struck a conciliatory note during his victory speech. During the campaign he promised to undo all of Obama's executive orders.  One such program is Deferred Action for Childhood Arrivals (DACA).  This program allowed those who were brought here as children to work in the United States and not fear deportation.  Revoking this program could immediately take away the ability of the 380,000 people to lawfully work in the United States. Whether that will be the approach of the Trump administration remains to be seen. Stay tuned.

Posted by Robert J Maher | Post a Comment

Date: 8/28/2016 2:13 PM EDT


The United States Immigration and Citizen Services released the below press release on Friday.  It lays out the Service's plan for permitting investors and international entrepreneurs to be considered for parole (temporary admission) to the United States to start or develop their U.S. based business.  It is not the "startup visa” that many entrepreneurs were hoping for to be certain, but it does allow individuals who meet certain criteria to be admitted to the United States to further the develop a business begun in the United States.  The rule would allow entry to those:

1) Who have a significant ownership interest in the startup (at least 15 percent) and have an active and central role to its operations;

2) Whose startup was formed in the United States within the past three years; and

3) Whose startup has substantial and demonstrated potential for rapid business growth and job creation, as evidenced by:

a) Receiving significant investment of capital (at least $345,000) from certain qualified U.S. investors with established records of successful investments;
b) Significant awards or grants (at least $100,000) from certain federal, state or local government entities; or
c) Partially satisfying one or both of the above criteria in addition to other reliable and compelling evidence of the startup entity’s substantial potential for rapid growth and job creation.

It will permit an entrepreneur to remain up to two years to develop a business and then permit an extension of parole for three more years provided the business has exhibited substantial public benefit.

As the press release linked below indicates, there will be a 45-day period for the public to comment.  After that period, the rule will go into effect when published in the Federal Register.

https://www.uscis.gov/news/news-releases/uscis-proposes-rule-to-welcome-international-entrepreneurs


Proponents will view this development as an overdue response to pent up demand for a means for entrepreneurs to contribute to the U.S. economy.  It is an ambitious proposal considering the current political climate.  Presidential candidate Donald Trump has vowed to end the H-1B program, which is a program through which US employers bring a limited number of foreign employees to work in the United States.  If the reaction by States to President Obama's Deferred Action programs are an indication of the response USCIS might expect from opponents, the success of the new rule's implementation are not guaranteed. 

Posted by Robert J Maher | Post a Comment

Date: 7/29/2016 2:43 PM EDT


Trump and The H-2 Visa

News sources are reporting that Donald Trump has hired seventy-eight  temporary foreign employees to work at his Mar-a-Lago Club in Pam Beach, Florida. Critics  are claiming that he employs a double standard as one of his main campaign themes is that he plans to bring jobs back to the United States. 

It is interesting to consider this issue as he is petitioning for these workers under the H-2B visa program, “Temporary Non-Agricultural Worker Visa.”  This visa exists so that employers who have difficulty finding workers for seasonal employment.  United States Customs and Immigration Service’s (“USCIS”) website lays out the requirements for what types of jobs qualify under the program: 

To qualify for H-2B non-immigrant classification, the petitioner must establish that:

1) There are not enough U.S. workers who are able, willing, qualified, and available to do the temporary work.
2) Employing H-2B workers will not adversely affect the wages and working conditions of similarly employed U.S. workers.
3) Its need for the prospective worker’s services or labor is temporary, regardless of whether the underlying job can be described as temporary.  The employer’s need is considered temporary if it is a(n):
  • One-time occurrence or Seasonal need or Peakload need or Intermittent need. 

In addition to demonstrating these requirements an employer has to file a Labor Certification Application (LCA) and advertise the position locally so that American workers have the opportunity to apply for the position.  The employer also has to keep records of its interviews of American workers and has to maintain records of interviews and explanations as to why US workers were not hired if requested. 

The requirements of the visa are designed so that an employer pays the employee the prevailing wage for the position, which in theory protects American workers.    Mr. Trump has claimed that he cannot find workers to work in the positions he needs filled, while others have claimed that he underpays the employees he hires despite the rules of the program.  

There are consequences for employers who violate the terms of this visa program, but this blogger has not found any reports that the Department of Labor or USCIS has taken any action against the Club for violating the terms of the program.  In the meantime, the debate about the overhaul of the immigration laws of the United States continues.  

Employers interested in the H-2 visa program are encouraged to consult with an experienced attorney with any questions.  This blog is for informational purposes only and is not legal advice.  


Posted by Robert J Maher | Post a Comment

Date: 7/25/2016 11:54 AM EDT

Australians and The E-3 Visa

The E-3 visa is available to Australians who have an offer of employment from a company in the United States that wishes to employ them.  The visa is similar in many ways to the H-1B visa in that the employment has to be for a specialty occupation. According to USCIS’s website, in order to be a specialty occupation, the job must meet one of the following criteria:

1)         A bachelor’s degree or higher or its equivalent is the minimum entry level requirement for the position;
2)         The degree required is common to the industry or the job is so complex or unique that it can be performed only by an individual with a degree;
3)         The employer normally requires a degree or its equivalent for the position;
4)         The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s degree or higher degree.

In order for the employee to accept the position, the beneficiary must meet one of the following requirements:

1)      Hold a U.S. Bachelor’s Degree or higher that is required for the position;
2)      Hold a foreign degree that is equivalent to a U.S. Bachelor’s Degree  required for the position;
3)      Hold an unrestricted state license, or certification that authorizes you to practice the specialty occupation and be engaged in the state of intended employment;
4)      Have education or training or progressively responsible experience in the specialty occupation that is the equivalent to the completion of such a degree.

The sponsoring company must also file an approved form ETA-9035, Labor Condition Certification (LCA, ) and Form I-129 "Petition for a non-Immigrant Worker" with USCIS. There are exceptions to this method of filing however. Under certain circumstances, a prospective employee currently working or living in the United State under a status other than E-3 may be able to accwpt employmnent under the E-3 visa. 

A petitioner employer may file an LCA for the prospective employee and upon approval request that the employee beneficiary apply for an E-3 visa on the Department of State's website and then follow up with the scheduling of an appointment for an interview at a consular post outside of the United States.  Depending upon the circumstances, this method may allow an employer to quickly hire a prospective employee, thus saving the time and expense often required to recruit and hire an employee who is qualified under this visa.  

Each circumstance is different so results will differ.   Contact an experienced attorney with any questions as the above is informational only and should not be construed a legal advice.   


Posted by Robert J Maher | Post a Comment

Date: 4/19/2013 3:10 PM EDT


Grand Larceny and Aggravated Felonies in New York State

A conviction for Grand Larceny can have dire consequences in the context of immigration because a conviction for Grand Larceny is often categorized as an Aggravated Felony.   The definition of an aggravated felony can be found in Section § 101(a)(43), of the Immigration and Nationality Act of 1952, Pub. L. No. 82-414, 66 Stat. 163, 8 U.S.C. § 1101(a)(43).  Section 101(a)(43(G) defines an aggravated felony as a crime involving theft where a sentence of more than one year is imposed. Under Section 101(a)(43(M), crimes involving fraud or deceit in which the amount of loss to the victim is in excess of ten thousand dollars is also an aggravated felony. The two sections related to Larceny are 101(a)(43(G) and 101(a)(43)(M). A conviction under either one of these sections is an Aggravated Felony for immigration purposes.   

Article 155 of the New York Penal also defines the differing degrees of Larceny. In New York, larceny can be committed in a number of ways; some involve theft and others fraud. Therefore, when considering a plea of guilty to a larceny charge, the accused has to take into account many factors in determining whether or not a guilty plea will result in a conviction classified as an aggravated felony.


When considering your options as they relate to Larceny, speak to an experienced attorney regarding the potential consequences of a guilty plea.  The consequences can be severe.  





Posted by Robert J Maher | Post a Comment

Date: 4/19/2013 3:10 PM EDT


Grand Larceny and Aggravated Felonies in New York State

A conviction for Grand Larceny can have dire consequences in the context of immigration because a conviction for Grand Larceny is often categorized as an Aggravated Felony.   The definition of an aggravated felony can be found in Section § 101(a)(43), of the Immigration and Nationality Act of 1952, Pub. L. No. 82-414, 66 Stat. 163, 8 U.S.C. § 1101(a)(43).  Section 101(a)(43(G) defines an aggravated felony as a crime involving theft where a sentence of more than one year is imposed. Under Section 101(a)(43(M), crimes involving fraud or deceit in which the amount of loss to the victim is in excess of ten thousand dollars is also an aggravated felony. The two sections related to Larceny are 101(a)(43(G) and 101(a)(43)(M). A conviction under either one of these sections is an Aggravated Felony for immigration purposes.   

Article 155 of the New York Penal also defines the differing degrees of Larceny. In New York, larceny can be committed in a number of ways; some involve theft and others fraud. Therefore, when considering a plea of guilty to a larceny charge, the accused has to take into account many factors in determining whether or not a guilty plea will result in a conviction classified as an aggravated felony.


When considering your options as they relate to Larceny, speak to an experienced attorney regarding the potential consequences of a guilty plea.  The consequences can be severe.  





Posted by Robert J Maher | Post a Comment

Date: 4/16/2013 4:07 PM EDT

The below is a link to the American Immigration Lawyers Association website.  It includes proposed legislation regarding immigration reform.  My initial reaction is that a number of people in the United States who are out of lawful status will be forced to wait aconsiderable amount of time before they are able to adjut to "Registered Provisional Immigrant Status."  The other consideration is the deadline.  The application period will be for one year after the requirements for securing the border are met.  It appears, however, that the proposed legislation does attempt to deal with the huge number of people who have been her many tears and have no criminal bars to their adjustment:

This below section comes into play after the border securitization are in place:

Legalization and Legal Immigration

 
I.          Adjustment of Status to Registered Provisional Immigrant Status
 
·         Individuals in unlawful status may apply to adjust their status to the legal status of Registered Provisional Immigrant Status.
 
·         Eligibility Criteria:
 
·         Residence in the United States prior to December 31, 2011 and maintenance of continuous physical presence since then.
 
·         Paid a $500 penalty fee (except for DREAM Act eligible students), and assessed taxes, per adult applicant in addition to all applicable fees required to pay for the cost of processing the application.
 
·         Ineligible if:
o   Convicted of an aggravated felony;
o   Convicted of a felony;
o   Convicted of 3 or more misdemeanors;
o   Convicted of an offense under foreign law;
o   Unlawfully Voted; and
o   Inadmissible for Criminal, National Security, Public Health, or other morality grounds.
 
·         Spouses and children of people in RPI status can be petitioned for as derivatives of the principal applicant (but must be in the United States at the time).
 
·         Immigrants in RPI status can work for any employer and travel outside of the United States
 
·         Individuals outside of the United States who were previously here before December 31, 2011 and were deported for non-criminal reasons can apply to re-enter the United States in RPI status if they are the spouse, of or parent of a child who is, United States citizen or lawful permanent resident; or are a childhood arrival who is eligible for the DREAM Act.
 
 
·         The Application period will be for 1 year with the possibility of extension by the Secretary for an additional 1 year.
 
·         Individuals with removal orders will be permitted to apply as will aliens currently in removal proceedings.
 
·         RPI status shall last for a 6-year term that is renewable if the immigrant does not commit any acts that would render the alien deportable.  Another $500 penalty fee is applicable at this time.
 
 
·         The Secretary may collect a processing fee from individuals who register for RPI status in an amount that is sufficient to recover all of the costs of implementing the registration program.
 
·         An individual who has been granted RPI status is not eligible for any Federal means-tested public benefit (as such term is defined in section 403 of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (8 U.S.C. 1613)).
 
·         A noncitizen granted registered provisional immigrant status under this section shall be considered lawfully present in the United States for all purposes, while such noncitizen remains in such status, except that the noncitizen
o   is not entitled to the premium assistance tax credit authorized under section 36B of the Internal Revenue Code of 1986; and
o   shall be subject to the rules applicable to individuals not lawfully present that are set forth in section 1402(e) of the Patient Protection and Affordable Care Act (42
U.S.C. 18071).
 
·         After 10 years, aliens in RPI status may adjust to Lawful Permanent Resident Status through the same Merit Based System everyone else must use to earn a green card (described below) if the following things have occurred:
o   The alien maintained continuous physical presence
o   They paid all taxes owed during the period that they are in status as an RPI
o   They worked in the United States regularly;
o    And demonstrated knowledge of Civics and English


o   All people currently waiting for family and employment green cards as of the date of enactment have had their priority date become current.

o   A $1,000 penalty fee is rendered

·         People in DREAM Act Status and the Agricultural Program can get their green cards in 5 years and DREAM Act kids will be eligible for citizenship immediately after they get their green cards.


The full text of the summary:
http://www.aila.org/content/default.aspx?docid=44052&utm_source=AILA+Mailing&utm_campaign=156b68f884-AILA8_4_16_13&utm_medium=email

Posted by Robert J Maher | 1 Comment

Date: 4/15/2013 4:09 PM EDT

The linked article discusses Senator Marco Rubio's view of the proposed immigration legislation he is helping draft.  I understand his claim that the proposed bill is not designed to be an amnesty and that it wants the wait times for adjustment to be long, but wonder, can the immigration process be any more difficult or time consuming than it already is? Wait times for family visas in some instances is twenty years and these are for applicants who are not currenlty in th eUnited States.  In addition,  isn't the very nature of what Rubio and his team are drafting a form of Amnesty?  In most instances, it seems that people who are here illegally do not want to leave.  Permitting them to pay fines and remain in the United States while they adjust status is, in my opinion, a form of Amnesty.  Nevertheless,  if the outcome of these negotitaions means that the problem of eleven million people currently not in lawful status is addressed in a manner that addresses the effects of this untenable situation,  Senator Rubio can call it what he likes.  It iwill be an improvement. 

http://www.huffingtonpost.com/2013/04/14/rubio-immigration-amnesty-_n_3080184.html

Posted by Robert J Maher | Post a Comment

Date: 3/15/2013 12:02 PM EDT


The Department of State recently published the Visa Bulletin for April 2013.  The link for the Department of State website is below. 

http://travel.state.gov/visa/bulletin/bulletin_5900.html

Posted by Robert J Maher | Post a Comment

Date: 3/15/2013 11:37 AM EDT


The below link comes from the American Immigration Council's Immigration Policy Center.  It addresses the argument that undocumented immigrants should "wait in line."  The "line" or "lines" that the article describes are either non-existent or so long that as to make immigration unlikely or impossible for many people. 

Practically speaking, eleven million people are not leaving the United States.  Border security is at an all time high and the number of people crossing illegally into the United States is at an all time low. The time seems is for comprehensive immigration reform that involves a path to citizenship for those who have been here for a long time, pay a fine and pay back taxes.  How we address the nation's need for immigrants and foreign workers is a topic for a follow-up blog. 


http://www.immigrationpolicy.org/just-facts/why-don%E2%80%99t-they-just-get-line

Posted by Robert J Maher | 1 Comment

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